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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     v.                  :
                                         :
ERNEST WOODALL,                          :          No. 565 WDA 2013
                                         :
                          Appellant      :


                   Appeal from the Order, February 25, 2013,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0008320-1996


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 14, 2015

        Ernest Woodall appeals, pro se, from the order of February 25, 2013,

dismissing his serial PCRA1 petition as untimely. We affirm.

        The facts of this case were described in a prior memorandum of this

court:

                     On May 5, 1996, two uniformed Pittsburgh
              police officers on routine patrol in a marked wagon
              noticed Appellant’s vehicle parked in the middle of
              the street with the engine idling and a door open,
              blocking traffic in either direction, while he was
              standing on the sidewalk, talking to a female. One
              of the police officers, Edward Dent, knew Appellant
              personally from the neighborhood, and from towing
              his vehicle a week earlier. When Officer Dent asked
              him to move his vehicle, Appellant responded, “Fuck
              you,” and ran to the back of the vehicle. Both
              officers followed. (See N.T. Trial, 11/9-12/04, at
              37-44).

1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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                In the scuffle which ensued, Appellant
          attempted to draw a .45 Glock handgun from his
          waistband, but it fell to the ground. He managed to
          run away. The police began to follow him, but
          decided to stay behind to secure the Glock, which
          was loaded and equipped with a laser sight, and
          other firearms found in Appellant’s vehicle, a
          .9 millimeter Smith & Wesson handgun, and an
          SKS assault rifle, both also loaded. (Id. at 53-56).
          The two officers radioed for back-up and prepared to
          tow the vehicle.

                However, Appellant soon returned, this time
          with an AK-47 assault rifle, which he pointed at the
          police, saying, “I want my shit, give me my shit
          now.” (Id. at 58). When they did not comply, he
          fired at them, now six police in all, including those
          who had arrived in response to the radio call.
          Appellant then escaped.

                The police apprehended Appellant the next
          day, but he fled the jurisdiction soon after he was
          charged. He was not discovered until almost seven
          years later, when the National Crime Information
          Center informed an FBI agent assigned to the
          Pittsburgh Fugitive Task Force that there was a
          possible    fingerprint     match    between       one
          “Joseph Brown,” a/k/a “Allan Alphonso Garner,”
          recently arrested in Montgomery County, Alabama,
          and Appellant. Appellant was arrested in February,
          2003, in the office of his Alabama parole officer, and
          eventually returned to Pittsburgh through the
          Interstate    Agreement      on   Detainers     (IAD),
          42 Pa.C.S.A. §§ 9101-9108. Following a hearing,
          the trial court denied pre-trial motions, and trial
          commenced in November of 2004.

                After the jury convicted Appellant of four
          counts of attempted homicide, six counts of
          aggravated assault, and one count of violation of the
          Uniform Firearms Act (VUFA), the trial court
          sentenced him to an aggregate term of thirty-two to
          eighty years’ imprisonment. This Court affirmed the


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           judgment of sentence, and our Supreme Court
           denied allowance of appeal on May 10, 2007.

                  On December 19, 2007, Appellant filed a
           timely pro se petition for PCRA relief. The PCRA
           court appointed counsel, who filed an amended
           petition. After the PCRA court filed notice of its
           intent to dismiss pursuant to Pa.R.Crim.P. 907,
           counsel filed a second amended petition and
           response to the notice of intent. The PCRA court
           dismissed the petition on May 4, 2009. Appellant
           filed a timely pro se notice of appeal, and the PCRA
           court appointed counsel to represent him.

Commonwealth       v.   Woodall,    No.   897    WDA    2009,    unpublished

memorandum at 1-3 (Pa.Super. filed October 20, 2010). This court affirmed

dismissal of appellant’s first PCRA petition on October 20, 2010. Appellant

did not file a petition for allowance of appeal with the Pennsylvania Supreme

Court.

     On November 10, 2011, appellant filed a second pro se PCRA petition,

which was dismissed without a hearing, following Rule 907 notice, on

December 2, 2011. No direct appeal was taken from this dismissal.

     On December 16, 2011,2 appellant filed, pro se, a petition for

habeas corpus relief which was        properly treated as a third PCRA




2
 Appellant’s petition was not docketed until December 21, 2011. However,
we are mindful of the so-called “prisoner mailbox rule,” pursuant to which a
document is deemed filed on the date that a prisoner delivers it to prison
authorities for mailing. Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997). The record indicates that appellant’s petition was mailed from
SCI-Dallas on December 16, 2011. (Docket #93.)


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petition.3 On January 22, 2013, the PCRA court gave Rule 907 notice of its

intent to dismiss the petition within 20 days without a hearing; and with no

response forthcoming from appellant, his petition was dismissed on

February 25, 2013.    Appellant filed a timely pro se notice of appeal on

March 13, 2013. On April 15, 2013, appellant was ordered to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P. 1925(b); appellant timely complied on May 3, 2013, and on

May 13, 2013, the PCRA court filed a Rule 1925(a) opinion.

           The standard of review for an order denying
           post-conviction relief is limited to whether the record
           supports the PCRA court’s determination, and
           whether that decision is free of legal error. The
           PCRA court’s findings will not be disturbed unless
           there is no support for the findings in the certified
           record. Furthermore, a petitioner is not entitled to a
           PCRA hearing as a matter of right; the PCRA court
           can decline to hold a hearing if there is no genuine
           issue concerning any material fact and the petitioner
           is not entitled to post-conviction collateral relief, and
           no purpose would be served by any further
           proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           Pennsylvania law makes clear no court has
           jurisdiction to hear an untimely PCRA petition.

3
  Appellant’s petition for writ of habeas corpus is properly treated as a
serial PCRA petition, since the PCRA is the sole means by which a defendant
may obtain collateral relief and subsumes the remedy of habeas corpus
with respect to remedies offered under the Post-Conviction Relief Act.
42 Pa.C.S.A. § 9542.


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          Commonwealth v. Robinson, 575 Pa. 500, 508,
          837 A.2d 1157, 1161 (2003). The most recent
          amendments to the PCRA, effective January 16,
          1996, provide a PCRA petition, including a second or
          subsequent petition, shall be filed within one year of
          the date the underlying judgment becomes final.
          42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
          Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
          Commonwealth v. Vega, 754 A.2d 714, 717
          (Pa.Super.2000). A judgment is deemed final “at
          the    conclusion   of   direct    review,   including
          discretionary review in the Supreme Court of the
          United States and the Supreme Court of
          Pennsylvania, or at the expiration of time for seeking
          the review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).

          The three statutory exceptions to the timeliness
          provisions in the PCRA allow for very limited
          circumstances under which the late filing of a
          petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
          To invoke an exception, a petition must allege and
          prove:

          (i)     the failure to raise the claim previously
                  was the result of interference by
                  government       officials   with     the
                  presentation of the claim in violation of
                  the Constitution or laws of this
                  Commonwealth or the Constitution or
                  laws of the United States;

          (ii)    the facts upon which the claim is
                  predicated    were unknown  to the
                  petitioner and could not have been
                  ascertained by the exercise of due
                  diligence; or

          (iii)   the right asserted is a constitutional right
                  that was recognized by the Supreme
                  Court of the United States or the
                  Supreme Court of Pennsylvania after the
                  time period provided in this section and


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                  has been held by that court to apply
                  retroactively.

            42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
            PCRA petition is not filed within one year of the
            expiration of direct review, or not eligible for one of
            the three limited exceptions, or entitled to one of the
            exceptions, but not filed within 60 days of the date
            that the claim could have been first brought, the trial
            court has no power to address the substantive merits
            of a petitioner’s PCRA claims.” Commonwealth v.
            Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
            (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080.

      Instantly, the Supreme Court of Pennsylvania denied allowance of

appeal on May 10, 2007. Commonwealth v. Woodall, No. 526 WAL 2006

(per curiam). Therefore, appellant’s judgment of sentence became final for

PCRA purposes on or about August 8, 2007, upon expiration of the time to

file a petition for writ of certiorari with the United States Supreme Court.

See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13, 28 U.S.C.A. (petition

for writ of certiorari is deemed timely when it is filed within 90 days after

denial of allocatur).    Appellant filed the current petition, his third, on

December 16, 2011, over four years later.       Therefore, appellant’s current

PCRA petition is manifestly untimely on its face.

      Appellant does not attempt to plead and prove any of the three

exceptions to the one-year jurisdictional time bar. Instead, he claims that

his sentence is illegal because his four convictions of attempted homicide

should   have   merged    for   sentencing   purposes.    Appellant   received



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consecutive sentences of 8 to 20 years’ imprisonment on each of the four

counts of attempted homicide. Appellant argues that an illegal sentence is

always subject to correction and cites 18 Pa.C.S.A. § 906, “Multiple

convictions of inchoate crimes barred,” which provides: “A person may not

be convicted of more than one of the inchoate crimes of criminal attempt,

criminal solicitation or criminal conspiracy for conduct designed to commit or

to culminate in the commission of the same crime.”

      Appellant is correct that the concept of merger implicates the legality

of sentencing and is generally non-waivable (see, e.g., Commonwealth v.

Duffy, 832 A.2d 1132, 1136 (Pa.Super. 2003), appeal denied, 845 A.2d

816 (Pa. 2004)); however, such a claim is still subject to the PCRA’s time

limitations.

               The timeliness requirements of the PCRA do not vary
               based “on the nature of the constitutional violations
               alleged therein . . . .   To the contrary, . . . the
               PCRA’s timeliness requirements . . . are intended to
               apply to all PCRA petitions, regardless of the nature
               of    the    individual  claims     raised    therein.”
               Commonwealth v. Murray, 562 Pa. 1, 753 A.2d
               201, 202-03 (2000). Because the “PCRA’s timeliness
               requirements are mandatory and jurisdictional in
               nature, no court may properly disregard or alter
               them in order to reach the merits of the claims
               raised in a PCRA petition that is filed in an untimely
               manner.”

Commonwealth v. Howard, 788 A.2d 351, 356 (Pa. 2002), quoting

Murray, 753 A.2d at 203. Indeed, “even claims that a sentence was illegal,

an issue deemed incapable of being waived, are not beyond the jurisdictional



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time restrictions.”   Commonwealth v. Grafton, 928 A.2d 1112, 1114

(Pa.Super. 2007), citing Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).

Therefore, appellant’s illegal sentencing claim does not operate as an

independent exception to the PCRA’s jurisdictional time bar.

      At any rate, appellant’s argument is misplaced. His conviction of four

separate counts of attempted homicide did not merge for sentencing

purposes where they related to four individual victims. The record reflects

that appellant shot at four different police officers. Appellant’s conduct was

designed to culminate in the commission of separate and distinct crimes.

Therefore, the convictions did not merge. See Commonwealth v. Graves,

508 A.2d 1198 (Pa. 1986) (per curiam) (conspiracy and solicitation did not

merge where each was directed at a different end; “inchoate crimes merge

only when directed to the commission of the same crime, not merely

because they arise out of the same incident”); Commonwealth v. Hassine,

490 A.2d 438, 465 (Pa.Super. 1985), overruled on different grounds,

Commonwealth v. Schaeffer, 536 A.2d 354 (Pa.Super. 1987) (en banc)

(sentences for conspiracy and attempt would not merge where there were

two separate victims).

      As appellant’s petition was untimely filed, the PCRA court did not have

jurisdiction to consider it. The PCRA court did not err in denying appellant’s

petition.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/14/2015




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