J-S42043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ANDRE MAURICE PACE

                           Appellant                  No. 1880 WDA 2015


                    Appeal from the Order October 19, 2015
      in the Court of Common Pleas of Allegheny County Criminal Division
                       at No(s): CP-02-CR-0013214-1995
                                CP-02-CR-0013539-1995
                                 GD 15-012141

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED: June 3, 2016

        Appellant, Andre Maurice Pace, appeals pro se from the order entered

in the Allegheny County Court of Common Pleas denying his “Petition for

Writ of Habeas Corpus Ad Subjiciendum,” which it denied as an untimely

third petition pursuant to the Post Conviction Relief Act1 (“PCRA”). Appellant

contends (1) the PCRA court erred in dismissing his habeas corpus petition

as an untimely PCRA petition; (2) the Commonwealth violated his due

process rights; (3) the court erred in instructing the jury on first degree

murder; and (4) the court did not have statutory authority to impose a

sentence of life imprisonment. We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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      On May 23, 1996, following a jury trial, Appellant was convicted of first

degree murder, and two counts of carrying a firearm without a license. He

was sentenced to life imprisonment without parole for the murder conviction,

plus a consecutive term of five to ten years for the firearm counts.

      On April 14, 1999, Appellant’s PCRA petition was granted and his

direct appeal rights reinstated nunc pro tunc. On May 4, 1999, he filed a

notice of appeal.   On February 23, 2000, his judgment of sentence was

affirmed.     Commonwealth       v.   Pace,   750   WDA   1999   (unpublished

memorandum) (Pa. Super. Feb. 23, 2000).             On July 19, 2000, the

Pennsylvania Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Pace, 179 WAL 2000 (Pa. July 19, 2000).                     On

December 11, 2000, Appellant filed his first PCRA petition. On October 10,

2002, the PCRA petition was denied. This Court affirmed the denial of the

PCRA petition.   Commonwealth v. Pace, 1835 WDA 2002 (unpublished

memorandum) (Pa. Super. Sept. 21, 2004).         On November 22, 2005, the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal. Commonwealth v. Pace, 889 A.2d 1215 (Pa. 2005). On January

18, 2006, Appellant filed his second PCRA petition. On May 18, 2007, the

petition was dismissed.

      On July 13, 2015, Appellant filed the instant petition for writ of habeas

corpus. On October 19, 2015, the court dismissed the petition as his third

untimely PCRA petition.     This appeal followed.    Appellant filed a court-



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ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The

PCRA court filed a Pa.R.A.P. 1925(a) opinion.

     Appellant raises the following issues for our review:

        I. Did the Common Pleas Court erred [sic] in construing or
        dismissing [Appellant’s] Writ of Habeas Corpus Ad
        Subjiciendum as a [PCRA] petition?

        II. Did the Commonwealth create a procedural due process
        of law violation by lodging the criminal charge of 18
        Pa.C.S.A. § 2501 Criminal Homicide?

        III. Did the [c]ourt have statutory authorization to instruct
        the Jury on First Degree Murder where [Appellant’s] trial
        was not deemed a capital case?

        IV. Did the [c]ourt have statutory authorization to impose
        a sentence of life imprisonment sua sponte?

Appellant’s Brief at 8.

     As a prefatory matter, we consider whether the PCRA court erred in

considering Appellant’s habeas corpus petition as a PCRA petition.

        It is well-settled that the PCRA is intended to be the sole
        means of achieving post-conviction relief. 42 Pa.C.S. §
        9542 . . . . 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 defendant cannot escape the PCRA time-bar
        by titling his petition or motion as a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (some

citations and footnote omitted).    The issues raised in Appellant’s habeas

corpus petition are cognizable under the PCRA. Therefore, the PCRA court




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did not err in considering his habeas corpus petition as a PCRA petition. See

id.

      Before examining the merits of Appellant’s claims, we also consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. On appellate review of a PCRA ruling, “we determine whether the

PCRA court’s ruling is supported by the record and free of legal error.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation

omitted).

        We . . . turn to the time limits imposed by the PCRA, as
        they implicate our jurisdiction to address any and all of
        Appellant's claims. To be timely, a PCRA petition must be
        filed within one year of the date that the petitioner’s
        judgment of sentence became final, unless the petition
        alleges and the petitioner proves one or more of the
        following statutory exceptions:

            (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. § 9545(b)(1).




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            We emphasize that it is the petitioner who bears the
         burden to allege and prove that one of the timeliness
         exceptions applies. In addition, a petition invoking any of
         the timeliness exceptions must be filed within 60 days of
         the date the claim first could have been presented. 42
         Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
         day requirement of Section 9545(b) if he or she fails to
         explain why, with the exercise of due diligence, the claim
         could not have been filed earlier.

Id. at 719-20 (some citations omitted).2

      Appellant’s judgment of sentence became final on October 17, 2000,

ninety days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”); accord

U. S. Sup. Ct. R. 13 (providing “[a] petition for a writ of certiorari seeking

review of a judgment of a lower state court that is subject to discretionary

review by the state court of last resort is timely when it is filed with the

Clerk within 90 days after entry of the order denying discretionary review”).

Appellant thus generally had until October 17, 2001 to file his PCRA petition.

See 42 Pa.C.S. § 9545(b)(1) (providing PCRA petition, including second and

subsequent petitions, must be filed within one year of date judgment

2
  We note that “[a] court may entertain a challenge to the legality of the
sentence so long as the court has jurisdiction to hear the claim. In the PCRA
context, jurisdiction is tied to the filing of a timely PCRA petition.”
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (citation
omitted).



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becomes final).   Appellant filed his third PCRA petition, in the form of a

Petition for Writ of Habeas Corpus, on July 13, 2015.      Therefore, it is

patently untimely.

     Appellant did not plead and prove any exception to the PCRA’s

timeliness requirement.   See Marshall, 947 A.2d at 719-20.      Thus, the

PCRA court did not err in dismissing his PCRA petition as untimely. See id.

at 719.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/3/2016




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