J-A23007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GEORGE COBBS                             :
                                          :
                    Appellant             :   No. 579 WDA 2018


                Appeal from the PCRA Order, April 10, 2018,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division at No(s): CP-02-CR-0001131-1978,
           CP-02-CR-0002915-1979, CP-02-CR-0002950-1979,
           CP-02-CR-0002962-1979, CP-02-CR-0003639-1978,
           CP-02-CR-0003663-1978, CP-02-CR-0003664-1978.


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                     FILED OCTOBER 18, 2019

      George Cobbs appeals pro se from the order denying as untimely his

serial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      In a prior appeal denying post-conviction relief, this Court summarized

the pertinent facts and procedural history as follows:

            On June 13, 1979, at the conclusion of a jury trial,
         [Cobbs] was convicted of two counts of first-degree murder,
         three counts of robbery, one count of aggravated assault,
         and two firearms violations. On January 3, 1980, he was
         sentenced to, inter alia, two terms of life imprisonment. No
         direct appeal was taken from the judgment of sentence.

            On October 4, 1988, [Cobbs] filed a pro se [PCRA
         petition]. [Cobbs] was appointed counsel. A hearing was
         held on December 21, 1988. Following the hearing, the
         court reinstated [Cobbs’] right to an appeal nunc pro tunc,
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        and his right to file post-sentence motions. Subsequently,
        post-sentence motions were filed; they were denied on July
        21, 1995. [Cobbs] filed a direct appeal nunc pro tunc, and
        this Court affirmed [Cobbs’] judgment of sentence on July
        30, 1996. See Commonwealth v. Cobbs, 685 A.2d 207
        (Pa. Super. 1996) (unpublished memorandum).            The
        Pennsylvania Supreme Court denied [Cobbs’] petition for
        allowance of appeal on May 21, 1998.                   See
        Commonwealth v. Cobbs, 719 A.2d 744 (Pa. 1998).

           [Cobbs] filed a second pro se PCRA petition on December
        23, 1998. [After appointed counsel filed a no-merit letter,
        the PCRA court dismissed the petition.]

                                     ***

        This Court affirmed the dismissal of [Cobbs’] PCRA petition
        on March 26, 2003. See Cobbs, 833 A.2d 1023 (Pa. Super.
        2003).

           [Cobbs] filed [his third petition, pro se,] on July 16, 2013.
        The court issued a Rule 907 notice of intent to dismiss on
        September 24, 2013. [Cobbs] filed an objection, but the
        court dismissed [Cobbs’] petition on January 29, 2014.
        [Cobbs] filed a timely pro se appeal, as well as a timely
        concise statement of errors complained of on appeal
        pursuant to Pa.R.A.P. 1925(b).

Commonwealth v. Cobbs, 113 A.3d 343 (Pa. Super. 2014), unpublished

memorandum at 1-3.

     This Court determined that Cobbs’ third PCRA petition was untimely. We

therefore affirmed the PCRA court’s denial of post-conviction relief. See id.

Thereafter, Cobbs filed a petition for allowance of appeal, which our Supreme

Court denied on February 11, 2015. Commonwealth v. Cobbs, 110 A.3d

996 (Pa. 2015).

     On March 15, 2016, Cobbs filed another pro se petition for writ of habeas

corpus ad subjiciendum. The PCRA court treated it as a PCRA petition and, by


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order entered November 14, 2016, the PCRA court ultimately denied the

petition. Cobbs did not file an appeal.

      On December 6, 2016, Cobbs filed yet another petition for writ of habeas

corpus ad subjiciendum—the petition at issue, his fifth—in the civil division of

the court of common pleas. The civil division transferred the petition to the

criminal division. The PCRA court appointed counsel, who once again filed a

Turner/Finley letter and motion to withdraw. On December 19, 2017, the

PCRA court granted counsel’s motion to withdraw and issued Rule 907 notice

of its intention to dismiss the petition without a hearing. Cobbs did not file a

response. By order entered April 10, 2018, the PCRA court denied his petition.

This timely appeal followed. Both Cobbs and the PCRA court have complied

with Pa.R.A.P. 1925.

      Cobbs raises the following issues on appeal:

         I.     Was the re-arrest of [Cobbs] an arbitrary act of
                malfeasance that rendered any further action taken a
                legal nullity?

         II.    Did the PCRA Court reversibly err in converting
                [Cobbs’] writ of Habeas Corpus Subjiciendum into a
                PCRA when the issue regarding the legality of [Cobbs’]
                detention is not cognizable under [the PCRA]?

         III.   Was the PCRA Court’s failure to forward its notice of
                intent to dismiss a procedural breakdown and thus a
                violation of [Cobbs’] right to due process?

         IV.    [Was] the PCRA Court’s misinterpretation that
                [Cobbs’] claims were filed under CC197801-1131 a
                reversible error?

Cobbs’ Brief at vii.


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      We first address Cobbs’ second issue in which he asserts that the PCRA

court erred in treating his petition for writ of habeas corpus ad subjiciendum

as a serial PCRA petition.   This Court rejected Cobbs’ argument when we

affirmed the denial of post-conviction relief in 2014. In doing so, we quoted

the following language from Commonwealth v. Taylor, 65 A.3d 462 (Pa.

Super. 2013):

         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. Issues that are
         cognizable under the PCRA must be raised in a timely PCRA
         petition and cannot be raised in a habeas corpus petition.
         Phrased differently, a [PCRA petitioner] cannot escape the
         PCRA time-bar by titling his petition or motion as a writ of
         habeas corpus.

Cobbs, unpublished memorandum at 3-4 (citations omitted).              We then

explained why Cobbs’ challenge to “the propriety of the Commonwealth’s re-

fling of criminal informations” constituted a cognizable claim under the PCRA:

         The exact nature of [Cobbs’] claim is not clear. However, it
         appears that the claim implicates the legality of [Cobbs’]
         conviction, and consequently, his sentence; or it is an
         allegation that his constitutional right to due process was
         violated. In either case, such a case would be cognizable
         under the PCRA. Therefore, [Cobbs’] habeas corpus petition
         constitutes a PCRA petition.

Id., at 4-5 (citations omitted). The same holds true in the instant appeal.

Thus, we review the denial of post-conviction relief under the PCRA.

      Before addressing Cobbs’ remaining issues, however, we must first

determine whether the PCRA court correctly determined that the current PCRA

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petition was untimely filed. This Court’s standard of review regarding an order

dismissing a petition under the PCRA is to ascertain whether “the

determination of the PCRA court is supported by the evidence of record and is

free of legal error. The PCRA court’s findings will not be disturbed unless there

is no support for the findings in the certified record.”      Commonwealth v.

Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).

        Generally, a petition for relief under the PCRA, including a second or

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

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these


____________________________________________


1   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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), (ii), and (iii).




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statutory exceptions must “be filed within 60 days of the date the claims could

have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,

651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §

9545(b)(2).2 Asserted exceptions to the time restrictions for a PCRA petition

must be included in the petition, and may not be raised for the first time on

appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

       In Cobbs, supra, this Court previously determined that his serial PCRA

petition was untimely:

             Here, the Pennsylvania Supreme Court denied [Cobbs’]
          petition for allowance of appeal on May 21, 1998. Thus,
          [Cobbs’] judgment of sentence became final 90 days
          thereafter, or on August 19, 1998. Consequently, [Cobbs]
          had until August 19, 1999, to file a timely PCRA petition. He
          did not file the instant petition until July 16, 2013. [Cobbs]
          was required to plead and prove in his PCRA petition that
          one of the above-stated exceptions applied to his claim(s).
          [Cobbs] did not plead an exception to the PCRA time-bar in
          his petition, and so his PCRA petition was untimely filed.
          Accordingly, we conclude that the court did not err in
          denying it.

Cobbs, unpublished memorandum at 6-7 (citations omitted).

       The same date of finality applies to the PCRA petition at issue.

Additionally, Cobbs has failed to acknowledge let alone prove any of the three

exceptions to the PCRA’s time bar. Instead, he reiterates his claim regarding

the refiling of the criminal informations that we already rejected in 2014. Not
____________________________________________


2Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.


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only does this claim not establish a time-bar exception, but it is also

“previously litigated” under the PCRA. See 42 Pa.C.S.A. § 9544(a).

       In sum, the PCRA court properly concluded that Cobbs’ latest filing

should be treated as a serial PCRA petition. Because it is patently untimely,

and Cobbs failed to allege and prove a time-bar exception, we affirm the PCRA

court’s order denying post-conviction relief.3

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2019




____________________________________________


3  As recited supra, contrary to Cobbs’ contention, the PCRA court did issue
proper Rule 907 notice before dismissing Cobb’s fifth petition. However, even
if it had failed to do so, when the petition is otherwise untimely, this procedural
misstep would not constitute reversible error. See Commonwealth v.
Lawson, 90 A.3d 1, 5 (Pa. Super. 2014).


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