J-S83021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN L. CHARLES,

                            Appellant                  No. 314 WDA 2016


                  Appeal from the PCRA Order February 11, 2016
                In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0010116-1982, CP-02-CR-0010340-
                                      1982


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED DECEMBER 06, 2016

        Appellant, Kevin L. Charles, appeals pro se from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9646. We affirm.

        The trial court summarized the underlying facts of this case as follows:

        On November 25, 1982, two Borough of Wilkinsburg police
        officers went to the apartment of John Conway in the Borough of
        Wilkinsburg, Pennsylvania, in response to information provided
        by one Joseph Harp. Upon entering the unlocked apartment, the
        officers found the body of Mr. Conway. The victim had been
        stabbed five times and was dead when the officers arrived.
        Dr. Leon Rozin, Forensic Pathologist for the Allegheny County
        Coroner’s Office, testified that the cause of death was multiple
        stab wounds to the trunk with severe internal hemorrhages. The

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*
    Retired Senior Judge assigned to the Superior Court.
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      officers found the television set in the apartment still on and the
      apartment in a state of disarray.

            After receiving information that [Appellant] had been
      present at the scene of the homicide, Detective Channing
      Jackson of the Wilkinsburg Police Department called
      [Appellant’s] residence and requested that [Appellant] come to
      the police station.

            Upon his arrival at the police station, [Appellant]
      voluntarily made a statement to Detective Jackson. [Appellant]
      stated that at approximately 10:30 p.m. on November 24, 1982,
      he accompanied his two friends, Vincent Harp and Darryl
      Matthews, to the victim’s apartment. According to [Appellant],
      Vincent Harp planned to rob the victim and tie him up;
      [Appellant] and Darryl Matthews agreed to help Vincent Harp.
      Upon their arrival at the apartment building, Harp and Matthews
      entered the apartment while [Appellant] remained in the parking
      lot as a lookout.      Twenty minutes later, Darryl Matthews
      summoned [Appellant]; [Appellant] then entered the apartment.
      [Appellant] stated that he saw a man “lying on the bedroom
      floor with blood coming from his chest and all over him.”
      According to [Appellant’s] signed statement, he and Vincent
      Harp then took money from the apartment and fled.

Trial Court Opinion, 12/30/86, at 2-3 (citations omitted).

      We summarize the procedural history of this case as follows.          On

November 25, 1982, Appellant was charged with one count of criminal

homicide at CP-02-CR-0010116-1982. On December 7, 1982, Appellant was

charged with one count each of robbery and criminal conspiracy at CP-02-

CR-0010340-1982. On May 27, 1983, a jury convicted Appellant of second-

degree murder, robbery, and criminal conspiracy.       On February 6, 1984,

Appellant was sentenced to a term of life imprisonment for the second-

degree murder conviction.       Appellant was also sentenced to serve a

concurrent term of incarceration of ten to twenty years for the robbery

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conviction. Appellant then filed a direct appeal. On June 21, 1985, a panel

of this Court vacated Appellant’s judgment of sentence and remanded for a

new trial.   Commonwealth v. Charles, 278 Pittsburgh 1984 (Pa. Super.

filed June 21, 1985) (unpublished memorandum).

      A retrial was held in September of 1986. On September 12, 1986, a

jury convicted Appellant of second-degree murder, robbery, and criminal

conspiracy. On November 21, 1986, the trial court sentenced Appellant to

serve a term of life imprisonment for the murder conviction, a concurrent

term of incarceration of ten to twenty years for the robbery conviction, and

no further penalty for the conspiracy conviction.

      Appellant then filed a direct appeal. On November 9, 1987, a panel of

this Court affirmed Appellant’s judgment of sentence for murder and

conspiracy and vacated Appellant’s judgment of sentence for robbery on the

basis of merger of the underlying felony (robbery) with the second-degree

murder conviction. Commonwealth v. Charles, 1744 Pittsburgh 1986 (Pa.

Super. filed November 9, 1987) (unpublished memorandum).          Appellant

then filed a timely petition for allowance of appeal with the Pennsylvania

Supreme Court on December 9, 1987.         On May 13, 1988, our Supreme

Court denied Appellant’s petition for allowance of appeal. Commonwealth

v. Charles, 575 W.D. Alloc. DKT. 1987 (Pa. filed May 13, 1988).

      On July 13, 2015, Appellant filed a “PETITION FOR WRIT OF HABEAS

CORPUS AD SUBJICIENDUM” with the Civil Division of the Court of Common


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Pleas of Allegheny County. On July 28, 2015, the matter was transferred to

the criminal division of the court of common pleas. On September 14, 2015,

the court of common pleas entered an order appointing counsel to represent

Appellant.1     On January 22, 2016, appointed counsel filed a motion to

withdraw as counsel and no-merit letter pursuant to Turner/Finley.2         On

January 26, 2016, the PCRA court filed an order issuing notice of its intent to

dismiss Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907.             On

February 8, 2016, Appellant filed a pro se objection to the PCRA court’s

notice of intent to dismiss. On February 11, 2016, the PCRA court dismissed

Appellant’s PCRA petition and granted PCRA counsel’s motion to withdraw.

This timely pro se appeal followed. On February 29, 2016, the PCRA court

issued an order directing that Appellant file a concise statement pursuant to

Pa.R.A.P. 1925(b) within twenty-one days.        Appellant filed his Pa.R.A.P.

1925(b) statement on May 13, 2016. On July 5, 2016, the PCRA court filed

its opinion pursuant to Pa.R.A.P. 1925(a) addressing the issues raised by

Appellant in his Pa.R.A.P. 1925(b) statement.

       Appellant presents the following issues for our review:



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1
  The order of July 28, 2015, indicated that the court considered Appellant’s
pro se filing to be a PCRA petition. Order, 9/14/15, at 1.
2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      I. Q. Did the Common Pleas Court error in construing or
      dismissing Petitioner’s Writ of Habeas Corpus Ad Subjiciendum
      as a Post Conviction Relief Act petition?

      II. Q. Did the commonwealth create a procedural due process of
      law violation by lodging the criminal charge of 18 Pa. C.S.A. §
      2501 Criminal Homicide?

      III. Q. Did the Court have statutory authorization to impose a
      sentence of life imprisonment?

Appellant’s Brief at 9.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      Initially, we must decide whether this matter is properly before us.

We begin by determining whether the PCRA court correctly considered




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Appellant’s petition to be a PCRA petition. If so, we then determine whether

the petition satisfied the timeliness requirements of the PCRA.3

       The scope of the PCRA is explicitly defined as follows:

       This subchapter 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. This subchapter is not
       intended to limit the availability of remedies in the trial court or
       on direct appeal from the judgment of sentence, to provide a
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3
    We note that Appellant filed his Pa.R.A.P. 1925(b) statement on May 13,
2016, well after the 21-day deadline imposed by the trial court on February
29, 2016. We recognize that the fact that Appellant is acting pro se does
not excuse his failure to comply with the rules of appellate practice.
Commonwealth v. Maris, 629 A.2d 1014, 1017 n.1 (Pa. Super. 1993).
However, given the fact that the trial court accepted Appellant’s untimely
statement and prepared an eleven-page responsive opinion pursuant to
Pa.R.A.P. 1925(a), which comprehensively addressed the issues Appellant
has raised on appeal, we will address the merits of Appellant’s appeal
despite his late filing. See Commonwealth v. Rodriguez, 81 A.3d 103,
104 n.2 (Pa. Super. 2013) (“[T]he untimely filing of a court-ordered Rule
1925(b) statement does not automatically result in waiver of the issues on
appeal. If the trial court accepts an untimely Rule 1925(b) statement and
addresses the issues raised in its Rule 1925(a) opinion, we will not
determine the issues to be waived.”) (internal citation omitted);
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
banc) (“[I]f there has been an untimely filing, this Court may decide the
appeal on the merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on appeal.”). Moreover, the
threshold question of whether Appellant’s pro se PCRA petition was timely
filed is a jurisdictional issue, which can be raised by this Court sua sponte.
Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000).
Therefore, we will review the PCRA court’s determination that it lacked
jurisdiction over Appellant’s pro se petition.



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       means for raising issues waived in prior proceedings or to
       provide relief from collateral consequences of a criminal
       conviction.

42 Pa.C.S. § 9542 (emphasis added).

       The plain language of the statute demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001).    Where a defendant’s claims “are cognizable under the PCRA,

the common law and statutory remedies now subsumed by the PCRA are not

separately available to the defendant.” Id. at 1235 (citations omitted). By

its own language, and by judicial decisions interpreting such language, the

PCRA     provides   the   sole   means   for   obtaining   state   collateral   relief.

Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations

omitted).   Thus, it is well settled that any collateral petition raising issues

with respect to remedies offered under the PCRA will be considered to be a

PCRA petition. Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super.

2001).

       The question then is whether the particular claims at issue, i.e.

whether the Commonwealth’s attorney violated Appellant’s procedural due

process rights and whether the trial court had statutory authority to impose

the sentence of life imprisonment, are claims available to him under the

PCRA. The relevant portion of the PCRA provides as follows:

       (2) That the conviction or sentence resulted from one or more
       of the following:

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            (i)    A violation of the Constitution of this
            Commonwealth or the Constitution or laws of the
            United States which, in the circumstances of the
            particular case, so undermined the truth-determining
            process that no reliable adjudication of guilt or
            innocence could have taken place.

                                    * * *

            (vii) The imposition of a sentence greater than the
            lawful maximum.

42 Pa.C.S. § 9543(a)(2)(i), (vii). Thus, the statute indicates that claims of a

constitutional nature and those that challenge the lawfulness of a sentence

are cognizable under the PCRA. Id.

      Essentially, Appellant is attacking the validity of his underlying murder

conviction and the lawfulness of his sentence of life imprisonment. Because

such claims are cognizable under the PCRA, Appellant is precluded from

seeking relief pursuant to a petition for writ of habeas corpus.       Thus, the

PCRA court had no authority to entertain the claims except under the

strictures of the PCRA.

      We   next    address   whether    Appellant   satisfied   the    timeliness

requirements of the PCRA. A PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.                 42 Pa.C.S.

§ 9545(b)(1).     This time requirement is mandatory and jurisdictional in

nature, and the court may not ignore it in order to reach the merits of the

petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).




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        Effective January 16, 1996, the PCRA was amended to require a

petitioner to file any PCRA petition within one year of the date the judgment

of sentence becomes final.           42 Pa.C.S. § 9545(b)(1).      A judgment of

sentence “becomes 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. § 9545(b)(3).            Where a petitioner’s judgment of

sentence became final on or before the effective date of the amendment, a

special grace proviso allowed first PCRA petitions to be filed by January 16,

1997.     See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa.

Super. 1997) (explaining application of PCRA timeliness proviso).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.4 A petition invoking one of these exceptions must be filed

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4
    The exceptions to the timeliness requirement are:

        (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

(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Our review of the record reflects that Appellant was sentenced on

November 21, 1986. Appellant filed a direct appeal, and this Court affirmed

Appellant’s judgment of sentence for murder and conspiracy and vacated

Appellant’s judgment of sentence for robbery on the basis of merger of the

underlying felony (robbery) with the second-degree murder conviction on

November 9, 1987.           Charles, 1744 Pittsburgh 1986.          Appellant filed a

petition for allowance of appeal, which was denied by the Pennsylvania

Supreme Court on May 13, 1988.                   Charles, 575 W.D. Alloc. DKT. 1987.

Appellant did not file a petition for writ of certiorari with the United States

Supreme Court. Accordingly, Appellant’s judgment of sentence became final

on July 12, 1988, sixty days after the Pennsylvania Supreme Court denied
                       _______________________
(Footnote Continued)

      (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).




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Appellant’s petition for allowance of appeal and the time for filing a petition

for review with the United States Supreme Court expired. See 42 Pa.C.S.

§ 9545(b)(3) (providing that “a judgment becomes 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.”); U.S.Sup.Ct.R. 20.1.5        Thus, Appellant’s

judgment of sentence became final prior to the effective date of the PCRA

amendments. Appellant’s instant PCRA petition, filed on July 13, 2015, does

not qualify for the grace proviso as it was not filed before January 16, 1997.

Thus, the instant PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2). Our review of the record reflects that

Appellant has not alleged, nor has he proven, that any of the three

exceptions to the timeliness requirement of the PCRA is satisfied. 42 Pa.C.S.
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5
    We note that the Rules of the Supreme Court of the United States
pertaining to the time limit for filing a petition for writ of certiorari have
changed various times in relation to both length of time and rule number.
Rule 20.1, which was applicable to this case, required the filing of a petition
for a writ of certiorari within sixty days after the Pennsylvania Supreme
Court denied allocatur and became effective August 1, 1984.



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§ 9545(b)(1).    Thus, the PCRA court did not err in denying Appellant’s

untimely PCRA petition.

      In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the claims presented and grant relief.           See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2016




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