J-S59023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

MICHAEL E. KEELING

                         Appellant                  No. 2889 EDA 2015


                Appeal from the PCRA Order August 18, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1111571-1994
                          CP-51-CR-1111581-1994
                          CP-51-CR-1111591-1994


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 19, 2016

      Appellant, Michael Keeling, appeals pro se from the order entered on

August 18, 2015, dismissing his fourth petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the relevant factual background and

procedural history of this case as follows:

      On November 18, 1994, [p]olice [o]fficers Joseph Osborne and
      Herbert Nelson detained [Appellant] on 5th Street in Philadelphia
      after identifying him through composite sketches as a suspected
      carjacker. After gathering additional information, the officers
      decided to bring him into headquarters for further questioning.
      As they were preparing for transport, [Appellant] grabbed a
      hidden revolver from inside his pants and fired at the officers.
      The officers retreated behind their police car as he fired more
      shots. Satisfied that he was beyond the reach of the officers,
      [Appellant] ran away.



*Former Justice specially assigned to the Superior Court.
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        As he was running, [Appellant] spotted a station wagon at a
        stoplight, pointed the revolver at [the] driver [], and ordered
        him to exit the vehicle. [Appellant] then drove off, with the
        officers in pursuit. During the chase[, Appellant] lost control of
        the vehicle and hit a pole. He jumped out of the car and began
        to run but was apprehended several blocks away. His gun was
        found nearby.

        Using this evidence, the jury convicted [Appellant] of two counts
        of aggravated assault,[1] robbery,[2] robbery of a motor
        vehicle,[3] theft,[4] and [carrying a firearm without a license.5
        The trial c]ourt sentenced [Appellant] to an aggregate term of
        imprisonment of 32½ to 65 years. [Appellant] appealed [and
        this Court affirmed the judgment of sentence. Our] Supreme
        Court denied [allowance of appeal] on December 24, 1996.

PCRA Court Opinion, 10/13/15, at 1-2.

        Thereafter, on September 12, 1997, [Appellant] filed a pro se PCRA

petition. After counsel was appointed, the PCRA court dismissed the petition

and this Court affirmed. Appellant filed a second PCRA petition on July 8,

2005 which the PCRA court dismissed as untimely.         Appellant also filed a

third PCRA petition which the PCRA court dismissed as untimely. This Court

affirmed the dismissal and our Supreme Court denied allowance of appeal.



____________________________________________


1
    18 Pa.C.S.A. § 2702.
2
    18 Pa.C.S.A. § 3701.
3
    18 Pa.C.S.A. § 3702.
4
    18 Pa.C.S.A. § 3921.
5
    18 Pa.C.S.A. § 6106.



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       On November 19, 2014, Appellant filed the instant pro se PCRA

petition, his fourth.       Thereafter, Appellant filed an amended petition. On

August 6, 2015, the PCRA court issued notice of its intent to dismiss the

petition without an evidentiary hearing.         See Pa.R.Crim.P. 907.   Appellant

filed a response to the Rule 907 notice. On August 18, 2015, the PCRA court

dismissed the petition without an evidentiary hearing.         This timely appeal

followed.6

       Appellant presents four issues for our review:

    1. Did the [PCRA] court err by its failure to grant [Appellant’s]
       motion for leave to amend [his PCRA petition pursuant to] 42
       Pa.[C.S.A.] § 9545(b)(1) into a petition for writ of habeas corpus
       relief [pursuant to] 42 Pa.[C.S.A.] § 6502(a)?

    2. Did the [PCRA] court err by its failure to grant a writ of habeas
       corpus relief . . . ?

    3. Did the [PCRA] court err [in] its denial [of] independent ballistic
       identification testing . . . ?

    4. Did the [PCRA] court err by failing to grant [an] evidentiary
       hearing where[,] for reasons outside [Appellant’s] own personal
       control[,] he has never been afforded a probable cause hearing
       to determine whether police had sufficient probable cause to
       stop and arrest [him] on November 18, 1994?

Appellant’s Brief at ii.7

____________________________________________


6
  Appellant filed a concise statement of errors complained of on appeal
(“concise statement”) contemporaneously with his notice of appeal. See
Pa.R.A.P. 1925(b). The PCRA court issued its Rule 1925(a) opinion on
October 13, 2015. All issues raised on appeal were included in Appellant’s
concise statement.
7
  We have re-numbered the issues for ease of disposition.



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      In his first and second issues, Appellant argues that the PCRA court

should have treated his filing as a petition for writ of habeas corpus.

Appellant alleges a conflict of interest existed between his trial counsel and

direct appeal counsel because both were employed by the Defender

Association of Philadelphia. He further argues this constitutes a breakdown

of the judicial system and entitles him to habeas corpus relief because the

PCRA is an inadequate remedy. Appellant’s argument is misguided.

      “The [PCRA is] the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same

purpose . . . including habeas corpus and coram nobis.”           42 Pa.C.S.A.

§ 9542.   A petition for writ of habeas corpus is only appropriate where a

petitioner’s claim is not cognizable under the PCRA. See Commonwealth

v. Descardes, 136 A.3d 493, 499 (Pa. 2016).         A claim that there was a

conflict of interest is cognizable under the PCRA. See Commonwealth v.

Townsend, 850 A.2d 741, 743 (Pa. Super. 2004). Accordingly, the PCRA

court correctly treated Appellant’s filing as a PCRA petition and not a petition

for a writ of habeas corpus.

      “Crucial to the determination of any PCRA appeal is the timeliness of

the underlying petition. Thus, we must first determine whether the instant

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).               The

timeliness requirement for PCRA petitions “is mandatory and jurisdictional in


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nature, and the court may not ignore it in order to reach the merits of the

petition.”   Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013) (citation omitted). “The question of whether a petition is timely raises

a question of law. Where the petitioner raises questions of law, our standard

of review is de novo and our scope of review plenary.” Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         “[A]

judgment [of sentence] becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence

became final on March 24, 1997, 90 days after our Supreme Court denied

allowance of appeal. See U.S. Sup. Ct. R. 13 (petition for a writ of certiorari

must be filed within 90 days). Appellant’s present petition, his fourth, was

filed on or about November 19, 2014.        Thus, the petition was patently

untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or laws of this
      Commonwealth or the Constitution or laws of the United States;




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      (ii) the facts upon which the claim is predicated were unknown
      to the petitioner and could not have been ascertained by the
      exercise of due diligence; or

      (iii) the right asserted is a constitutional right that was
      recognized by the Supreme Court of the United States or the
      Supreme Court of Pennsylvania after the time period provided in
      this section and has been held by that court to apply
      retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i-iii).    If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      As noted above, a petitioner must plead and prove the existence of a

timeliness exception in order for the PCRA court to have jurisdiction over an

untimely petition. Failure to plead the applicability of a timeliness exception

in the PCRA petition renders the PCRA court without jurisdiction to consider

the merits of the petition. See Commonwealth v. Derrickson, 923 A.2d

466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). In

this case, Appellant’s PCRA petition did not allege that he satisfied one of the

PCRA’s timeliness exceptions. Accordingly, he failed to plead and prove the

applicability of a timeliness exception and the PCRA court properly held that

it lacked jurisdiction over his untimely petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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