J-S61043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    LENWARD E. GOLPHIN,

                             Appellant                No. 819 EDA 2017


                 Appeal from the PCRA Order February 17, 2017
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1224451-1984


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 30, 2017

        Appellant, Lenward E. Golphin, appeals, pro se, from the order of

February 17, 2017, dismissing his pro se petition for a writ of habeas corpus.

After review, we conclude that the court correctly deemed Appellant’s petition

for a writ of habeas corpus to be an untimely serial petition pursuant to the

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

we affirm.

        We take the underlying facts and procedural history in this matter from

the PCRA court’s May 2, 2017 opinion and our independent review of the

certified record.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On February 25, 1986, a jury found Appellant guilty of murder in the

first degree.   On May 6, 1986, the court sentenced him to a term of

incarceration of not less than life.    This Court affirmed the judgment of

sentence on December 21, 1987. (See Commonwealth v. Golphin, 538

A.2d 939 (Pa. Super. 1987)). On May 10, 1988, the Pennsylvania Supreme

Court denied leave to appeal. (See Commonwealth v. Golphin, 542 A.2d

1366 (Pa. 1988)). Thereafter, between 1988 and 2013, Appellant filed four

unsuccessful PCRA petitions.

      Appellant filed the instant, pro se petition, captioned as a “Petition for

Habeas Corpus Relief Pursuant to Article I, § 14 of the Pennsylvania

Constitution” on August 15, 2014. Treating it as a PCRA petition, on January

6, 2017, the PCRA court issued notice of its intent to dismiss the petition

pursuant to Pennsylvania Rule of Criminal Procedure 907(1).           Appellant

subsequently filed a response.      On February 17, 2017, the PCRA court

dismissed the petition as time-barred.       Appellant filed a timely notice of

appeal. On April 13, 2017, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On

April 25, 2017, Appellant filed a timely Rule 1925(b) statement. The PCRA

court issued an opinion on May 2, 2017. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review.

      A. Whether the [PCRA] court abused its discretion in dismissing
         Appellant’s [p]etition for [h]abeas [c]orpus relief as an
         untimely PCRA petition where his confinement is based on a


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         [c]riminal [i]nformation that is defective rendering the charge,
         conviction and sentence void ab initio?

      B. Whether the Pennsylvania Penal Statute 18 Pa.C.S.A. §§
         1102(a) and (b) is unconstitutional and void under the
         vagueness doctrine?

(Appellant’s Brief, at 3).

      Appellant appeals from the denial of his untimely, serial PCRA petition.

Initially, we conclude that the PCRA court was correct to treat Appellant’s

petition for a writ of habeas corpus as a fifth PCRA petition.        “[I]t is well

established that pursuant to Pennsylvania law, the PCRA subsumes the writ of

habeas corpus unless the claim does not fall within the ambit of the PCRA

statute.” Commonwealth v. Burkett, 5 A.3d 1260, 1274 (Pa. Super. 2010)

(citations omitted).   Here, while Appellant attempts to argue otherwise, (see

Appellant’s Brief, at 8-13), his claims that the criminal information was

defective, resulting in a violation of his due process rights, and that the statute

the trial court sentenced him under is unconstitutionally vague are clearly

within the ambit of the PCRA. See 42 Pa.C.S.A. §§ 9543(a)(2)(i) and (viii).

Thus, we conclude that the court did not err in deeming Appellant’s filing to

be a fifth PCRA petition.

      Our standard of review for an order denying PCRA relief is well-settled:

             This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is supported
      by the evidence of record and is free of legal error. Great
      deference is granted to the findings of the PCRA court, and these
      findings will not be disturbed unless they have no support in the
      certified record. . . .


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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

        Here, Appellant filed his PCRA petition on August 15, 2014. The PCRA

provides that “[a]ny petition under this subchapter, including a second or

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

becomes final[.]”       42 Pa.C.S.A. § 9545(b)(1).       Appellant’s judgment of

sentence became final on July 11, 1988, after the sixty-day period1 to file a

petition for a writ of certiorari with the United States Supreme Court expired.

See U.S.Sup.Ct.R. 20.1 (former); 42 Pa.C.S.A. § 9545(b)(3).

        In Appellant’s case, a timely first petition for post-conviction relief would

have had to have been filed by January 16, 1997, pursuant to the grace period

provided for petitioners whose judgments of sentence became final prior to

the effective date of the amended PCRA. See Commonwealth v. Davis, 916

A.2d 1206, 1208-09 (Pa. Super. 2007) (explaining that 1995 amendments to

PCRA provide that if judgment of sentence became final before January 16,

1996, the effective date of amendments, PCRA petition will be considered

timely if filed within one year of that date, or by January 16, 1997; however,

grace period applies only to first PCRA petitions). Appellant filed the instant



____________________________________________


1   The sixtieth day, July 9, 1988, was a Saturday.

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PCRA petition on August 15, 2014; therefore, it is patently untimely. Thus,

he must plead and prove that he falls under one of the exceptions at Section

9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully 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.

Id.   Further, a petitioner who wishes to invoke any of the above exceptions

must file the petition “within [sixty] days of the date the claim could have

been presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has

repeatedly stated that it is an appellant’s burden to plead and prove that one

of the above-enumerated exceptions applies. See, e.g., Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916

(2008).

      Here, Appellant does not argue any of the above-listed exceptions. (See

Appellant’s Brief, at 8-21).   Since Appellant’s petition is untimely with no

statutory exception to the time-bar pleaded and proven, the PCRA court


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properly found it was without jurisdiction to address the merits of Appellant’s

claims.

      Accordingly, because Appellant failed to plead and prove that his petition

falls within one of the enumerated exceptions to the PCRA time-bar, it is

untimely. We are without jurisdiction to consider the merits of his appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2017




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