J-S22013-18


                                  2018 PA Super 211

    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    KEITH SMITH,

                             Appellant                  No. 1751 EDA 2017


                Appeal from the PCRA Order Entered May 8, 2017
              In the Court of Common Pleas of Philadelphia County
                           Criminal Division at No(s):
                            CP-51-CR-0503171-2000
                            CP-51-CR-0503181-2000


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

OPINION BY BENDER, P.J.E.:                                   Filed July 20, 2018

        Appellant, Keith Smith, appeals from the order dismissing, as untimely,

his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

               On September 25, 2001, [Appellant] was convicted by a jury
        of first-degree murder, [18 Pa.C.S. § 2502(a),] possessing an
        instrument of crime, [18 Pa.C.S. § 907,] and recklessly
        endangering another person, [18 Pa.C.S. § 2705].         In our
        memorandum affirming [Appellant]’s judgment of sentence, we
        summarized the pertinent facts underlying these convictions as
        follows:

           [O]n October 15, 1999, at approximately 3:30 p.m., the
           victim Clifton Walker was shot at the intersection of 34th
           and Mt. Vernon Streets, Philadelphia. At the time of the
           shooting, the victim was with a group of friends and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S22013-18


        acquaintances, including Commonwealth witnesses Huey
        Hewitt and Kirk Dunson.          The shooter stood in the
        intersection and fired at least eight shots, hitting the victim
        from the rear three times. Two of the shots entered the
        victim’s buttocks; the fatal bullet entered at the shoulder
        blade, severed the aorta, exited and hit the victim’s chin and
        exited a second time. The police obtained statements from
        the two above-named witnesses on the evening of the
        incident in which each of them identified [Appellant] as the
        shooter. At a later time, each of the witnesses recanted
        their identifications of [Appellant] and attributed their
        inculpatory statements to police misconduct, i.e.,
        withholding of medical treatment of Hewitt and physical
        abuse of Dunson.        At trial, neither witness identified
        [Appellant] as the shooter.        The Commonwealth was
        permitted to utilize their prior inconsistent statements as
        substantive evidence of [Appellant]’s guilt.

     Commonwealth v. Smith, No. 554 EDA 2002, [unpublished
     memorandum] at 1–2 (Pa. Super. [filed] May 6, 2003). On
     September 26, 2001, [Appellant] was sentenced to life
     imprisonment. On May 6, 2003, we affirmed the judgment of
     sentence. Id. at 1, 6. The Pennsylvania Supreme Court denied
     [Appellant]’s petition for allowance of appeal. Commonwealth
     v. Smith, 836 A.2d 122 (Pa. 2003)[].

            On June 24, 2004, [Appellant] filed his first PCRA petition.
     Following the appointment of counsel and the filing of an amended
     petition, the PCRA court dismissed the petition without a hearing.
     On June 5, 2007, we affirmed the denial. Commonwealth v.
     Smith, No. 1399 EDA 2006, [unpublished memorandum] at 7 (Pa.
     Super. [filed] June 5, 2007).        On March 14, 2008, the
     Pennsylvania Supreme Court denied [Appellant]’s petition for
     allowance of appeal. Commonwealth v. Smith, 945 A.2d 170
     (Pa. 2008)[].

            On December 9, 2009, [Appellant] filed a second pro se
     PCRA petition, which the PCRA court dismissed as untimely on
     August 20, 2010. On November 30, 2011, we also found the
     petition to be untimely, and affirmed the PCRA court's dismissal
     order.    Commonwealth v. Smith, No. 2552 EDA 2010,
     [unpublished memorandum] at 1, 7 (Pa. Super. [filed] Nov. 30,
     2011). On June 20, 2012, the Pennsylvania Supreme Court
     denied [Appellant]’s petition for allowance of appeal.
     Commonwealth v. Smith, 47 A.3d 847 (Pa. 2012)[].

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            [Appellant] filed his third and fourth PCRA petitions on
      March 27, 2012 and August 15, 2012, respectively. The PCRA
      court dismissed both petitions as untimely on February 12, 2013.
      On February 11, 2013, [Appellant] filed his fifth PCRA petition. …
      On April 5, 2013, the PCRA court entered an order dismissing
      Smith's fifth petition.

Commonwealth v. Smith, No. 1264 EDA 2013, unpublished memorandum

at 1-3 (Pa. Super. filed February 28, 2014). This Court affirmed the denial of

Appellant’s fifth PCRA petition as untimely on February 28, 2014. Id. at 10.

Our Supreme Court denied his petition for allowance of appeal on October 7,

2014. Commonwealth v. Smith, 97 A.3d 817 (Pa. 2014).

      The matter sub judice arose as follows:

            The instant [PCRA] petition was filed on October 14, 2014,
      followed by several amended petitions dated February 20, 2015,
      March 9, 2015, December 4, 2015 and a PCRA petition styled as
      a writ of habeas corpus on January 4, 2017. Pursuant to
      Pa.R.Crim.P. 907, th[e PCRA] court sent a notice of intent to
      dismiss the petition as untimely without exception on March 22,
      2017. In response to th[e] court's 907 notice, [Appellant] filed
      another petition on April 6, 2017. Th[e PCRA] court formally
      dismissed the petition on May 8, 2017. [Appellant] timely filed a
      notice of appeal to the Pennsylvania Superior Court on May 23,
      2017.

PCRA Court Opinion (“PCO”), 7/25/17, at 2 (footnote omitted).

      Appellant now presents the following questions for our review, which we

set forth verbatim:

      1. Whether the PCRA Court erred in denying [appellant's] Post-
      Conviction Petition as untimely when {appellant] did established
      that Government officials interfered with the presentation of the
      claim, failure to turn over impeachment and exculpatory evidence
      {David Jefferson's] statement that was given to detectives was in
      violation of Brady within the plain language of the timeliness
      exception set forth at 42 Pa C.S.A 9545 (b) (1) (i) (iii) and {after
      -

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     discovered facts claim} section 9545 (b) (1) (ii), and filing claim
     within sixty days (60) satisfying 9545 (b) (2)?

     2. Whether {appellant} is entitled to a new trial or remand for an
     evidentiary hearing based upon the affidavit of {David
     Jefferson's} admitting that he gave a statement to detectives on
     10/15/1999 that he was with {Clift Walker} the victim in this case
     prior to the shooting and stated within affidavit {Clift Walker} had
     words with males from North-Philly, was impeachment evidence
     and exculpatory to the argument of the witnesses out-of court
     statements that was admitted at trial, which {after-discovered
     fact} was provided to {appellant} by way of affidavit by {David
     Jefferson} sent to {appellant} by mail?

     3. Whether the District Attorney's failure to disclose impeachment
     and exculpatory evidence to {appellant} proving his innocence,
     that he did not shoot {Cliff Walker} because of an argument, and
     Whether {appellant's} confrontation Clause Rights were violated
     under the sixth Amendment "to be confronted with witnesses
     against him" those whom were actually present for the argument
     which the prosecution used towards proving {appellant's} guilt
     violates the prosecutions obligation under the Fourteenth
     Amendment Due Process and substantive Due Process right?

     4. Whether trial counsel was ineffective for failing to investigate
     and present at trial impeachment and exculpatory evidence,
     especially {Kelly Smith} who was not on the corner of 34th and
     MT. Vernon street standing around with males and who did not
     argue with {Clift Walker} prior to him being shot, and was not
     with {appellant} in a vehicle before the shooting?

     5. Whether the PCRA Court erred and improperly dismissed
     {appellant's} PCRA Petition as untimely without an evidentiary
     hearing to review whether trial counsel was ineffective assistance
     by failing to investigate and call Rasheeda Brennan, Malik Walker,
     Edward Johnson, whom had knowledge of {appellant's}
     whereabouts as alibi witnesses, violated {appellant's} sixth
     Amendment right "to obtain witnesses in his favor"?

     6. Whether the PCRA Court erred in denying {appellant} Post-
     conviction Petition as untimely filed, when {appellant} filed
     several issues under Pa.R.Crim.P. 905(A), requesting right to
     Amend, which such right shall be freely allowed to achieve
     substantial justice, where {appellant} clearly filed amendment
     before PCRA Court Order of May 8, 2017?


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J-S22013-18


     7. Whether the PCRA Court erred by denying {appellant} Habeas
     Corpus Review under the "Legality of sentence claim", which
     cannot be waived, where the PCRA Court does not subsume any
     remedy that address the challenge of the penal statute 18
     Pa.C.S.A. 1102(A) constitutionality, as to whether a Judge has
     statutory authority to impose a further condition upon a sentence
     without parole, pursuant 1102(A)?

     8. Whether the PCRA Court erred by denying relief, vacation of
     sentence, remand, evidentiary hearing, as to the Pennsylvania
     statute of 18 Pa. C.S.A. 1102(A) violates Due Process; is
     unconstitutional and void under the Vagueness Doctrine: because
     the statute fails to give a person of ordinary intelligence fair notice
     that its true penalty is life imprisonment "without parole", and the
     legality of sentence is in question/ subject matter jurisdiction
     which cannot be waived?

     9. Whether the PCRA Court erred by denying relief Due, where the
     sentencing Court has never docketed a "sentencing order", nor
     furnished one upon {appellant} to have properly challenged the
     legality of the sentence imposed from the actual sentencing order
     and contents stated therein, did/does violate Due Process and
     substantive Due Process rights, where {appellant} could have
     raised the claim within one year of his judgment becoming final,
     had the sentencing order been docketed and provided by the Clerk
     of Courts/ judge, thus making the sentence legality a question of
     merits review?

     10. Whether the PCRA Court erred, by failing to review the Law,
     where the trial Court violated {appellant's} Due Process right of
     the Fifth, Fourteenth, sixth Amendment and pursuant Pa.
     Constitution article 1 sections 9, 10, as the trial court was without
     jurisdiction to try, convict or sentence {appellant},: because the
     Commonwealth criminal complaint/information was void for
     vagueness Doctrine, and failed to confront {appellant} with
     formal and specific accusations of the crimes charged for
     Recklessly endangering another Person, and first degree Murder
     elements, as a challenge to a Courts subject matter jurisdiction is
     non-waivable?

     11. Did the Pcra Court erred, by failing to address the claim of
     whether the [appellant's] 5th, 6th, 14th Amendment constitution
     rights were violated by the trail Courts instruction that, "there was
     no evidence of voluntary manslaughter, nor elements of
     manslaughter in this case and those are not for your consideration


                                      -5-
J-S22013-18


      here", when the commonwealth's case in chief was predicated
      upon a killing caused by provocation and heat of passion?
      N.T.1200

      12. Did the PCRA Court erred, by failing to address the claim of
      whether     the      Commonwealth       suppressed,    withheld,
      misrepresented material evidence of the autopsy's findings, that
      was favorable to [appellant] and material to guilt rendering the
      conviction unreliable, warranting a new trial?

      13). Whether the PCRA Court erred, by denying relief, of Did the
      trial Court abuse discretion or commit an error of law, by imposing
      an illegal sentencing condition "without parole", that's not within
      the laws of the Pennsylvania act. No 1974-46 H.B.1060 P.L.
      213§4, violated Defendants constitutional rights of the fifth, eight,
      fourteenth Amendment?

      14). Whether the PCRA Court erred, by denying relief, of Did the
      trial Court abuse discretion or commit an error Of law, by imposing
      an illegal sentence, enacting the crimes code statute 18.Pa. C.S.
      § 2502 as the sentencing statute, without statutory authority,
      lacked subject matter jurisdiction, where the General Assembly,
      "never" gave authorization to judges, to charge, punish, and
      sentence defendants, under the same statute, violated
      Defendants constitutional rights, under the fifth, eight, fourteenth
      Amendment?

Appellant’s Brief at 2-5.

      Our standard of review of an appeal from the denial of a PCRA petition

is well-settled:

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court's ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court's decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.


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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

      Before we address any specific claim for relief, however, we must begin

by addressing the timeliness of Appellant's petition, because the PCRA’s time

limitations implicate our jurisdiction and may not be altered or disregarded in

order to address the merits of a petition. Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).        Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

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

       In his attempt to bypass the PCRA’s timeliness requirements, Appellant

makes multiple arguments.            First, he contends the government officials

interfered with his Brady1 claim, thereby invoking the timeliness exception

set forth in 42 Pa.C.S. § 9545(b)(1)(i). Second, he argues that an affidavit

provided by David Jefferson (hereinafter “Jefferson Affidavit”) constitutes

newly-discovered evidence for purposes of Section 9545(b)(1)(ii).          Third,

Appellant asserts government interference based on the Commonwealth’s

purported failure to disclose the victim’s autopsy results after Appellant

requested and was denied them from Philadelphia’s medical examiner in

January of 2016 and, similarly, after he requested and was denied them from

the Philadelphia Department of Public Records between February and May of

2016. Fourth, Appellant asserts newly-discovered facts based on an affidavit

he received from Kelly Smith that he claims contains exculpatory evidence

and therefore establishes that counsel was ineffective for failing to call Smith

as a witness at trial. Finally, Appellant asserts that he is entitled to habeas

corpus relief based on an illegality of sentencing claim, which he asserts is not
____________________________________________


1 Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States
Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Id. at 87.


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J-S22013-18



cognizable under the PCRA and, therefore, the PCRA court should not have

dismissed it as an untimely PCRA petition.

        Appellant’s first and second timeliness-exception arguments are

interrelated, as both appear to hinge on Appellant’s receipt of the Jefferson

Affidavit on August 14, 2014.2 Therein, David Jefferson stated that he was

driving around with the victim, his cousin, on the day of and just prior to the

fatal shooting.      Jefferson Affidavit, 7/29/14, at 1 (unnumbered pages).

Jefferson further indicated that, earlier that day, the victim “had some words

with some dudes from … [N]orth [P]hilly.”           Id. He dropped the victim off

near or at the location of the shooting. Id. Soon thereafter, he heard the

sound of gunshots.       Id. As he returned to that location, he was stopped by

police, who took him to a hospital where a shooting victim told police that

Jefferson was not the culprit.3         Id.    Police then transported Jefferson to

“homicide down [at] 8th and [R]ace.” Id. Jefferson stated that, at that time,

he told police about his interaction with the victim that day, including the fact

that the victim had an argument with the “dudes” from North Philadelphia.

Id.

        Appellant contends that Jefferson’s statement to police on the day of the

shooting, as described in the Jefferson affidavit, was withheld from the

defense at his trial, despite ostensibly constituting “exculpatory and
____________________________________________


2   The affidavit was dated July 29, 2014.

3It is not clear whether this references the shooting that led to the victim’s
death, or an unrelated shooting.

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impeachment evidence.”       Appellant’s Brief at 18.     Appellant argues that

August 14, 2014, the date of his receipt of the Jefferson Affidavit, was “the

first time the new claim could have been raised and presented….” Id. at 19.

      Appellant asserts that Section 9545(b)(1)(i) applies to excuse the

untimely filing of his PCRA petition.      However, Appellant appears to rely

entirely on the failure of the Commonwealth to disclose Jefferson’s statement

to police at trial as the basis for this claim. This argument appears to confuse

the standard for establishing a Brady violation with that required to establish

a valid argument for application of the interference by government officials

timeliness exception set forth in Section 9545(b)(1)(i). Even assuming the

failure to disclose Jefferson’s statement constituted a Brady violation,

Appellant is not entitled to an indefinite period to raise that claim by invocation

of the government interference exception. “Although a Brady violation may

fall within the governmental interference exception, the petitioner must plead

and prove that the failure to previously raise these claims was the result of

interference by government officials, and that the information could not have

been obtained earlier with the exercise of due diligence.” Commonwealth

v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006).

      Appellant also asserts that his discovery of Jefferson’s statement to

police, as described in the Jefferson Affidavit, constitutes a newly-discovered

fact for purposes of Section 9545(b)(1)(ii), which explicitly requires due

diligence in the discovering of new facts previously unknown to a petitioner.

Thus, under both exceptions, Appellant must demonstrate that he acted with

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due diligence in obtaining the Jefferson Affidavit.      “Due diligence requires

neither perfect vigilance nor punctilious care, but rather it requires reasonable

efforts by a petitioner, based on the particular circumstances, to uncover facts

that may support a claim for collateral relief.” Commonwealth v. Burton,

121 A.3d 1063, 1071 (Pa. Super. 2015), affirmed, 158 A.3d 618 (Pa. 2017).

For the reasons that follow, we agree with the PCRA court that Appellant was

not duly diligent in his acquisition of the Jefferson Affidavit.

      The PCRA court concluded that:

      [A]fter a thorough review of [A]ppellant’s record, it was revealed
      that [he] was [previously] aware that Jefferson was detained and
      questioned about the homicide. In his November 2009 [PCRA]
      petition, [Appellant] included a correspondence from the
      Commonwealth dated May 17, 2000[,] listing the names of
      witnesses interviewed as well as statements given to police
      officers. See PCRA Petition 11/6/2009 at Exhibit P. Included in
      the discovery submitted to defense counsel was an investigative
      report by Sergeant Scott Murphy, one of the officers interviewing
      witnesses. In his Investigation Interview Record, he stated that
      he detained Jefferson and took his statement. See PCRA Petition
      10/14/14 [at] Exhibit F. Therefore, while the statement may not
      have been submitted to defense counsel, [Appellant], at the very
      least[,] was aware of its existence as it was referred to in Murphy’s
      report. At no time did [Appellant] show that he exercised due
      diligence by attempting to obtain the statement at an earlier time,
      despite being aware of Jefferson’s presence since 2000.

PCO at 5-6. We agree with the PCRA court’s analysis.

      Additionally, in the Jefferson Affidavit, Jefferson indicated that he spoke

with Appellant’s sister, Kaisha Smith, in 2011, about his conversation with

police in 1999. Jefferson Affidavit at 1 (unnumbered pages). Thus, even if

Appellant acted diligently in seeking out Jefferson during the time between



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2000 and 2011, Appellant does not explain why it took an additional three

years for him to present an affidavit from Jefferson. For these reasons, we

conclude that Appellant failed to demonstrate that he acted with due diligence

in presenting his Brady claim premised on Jefferson’s Affidavit.           This

conclusion is fatal to his attempts to invoke the PCRA timeliness exceptions

set forth in Section 9545(b)(1)(i) and (b)(1)(ii).         Moreover, because

Appellant’s lack of due diligence is apparent on the face of the record, there

are no genuine issues of material fact that would justify a remand for an

evidentiary hearing. See Commonwealth v. Keaton, 45 A.3d 1050, 1071

(Pa. 2012) (holding that remand was unnecessary “for further development

of [a] record-based claim” where the reasons for the PCRA court’s decision

were already supported by the existing record).

      Next, Appellant invokes the government interference exception based

on the Commonwealth’s failure to disclose evidence from the autopsy

including photos and other evidence of the location of the victim’s wounds,

despite Appellant’s requests made in January to May of 2016, which Appellant

claims is the basis for a Brady claim. The PCRA court determined that any

such Brady claim was waived because Appellant could have raised it at trial,

during his direct appeal, or in any one of his prior PCRA petitions. PCO at 6.

We agree. Even if Appellant could meet a timeliness exception, he makes no

attempts to explain why the absence of such evidence at trial did not provoke

him or his prior attorneys to raise a related Brady claim at, or immediately

after, his trial. In any event, and for essentially the same reason, Appellant’s

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failure to explain why his 2016 requests for evidence from the victim’s autopsy

could not have been made in the 16 years since his trial demonstrates that he

failed to plead and/or prove that he acted with due diligence in attempting to

discover the contents of the autopsy report that were allegedly withheld from

him. It is no more apparent now than it was at trial that such evidence, even

if helpful to the defense (a purely speculative claim in its own right), was not

presented by the Commonwealth, and/or that it was not disclosed to the

defense.

       Next, Appellant asserts newly-discovered facts in the form of an affidavit

provided to him by Kelly Smith. However, Appellant again fails to plead and

prove he acted with due diligence in securing that affidavit as required under

Section 9545(b)(1)(ii). In Appellant’s brief, he states that “[o]n January 15,

2001[,] [Appellant] sent counsel a detailed letter of all the witnesses he

wanted called for trial and for counsel to interview those witnesses, [n]amely:

Kelly [S]mith, ….”        Appellant’s Brief at 37 (emphasis added).    Appellant

provides no explanation how or why it took until July 10, 2014, more than 13

years, to obtain a statement from Kelly Smith. Thus, we agree with the PCRA

court that Appellant cannot avail himself of the newly-discovered fact

exception based on Kelly’s affidavit.4

____________________________________________


4 The PCRA court rejected this claim on a different basis, indicating that
Appellant failed to meet the 60-day requirement of Section 9545(b)(2).
However, Appellant’s previous PCRA petition was still under review with our
Supreme Court until October 7, 2014 and, therefore, he could not file a new



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       Finally, Appellant claims that the PCRA court erred by denying his

attempt to seek relief under the writ of habeas corpus. Essentially, Appellant

asserts that the sentencing provision applied to his murder conviction is void

for vagueness, in that it ostensibly does not provide adequate notice that the

penalty of “life imprisonment” means life imprisonment without the possibility

of parole. 18 Pa.C.S. § 1102. The PCRA court construed Appellant’s habeas

petition as an amendment to the PCRA petition under consideration herein,

reasoning that the constitutionality of his sentence was a claim that was fully

cognizable under the PCRA. PCO at 3.

       Appellant makes no argument that his habeas petition is timely under

Section 9545(b)(1).        Instead, he claims that the PCRA court erred by

construing his habeas petition as a PCRA petition. Specifically, he asserts that

his void-for-vagueness claim is not cognizable under the PCRA statute and,

therefore, that the statute’s timeliness provisions do not apply to his habeas

petition. For the following reasons, we agree.

       Section 9542 provides, in pertinent part, that:

       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. The action established in
       this subchapter shall be the sole means of obtaining
       collateral relief and encompasses all other common law and

____________________________________________


PCRA petition until that time. Nevertheless, because Appellant has failed to
demonstrate that he acted with due diligence in obtaining Kelly’s affidavit, he
cannot satisfy the newly-discovered fact exception to the PCRA’s timeliness
requirements. See Ford, 44 A.3d at 1194 (“This Court may affirm a PCRA
court's decision on any grounds if the record supports it.”).

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J-S22013-18


      statutory remedies for the same purpose that exist when this
      subchapter takes effect, including habeas corpus….

42 Pa.C.S. § 9542 (emphasis added).           Appellant correctly notes that this

provision exists in tension with the eligibility-for-relief provisions of the PCRA

statute. Section 9543 provides, in pertinent part, as follows:

      (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:

         (1) That the petitioner has been convicted of a crime under
         the laws of this Commonwealth and is at the time relief is
         granted:

            (i) currently serving a sentence of imprisonment,
            probation or parole for the crime;

            (ii) awaiting execution of a sentence of death for the
            crime; or

            (iii) serving a sentence which must expire before the
            person may commence serving the disputed sentence.

         (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.


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            (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.
                                         …
            (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. § 9543(a) (emphasis added).

      There is no dispute that the Appellant’s habeas petition satisfies Section

9543(a)(1), as Appellant is currently serving a sentence of imprisonment.

However, the only provisions of Section 9543(a)(2) that might arguably

pertain to sentencing claims which, like the one presented by Appellant in his

habeas petition, do not also pertain to matters of underlying guilt or

innocence, are Sections 9543(a)(2)(vii) and (viii). As the jurisdiction of the

trial/sentencing   court   is   not   in     question,   that   leaves   only   Section

9543(a)(2)(vii), which permits relief under the PCRA statute for claims

involving the “imposition of a sentence greater than the lawful maximum.” 42

Pa.C.S. § 9543(a)(2)(vii). Appellant asserts that the void-for-vagueness claim

set forth in his habeas petition (essentially a due process claim), does not

posit that his sentence exceeds the lawful maximum for first-degree murder

and, therefore, is not a claim that is eligible for relief under the PCRA statute.




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J-S22013-18



       The PCRA court does not indicate in its opinion why it construed

Appellant’s void-for-vagueness argument as an illegal-sentencing claim that

is cognizable under the PCRA. Instead, it states, citing Commonwealth v.

Hacket, 956 A.2d 978 (Pa. 2008) that “constitutional challenges are fully

cognizable under the PCRA….” PCO at 3. However, in Hacket, our Supreme

Court narrowly ruled that claims raised pursuant to Batson v. Kentucky, 476

U.S. 79 (1986), are cognizable under the PCRA, as it was similar to other

issues previously found to be cognizable under the PCRA, and dissimilar to

claims “which fall outside the PCRA’s statutory scheme.” Hacket, 956 A.2d

at 986.

       Appellant does not explicitly claim that his sentence exceeds the lawful

maximum, nor is his claim easily construed as such. Instead, he contends

that—in    crafting    the   sentencing        statute   for   first-degree   murder—the

legislature failed to give adequate or reasonable notice of the penalty for that

offense, especially in light of other sentencing provisions, such as the

minimum/maximum rule.5 If anything, Appellant is challenging the minimum

sentence imposed (that is, that no minimum sentence was imposed); he does

not claim that his sentence exceeded the lawful maximum.




____________________________________________


5 When imposing a sentence of “total confinement,” 42 Pa.C.S. § 9756(a),
“[t]he court shall impose a minimum sentence of confinement which shall not
exceed one-half of the maximum sentence imposed[,]” 42 Pa.C.S. §
9756(b)(1) (emphasis added).

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      Nor does Appellant’s claim fall within the well-recognized categories of

illegal sentencing issues that are cognizable under the PCRA under applicable

case law.

      The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
      that is applied to three narrow categories of cases. Those
      categories are: “(1) claims that the sentence fell ‘outside of the
      legal parameters prescribed by the applicable statute’; (2) claims
      involving merger/double jeopardy; and (3) claims implicating the
      rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
      147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (citations

omitted). The latter category includes claims that arise under the progeny of

Apprendi, including Alleyne v. United States, 570 U.S. 99 (2013).

Additionally, “[t]his Court has also held that claims pertaining to the Eighth

Amendment's Cruel and Unusual Punishment Clause also pertain to the

legality of the sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 122

(Pa. Super. 2014). None of these categories apply to Appellant’s issue, which

is grounded in due process concerns.

      Lawrence is instructive here. In that case, the appellant challenged

the constitutionality of the sentencing provision for juveniles convicted of

murder, 18 Pa.C.S. § 1102.1, arguing, inter alia, that the statute violated

equal protection and ex post facto principles. Lawrence, 99 A.3d at 118. In

order to escape waiver concerns, the appellant argued that his claims

implicated the legality of his sentence.      However, the Lawrence Court

determined those issues were not illegal-sentencing claims, despite the fact

that they targeted a sentencing statute. The Court reasoned that:

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              In our view, there is a meaningful difference between the
      remaining two arguments [the a]ppellant raises in this case and
      issues pertaining to the Eighth Amendment, merger, Apprendi
      and Alleyne. The Eighth Amendment, merger, Apprendi, and
      even Alleyne all directly circumscribe the trial court's sentencing
      process and sentencing authority. Stated another way, the goal
      of the Cruel and Unusual Punishment Clause, the merger doctrine,
      Apprendi and Alleyne is to protect defendants from the
      imposition of punishments by trial judges that are
      unconstitutional, imposed through unconstitutional processes, or
      are a “greater punishment than the legislature intended.”
      [Commonwealth v.] Andrews, [768 A.2d 309, 313 (Pa. 2001)].
      However, as is relevant in this case, the Equal Protection Clause
      and the Ex Post Facto Clauses serve to restrict legislative power.
      [The a]ppellant does not argue that the trial court did not follow
      Section 1102.1's mandate or text in carrying out its traditional
      sentencing function. Nor does Appellant argue that any part of
      the sentencing process was unconstitutional.          Rather, [the
      a]ppellant argues that the General Assembly passed a statute
      that, in his view, unconstitutionally treats some juveniles
      differently than others, and retroactively changes the punishment
      for the crime after it was committed. These arguments do not
      address the same concerns as the Eighth Amendment, the merger
      doctrine, Apprendi and Alleyne. Because [the a]ppellant's Equal
      Protection and Ex Post Facto Clause arguments directly seek
      protection from legislatures, not judges, we hold that these
      arguments fall into the category of “a sentencing issue that
      presents a legal question [rather than a claim that the] sentence
      [is] illegal.” Commonwealth v. Cartrette, 83 A.3d 1030, 1036
      n.5 (Pa. Super. 2013) (en banc) (citation omitted).

Lawrence, 99 A.3d at 123–24 (some internal citations omitted, emphasis in

original).

      Likewise, here, Appellant’s void-for-vagueness claim is a sentencing

issue that presents a legal question that is qualitatively distinct from the

categories of illegal sentences recognized by our courts. It does not challenge

the sentencing court’s authority or actions insomuch as it challenges the




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legislature’s alleged failure to provide adequate notice of the penalty for first-

degree murder.

      However, Appellant’s void-for-vagueness claim, just like all claims (but

for the three categories of illegal-sentencing claims, see Munday, supra), is

subject to waiver. “Habeas corpus is an extraordinary remedy and is available

after other remedies have been exhausted or ineffectual or nonexistent. It

will not issue if another remedy exists and is available.” Commonwealth ex

rel. Johnson v. Bookbinder, 247 A.2d 644, 646 (Pa. Super. 1968).               As

Appellant’s claim could have been raised at his sentencing hearing, or in a

post-sentence motion, he failed to exhaust all available remedies before

resorting to the habeas corpus remedy.        Accordingly, we deem his claim

waived and, therefore, affirm the PCRA court’s order dismissing his petition

on that basis. “To the extent our legal reasoning differs from the trial court’s,

we note that as an appellate court, we may affirm on any legal basis supported

by the certified record.” Commonwealth v. Williams, 125 A.3d 425, 433

n.8 (Pa. Super. 2015).

      As Appellant has failed to successfully invoke any exception to the

PCRA’s timeliness restrictions, and because the issue raised in his habeas

petition was waived, we conclude that the PCRA court’s order dismissing his

petition and related amendments was supported by the record and free of

legal error.

      Order affirmed.

      Judge Stabile joins this opinion.

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     Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018




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