J-S06023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    MARK YOUNG                   :
                                 :
                Appellant        :             No. 1016 EDA 2017
                                 :

                   Appeal from the PCRA Order March 9, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1118461-1974


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                         FILED MARCH 16, 2018

        Mark Young appeals pro se from the order entered in the Philadelphia

County Court of Common Pleas dismissing his “Petition for Writ of Habeas

Corpus” as an untimely petition pursuant to the Post Conviction Relief Act1

(“PCRA”). We affirm.

        A previous pannel of this Court set forth the relevant facts and

procedural history as follows:

        On October 6, 1975, [Young] was convicted of Second Degree
        Murder, Robbery and Criminal Conspiracy and received a life
        sentence following a jury trial presided over by the Honorable John
        Geisz. On August 12, 1976, [Young] was sentenced to life
        imprisonment. These convictions and life sentence were
        supported by evidence showing that [Young] and co-defendant,
        Charles Sheppard, robbed the Place Bar in Philadelphia County on
        September 7, 1974. While in process of robbing the Place Bar, Mr.

____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
J-S06023-18


     Sheppard shot and killed a patron of the bar, Walter Palmero. At
     trial, the Commonwealth presented [Young’s] confession and the
     corroborating testimony of a witness — the barmaid who was
     working at the Place Bar on the night of the robbery. This evidence
     established that [Young] jumped over the bar and forced the
     barmaid to open the cash register. After taking money from the
     register, [Young] grabbed a bottle of liquor and fled the scene.

                                    ***

     The Pennsylvania Supreme Court affirmed [Young’s] conviction on
     March 16, 1979[,] and reargument was denied on April 16, 1979.

     On November 30, 1992, [Young] filed a Petition for Post
     Conviction Relief. On April 10, 1997, the Honorable Genece
     Brinkley dismissed [Young’s] Petition without a hearing. [Young]
     appealed and the Pennsylvania Superior Court affirmed the
     dismissal on June 30, 1998. The Pennsylvania Supreme Court
     denied [Young’s] Petition for Allowance of Appeal on June 23,
     1999. On June 23, 2000, [Young] then filed a Petition for Writ of
     Habeas Corpus in federal court. On March 1, 2001, the United
     States Court of Appeals for the Third Circuit denied [Young’s]
     application to file a subsequent petition. On July 23, 2001,
     [Young] filed a [second] pro se Petition for Post Conviction Relief.
     [Young’s] counsel then filed an amended petition on April 1, 2002.

     On December 20, 2002, [Young] was sent notice of [the PCRA
     court's] intent to dismiss his [second Amended] Petition for Post-
     Conviction Relief because it was untimely. [Young] failed to
     respond, and [the PCRA court] dismissed [Young’s] [s]econd
     Amended PCRA Petition on January 23, 2003.]

     ...

     [Young] filed his [t]hird PCRA Petition on June 24, 2008[,] wherein
     he requested a new trial based on the discovery of new evidence
     in the form of a witness, Shantee Neals Williams. [Young]
     attached what he purported to be an affidavit signed by Ms.
     Williams wherein she attested to the fact that she was in the Place
     Bar on September 7, 1974[,] when she witnessed a robbery and
     murder. She swears that the man she saw jump over the bar and
     force the barmaid to take money from the cash register was
     someone she knew who went by the name Turtle. [Young] also
     offered an affidavit wherein he averred that he knew nothing of
     Ms. Williams until May 29, 2008[,] when he was contacted by an
     investigative reporter named Daniel Hicks. He averred that he was

                                    -2-
J-S06023-18


       also contacted by an investigative reporter named Helen Bodley
       on June 20, 2008. He averred that he filed his [t]hird PCRA Petition
       within 60 days of learning about Ms. Williams on June 24, 2008.

       [The PCRA court] reviewed [Young’s] pro se [p]etition, and
       appointed counsel who filed an amended petition on December 8,
       2009. However, around or about the time this amended petition
       was filed, [Young] filed a motion to proceed pro se. On January
       28, 2010, [the PCRA court] held a Grazier2 Hearing to resolve
       [Young’s] motion to proceed pro se and[,] at the conclusion of
       this Grazier Hearing[,] [Young] was permitted to proceed pro se
       with stand-by counsel. [The PCRA court] then granted [Young’s]
       request to file an amended PCRA petition and scheduled a status
       listing for March 25, 2010.

       At the March 25, 2010 status listing, [the PCRA court]
       addressed the fact that the trial transcripts were not in the
       quarter session[s] file. It raised this issue sua sponte
       because it wanted to obtain copies to aid in the review of
       [Young’s] [t]hird PCRA Petition. The Assistant District
       Attorney who appeared on behalf of the Commonwealth
       represented that her file was incomplete, and that the trial
       transcripts had been missing for many years. She offered a
       nonprecedential memorandum decision, Commonwealth v.
       Young, 468 EDA 2003 (May 27, 2004), to ilustrate that any
       issue related to the missing trial transcripts had been
       previously addressed by the Superior Court.

       Having determined that any issue related to the missing
       trial transcripts had been previously litigated, [the PCRA
       court] addressed the substance of [Young’s] [t]hird PCRA
       Petition. As a courtesy to [Young], [the PCRA court] ordered the
       Commonwealth to produce documents contained in its file. [The
       PCRA court] hoped that any documents produced might aid
       [Young] in the preparation of his [t]hird Amended Petition,
       especially considering the unavailability of the trial transcripts.
       However, these discovery documents were not required to
       address the substance of [Young’s] PCRA Petition. In reality, he
       simply raised one issue—after-discovered evidence in the form of
       an affidavit purportedly signed by Ms. Williams.

____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998)


                                           -3-
J-S06023-18


      [Young] was schedule[d] to submit his [t]hird Amended Petition
      on June 24, 2010; however, he did not submit his [t]hird Amended
      Petition until August 5, 2010. In this Amended Petition, [Young]
      continued to pursue his claim of after discovered evidence based
      on the affidavit purportedly signed by Ms. Williams. [Young] also
      offered what he purported to be an affidavit signed by co-
      defendant, Charles Sheppard. In this affidavit, Mr. Sheppard
      averred that he was not with [Young] during the September 7,
      1974, 2:00 a.m. robbery and murder at the Place Bar. On August
      17, 2010, [the PCRA court] conducted a conference with [Young]
      and the Assistant District Attorney. The [PCRA court] reviewed the
      allegations in [Young’s] [t]hird Amended PCRA Petition, and set a
      date for the Commonwealth's response.

      On October 18, 2010, the Commonwealth filed a Motion to Dismiss
      [Young’s] [t]hird Amended PCRA Petition. In its Motion to Dismiss,
      the Commonwealth argued that [Young’s] [t]hird Amended PCRA
      Petition was untimely because it was filed (29) twenty-nine years
      after his Judgment of Sentence was entered. Under this theory, it
      argued that the affidavits allegedly signed by Shantee Neals
      Williams and co-defendant, Charles Sheppard, simply did not
      meet the definition of after-discovered evidence.

Commonwealth v. Young, No. 3274 EDA 2010, unpublished memorandum

at 1-5 (Pa.Super. filed December 5, 2011) (citing PCRA court’s 1925(a)

Opinion, Jan. 18, 2011, pp. 1-4) (citations omitted) (emphasis added).

      In regards to Young’s third PCRA petition, the PCRA court ultimately

concluded that the evidence presented was insufficient to meet the definition

of “after discovered evidence” under the PCRA and therefore the court

dismissed his petition as untimely. This Court affirmed and our Supreme Court

denied his petition for allowance of appeal.

      Young filed his instant petition in December 2014. The PCRA court filed

a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 and Young filed a

response. Thereafter, the PCRA court once again concluded that his petition


                                     -4-
J-S06023-18



was untimely, and dismissed it via an order and opinion issued on March 9,

2017. Young filed a timely Notice of Appeal and the PCRA court did not require

him to comply with Pa.R.A.P. 1925(b).

      Young raises multiple interrelated issues for our review:

         1. The [PCRA] court abused its discretion when [the] court
            issued an order on the 9th of March, 2017 that dismissed
            the petition filed by [Young] as a state habeas corpus
            petition, 42 Pa.C.S.A. §§ 6501-6506. The [PCRA] court
            utilized the time limitations that apply to 42 Pa.C.S.A. §
            9545 and then decided to dismiss the state habeas
            corpus petition as being untimely filed under § 9545
            time rule limitations.

         2. The [PCRA] court abused its discretion when it
            transferred the civil case action, February Term, 2016
            No. 622 from the civil trial division of the common pleas
            court to the criminal division of the common pleas court,
            ordering that the civil matter be determined by the
            criminal division.

         3. The [PCRA] court abused its discretion when it dismissed
            both the civil case No. 622 February Term, 2016 as
            untimely and the criminal case CP-51-CR-1118461-
            1974 as untimely. See the March 9th court order issued
            by Judge John M. Younge in the appendix section of this
            brief.

         4. The PCRA court abused its discretion when it dismissed
            the petition which incorporated both the criminal and
            civil cases without conducting a fact finding evidentiary
            hearing or evaluating the merits of the issues and claims
            raised.

         5. The lower court abused its discretion when it failed to
            view the issues and claims that supported actual
            innocence of [Young].

Young’s Brief at 3-4.




                                     -5-
J-S06023-18


      The crux of Young’s issues lie in his contention that the trial court erred

by considering his petition for habeas corpus as constituting the legal

equivalent of a PCRA petition, subject to the PCRA’s timeliness requirements.

To this end, Young presents voluminous arguments regarding his claim of

“actual innocence.” He cites to evidence previously considered by this Court,

including the affidavits of Shantee Neals Williams and co-defendant Charles

Sheppard.    He asserts that his claim of “actual innocence” is not cognizable

under the PCRA and thus his petition must be construed as a habeas corpus

petition. We decline to agree.

      Our standard of review of an order denying PCRA relief is limited to

determining “whether the decision of the PCRA court is supported by the

evidence of record and is free of legal error.” Commonwealth v. Melendez-

Negron, 123 A.3d 1087, 1090 (Pa.Super. 2015). Further, it is well settled

that “the PCRA provides the sole means of obtaining state collateral relief” for

claims that are cognizable under the PCRA. Commonwealth v. Yarris, 731

A.2d 581, 586 (Pa. 1999); 42 Pa.C.S. § 9542.

      If a claim is cognizable under the PCRA, the PCRA remains the sole

means of obtaining collateral relief regardless of the manner in which a filing

is titled. Commonwealth v. Hutchens, 760 A.2d 50, 52 n.1 (Pa.Super.

2000). Moreover, this Court has specifically rejected any attempt to “evade

the timeliness requirements of the PCRA” by framing a request for collateral

relief as something other than a PCRA petition. Commonwealth v. Stout,


                                      -6-
J-S06023-18


978 A.2d 984, 988 (Pa. 2011) (citations omitted). “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, 466

(Pa.Super. 2013).

      Further, our Supreme Court has rejected the argument that a claim of

“actual innocence” is outside the ambit of the PCRA and therefore eligible for

habeas corpus relief:

       Appellant posits his “‘actual innocence’ claim is not cognizable on
      the face of the PCRA,” . . . and therefore habeas relief is available
      to him because there is no remedy under the PCRA. This
      argument is specious; although § 9543 does not use the term
      “actual innocence” in enumerating cognizable claims, the Act
      specifically states it is intended to “provide[ ] for an action by
      which persons convicted of crimes they did not commit . . . may
      obtain collateral relief.” 42 Pa.C.S. § 9542. Further, “[t]he action
      established in this subchapter shall be the sole means of obtaining
      collateral relief and encompassing all other common law and
      statutory remedies for the same purpose. . ., including habeas
      corpus . . . .” Thus, appellant is not entitled to habeas corpus
      relief.

Commonwealth v. Abu-Jamal, 833 A.2d 719, 728 (Pa. 2003).

      In this case, the trial court properly treated Young’s habeas corpus

petition as a PCRA petition subject to the PCRA’s time bar. See Stout, 978

A.2d at 988; Taylor, 65 a.3d at 466. Young’s argument that his claim of

“actual innocence” is not cognizable under the PCRA has been rejected by this

Court. See Abu-Jamal, 833 A.2d at 728. Therefore, Young’s instant petition

is subject to the timeliness requirements of the PCRA.




                                      -7-
J-S06023-18


      It is beyond cavil that in the absence of an applicable exception, a

petitioner must file a PCRA petition, including a second or subsequent petition,

within one year of the date his or her judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). In this case, the Pennsylvania Supreme Court

affirmed Young’s judgment of sentence in March 1979 and re-argument was

denied in April 1979. Thus, Young’s instant petition, filed over 30 years later

in 2014, is patently untimely.

      To overcome the PCRA’s timeliness requirement, Young was required to

plead and prove one of the following exceptions: (1) unconstitutional

interference by government officials; (ii) newly discovered facts that could not

have been previously ascertained with due diligence; or (iii) a newly

recognized constitutional right that has been held to apply retroactively. See

42 Pa.C.S.A. §§ 9545(b)(1)(i)(iii). Here, Young does not plead, let alone

prove, any exception to the PCRA’s time bar. Therefore, the PCRA court

properly dismissed Young’s petition as untimely.

      Young also argues that his “civil” claim regarding the absence of his trial

transcripts was improperly dismissed in tandem with his instant PCRA petition.

However, the PCRA court’s order does not mention Young’s claim regarding

his transcripts and the only evidence Young presents regarding this claim is a

May 9, 2016 order, entered in the Philadelphia Court of Common Pleas, Civil

Trial Division, transferring the purported matter to the criminal division.

Further, we note that the issue of Young’s missing transcripts has been


                                      -8-
J-S06023-18


previously addressed by the PCRA court, in connection with his third PCRA

petition, and found to be of no moment to his underlying claims. Young,

supra. Therefore, Young’s argument regarding his trial transcripts lacks merit.

      Accordingly, we affirm the PCRA court’s order dismissing Young’s

petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/18




                                     -9-
