J-S33042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAMIEN MIKALL                            :
                                          :
                    Appellant             :   No. 2408 EDA 2017

                  Appeal from the PCRA Order July 11, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0712152-1996


BEFORE:    OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JUNE 05, 2018

      Appellant, Damien Mikall, appeals pro se from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his self-styled

Petition for Writ of Coram Norbis as a serial petition under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Herein, Appellant contends

the court erred in deeming his petition both cognizable and untimely under

the PCRA. We affirm.

      The PCRA court aptly provides a procedural history of the case as

follows:

      In August 1997, following a jury trial, Damian Mikall, a/k/a
      Damian Mikell, petitioner herein [hereinafter “Appellant”], was
      convicted of first-degree murder, possession of a weapon of crime,
      and criminal conspiracy before the Honorable Jane Cutler
      Greenspan. On January 21, 1998, Appellant was sentenced to life
      imprisonment on the murder charge and concurrent sentences on
      the remaining charges. On February 24, 2000, following a direct
      appeal, the Superior Court affirmed the judgment of sentence.

____________________________________
* Former Justice specially assigned to the Superior Court.
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     Appellant’s request for allocator was subsequently denied on
     October 27, 2000.

     Appellant filed his first pro se PCRA petition on October 22, 2001,
     which was denied on August 21, 2002. The lower court’s denial
     was affirmed on appeal on July 8, 2003. Appellant’s request for
     allocator was subsequently denied on February 25, 2004.

     Appellant filed his second PCRA petition on November 20, 2008,
     which was dismissed as untimely on January 27, 2010, by the
     Honorable Sheila Woods-Skipper, who at the time was the
     Supervising Judge of the Criminal Division of the First Judicial
     District. [Judge Woods-Skipper decided the matter because the
     Honorable Jane C. Greenspan was no longer sitting as a Common
     Pleas judge having been appointed to the Pennsylvania Supreme
     Court in 2008.] The Superior Court affirmed the dismissal on
     February 4, 2011.

     Appellant filed his third PCRA petition pro se on July 29, 2014. . .
     . Pursuant to Pennsylvania Rule of Criminal Procedure 907,
     Appellant was served with notice of the court’s intention to dismiss
     his PCRA petition on February 17, 2015. Appellant submitted a
     response on March 17, 2015. The [PCRA] court thereafter
     dismissed his petition as untimely on April 15, 2015. On May 20,
     2015, Appellant filed a notice of appeal to the Superior Court,
     which on November 5, 2015, dismissed the appeal due to the
     failure to file a brief.

     On December 30, 2016, Appellant filed a Petition for Writ of Coram
     Nobis wherein he argued that he is entitled to relief because
     Justice Greenspan indicated in 2005 that Her Honor had
     inadvertently failed to address a weight of the evidence claim set
     forth in a post-sentence motion and that had she been aware that
     a weight claim had been raised in the post-sentence motion, relief
     may have been forthcoming. See pro se Writ of Coram Nobis at
     3. Appellant further submitted that this claim did not fit within
     the PCRA’s seven enumerated grounds for [cognizability] and that
     he could obtain relief pursuant to a Writ of Coram Nobis.
     Appellant’s Pro Se Brief in Support of Coram Nobis Relief.

     [The PCRA court] determined that the relief Appellant sought was
     cognizable under the PCRA and therefore, his petition had to be
     treated as a PCRA petition. Consequently, on June 7, 2017, [the
     PCRA court] sent Appellant a Pa.R.Crim.P. 907 Notice of Intent to

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      Dismiss. Appellant filed a response on June 29, 2017. On July
      11, 2017, after again reviewing the record, [the PCRA court]
      determined that Appellant’s claim was cognizable under the PCRA
      and as such the provisions of the PCRA, including the one-year
      deadline set forth in 42 Pa.C.S. § 9545 applied. Upon applying
      this provision, [the PCRA] court determined that Appellant’s most
      recent filing was not timely filed and on July 11, 2017, the [PCRA
      court] issued an order dismissing Appellant’s self-styled Writ of
      Coram Nobis. Appellant thereafter timely filed a notice of appeal.

PCRA Court Opinion, filed 8/15/17, at 1-3 (footnotes omitted).

      Appellant presents the following questions for our review:

      I.     WHETHER THE UNDERLYING CLAIM RAISED WITHIN
             APPELLANT’S PRO SE PETITION FOR WRIT OF ERROR
             CORAM NOBIS (PETITION FOR CORAM NOBIS) IS
             COGNIZABLE, AND THUS, SUBSUMED UNDER 42
             Pa.C.S.A. §§ 9541-9546, i.e., THE POST CONVICTION
             RELIEF ACT (PCRA)?

      II.    WHETHER APPELLANT’S PRO SE PETITION FOR
             CORAM NOBIS IS GOVERNED BY 42 PA.C.S.A. §
             9545(B)(1), i.e. THE TIMELINESS PROVISION UNDER
             THE PCRA?

      In his first issue, Appellant contends the PCRA court erred in treating

his petition for coram nobis as a PCRA petition, thereby subject to the Act's

timing requirements. Our review of an order denying PCRA relief is “limited

to a determination of whether the record supports the PCRA court's factual

findings    and   whether   its   legal    conclusion   are   free   from   error.”

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016).

      The PCRA clearly states it is “the sole means of obtaining collateral relief

and encompasses all other common law and statutory remedies ..., including

habeas corpus and coram nobis.” 42 Pa.C.S. § 9542. See Commonwealth

v. Peterkin, 722 A.2d 638 (Pa. 1998); 42 Pa.C.S.A. § 9542 (stating PCRA

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shall be sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies for same purpose). Therefore, this Court

has consistently found “if the underlying substantive claim is one that could

potentially be remedied under the PCRA, that claim is exclusive to the PCRA.”

Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004)

(emphasis in original).

      Instantly, Appellant styled his petition as a petition for writ of coram

nobis, but the claim underlying the petition is cognizable under the PCRA.

Specifically, the petition asserted that the trial court mistakenly failed to

address Appellant’s post-sentence motion raising a weight of the evidence

claim, only to discover the oversight many years later and suggest there may

have been merit to the claim. However, regardless of when the court realized

its oversight, Appellant should have been aware of it when the court filed its

1998 order and opinion dismissing Appellant’s post-sentence motion. From

there, Appellant could have sought review of the issue with a motion for

reconsideration, a direct appeal raising the issue, or with a timely PCRA

petition claiming ineffective assistance of counsel for failing to take

appropriate steps to gain review.

      Indeed, this Court reached this very conclusion in affirming the order

dismissing Appellant’s untimely second PCRA petition, as we rejected

Appellant’s argument that the trial court’s failure to address his weight of the

evidence claim satisfied an exception to the one-year time limit of the PCRA.

See   Commonwealth        v.   Mikell,   No.   540   EDA   2010,   unpublished

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memorandum at 7-8 (Pa.Super. filed February 4, 2011).1 Therein, implicitly

recognizing the claim as cognizable under the PCRA, we held the petition was

subject to the PCRA’s timeliness provisions and did not qualify for an

exception.

       Appellant’s present petition gives no reason to depart from the

conclusion that a claim directed to the trial court’s failure to address his weight

of the evidence claim is cognizable under the PCRA. Hence, we conclude the

PCRA court properly treated Appellant’s most recent filing as a PCRA petition.




____________________________________________


1 In Mikell, Appellant raised both a general claim that the trial court’s failure
to address his weight claim qualified as an exception to the PCRA’s time-bar
and a more specific claim that the court’s inaction qualified for the government
interference exception at Section 9545(b)(1)(i).          Specifically, Appellant
alleged the trial court interfered

       with the presentation of his Weight claim in violation of the
       Constitution or law of this Commonwealth or the Constitution of
       laws of the United States where Trial Judge Greenspan’s failure to
       properly address or rule upon the merits of appellant’s Weight
       claim hindered appellant from raising his meritorious Weight claim
       on Direct Appeal in violation of appellant’s constitutional right to
       a Direct Appeal pursuant to Article V Section 9 of the Pa.
       Constitution and Trial Judge Greenspan’s lack of an exercise of
       discretion in addressing appellant’s Weight claim prevented the
       appellate court from conducting an effective and meaningful
       review in violation of appellant’s 14th Amendment right to Due
       Process under the Federal Constitution.

Mikell, at **7-8 (quoting Appellant’s brief, at 16). In rejecting these
claims, we reiterated that Appellant had access to the trial court’s
opinion long ago and “could have taken action at that time to rectify any
perceived error in the trial court’s disposition.” Id. at 8. One such
action was the filing of a PCRA petition.

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      As such, we examine whether Appellant’s petition is timely.               The

timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v.

Turner, 73 A.3d 1283 (Pa.Super. 2013). 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 deemed 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

exceptions to the PCRA time-bar allow for very limited circumstances under

which the late filing of a petition will be excused; a petitioner asserting an

exception must file a petition within 60 days of the date the claim could have

been presented. See 42 Pa.C.S.A. § 9545(b)(1–2).

      The record shows Appellant’s judgment of sentence became final on or

about January 25, 2001, upon expiration of the time to file a petition for writ

of certiorari to the Supreme Court of the United States. See U.S.Sup.Ct.R.

13; 42 Pa.C.S.A. § 9543(b)(3) (providing that a judgment of sentence

becomes final at the conclusion of direct review or the expiration of the time

for seeking the review). He filed the current, pro se serial petition for collateral

relief on December 30, 2016, making it patently untimely. See 42 Pa.C.S.A.

§ 9545(b)(1).     Appellant has not demonstrated the applicability of any

exceptions to the PCRA time-bar enumerated at 42 Pa.C.S.A. 9545(b)(1)(i-

iii). Therefore, Appellant’s petition is time-barred, and the PCRA court lacked

jurisdiction to review it. See Turner, supra. Accordingly, we affirm the PCRA

court’s order dismissing Appellant’s serial PCRA petition as untimely.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/18




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