J-S50023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

 MARIE BURNSIDE SCOTT

                             Appellant                    No. 2246 EDA 2016


                   Appeal from the PCRA Order June 13, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0411022-1973


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY MOULTON, J.:                           FILED DECEMBER 20, 2017

       Marie Burnside Scott appeals from the June 13, 2016 order entered in

the Philadelphia County Court of Common Pleas dismissing as untimely her

petitions filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-46. We affirm.

       The PCRA court set forth the following procedural history:

               On May 16, 1974, following a jury trial before the
           Honorable Stanley Kubacki, [] Scott . . . was found guilty of
           first degree murder[, 18 Pa.C.S. § 2502].[1] On June 27,
           1974, [Scott] was sentenced to life imprisonment. [Scott]
           appealed, and the Supreme Court affirmed her conviction
           on November 14, 1976.2 [Scott] admits in her petition she
           filed at least three prior post conviction relief petitions.3 All
           were dismissed.

____________________________________________


       1The jury also convicted Scott of burglary, 18 Pa.C.S. § 3502, and
conspiracy to commit an unlawful act, 18 Pa.C.S. § 903.
J-S50023-17


              2 Commonwealth v. Scott, 365 A.2d 853 (Pa.
              1976).
              3 [Scott] states she filed post conviction petitions on
              January 3, 1977, February 21, 1978, and May 27,
              1981. PCRA Petition, 3/18/16 at p.5. A review of the
              record verified that [Scott] had at least one prior post
              conviction proceeding.      In 1988, [Scott] filed a
              petition for collateral relief, the petition was
              dismissed, and the dismissal affirmed by the Superior
              Court on May 24, 1988. Commonwealth v. Scott,
              545 A.2d 399 (Pa.Super. 1988) (table).

Opinion, 12/8/16, at 1 (“1925(a) Op.”).

       On August 23, 2013, Scott filed a PCRA petition. On June 15, 2015 and

June 23, 2015, Scott filed petitions for writ of habeas corpus. On March 18,

2016, Scott filed a supplemental PCRA petition. On April 26, 2016, the PCRA

Court issued notice of its intent to dismiss the petitions without a hearing

under Pennsylvania Rule of Criminal Procedure 907. Scott filed a response to

the notice on May 2, 2016 and an additional supplemental petition on May 17,

2016. On June 13, 2016, the PCRA court dismissed the petitions. 2 Scott filed

a timely notice of appeal.

       Scott raises 12 issues on appeal, making claims of trial counsel

ineffectiveness, imposition of an illegal sentence, and trial court error.

       Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.
____________________________________________


       The June 13, 2016 order stated that the “petitions filed on August 23,
       2

2013 by [Scott] are dismissed as untimely.” Order, 6/12/16 (emphasis
deleted). It appears the PCRA court treated all subsequent petitions as
supplements to the petition filed on August 23, 2013.

                                           -2-
J-S50023-17



Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

     The PCRA court concluded that: (1) Scott’s August 2013 PCRA petition

was untimely and she failed to invoke any time-bar exception; (2) Scott’s

March and May 2016 PCRA petitions were untimely and, because Scott was

19 years old at the time of the murder, she was unable to satisfy the new-

constitutional-right time-bar exception based on Miller v. Alabama, 567 U.S.

460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016); and (3)

Scott’s petitions for habeas corpus should be treated as PCRA petitions

because the claims are cognizable under the PCRA, the petitions were untimely

under the PCRA, and Scott failed to plead and prove a time-bar exception.

1925(a) Op. at 2-6. After reviewing the record, the parties’ briefs, and the

relevant law, we affirm on the basis of the well-reasoned opinion of the

Honorable Leon W. Tucker, which we adopt and incorporate herein.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2017




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                                                                                                                                                                                                                                              Circulated 12/15/2017 09:41 AM




                                                                              COURT OF COMMON PLEAS OF PHILADLEPHIA COUNTY
                                                                                 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                                                                         CRIMINAL TRIAL DIVISION                                                                                                                                                            DEC -8 2016

                                                                                                                                                            CP-51-CR-0411022-1973 Comm. v. Scott, Marie
                                                                                                                                                                       Memorandum Opinion
                                            COMMONWEALTH OF

                                                                                                                                                                                         I I II Ill
                                            PENNSYLVANIA
                                                                                                                                                                     II 1111111111111111
                                                                                                                                                                             7874166451
                                            v.
                                                                                                                                                                                                                                  CP-51-CR-0411022-1973
                                            MARIE BURNSIDE SCOTT
                                                                                                                                                                                                                                                2246 EDA 2016

                                                                                                                                                                 OPINION

                                            LEON W. TUCKER, J.

                                                             This appeal comes before the Superior Court following the dismissal of a Post Conviction

                                            Relief Act ("PCRA")1 petition filed on August 8, 2013. On June 13, 2016, the PCRA court

                                            dismissed this petition for the reasons set forth below.

                                                  I.                   PROCEDURAL HISTORY

                                                                On May 16, 1974, following a jury trial before the Honorable Stanley Kubacki, Marie

                                            Scott (hereinafter referred to as "Petitioner") was found guilty of first degree murder. On June 27,

                                            1974, Petitioner was sentenced to life imprisonment. Petitioner appealed, and the Supreme Court

                                            affirmed her conviction on November 14, 1976.2 Petitioner admits in her petition she filed at least

                                            three prior post conviction relief petitions. 3 All were dismissed.

                                                             On August 8, 2013, Petitioner filed the instant petition. Petitioner then filed two writs of



                                            1 42 Pa. Cons. Stat.§§ 9541-9546.
                                            2
                                              Commonwealth v. Scott, 365 A.2d 853 (Pa. 1976).
                                            3 Petitioner states she filed post conviction petitions on January 3, 1977, February 21, 1978, and

                                            May 27, 1981. PCRA Petition, 3/ 18/16 at p. 5. A review of the record verified that Petitioner had
                                            at least one prior post conviction proceeding. In 1988, Petitioner filed a petition for collateral
                                            relief, the petition was dismissed, and the dismissal affirmed by the Superior Court on May 24,
                                            1988. Commonwealth v. Scott, 545 A.2d 399 (Pa. Sup. 1988) (table).
                                                                                                                                                                                1
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                                habeas corpus on June 15, 2015, and July 23, 2015. Petitioner additionally filed a supplemental

                                petition for PCRA relief on March 18, 2016. In accordance with Pennsylvania Rule of Criminal

                                Procedure 907, Petitioner was served notice of the PCRA court's intention to dismiss her petition

                                on April 26, 2016. Petitioner filed a response to the court's notice on May 2, 2016 and May 17,

                                2016. The PCRA court dismissed her petitions on June 13, 2016.4 Petitioner timely filed a notice

                                of appeal to the Pennsylvania Superior Court on July 11, 2016.

                                         II.                    DISCUSSION

                                                 A. Petitioner's current PCRA petition was manifestly untimely.

                                                    Petitioner's PCRA petition challenging the constitutionality of her sentence was facially

                                untimely. As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional requisite.

                                 Commonwealth v. Robinson, 12 A.3d 477 (Pa. Super. 2011). 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. Cons. Stat. § 9545(b)(l). 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." Id. § 9545(b)(3).

                                                    Petitioner's judgment of sentence became final for PCRA purposes on or about February

                                 14, 1977, ninety days after the Pennsylvania Supreme Court affirmed her judgment of sentence

                                 and the time period for filing a petition for writ of certiorari in the United States Supreme Court

                                expired. See id.; See U.S.Sup.Ct.R. 22 (effective July 1, 1970, until amended June 30, 1980, at

                                U.S.Sup.Ct.R. 20; allowing 90 days to file petition for writ of certiorari). Petitioner's pro se

                                petition, filed on August 8, 2013, wastherefore untimely by approximately thirty-six years. See 42



                                4As the trial judge is no longer sitting, the Honorable Leon W. Tucker issued the order and opinion
                                in this matter in his capacity as Supervising Judge of the Criminal Section of the Court of Common
                                Pleas of Philadelphia- Trial Division as of March 7, 2016.
                                                                                                                                                      2
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                                       Pa. Cons. Stat. § 9545(b)(1 ).

                                                                B. Petitioner was ineligible for the limited timeliness exceptions under 42 Pa. Cons.
                                                                   Stat.§ 9545 (b)(l).

                                                                    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. Id. To invoke an

                                       exception, a petition must allege and the petitioner must 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 has been held by that court to apply retroactively.

                                       Id. § 9545(b)(1 )(i)-(iii).

                                                                    In her August 2013 petition, Petitioner generally stated that she was entitled to collateral

                                       relief due to her trial counsel's ineffectiveness and other various trial errors. However, Petitioner

                                       completely repudiated any attempt to invoke any exception to her untimeliness, and therefore, this

                                       court was without jurisdiction to address her untimely petition. 5

                                                                    In her March 2016 and May 2016 petitions, Petitioner attempted to invoke the "newly-

                                       recognized right" exception6 by raising the constitutional right announced in the United States



                                       5
                                         The PCRA's time limit is mandatory and jurisdictional. Commonwealth v. Beasley, 741 A.2d
                                       1258 (Pa. 1999). A court does not have jurisdiction to consider the merits of a petition if it is
                                       untimely filed and the petitioner does not prove one of the three exceptions to the time limits of
                                       the PCRA. Gamboa-Taylor, 753 A.2d at 785. It is well settled that allegations of ineffective
                                       assistance of counsel alone will not overcome the timeliness requirements. Commonwealth v.
                                       Edmiston, 65 A.3d 339 (Pa. 2013). Moreover, the responsibility to plead and prove a claim under
                                       the PCRA by a preponderance of the evidence lies solely with the petitioner. 42 Pa. Cons. Stat.§
                                       9543(a).
                                       6 Subsection
                                                     (iii) of Section 9545[(b)(l)] has two requirements. First, it provides that the right
                                                                                                                           3
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                                                                                                                                                                                                                                                                                                                              ·
                                         Supreme Court's decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In Montgomery,

                                         the Court held retroactive its prior holding in Miller v. Alabama, 132 S. Ct. 2455 (2012). The

                                         Miller Court held that mandatory life sentences without the possibility of parole for juvenile

                                         offenders convicted of murder violates the 8th Amendment's prohibition on cruel and unusual

                                         punishment. Miller, 132 S.Ct. at 2460. However, the Court was explicit that its holding in Miller

                                         applies only to offenders under the age of eighteen at the time of their offense. Id ("We therefore

                                         hold that mandatory life without parole for those under the age of 18 at the time of their crimes

                                         violates the Eighth Amendment's prohibition on 'cruel and unusual punishments."'). Here,

                                         Petitioner fully conceded that she was 19 years old at the time of the murder. PCRA Petition,

                                         5/2/16, at 1. Because Petitioner was not a juvenile at the time of her offense, she failed to

                                         successfully invoke this exception.

                                                              C. The claims alleged in Petitioner's habeas corpus petitions are cognizable under the
                                                                 PCRA and upon review, are untimely without exception.

                                                                 Petitioner's filings styled "Petition for Habeas Corpus" raised claims that fell within the

                                         ambit of the PCRA7 because they were potentially remediable under it. As iterated by the Superior

                                         Court,


                                         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 provided in this section. Second, it provides
                                         that the right "has been held" by "that court" to apply retroactively ... These words mean that the
                                         action has already occurred, i.e., "that court" has already held the new constitutional right to be
                                         retroactive to cases on collateral review. By employing the past tense in writing this provision,
                                         the legislature clearly intended that the right was already recognized at the time the petition was·
                                         filed. Commonwealth v. Copenhefer, 94 l A.2d 646, 649-50 (Pa. 2007) (quoting Commonwealth
                                         v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)).
                                         7 The PCRA
                                                       provides for an action by which persons convicted of crimes they did not commit and
                                         persons serving illegal sentences may obtain collateral relief. "The action established in this
                                         subchapter shall be the sole means of obtaining collateral relief and encompasses all other common
                                         law and statutory remedies for the same purpose that exist when this subchapter takes effect,
                                         including habeas corpus and coram nobis." 42 Pa. Cons. Stat.§ 9542.


                                                                                                                                                                                          4
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                                                                    It is well-settled that the PCRA is intended to be the sole means of achieving post-
                                                                    conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011).
                                                                    Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes
                                                                    the writ of habeas corpus. Fahy, supra at 223-224; Commonwealth v. Chester, 733 A.2d
                                                                    1242 (Pa. 1999). Issues that are cognizable under the PCRA must be raised in a timely
                                                                    PCRA petition and cannot be raised in a habeas corpus petition. See Commonwealth v.
                                                                    Peterkin, 722 A.2d 638 (Pa. 1998); see also Commonwealth v. Deaner, 779 A.2d 578 (Pa.
                                                                    Super. 2001) (a collateral petition that raises an issue that the PCRA statute could remedy
                                                                    is to be considered a PCRA petition). Phrased differently, a defendant cannot escape the
                                                                    PCRA time-bar by titling [her] petition or motion as a writ of habeas corpus.

                                         Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013).

                                                                    In her habeas corpus petitions filed June 15, 2015 and July 23, 2015, Petitioner's argued

                                        that she was serving an illegal sentence because statutes that were not yet adopted into law at the

                                        time of her crime were applied against her, in violation of the presumption against retroactive

                                        effect under 1 Pa. Cons. Stat. § 1926. More specifically, Petitioner argued when the Crimes Code

                                         supplanted the Penal Code on December 6, 1972, the statutes under which she was charged,

                                         convicted and sentenced! were not in effect. In essence, her claims implicated the legality of her

                                         sentence and therefore was cognizable under the PCRA. 42 Pa. Cons. Stat§ 9543(a)(2)(vii) (illegal

                                         sentencing claims are cognizable under the PCRA). Thus, this court was constrained to review

                                        these claims pursuant to the PCRA's dictates. However, Petitioner did not even attempt to invoke

                                        one of the timeliness exceptions; instead, she merely lingered upon the purported illegality of her

                                         conviction and sentence. The PCRA court therefore lacked jurisdiction to address Petitioner's

                                        substantive claims.

                                                                   In her habeas corpus petition, filed July 23, 2015, Petitioner claimed she was entitled to

                                        relief because the jury failed to unanimously record a suggested penalty on the penalty slip after

                                        finding her guilty of first degree murder. This claim also fell within the purview of the PCRA



                                         8
                                           18 Pa. Cons. Stat. §903; 18 Pa. Cons. Stat. §2502; 18 Pa. Cons. Stat. § 3502; 18 Pa. Cons. Stat.
                                         § 3701; and 18 Pa. Cons. Stat.§ 6106.
                                                                                                                                                                                           5
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                                   framework because the PCRA provides relief for alleged trial court errors. See Commonwealth v.

                                   Peterkin, 722 A.2d 638, 640 (1998). Consequently, her petition was subject to the timeliness

                                   provision of the PCRA. Again, Petitioner failed to satisfy her burden of establishing an exception

                                   to the PCRA's statutory time-bar.

                                             III.               CONCLUSION

                                                    Once more, this court has evaluated Petitioner's untimely filing, and determined the claims

                                   contained therein to be untimely without exception. For the foregoing reasons, this court's

                                   dismissal of Petitioner's PCRA petition and subsequently filed petitions should be affirmed.




                                                                                                                                                                                                               LEON W. TUCKER, J./ gl




                                                                                                                                                                        6
