J-S74026-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
DWAYNE BRUNSON,                           :
                                          :
                    Appellant             : No. 838 EDA 2014

                    Appeal from the PCRA Order July 1, 2013,
                   Court of Common Pleas, Philadelphia County,
                 Criminal Division at No. CP-51-CR-0134421-1987

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 24, 2014

      Dwayne Brunson (“Brunson”) appeals from the July 1, 2013 order of

court dismissing his petition for writ of habeas corpus, which the lower court

treated as a petition filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Upon review, we affirm.

      The relevant history may be summarized briefly as follows. In 1989,

Brunson was convicted of first-degree murder, aggravated assault, and

conspiracy. On direct appeal, this Court arrested judgment with regard to

the conspiracy conviction but affirmed the murder and aggravated assault

convictions.1 The Pennsylvania Supreme Court denied Brunson’s petition for

allowance of appeal.




1
  On direct appeal Brunson challenged the sufficiency of the evidence as to
all three of his convictions. This Court concluded that the evidence was


*Retired Senior Judge assigned to the Superior Court.
J-S74026-14


      In 1993, Brunson filed his first PCRA petition. Following a hearing, the

PCRA court dismissed that petition in 1999. This Court affirmed the PCRA

court’s ruling on appeal, and the Pennsylvania Supreme Court again denied

Bruson’s petition for allowance of appeal. Brunson then unsuccessfully

sought relief by means of a federal writ of habeas corpus. On December 18,

2012, Brunson filed the petition at issue in the present appeal, which he

styled as a petition for writ of habeas corpus.   The lower court elected to

treat Brunson’s petition as a PCRA petition, determined that it was untimely,

and issued notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907.

Brunson filed a response to this notice, objecting to the treatment of his

petition as a PCRA petition. The lower court dismissed the petition on July 1,

2013. This timely appeal followed.

      Brunson presents five separate issues on appeal, but they all address

one concern: whether the trial court erred in treating his writ of habeas

corpus as an untimely PCRA petition. Brunson’s Brief at 4. As we consider

the merits of this claim, we note that this Court's standard of review is

limited to determining whether the PCRA court’s determination is supported

by the evidence of record and is free of legal error.    Commonwealth v.

Walls, 993 A.2d 289, 294-95 (Pa. Super. 2010) (internal citation omitted).




sufficient to support the murder and aggravated assault convictions, but
insufficient to support the conspiracy conviction.


                                     -2-
J-S74026-14


      As noted above, Brunson argues that his claims are properly raised in

a petition for writ of habeas corpus and consequently that the lower court

erred by treating it as a PCRA petition and subsequently dismissing it upon

finding that it was untimely filed.    See Brunson’s Brief at 17-28.   In his

petition for writ of habeas corpus, Brunson alleged that his substantive and

procedural due process rights were violated because the Commonwealth

failed to establish the mens rea and actus reus required for a first-degree

murder conviction, and therefore that the trial was “fundamentally unfair

and amount[ed] to a manifest injustice.” Petition for Writ of Habeas Corpus,

12/18/12, at 3. He further argued that his due process rights were violated

when this Court failed to vacate the first-degree murder conviction when we

found that the conspiracy conviction was improper. Id.

      Brunson is correct in that the writ of habeas corpus continues to exist

separate and apart from the PCRA; however, “both the PCRA and the state

habeas corpus statute contemplate that the PCRA subsumes the writ of

habeas corpus in circumstances where the PCRA provides a remedy for the

claim.”   Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008)

(citation omitted). Section 9543 of the PCRA addresses eligibility for relief

under its provisions. It provides, in relevant part, as follows:

                        § 9543. Eligibility for relief


            (a) General rule.--To be eligible for relief under this
            subchapter, the petitioner must plead and prove by a
            preponderance of the evidence all of the following:


                                      -3-
J-S74026-14


                                    ***

           (2) That the conviction or sentence resulted from
           one or more of the following:

                 (i) A violation of the Constitution of this
           Commonwealth or the Constitution or laws of the
           United States which, in the circumstances of the
           particular case, so undermined the truth-determining
           process that no reliable adjudication of guilt or
           innocence could have taken place.

                  (ii) Ineffective assistance of counsel which, in
           the circumstances of the particular case, so
           undermined the truth-determining process that no
           reliable adjudication of guilt or innocence could have
           taken place.

                  (iii) A plea of guilty unlawfully induced where
           the circumstances make it likely that the inducement
           caused the petitioner to plead guilty and the
           petitioner is innocent.

                  (iv) The improper obstruction by government
           officials of the petitioner's right of appeal where a
           meritorious appealable issue existed and was
           properly preserved in the trial court.

                 (v) Deleted.

                  (vi) The unavailability at the time of trial of
           exculpatory evidence that has subsequently become
           available and would have changed the outcome of
           the trial if it had been introduced.

                 (vii) The imposition of a sentence greater than
           the lawful maximum.

                  (viii) A   proceeding   in   a   tribunal   without
           jurisdiction.

42 Pa.C.S.A. § 9543(a)(2).




                                    -4-
J-S74026-14


      Brunson argues that his claims of due process violations do not

implicate the truth-determining process underlying his convictions, and

therefore do not fall under the scope of the PCRA. Brunson’s Brief at 23-24.

However, our Supreme Court has called for an expansive, not restrictive,

application of these PCRA’s eligibility requirements, such that there need not

be a strict adherence to the “truth determining process” language upon

which Brunson relies:

            [W]e have held that the scope of the PCRA eligibility
            requirements should not be narrowly confined to its
            specifically   enumerated     areas     of   review.
            Commonwealth v. Judge, [] 916 A.2d 511, 520
            ([Pa.] 2007). Such narrow construction would be
            inconsistent with the legislative intent to channel
            post-conviction claims into the PCRA's framework,
            id., and would instead create a bifurcated system of
            post-conviction review where some post-conviction
            claims are cognizable under the PCRA while others
            are not. Commonwealth v. Lantzy, [] 736 A.2d
            564, 569–70 ([Pa.] 1999).

                   Instead, this Court has broadly interpreted the
            PCRA eligibility requirements as including within its
            ambit claims such as this one, regardless of the
            ‘truth-determining process’ language … from Section
            9543(a)(2)(i). See Commonwealth v. Liebel, []
            825 A.2d 630 ([Pa.] 2003) (holding that claim
            challenging counsel's effectiveness for failing to file a
            petition for allowance of appeal is cognizable under
            PCRA); Commonwealth ex. rel. Dadario v.
            Goldberg, [] 773 A.2d 126 ([Pa.] 2001) (holding
            that claim alleging counsel's ineffectiveness during
            the plea bargaining process is cognizable under the
            PCRA); Commonwealth v. Chester, [] 733 A.2d
            1242 ([Pa.] 1999) (holding that claim alleging
            ineffective assistance of counsel during penalty
            phase of capital case is cognizable under the PCRA);
            Commonwealth v. Lantzy, supra, (holding that


                                      -5-
J-S74026-14


              claim alleging ineffective assistance of counsel for
              failing to file an appeal is cognizable under the
              PCRA).

Hackett, 956 A.2d at 986.

      In Hackett, our Supreme Court considered whether the constitutional

violation at issue in a Batson2 claim is cognizable under the PCRA. Much

like Brunson in the present appeal, Hackett argued that a Batson claim is

not alleging “a constitutional violation that ‘so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place.’” Id. at 985. Hackett maintained “that the injury against

which Batson protects is the equal protection right of venirepersons not to

be discriminated against,” which he then argued “is unrelated to the

reliability of the verdict rendered.”    Id.   The Supreme Court rejected this

argument, concluding that a claim that there was a constitutional violation

with regard to the selection of the jury implicates the validity of the

conviction:

              We find that [Hackett’s] Batson claim, which
              essentially attacks his underlying murder conviction,
              is akin to the aforementioned claims which have
              been held to be within the ambit of the PCRA and is
              unlike those unique claims which fall outside the
              PCRA's statutory scheme. See Commonwealth v.
              West, [] 938 A.2d 1034 ([Pa.] 2007) (holding that
              substantive due process challenge to continued
              validity of defendant's judgment of sentence after a

2
   A Batson claim alleges that the Commonwealth engaged in purposeful
discrimination in the selection of jury members, in violation of Batson v.
Kentucky, 476 U.S. 79 (1986).



                                        -6-
J-S74026-14


              nine-year delay is not cognizable under the PCRA);
              Commonwealth v. Judge, supra, (holding that
              allegation that Canada violated appellant's rights
              under the International Covenant for Civil and
              Political Rights is not cognizable under the PCRA). As
              the PCRA provides a remedy on a Batson claim,
              Appellee is not entitled to seek habeas corpus relief.

Id. at 986.

      As the Supreme Court did in Hackett, we conclude that at their heart,

Brunson’s claims challenge his murder conviction as wrongful, as they are

premised on his fundamental assertion that the evidence was insufficient to

support his first-degree murder conviction. Stated another way, Brunson’s

claims sound in wrongful conviction, which the PCRA is intended to address.

Commonwealth v. Burkett, 5 A.3d 1260, 1275 (Pa. Super. 2010) (“PCRA

review is limited to defendants who claim that they were wrongfully

convicted and/or are serving an illegal sentence.”).      Accordingly, because

Brunson’s claims challenge the validity of his murder conviction, and in light

of the expansive view we must take with regard to the PCRA’s eligibility

requirements, see Hackett, 956 A.2d at 986, we conclude that they are

cognizable under the PCRA.

      In support of his position, Brunson cites to both the Judge and West

decisions referenced by our Supreme Court in Hackett.         In both of those

cases, the claims raised by the petitioners were found to be beyond the

scope of the PCRA and cognizable as habeas corpus claims. Both of those




                                      -7-
J-S74026-14


cases are distinguishable, however, in that the claims raised therein cannot

be construed as challenges to the underlying convictions or sentences.

      In Judge, the petitioner had been convicted of first-degree murder

and sentenced to death when he escaped from custody and fled to Canada.

Commonwealth v. Judge, 916 A.2d 511, 513 (Pa. 2007). While in Canada,

Judge was convicted of two offenses and sentenced to two concurrent ten-

year terms of imprisonment.       Despite having Judge in custody, Canada

refused to extradite him to the United States, citing an extradition treaty

between the two nations that provides that Canada will not extradite a

person to the United States to face the death penalty. Id. Instead, Canada

required Judge to serve his Canadian sentence, and then deported him to

New York.

      Judge was subsequently extradited to Pennsylvania. Once in custody in

Pennsylvania, Judge continued to fight his sentence through proceedings

before the United Nations Human Rights Committee, alleging that Canada

had violated his rights under the International Covenant for Civil and Political

Rights (the “ICCPR”). This ultimately resulted in a finding by the Committee

that Canada had violated Judge’s rights under the ICCPR.          Following this

decision, Judge filed a petition in the trial court “asserting jurisdiction under

either the PCRA or the statutory and constitutional right to habeas corpus

relief and arguing that Canada's asserted violation of his human rights under

the ICCPR requires that his sentence be reduced to life imprisonment or that



                                      -8-
J-S74026-14


he be returned to Canada to be deported or extradited in compliance with

the Committee's ruling.”     Id. at 517.    The trial court assumed that the

claims were cognizable under the PCRA and denied Judge relief.

     On review, the Supreme Court considered whether Judge’s claims

regarding Canada’s alleged violation of his rights were cognizable under the

PCRA, and concluded that they were not:

               [T]he boundaries of cognizable claims under the
              PCRA can only be extended so far as is consistent
              with the purposes of the statute, and we believe that
              Appellant's claim concerning his deportation from
              Canada to face a death sentence falls outside the
              intended scope of the PCRA. See 42 Pa.C.S. § 9542
              (“This subchapter provides for an action by which
              persons convicted of crimes they did not commit and
              persons serving illegal sentences may obtain
              collateral relief.”); [Commonwealth v.] Peterkin,
              [] 722 A.2d [638,] 643 (“The purpose of the law is
              not to provide convicted criminals with the means to
              escape well-deserved sanctions, but to provide a
              reasonable opportunity for those who have been
              wrongfully convicted to demonstrate the injustice of
              their conviction.”). Appellant is not asserting his
              innocence of the underlying crimes or that his
              sentence was illegal when imposed; his claim is that
              executing him would violate international law
              because the Committee found that Canada violated
              his rights under the ICCPR by deporting him to face
              a sentence of death without obtaining assurances
              that the sentence would not be imposed.

Id. at 520.

     The basis of Judge’s claim was the Committee’s ruling pursuant to the

ICCPR. In no way could this claim be interpreted as calling into question the




                                      -9-
J-S74026-14


validity of Judge’s conviction.3 This is in contrast to Brunson’s claims, which

are challenges to the validity of his first-degree murder conviction.

      In Commonwealth v. West, 938 A.2d 1034 (Pa. 2007), the

petitioner was sentenced in 1991 to twenty-seven to fifty-four months of

imprisonment but released on bond pending his appeal which was ultimately

unsuccessful. Id. at 1036-37. However, West was never recalled to serve

his sentence.   He remained at liberty for nine years until this error was

discovered by the administrative judge of the criminal division of the Court

of Common Pleas of Allegheny County and a warrant was issued for West’s

arrest. Id. at 1037.   West subsequently filed a petition for writ of habeas

corpus in the trial court, arguing, of relevance here, “a violation of his

substantive due process rights because of the government's delay in

confining him.” Id. The trial court did not consider whether this claim was

properly brought under the state habeas statute or the PCRA; instead it

denied the claim on its merits. On appeal to this Court, we concluded that

his claim did not fit within the parameters of the PCRA, but that it was a

proper subject for relief under the state habeas corpus statute.           The

Supreme Court agreed, characterizing West’s argument as a claim that

“incarcerating him … after the significant delay between the time of




3
  Judge did not contest the legality of his sentence.     Judge, 916 A.2d at
520.


                                     - 10 -
J-S74026-14


sentencing and the time he was recalled is fundamentally unfair and

therefore constitutionally infirm.” Id. at 1044-45.

      In the present appeal, Brunson’s claims are not divorced from the

manner of his convictions or the legality of his sentence as was the claim at

issue in West.     The issue in West arose out of the irregularities that

followed West’s conviction and sentencing; specifically, the failure of the

courts to recall West so that he could begin to serve his sentence. These

events had no bearing on West’s conviction or his sentence as initially

imposed.   In contrast, the irregularities that Brunson alleges implicate the

validity of his convictions, thereby bringing them within the purview of the

PCRA.4

      For these reasons, we conclude that the claims Brunson raised in his

petition for writ of habeas corpus are cognizable under the PCRA.        We

therefore find no error in the lower court’s decision to treat Brunson’s

petition for writ of habeas corpus as a petition filed under the PCRA.

      Having decided to treat Brunson’s filing as a PCRA petition, the lower

court determined that it was untimely and that Brunson failed to establish

any of the exceptions to the PCRA’s time-bar. PCRA Court Opinion, 7/1/13,


4
  We also note the case of Commonwealth v. Maute, 397 A.2d 826 (Pa.
Super. 1979), in which this Court found that the petitioner’s claim of cruel
and unusual punishment, based on beatings he was receiving in prison, was
cognizable as a habeas claim rather than as a claim under the Post
Conviction Hearing Act, the forerunner to the present-day PCRA. In that
case, as in West and Judge, it is apparent that the claim was not related to
the validity of the petitioner’s conviction or legality of his sentence.


                                    - 11 -
J-S74026-14


at 3-4. It is firmly established that “[t]he PCRA’s timeliness requirements

are jurisdictional in nature, and a court may not address the merits of the

issues raised if the PCRA petition was not timely filed.” Commonwealth v.

Copenhefer, 941 A.2d 646, 648-49 (Pa. 2007).        The PCRA provides that

“any petition under this subchapter, including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final” unless one of three exceptions applies. 42 Pa.C.S.A. § 9545(b). The

relevant PCRA provision provides as follows:

           (1) Any petition under this subchapter, including a
           second or subsequent petition, shall be filed within
           one year of the date the judgment becomes final,
           unless the petition alleges and the petitioner
           proves that:

           (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;

           (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)(emphasis added).

     Brunson was convicted and sentenced in 1989.         He received partial

relief on direct appeal to this Court, and the Pennsylvania Supreme Court



                                   - 12 -
J-S74026-14


denied his petition for allowance of appeal on August 7, 1990. Brunson did

not seek review by the United States Supreme Court, and so his sentence

became final on November 5, 1990.5

      The petition at issue was filed on December 18, 2012, far more than

one year after Brunson’s conviction became final. As such, it was incumbent

on Brunson to establish one of the three exceptions to the timeliness

requirement contained in § 9545(b)(1).         Commonwealth v. Lusch, 759

A.2d 6, 9 (Pa. Super. 2000) (holding that where habeas corpus petition is

properly treated as PCRA petition and filed more than one year after

judgment became final, petitioner must plead and prove exception to

statutory time-bar to establish timeliness).

      Brunson attempted to establish an exception in his response to the

PCRA court’s notice of intent to dismiss. Therein, he stated that even if his

petition were treated as a PCRA petition, his claim of “actual innocence” is

sufficient to overcome any time-bar, pursuant to the United States Supreme

Court’s decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (U.S. 2013).




5
  “[A] judgment 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). Following the Pennsylvania Supreme
Court’s denial of his petition for allowance of appeal, Brunson had ninety
days to seek further review by the United States Supreme Court. See
U.S.SUP.CT.R. 13.


                                    - 13 -
J-S74026-14


See Objections to Dismissal Notice, 6/20/13, at 26.6        The lower court

rejected this assertion, and we find no error in that conclusion.         In

McQuiggin, the United States Supreme Court held that a claim of actual

innocence may, in certain circumstances, overcome the Antiterrorism and

Effective Death Penalty Act’s one-year statute of limitations for filing a

habeas petition.   Id. at 1931.   It is clear that this holding is limited to

habeas petitions filed in federal court under the Antiterrorism and Effective

Death Penalty Act; as such, it can afford Brunson no relief.        Brunson

therefore failed to establish an exception to the PCRA’s jurisdictional time-

bar.

       In sum, we find no error in the lower court’s determination that

Brunson’s petition is properly viewed as his second PCRA petition; that it

was untimely filed; and that Brunson failed to establish an exception to the

PCRA’s time-bar.    Accordingly, the lower court correctly concluded that it

was without jurisdiction to entertain Brunson’s petition. See Copenhefer,

941 A.2d at 648-49.

       Order affirmed.




6
  The vast majority of Brunson’s prolix response to the lower’s court notice
of intention to dismiss was dedicated to refuting the conclusion that his
claims fell under the PCRA.


                                   - 14 -
J-S74026-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2014




                          - 15 -
