J-S69031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 EDWARD CLYDE SILVIS                     :
                                         :   No. 658 WDA 2017
                    Appellant

                    Appeal from the Order March 28, 2017
               In the Court of Common Pleas of Forest County
               Criminal Division at No(s): No. 5 and 5A 1969


BEFORE:    BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED NOVEMBER 20, 2017

      Appellant Edward Clyde Silvis files this pro se appeal from the order of

the Court of Common Pleas of Forest County, dismissing Appellant’s petition

for writ of coram nobis. Appellant’s filing is actually another untimely attempt

to seek collateral relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541–9546. Accordingly, we affirm on different grounds than set forth below.

      Appellant is an inmate serving a sentence of life imprisonment at the

State Correctional Institution (SCI) at Rockview.       Appellant’s underlying

sentence dates back several decades when Appellant was charged in Forest

County for the April 12, 1969 murder of Ms. Alice Neal Siggins. After a pretrial

motion for change of venue was granted, the case was transferred to

Armstrong County.      In 1970, a jury convicted Appellant of first-degree

murder. Appellant was sentenced to life imprisonment without the possibility


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* Former Justice specially assigned to the Superior Court.
J-S69031-17



of parole. In December 1971, the Supreme Court of Pennsylvania affirmed

the judgment of sentence. See Commonwealth v. Silvis, 284 A.2d 740 (Pa.

1971). Appellant filed three unsuccessful PCRA petitions, the third of which is

discussed in this Court’s published opinion in Commonwealth v. Silvis, 452

A.2d 1045 (Pa.Super. 1982).

       On November 12, 2015, Appellant filed a pro se document which he

styled as a petition for writ of habeas corpus in the Court of Common Pleas of

Forest County. On January 13, 2016, the Court of Common Pleas of Forest

County transferred the petition to the Court of Common Pleas of Armstrong

County where Appellant had been tried and sentenced for murder.1 The Court

of Common Pleas of Armstrong County dismissed the petition for lack of

jurisdiction, asserting that Appellant was required to file a petition for writ of

mandamus in the Commonwealth Court.

       After Appellant filed a direct appeal, a panel of this Court characterized

Appellant’s habeas petition as an untimely PCRA petition and affirmed the

dismissal of the petition.      See Commonwealth v. Silvis, 525 WDA 2016

(Pa.Super. March 14, 2016) (unpublished memorandum). See 42 Pa.C.S.A.

§ 9545 (providing that a petition for relief under the PCRA must be filed within

one year of the date the PCRA petitioner's judgment of sentence becomes final

unless the petitioner alleges and proves that an exception to the one-year



____________________________________________


1 The January 13, 2016 order, which had mistakenly identified Appellant as
Richard Clyde Silvis, was corrected in a new order filed on January 20, 2016.

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time-bar is met). Appellant did not appeal this Court’s characterization of his

filing as an untimely PCRA petition.

       On January 30, 2017, Appellant filed the instant pro se petition, labeled

“Writ of Error Coram Nobis,” in the Court of Common Pleas of Forest County,

attempting to challenge the lower court’s decision to transfer Appellant’s

purported habeas petition to Armstrong County.          Specifically, Appellant

accused the Forest County clerk of courts of committing fraud and an abuse

of power in transferring Appellant’s previous petition to Armstrong County.

The lower court in this case denied Appellant’s petition, which it characterized

as a motion for reconsideration of its decision to transfer Appellant’s

previously-filed petition to Armstrong County. This appeal followed.

       Before we reach the merits of Appellant’s claims, we must discuss the

procedural posture of the case. Although Appellant labeled the instant filing

in the lower court as a petition for writ of coram nobis,2 Appellant’s claims

centered on alleged procedural errors committed by the lower court in his

previously filed “habeas” petition, which this Court deemed to be an untimely

PCRA petition. While Appellant filed the instant action in an attempt to seek

an additional round of collateral review of his previous petition, he fails to
____________________________________________


2 A writ of coram nobis “is generally available to challenge the validity of a
judgment based on facts not before the court when the judgment was
entered.” Commonwealth v. Descardes, 635 Pa. 395, 413, 136 A.3d 493,
504 (2016) (quoting Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d
465, 467 (1971)). Appellant does not set forth any allegations to suggest
there were extrinsic facts that were unknown and unknowable, and if known,
would have altered the result.


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acknowledge that he did not object to the allegedly improper transfer of his

case at any point during the pendency of that petition. As a result, Appellant’s

argument is waived for his failure to raise this claim in the collateral review of

his prior PCRA petition. See Commonwealth v. Blakeney, 631 Pa. 1, 37,

108 A.3d 739, 761 (2014) (citing 42 Pa.C.S.A. § 9544(b)) (“The PCRA

specifically provides that an issue has been waived if it could have been raised

but was not raised before trial, at trial, on appeal or in a prior state post-

conviction proceeding”).

      Even assuming that Appellant’s claims in instant case were not waived,

Appellant’s petition for writ of coram nobis filed in this case should have been

treated as another PCRA petition. Our courts have emphasized that “[t]he

PCRA … subsumes the remedies of habeas corpus and coram nobis.”

Commonwealth v. Turner, 622 Pa. 318, 345, 80 A.3d 754, 770 (2013)

(quoting 42 Pa.C.S.A. § 9542 (“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”)).

Issues that are cognizable under the PCRA must be raised in a timely PCRA

petition. Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013).

      While the lower court characterized Appellant’s petition for writ of coram

nobis as a frivolous motion for reconsideration of its dismissal of Appellant’s

previous petition, the lower court should have construed the instant filing as

another untimely PCRA petition, which it lacked jurisdiction to review. It is

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well-established that “the PCRA's timeliness requirements are jurisdictional in

nature and must be strictly construed; courts may not address the merits of

the issues raised in a petition if it is not timely filed.” Commonwealth v.

Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011) (citations omitted).

       Generally, a PCRA petition must be filed within one year of the date the

judgment of sentence becomes final unless the petitioner meets his burden to

plead and prove one of the exceptions enumerated in 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability to raise a claim

as a result of governmental interference; (2) the discovery of previously

unknown facts or evidence that would have supported a claim; or (3) a newly-

recognized constitutional right.          42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).    A

judgment of sentence becomes final at the conclusion of direct review or the

expiration of the time for seeking the review. 42 Pa.C.S.A. § 9543(b)(3).

       In this case, as our Supreme Court affirmed the judgment of sentence

on direct appeal on December 20, 1971, the judgment of sentence became

final three months later on March 19, 1972, after the expiration of the ninety-

day period in which Appellant was allowed to seek review in the U.S. Supreme

Court. See U.S. Sup.Ct. R. 13(1). Thus, this petition, filed on January 30,

2017, is facially untimely.3

____________________________________________


3In 1995, our Legislature amended the PCRA, adding the timeliness provisions
of section 9545(b). The 1995 amendments provided a grace period for
petitioners whose judgments of sentence became final on or before the
January 16, 1996 effective date of the amendments. However, the grace



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       Moreover, none of the timeliness exceptions set forth in section

9545(b)(i-iii) are applicable.       While the lower court should have treated

Appellant’s filing as an untimely PCRA petition and issued pre-dismissal notice

in accordance with Pa.R.Crim.P. 907, this fact does not warrant reversal. See

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (holding that

even if a notice of intent was not issued and the issue is raised on appeal, it

does not automatically warrant reversal where the petition is untimely). This

discrepancy does not prejudice Appellant as there are no facts that he would

be able to plead to invoke one of the timeliness exceptions to save this

patently untimely PCRA petition. Even assuming for the sake of argument

that there was any merit to Appellant’s suggestion that the trial court or clerk

of courts improperly transferred his previously filed petition to Armstrong

County, Appellant does not acknowledge and has never challenged this Court’s

ruling that the underlying petition was also an untimely PCRA petition.

       Since the court below was without jurisdiction to reach the merits of the

petition, we affirm.

       Order affirmed.




____________________________________________


period applies only to first petitions filed by January 16, 1997. See
Commonwealth v. Thomas, 718 A.2d 326, 329–30 (Pa.Super. 1998) (en
banc). As Appellant's current petition was his fifth attempt at post-conviction
relief and was filed more than one year after his judgment of sentence became
final, this exception does not apply.


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J-S69031-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




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