J-S56030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 FRANCISCO ALGARIN                         :
                                           :
                    Appellant              :   No. 1557 EDA 2019

             Appeal from the PCRA Order Entered May 6, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0928871-1993


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                         FILED DECEMBER 04, 2019

      Appellant, Francisco Algarin, appeals pro se from an order entered on

May 6, 2019, which dismissed his petition for collateral relief filed pursuant to

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

affirm.

      The PCRA court set forth the relevant factual and procedural background

of this matter as follows:

          In 1992, [Appellant] was arrested and subsequently
          charged in connection with the fatal shooting of Mina Myers
          and the hiring of a man to assault a witness to whom
          [Appellant] confessed. On June 9, 1994, following a jury
          trial presided over by the Honorable Jane Cutler Greenspan,
          [Appellant] was convicted of first-degree murder, criminal
          conspiracy, aggravated assault, intimidation of a witness,
          and firearms violations. On October 26, 1994, the [trial]
          court imposed a sentence of life imprisonment on the
          murder conviction and lesser consecutive terms of
          incarceration on the remaining convictions. [This Court]
          subsequently affirmed [Appellant’s] judgment of sentence
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          on January 6, 1997 and the Pennsylvania Supreme Court
          denied allocatur on August 12, 1997.

          In August [] 1998, [Appellant] filed his first PCRA petition,
          pro se. Counsel was appointed and subsequently filed a
          Turner/Finely1 no-merit letter. The PCRA court denied the
          petition and permitted counsel to withdraw. [This Court]
          affirmed the PCRA court’s order on November 10, 1999. The
          Pennsylvania Supreme Court denied allocatur on April 4,
          2000.

          [Appellant] was subsequently unsuccessful in obtaining
          collateral relief through serial petitions filed in 2006 and
          2015.

PCRA Court Opinion, 6/20/19, at 1-2 (footnotes omitted) (footnote added).

       On January 3, 2018, Appellant filed the current petition, which he

entitled, “petition for habeas corpus relief.” Appellant’s PCRA Petition, 1/3/18,

at 1-7. Subsequently, on July 6, 2018, Appellant filed a second petition, which

he also entitled “petition for habeas corpus relief.” Appellant’s Petition for

Habeas Corpus Relief, 7/6/18, at 1-7.            The PCRA court treated both

submissions as a single PCRA petition. PCRA Court Opinion, 6/20/19, at 2.

On February 27, 2019, the PCRA court issued notice that it intended to dismiss

Appellant’s PCRA petition in 20 days without holding a hearing, as the petition

was untimely. PCRA Court Order, 2/27/19, at 1; see Pa.R.Crim.P. 907(1).

Appellant filed a response on March 12, 2019.        The PCRA court dismissed

Appellant’s petition on May 21, 2019. PCRA Court’s Order, 5/21/19, at 1. This

timely appeal followed.

____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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      We note that, as “a general proposition, an appellate court reviews the

PCRA court’s findings to see if they are supported by the record and free from

legal error.” Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super.

2008) (citations and quotations omitted).

      Preliminarily, we review the PCRA court’s decision to treat Appellant’s

submissions as a single PCRA petition. First, we address Appellant’s January

3, 2018 submission.     Within this petition, Appellant claimed that he was

“denied his right to due process under the Fourteenth Amendment.”

Appellant’s PCRA Petition, 1/3/18, at 2. Specifically, Appellant argued that

when the PCRA court granted appointed counsel’s petition to withdraw

pursuant to Turner/Finley in 1998, it violated his constitutional rights. Id.

at 2-6.

      Previously, this court explained:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. Unless the PCRA could not
      provide for a potential remedy, the PCRA statute subsumes the
      writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013)

(internal citations omitted). Accordingly, if an issue is “cognizable under the

PCRA,” it “must be raised in a timely PCRA petition, and cannot be raised in a

habeas corpus petition.” Id. Notably, a claim that a “conviction or sentence”

resulted from a “violation of the Constitution of this Commonwealth or the

Constitution or laws of the United States” is a cognizable issue under the

PCRA. 42 Pa.C.S.A. § 9543(a)(2)(i).


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      In this case, the PCRA court correctly held that Appellant’s January 3,

2018 submission qualified as a PCRA petition. Within Appellant’s “petition for

habeas corpus relief,” he asserted that his conviction or sentence resulted

from a violation of the United States’ Constitution, i.e., a violation of his due

process rights under the Fourteenth Amendment. Appellant’s PCRA Petition,

1/3/18, at 1-7; see 42 Pa.C.S.A. § 9543(a)(2)(i).         Thus, the PCRA court

correctly treated Appellant’s submission as a PCRA petition.         Accordingly,

before we proceed to its merits, “we must first determine whether [Appellant’s

January 3, 2018 submission considered as a 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 nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013) (citation 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 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).        Here, Appellant’s

judgment of sentence became final on November 10, 1997, 90 days after the

Pennsylvania Supreme Court denied allocatur and the time to file a petition

for writ of certiorari in the United States Supreme Court elapsed. See U.S.

Sup. Ct. Rule 13.       Hence, Appellant’s petition is manifestly untimely.

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Therefore, unless one of the statutory exceptions to the time-bar applies, no

court may exercise jurisdiction to consider this petition.

      Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions

to the timeliness requirement that allow for very limited circumstances under

which the untimely filing of a PCRA petition will be excused. To invoke an

exception, a petitioner must allege and prove one of the following:

      (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)(i)-(iii). If an exception applies, a PCRA petition

may be considered if it is filed “within one year of the date the claim could

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

deadline to claims arising on or after December 24, 2017).

      Herein, Appellant made no attempt to plead or prove that one of the

above-mentioned exceptions to the PCRA time-bar applies. In fact, he does

not even mention one of the exceptions listed in 42 Pa.C.S.A. § 9545(b). See

Appellant’s PCRA Petition, 1/3/18, at 1-7. As such, the PCRA court properly

dismissed Appellant’s January 3, 2018 PCRA petition for lack of jurisdiction.



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       Next, we address Appellant’s July 6, 2018 submission. In this filing,

Appellant claimed that the criminal2 and sentencing statutes3 regarding

first-degree murder are unconstitutional.4       Appellant’s Petition for Habeas

Corpus Relief, 7/6/18, at 1-7; Appellant’s Brief at 12-19.        Specifically, he

asserts that both statutes are “void under the vagueness doctrine” because

both fail to state explicitly that an individual sentenced to life imprisonment is

not eligible for parole. Appellant’s Brief at 12. Upon review, we conclude that

the PCRA court erred in treating Appellant’s July 8, 2018 submission as a PCRA

petition.




____________________________________________


2See 18 Pa.C.S.A. § 1102(a) (“a person who has been convicted of a murder
of the first degree or of murder of a law enforcement officer of the first degree
shall be sentenced to death or to a term of life imprisonment in accordance
with 42 Pa.C.S. § 9711”).

3 See 42 Pa.C.S.A. § 9711(a) (“After a verdict of murder of the first degree is
recorded and before the jury is discharged, the court shall conduct a separate
sentencing hearing in which the jury shall determine whether the defendant
shall be sentenced to death or life imprisonment”).

4 We note that in Appellant’s July 6, 2018 submission, Appellant referred only
to the constitutionality of 42 Pa.C.S.A. § 9711(a). In his appellate brief,
however, Appellant challenges the constitutionally of 18 Pa.C.S.A. § 1102(a).
Appellant’s Brief at 12. Thus, it is possible to conclude that Appellant waived
the aforementioned issue. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal”).
Nonetheless, Appellant is essentially challenging the constitutionality of the
statutes under which he was convicted and sentenced for the same reason,
i.e., that neither statutory provision explicitly states that an individual will be
subjected to life imprisonment without parole. Therefore, we conclude that
Appellant did not waive this argument and will address Appellant’s argument
as it relates to both statutes for purposes of this appeal.

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      Recently, this Court addressed a similar challenge in Commonwealth

v. Rouse, 191 A.3d 1 (Pa. Super. 2018). Specifically, in Rouse, the appellant

submitted a pro se habeas corpus petition, asserting that the sentencing

statute for second-degree murder was “void for vagueness, in violation of his

due process rights.” Id. at *2. Upon review, the PCRA court concluded that

the appellant’s claim “asserted the illegality of his sentence” and, as such,

treated his submission as a PCRA petition. Id. at *3. A panel of this Court,

however, disagreed. Instead, we held that the appellant’s assertion that the

statute was void for vagueness did not qualify as a challenge under 42

Pa.C.S.A.   § 9543(a)(2)(i)   (“a   violation   of   the   Constitution   of   this

Commonwealth or the Constitution or laws of the United States [that] . . . so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place”) or 42 Pa.C.S.A. § 9543(a)(2)(vii)

(“[t]he imposition of a sentence greater than the lawful maximum”). Rouse,

191 A.3d at *7. Ultimately, this Court treated the appellant’s submission as

a petition for habeas corpus relief, but held that his claim was waived because

he failed to “exhaust all available remedies before resorting to habeas corpus.”

Id.

      Likewise, in this case, Appellant has argued that 42 Pa.C.S.A. § 9711(a)

and 18 Pa.C.S.A. § 1102(a) are “unconstitutional and void under the

vagueness doctrine” because both statutes fail to give “fair notice that its true

penalty is [l]ife imprisonment without parole.” Appellant’s Brief at 12. Thus,

pursuant to Rouse, Appellant’s claim qualifies as a petition for habeas corpus

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relief, not a PCRA petition. Rouse, 191 A.3d at *7. Nonetheless, as in Rouse,

we conclude that Appellant waived his claim because he failed to “exhaust all

available remedies before resorting to habeas corpus.”         Id.   Indeed, on

appeal, Appellant failed to include in the certified record any evidence that he

raised this claim at his sentencing hearing or in a post-sentence motion. See

id. “[W]hat is not contained in the certified record ‘does not exist for purposes

of our review.’” Commonwealth v. Brown, 161 A.3d 960, 968, (Pa. Super.

2017), quoting Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super.

2008). As such, we conclude that this issue is waived and, therefore, affirm

the PCRA court’s order dismissing Appellant’s petition. See Commonwealth

v. Williams, 125 A.3d 425, n.8 (Pa. Super. 2015) (“To the extent that our

legal reasoning differs from the trial court’s [rationale], we note that as an

appellate court, we may affirm on any legal basis supported by the certified

record”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/19




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