J-S66009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

ALBERT JAMES FRAZIER,

                           Appellant               No. 1823 WDA 2014


               Appeal from the PCRA Order of September 30, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0000595-2005
                             CP-02-CR-0015981-2005


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED NOVEMBER 19, 2015

      Appellant, Albert James Frazier, appeals from the order dated

September 30, 2014, dismissing his petition for habeas corpus as an

untimely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   In October 2004, Appellant shot Robert Pryor during a drug

transaction.    Pryor died on the scene.   In August 2006, a jury convicted

Appellant of homicide and other related offenses. The trial court sentenced

Appellant to life imprisonment without the possibility of parole for homicide

and a consecutive term of 10 to 20 years for conspiracy. This Court affirmed

Appellant’s judgment of sentence on August 14, 2008. Commonwealth v.

Frazier, 961 A.2d 1274 (Pa. Super. 2008) (unpublished memorandum).


*Retired Senior Judge assigned to the Superior Court.
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Appellant filed a timely PCRA petition on August 5, 2009. On February 27,

2012, the PCRA court dismissed Appellant’s PCRA petition.                This Court

affirmed that decision on August 16, 2013 and our Supreme Court denied

further review on April 22, 2014.              Commonwealth v. Frazier, 83 A.3d

1067 (Pa. Super. 2013), appeal denied, 89 A.3d 1282 (Pa. 2014).

       On July 15, 2014, Appellant filed a pro se petition for PCRA

relief/petition for habeas corpus relief.         In that petition, Appellant argued

that PCRA counsel rendered ineffective assistance of counsel for failing to

advance four claims of ineffective assistance of trial counsel in Appellant’s

first PCRA petition.     On July 21, 2014, the PCRA court entered notice of its

intent to dismiss Appellant’s PCRA petition as untimely. Appellant filed a pro

se response claiming there was no remedy for him under the PCRA and that

his habeas corpus petition was properly before the court. On September 30,

2014, the PCRA court entered an order dismissing Appellant’s petition. This

timely appeal followed.1

       On appeal, Appellant presents the following issue, pro se, for our

review:

____________________________________________


1
   Appellant, a pro se prisoner, stated in his docketing statement that he
placed his notice of appeal in the prison mailbox on October 29, 2014. Thus,
it was timely. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997) (An appeal by a pro se prisoner is deemed filed on the date the
prisoner deposits the appeal with prison authorities and/or places it in the
prison mailbox, even though the appeal is actually received by the court
after the deadline for filing the appeal).



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        I.     Whether the lower court committed error in
               converting Appellant’s July 14, 2014 petition for writ
               of habeas corpus into a second/subsequent PCRA
               [petition] where the claims for relief do not fall within
               any of the statutorily enumerated bases for relief
               expressly subsumed by the [PCRA]?

Appellant’s Brief at 4.

      “Our standard of review for an order denying post-conviction relief is

whether the record supports the [lower] court's determination and whether

the [lower] court's determination is free of legal error.” Commonwealth v.

Perzel, 116 A.3d 670, 671 (Pa. Super. 2015).          Our Supreme Court has

concluded:

        Prior to the enactment of statutory post-conviction
        remedies, habeas corpus petitions were frequently utilized
        for obtaining post-conviction review in criminal cases. […I]n
        Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998),
        [the Supreme Court determined] the PCRA subsumes the
        remedy of habeas corpus with respect to remedies offered
        under the PCRA [and that] the writ continues to exist only
        in cases in which there is no remedy under the PCRA.

                            *         *           *

        The legislature has clearly directed that the PCRA provide
        the sole means for obtaining collateral review and relief,
        encompassing all other common law rights and remedies,
        including habeas corpus. See 42 Pa.C.S. § 9542. As certain
        penalty phase claims, which are not waived or otherwise
        forfeited are cognizable on traditional habeas corpus review,
        Section 9542 plainly requires that they must be considered
        exclusively within the context of the PCRA. Such claims
        could not be legislatively foreclosed, since the Pennsylvania
        Constitution provides, with limited exceptions not here
        applicable, that the privilege of the writ of habeas corpus
        shall not be suspended. Pa.Const, Article 1, Section 14.




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        Given that the choice was between a unified statutory
        procedure or bifurcated review having statutory and
        common law components, it seems clear that the General
        Assembly intended to channel all claims requiring review
        through the framework of the PCRA. Thus, [when]
        petitioner's penalty phase claims are cognizable under the
        PCRA they will be addressed solely within the context of the
        PCRA, and any remedy to be afforded petitioner must be
        within the scope of the PCRA.

Commonwealth v. Chester, 733 A.2d 1242, 1250-1251 (Pa. 1999) (some

citations omitted), abrogated on other grounds by Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002).

      Claims of ineffective assistance of counsel fall under the PCRA. See

42 Pa.C.S.A. § 9543(a)(2)(ii).    We have previously determined “issues of

PCRA counsel effectiveness must be raised in a serial PCRA petition or in

response to a notice of dismissal before the PCRA court.” Commonwealth

v. Risjan, 2015 WL 6128880 at *2 (Pa. Super. July 28, 2015), citing

Commonwealth v. Ford, 44 A.3d 1190, 1200–1201 (Pa. Super. 2012). An

appellant “retains the right to raise [PCRA counsel’s ineffectiveness] in a

subsequent PCRA petition, and/or invoke any of the time bar exceptions.”

Id., citing Commonwealth v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011)

(stating that “[w]hile difficult, the filing of a subsequent timely PCRA petition

[alleging ineffectiveness of PCRA counsel] is possible, and in situations

where a [ ] [time bar] exception ... can be established[,] a second [PCRA]

petition filed beyond the one-year time bar may be pursued.”). “Issues that

are cognizable under the PCRA must be raised in a timely PCRA petition and

cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor,


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65 A.3d 462, 466 (Pa. Super. 2013) (internal citation omitted). “Phrased

differently, a defendant cannot escape the PCRA time-bar by titling his

petition or motion as a writ of habeas corpus.” Id. Hence, we conclude the

PCRA court properly treated Appellant’s request for relief under the PCRA.

      This Court has stated:

        The filing mandates of the PCRA are jurisdictional in nature
        and are strictly construed. The question of whether a
        petition is timely raises a question of law. Where the
        petitioner raises questions of law, our standard of review is
        de novo and our scope of review plenary. An untimely
        petition renders this Court without jurisdiction to afford
        relief.

        A petition for relief under the PCRA must be filed within one
        year of the date the PCRA petitioner's judgment of sentence
        becomes final unless the petitioner alleges and proves that
        an exception to the one-year time-bar is met. 42 Pa.C.S.A.
        § 9545.

Id. at 468 (internal case citations omitted).

      Herein, we affirmed Appellant’s judgment of sentence on August 14,

2008. Appellant did not appeal that decision to the Pennsylvania Supreme

Court. Thus, Appellant’s judgment of sentence became final on September

13, 2008. See Pa.R.A.P. 1113(a). Appellant had one year from that date to

file a PCRA petition. See 42 Pa.C.S.A. § 9545(b). Accordingly, Appellant’s

petition filed on July 15, 2014 is patently untimely.    Appellant does not

argue that one of the three exceptions to the PCRA’s jurisdictional timing

requirements is applicable. Thus, the PCRA court was without jurisdiction to

entertain Appellant’s claims.



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      Finally, we note:

        This court has determined that in reviewing claims for relief
        in a second or subsequent collateral attack on a conviction
        and judgment of sentence, the request will not be
        entertained unless a strong prima facie showing is
        demonstrated that [] a miscarriage of justice occurred. An
        appellant makes such a prima facie case only if he
        demonstrates that either the proceedings which resulted in
        his conviction were so unfair that a miscarriage of justice
        occurred which no civilized society could tolerate, or that he
        was innocent of the crimes charged. However, the
        [enunciated] miscarriage of justice standard affords
        Appellant no relief in this case.

        Again, Appellant fails to understand that this [C]ourt ...
        clearly noted that the time requirements under the
        amendments to the PCRA are jurisdictional. Thus, while the
        court would consider a timely petition under the [the
        miscarriage of justice] standard, the court has no
        jurisdiction to address an untimely petition.

Commonwealth v. Fielding, 2015 WL 5937665, at *3 (Pa. Super. 2015).

      For all of the foregoing reasons, the PCRA court lacked jurisdiction to

review Appellant’s ineffective assistance of PCRA counsel claims. Hence, we

affirm the PCRA’s denial of relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2015

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