J-S32004-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAMES RICHARDSON,

                        Appellant                 No. 2884 EDA 2015


               Appeal from the PCRA Order August 28, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0310462-2003


BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED May 11, 2016

     James Richardson appeals from the August 28, 2015 order denying

him PCRA relief. We affirm.

     On July 28, 2004, a jury found Appellant guilty of one count each of

second-degree murder and aggravated assault, and two counts each of

robbery, conspiracy, and possession of an instrument of crime.        On

September 9, 2004, the mandatory sentence of life imprisonment was

imposed. We affirmed the judgment of sentence, Commonwealth v.

Richardson, 927 A.2d 657 (Pa.Super. 2007) (unpublished memorandum),

and our Supreme Court denied further review on October 4, 2007.

Commonwealth v. Richardson, 934 A.2d 73 (Pa. 2007). Appellant filed a

timely PCRA petition, counsel was appointed, relief was denied, and that


* Retired Senior Judge assigned to the Superior Court.
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denial was affirmed by this Court. Commonwealth v. Richardson, 990

A.2d 52 (Pa.Super. 2009) (unpublished memorandum), appeal denied, 23

A.3d 541 (Pa. 2011).

      On April 8, 2013, Appellant filed a pro se PCRA petition, which was

dismissed as untimely.       This appeal followed.          Appellant presents these

issues for our review:

            [1.] Did the common pleas court abuse it's discretion by
      denying the Appellant's post conviction/habeas petition stating
      that the petition was untimely under the time-limitations of the
      PCRA (ACT), 42 Pa.C.S. § 9545(b)(1) and § 9545(b)(2)?

            [2.] Was the petition timely filed as a petition seeking a
      writ of habeas corpus, as per Commonwealth v. Judge, 916
      A.2d 511 ([Pa.] 2007)?

Appellant’s brief at 1.

      Our “standard of review of the denial of a PCRA petition is limited to

examining    whether      the    evidence     of   record     supports    the    court’s

determination    and      whether   its     decision   is    free   of   legal   error.”

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super. 2015).                        Any

PCRA petition “shall be filed within one year of the date the judgment

becomes final” unless an exception to the one-year time restriction applies.

42 Pa.C.S. § 9545(b)(1).        “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. § 9545(b)(3). If a PCRA petition is


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untimely, this Court lacks jurisdiction over the petition. Commonwealth v.

Miller, 102 A.3d 988 (Pa.Super. 2014); see also Commonwealth v.

Chester, 895 A.2d 520 (Pa. 2006).

      Herein, our Supreme Court denied allowance of appeal on October 4,

2007, and Appellant’s judgment of sentence became final ninety days

thereafter, Commonwealth v. Harris, 972 A.2d 1196 (Pa.Super. 2009), or

on January 2, 2008.     Appellant had until January 2, 2009, to file a PCRA

petition, and his 2013 petition is therefore untimely.

      Appellant combines argument on his two contentions, maintaining that

the timeliness provisions of the PCRA are inapplicable since he was seeking

habeas corpus relief in the 2013 petition, as permitted by Judge, supra.

Therein, our Supreme Court ruled that, if the PCRA does not provide a

remedy for the claim presented by a defendant, then the defendant may

pursue habeas corpus relief. However, the Judge Court reinforced the well-

ensconced principle that “the PCRA subsumes all forms of collateral relief,

including habeas corpus, to the extent that a remedy is available under such

enactment.” Id. at 520; 42 Pa.C.S. § 9542 (“The action established in this

subchapter shall be 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.”); Commonwealth v. Turner, 80 A.3d 754, 770

(Pa. 2013) (“The PCRA at Section 9542 subsumes the remedies of habeas

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corpus and coram nobis.”); see also Commonwealth v. Descardes, 2016

WL 1249964 (Pa. 2016) (if a defendant’s claim is cognizable under the

PCRA, the PCRA is the sole method of obtaining collateral review and a PCRA

petition is subject to its restrictions).

      In the present case, Appellant avers that his lawyer was improperly

restricted in his cross-examination of a cooperating Commonwealth witness.

Appellant argues the existence of a violation of his Sixth Amendment right to

confront witnesses against him and maintains that this violation undermined

the truth-determining process by producing a miscarriage of justice.

Appellant’s brief at 6, 10.     Our Supreme Court has observed that a claim

that a defendant’s constitutional rights were violated is cognizable under the

PCRA and therefore the writ of habeas corpus is unavailable for such an

averment. Commonwealth v. Peterkin, 722 A.2d 638, 640-41 (Pa. 1998)

(“Because Peterkin alleges violations of the constitution and of law which

undermine the truth-determining process, his claims were cognizable under

the PCRA. Pennsylvania’s statutory writ of habeas corpus, therefore, was

not available as to these claims, for Peterkin had a remedy at the PCRA[.]”);

42 Pa.C.S. § 9543(a)(2)(i) (“To be eligible for relief under this subchapter,

the petitioner must plead and prove by a preponderance of the evidence all

of the following . . . [t]hat the conviction or sentence resulted from . . . [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,

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so undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”). Appellant also suggests that

prior counsel was ineffective for failing to pursue this issue. Appellant’s brief

at 10.   All claims of ineffective assistance of counsel are cognizable under

the PCRA.     Descardes, supra.      Since Appellant’s claims are cognizable

under the PCRA, it is the sole means by which Appellant may seek relief for

his present averments.     The court therefore properly ruled that Appellant

could not seek habeas corpus relief and that his PCRA petition, being

untimely, should be dismissed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




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