J-S07029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    STEPHEN PALMER                             :
                                               :
                       Appellant               :       No. 756 EDA 2019

            Appeal from the PCRA Order Entered February 25, 2019
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-1204301-2000


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY KING, J.:                             FILED MARCH 04, 2020

        Appellant, Stephen Palmer, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which denied his serial petition

for collateral relief. On November 2, 2001, the court convicted Appellant of

first-degree murder, recklessly endangering another person, and possessing

instruments of crime. The court sentenced Appellant to life imprisonment for

the murder conviction and imposed lesser terms of imprisonment for the other

offenses. This Court affirmed the judgment of sentence on January 10, 2003.

See Commonwealth v. Palmer, 3490 EDA 2001 (Pa.Super. 2003)

(unpublished memorandum). Appellant did not seek further direct review.

        Between 2004 and 2017, Appellant unsuccessfully litigated multiple


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*   Retired Senior Judge assigned to the Superior Court.
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petitions for collateral relief. On March 28, 2018, Appellant filed the current,

serial pro se petition for collateral relief, seeking habeas corpus relief.

Appellant amended his petition on August 17, 2018 and November 16, 2018.

The court treated Appellant’s filings under the Post Conviction Relief Act

(“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546, and issued Pa.R.Crim.P. 907 notice

on January 28, 2019. Appellant responded pro se, and the court denied relief

on February 25, 2019. Appellant timely appealed pro se on March 8, 2019.

      Preliminarily, any petition for post-conviction collateral relief will

generally be considered a PCRA petition, even if captioned as a request for

habeas corpus relief, if the petition raises issues for which the relief sought is

available under the PCRA. See Commonwealth v. Peterkin, 554 Pa. 547,

722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means

of obtaining collateral relief and encompasses all other common law and

statutory remedies for same purpose). Additionally, the timeliness of a PCRA

petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d

849 (Pa.Super. 2016). A PCRA petition must be filed within one year of the

date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A

judgment is “final” at the conclusion of direct review or at the expiration of

time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The PCRA timeliness

exceptions allow very limited circumstances to excuse the late filing of a

petition. See 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).

      Instantly, Appellant raised three claims in his current petition and


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amendments: (1) his murder conviction is unconstitutional because only a

capital murder defendant can be convicted of first-degree murder; (2) the

first-degree murder sentencing statute is void for vagueness because it does

not give fair notice that life imprisonment means “without the possibility of

parole”; and (3) layered ineffectiveness of counsel for failure to obtain mental

health testing to assert diminished capacity or mistaken self-defense, and

failure to preserve this claim in a prior PCRA petition.

       Appellant’s first and third claims are cognizable under the PCRA. See

42 Pa.C.S.A. § 9543(a)(2)(i), (ii) (describing claims of constitutional violations

and ineffectiveness of counsel as cognizable under PCRA); Peterkin, supra.

Here, Appellant’s sentence became final on February 9, 2003, upon expiration

of the time to file a petition for allowance of appeal in our Supreme Court.

See Pa.R.A.P. 1113(a). Appellant filed the current, serial PCRA petition on

March 28, 2018, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).

Appellant did not assert a time-bar exception regarding his claim that his first-

degree murder conviction is unconstitutional.      See id.    As well, Appellant

unsuccessfully litigated his ineffectiveness claim in an earlier PCRA petition.1

See Commonwealth v. Palmer, 3289 EDA 2005 (Pa.Super. 2007)

(unpublished memorandum). See also 42 Pa.C.S.A. § 9543(a)(3) (stating to

be eligible for relief under PCRA, claim must not be previously litigated or


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1 Although this Court initially concluded the ineffectiveness claim was waived,
this Court went on to say the claim lacked arguable merit in any event.

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waived). Further, although Appellant’s “void for vagueness” claim falls outside

the PCRA, he waived it by failing to raise it at sentencing or in a post-sentence

motion. See Commonwealth v. Smith, 194 A.3d 126 (Pa.Super. 2018),

appeal denied, ___ Pa. ___, 208 A.3d 64 (2019) (holding claim that 18

Pa.C.S.A. § 1102 is void for vagueness falls outside of PCRA and seeks habeas

corpus remedy; but, appellant waived challenge where he did not raise it at

sentencing or in post-sentence motion).         Thus, Appellant is not entitled to

collateral relief on any of his claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/20




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