J-S01015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    WAYNE EUGENE BROOKS                        :
                                               :
                      Appellant                :       No. 973 MDA 2016


                    Appeal from the PCRA Order May 20, 2016
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000087-1971


BEFORE:      GANTMAN, P.J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                          FILED JANUARY 27, 2017

        Appellant, Wayne Eugene Brooks, appeals pro se from the order

entered in the Dauphin County Court of Common Pleas, which dismissed his

pro se serial petition for collateral relief (labeled a petition for writ of habeas

corpus), per the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Following trial, on June 25, 1971, a jury convicted Appellant of first-degree

murder arising from his involvement in a shooting death, and the court

sentenced Appellant to a mandatory term of life imprisonment.                  Our

Supreme Court affirmed the judgment of sentence on October 3, 1973. See


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1
    42 Pa.C.S.A. §§ 9541-9546.
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Commonwealth v. Brooks, 454 Pa. 75, 309 A.2d 732 (1973). Appellant

sought no further direct appeal.

      Appellant then began a long and unsuccessful journey for post-

conviction relief.   On October 28, 2015, Appellant filed his most recent

application as a pro se petition for writ of habeas corpus, in which Appellant

argued the statute under which he was sentenced to life imprisonment was

invalid. The PCRA court treated Appellant’s petition as a PCRA petition and

issued Pa.R.Crim.P. 907 notice on May 2, 2016. Appellant filed a response

on May 12, 2016, and the PCRA court dismissed Appellant’s petition on May

20, 2016. Appellant timely filed a pro se notice of appeal on June 8, 2016.

On June 21, 2016, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);

Appellant timely complied on July 8, 2016.

      Appellant raises the following issue for our review:

         DID THE [PCRA] COURT COMMIT REVERSIBLE ERROR AND
         ABUSE ITS DISCRETION BY CHANGING APPELLANT’S
         PETITION FOR WRIT OF HABEAS CORPUS, VIOLATION OF
         EIGHTH AMENDMENT, UNITED STATES CONSTITUTION,
         UNLAWFUL CONFINEMENT AND CRUEL AND UNUSUAL
         PUNISHMENT, INTO A PCRA [PETITION]?

(Appellant’s Brief at 2).

      Appellant argues our Supreme Court, in Commonwealth v. Bradley,

449 Pa. 19, 295 A.2d 842 (1972), declared unconstitutional the statute

under which he was convicted and sentenced, i.e., 18 P.S. § 4701

(repealed). Appellant insists he is entitled to resentencing. Appellant avers

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the PCRA does not govern his present claim, and the PCRA court erred when

it denied his petition as an untimely PCRA petition. We disagree.

      Preliminarily, the PCRA is “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.” 42 Pa.C.S.A. § 9542. “Under the plain words of

the statute, if the underlying substantive claim is one that could potentially

be remedied under the PCRA, that claim is exclusive to the PCRA. It is only

where the PCRA does not encompass a claim that other collateral procedures

are available.” Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super.

2004) (citations omitted) (emphasis in original).    See Commonwealth v.

Peterkin, 554 Pa. 547, 557-58, 722 A.2d 638, 642-43 (1998) (stating PCRA

time limits do not unreasonably or unconstitutionally limit constitutional right

of habeas corpus relief). Further, a petitioner may not avoid the timeliness

requirements of the PCRA by labeling a filing as a petition for “writ of habeas

corpus.”   Commonwealth v. Mercado, 826 A.2d 897, 899 (Pa.Super.

2003), appeal denied, 574 Pa. 765, 832 A.2d 436 (2003) (stating petition for

habeas corpus relief must first satisfy jurisdictional PCRA timeliness

requirements). Here, Appellant’s substantive claim challenges his sentence,

which is a claim cognizable under the well-established rubric of the PCRA.

      As an additional prefatory matter, the timeliness of a PCRA petition is

a jurisdictional requisite.   Commonwealth v. Turner, 73 A.3d 1283


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(Pa.Super. 2013), appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). 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 three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).

A petitioner asserting a timeliness exception must file a petition within 60

days of the date the claim could have been presented.          42 Pa.C.S.A. §

9545(b)(2). The PCRA time limits apply to claims raising the legality of a

sentence. Commonwealth v. Voss, 838 A.2d 795 (Pa.Super. 2003).

      The statute under which Appellant was sentenced provided, in

pertinent part, as follows:

         Whoever is convicted of the crime of murder of the first
         degree is guilty of a felony and shall be sentenced to suffer
         death…, or to undergo imprisonment for life at the
         discretion of the jury trying the case, which shall…fix the
         penalty….

18 P.S. § 4701 (repealed).    In Bradley, the Pennsylvania Supreme Court

declared unconstitutional the Section 4701 death penalty.       See Bradley,

supra (vacating Bradley’s Section 4701 death sentence and sentencing him

directly to life imprisonment) (citing Furman v. Georgia, 408 U.S. 238, 92

S.Ct. 2726, 33 L.Ed.2d 346 (1972), which addressed continued viability of

death penalty statutes and whether death penalty violated constitutional


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prohibition against cruel and unusual punishment). Following Bradley, the

legislature repealed and replaced Section 4701 with 18 Pa.C.S.A. § 1102 in

tandem with 42 Pa.C.S.A. § 9711.2              Commonwealth v. Yount, 615 A.2d

1316, 1318 (Pa.Super. 1992), appeal denied, 535 Pa. 634, 631 A.2d 1007

(1993).    With respect to challenges to life sentences as unconstitutional

under the repealed Section 4701, our Supreme Court also stated:

          If a defendant receives a death sentence and successfully
          challenges the validity of the statute under which it is
          imposed, the proper relief is to modify the sentence, as
          was done in cases where previous death penalty laws were
          invalidated.    [Bradley, supra.]       The convictions
          themselves were not struck down…. The question of the
          validity of a death penalty statute is moot when no
          death penalty is imposed.

Commonwealth v. Edwards, 493 Pa. 281, 288, 426 A.2d 550, 553 (1981)

(some internal citations omitted) (emphasis added).

       Instantly, Appellant received a life sentence which became final on

January 2, 1974, upon expiration of the time to file a petition for writ of

certiorari in the United States Supreme Court.             See U.S.Sup.Ct.R. 22

(effective in 1974) (allowing 90 days to file petition for certiorari with United

States Supreme Court).         On October 28, 2015, Appellant filed the current

post-conviction petition, which is patently untimely.        See 42 Pa.C.S.A. §

9545(b)(1); Voss, supra. Additionally, Appellant failed to plead and prove
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2
  The new statutes still allow for imposition of the death penalty in
Pennsylvania under certain circumstances, with additional safeguards and
restrictions.



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any exception to the PCRA timeliness requirements.   Therefore, his claim

remains time-barred.

     Moreover, Appellant was not sentenced to death; he was sentenced to

life imprisonment under Section 4701.    Thus, Appellant’s challenge to

Section 4701 is moot. See Edwards, supra. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/27/2017




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