J-S79032-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                  Appellee               :
                                         :
                    v.                   :
                                         :
RONNIE GENE POWELL,                      :
                                         :
                  Appellant              :    No. 1177 EDA 2014


             Appeal from the PCRA Order Entered March 14, 2014
                in the Court of Common Pleas of Lehigh County,
             Criminal Division, at No(s): CP-39-CR-0003264-1998

BEFORE:      ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED FEBRUARY 23, 2015

        Ronnie Gene Powell (Appellant) appeals from the March 14, 2014

order dismissing his motion for habeas corpus. We affirm.

        In 1999, Appellant was convicted by a jury of numerous offenses,

including attempted homicide and kidnapping, and sentenced to 20 to 40

years of imprisonment. He filed no direct appeal. In 2000, Appellant filed a

petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546, the denial of which was affirmed by this Court in

2003.     Commonwealth v. Powell, 829 A.2d 363 (Pa. Super. 2003)

(unpublished memorandum).       Our Supreme Court denied allowance of

appeal in 2004. Commonwealth v. Powell, 853 A.2d 361 (Pa. 2004).




*Retired Senior Judge assigned to the Superior Court.
J-S79032-14


      On January 29, 2014, Appellant filed the habeas corpus motion that is

the subject of this appeal. Therein, he claimed that his sentence is illegal

and that he is being unlawfully detained because the Commonwealth failed

to prove his guilt at trial. Motion for State Habeas Corpus, 1/29/2014, at 2.

The lower court entered an order on February 11, 2014, advising Appellant

that it would treat his motion as a PCRA petition and notifying him of its

intent to dismiss the petition as untimely.   On March 14, 2014, the lower

court entered an order dismissing Appellant’s petition. Appellant timely filed

a notice of appeal1 and statement of errors complained of on appeal.2

      Appellant presents two questions for this Court’s review:

      A.    Whether the lower court erred as a matter of law or
            abused [its] discretion in classifying and dismissing
            [Appellant’s] habeas petition as a PCRA action?

      B.    Whether [a writ of] habeas corpus should issue where the
            record shows a trial so fundamentally unfair as to amount
            to a denial of due process where no evidence was
            presented to sustain [Appellant’s] conviction as conspirator
            or principal?
1
  Appellant’s notice of appeal was not docketed until April 15, 2014, but
contains a proof of service dated April 7, 2014. “[P]ursuant to the ‘prisoner
mailbox rule,’ [] appeals filed by pro se appellants are deemed filed on the
date that the prisoner deposits the appeal with prison authorities or places it
in a prison mailbox.” Commonwealth v. Feliciano, 69 A.3d 1270, 1274
(Pa. Super. 2013) (citing Commonwealth v. Jones, 700 A.2d 423, 426
(Pa. 1997)).
2
  The Commonwealth suggests that Appellant has waived all issues on
appeal by failing to file a 1925(b) statement in accordance with the trial
court’s April 25, 2014 order. However, the record shows that Appellant filed
a concise statement simultaneously with the filing of his notice of appeal.
Accordingly, we find no waiver.


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Appellant’s Brief at 2 (unnecessary capitalization and quotation marks

omitted).

      “[T]he PCRA subsumes all forms of collateral relief, including habeas

corpus, to the extent a remedy is available under such enactment.”

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007).                 Any PCRA

petition, including second and subsequent petitions, must either (1) be filed

within one year of the judgment of sentence becoming final, or (2) plead and

prove a timeliness exception. 42 Pa.C.S. § 9545(b). “[A] defendant cannot

escape the PCRA time-bar by titling his petition or motion as a writ of

habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.

2013).   “Issues that are cognizable under the PCRA must be raised in a

timely PCRA petition and cannot be raised in a habeas corpus petition.” Id.

      To the extent that Appellant claims his conviction results from a denial

of due process, his claim is cognizable under the PCRA. See 42 Pa.C.S.

§ 9543(a)(2)(i) (providing that PCRA relief is available for convictions

resulting from constitutional violations). As Appellant did not file his petition

until roughly ten years after his sentence became final, and he did not plead

and offer to prove a timeliness exception, Appellant’s petition was untimely

filed under the PCRA, and the lower court lacked jurisdiction to entertain the

merits of his due process challenge. See, e.g., Commonwealth v. Watts,

23 A.3d 980, 983 (Pa. 2011) (“[T]he PCRA time restrictions are jurisdictional



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in nature; consequently, Pennsylvania courts may not entertain untimely

PCRA petitions.”).

      To the extent that Appellant is attacking the sufficiency of the evidence

to sustain his convictions, neither the PCRA nor a petition for habeas corpus

offers him a remedy. See, e.g., Commonwealth v. Rounsley, 717 A.2d

537, 539 (Pa. Super. 1998) (holding claim that evidence was insufficient to

sustain conviction “has been waived because [the appellant PCRA petitioner]

failed to raise his sufficiency of the evidence claim on direct appeal”); Com.

ex rel. Ashmon v. Banmiller, 137 A.2d 236, 238 (Pa. 1958) (“[A] habeas

corpus petition is not available for the correction of trial errors which could

have been reviewed and corrected on appeal; it is not a substitute for an

appeal or for a writ of error or for a motion for a new trial.”).

      Accordingly, the lower court did not err in dismissing Appellant’s

petition.

      Order affirmed.




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J-S79032-14


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/23/2015




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