J-S72014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

IRVIN MOORE,

                            Appellant                 No. 3581 EDA 2016


             Appeal from the PCRA Order Entered October 6, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0907441-1969


BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 19, 2018

        Appellant, Irvin Moore, appeals pro se from the post-conviction court’s

order denying, as untimely, his second petition under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the facts and procedural history of

Appellant’s case, as follows:

              On July 11, 1969, Granville Sawyer was fatally shot in the
        abdomen at his home in Philadelphia.         One week later, …
        [Appellant], aged twenty-three, was arrested in connection with
        the incident and gave two incriminating statements to the police.

               On September 3, 1970, following a jury trial presided over
        by the Honorable Earl Chudoff, [Appellant] was convicted of
        first-degree murder and aggravated robbery. On August 4,
        1971, the trial court sentenced [Appellant] to life imprisonment
        on the murder conviction and a lesser, concurrent term of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     incarceration on the remaining charge. On November 26, 1973,
     the Pennsylvania Supreme Court affirmed the judgment of
     sentence.2
        2
            Commonwealth v. Moore, 311 A.2d 620 (Pa. 1973).

           On June 1, 1976, [Appellant], through Robert B. Mozenter,
     Esquire, filed his first petition for collateral relief under the
     former provisions of the Post Conviction Hearing Act (“PCHA”).3
     On October 19, 1976, the PCHA court issued an order formally
     denying the petition.
        3
          Act of January 25, 1966, P.L. (1965) 1580, codified at 19
        P.S. § 1180-1 et seq. The PCHA was repealed in part,
        modified in part, and renamed the Post Conviction Relief
        Act, effective April 13, 1988.

            On August 24, 2012, [Appellant] filed the instant pro se
     PCRA petition.4 [Appellant] filed a supplemental petition on
     September 9, 2015[,] that was reviewed jointly with his initial
     petition. Pursuant to Pennsylvania Rule of Criminal Procedure
     907, [Appellant] was served notice of the PCRA court’s intent to
     dismiss his petition on June 28, 2016. [Appellant] submitted a
     response to the Rule 907 notice on July 14, 2016. On October 6,
     2016, the PCRA court dismissed his PCRA petition as untimely.
     On November 3, 2016, the instant notice of appeal was timely
     filed to the Superior Court.
        4
           The current version of the PCRA contains a provision
        permitting a defendant whose conviction became final prior
        to January 16, 1996, the date the current version of the
        PCRA took effect, to file a timely first PCRA petition within
        one year of that date. See Commonwealth v. Alcorn,
        703 A.2d 1054, 1056-57 (Pa. Super. 1997) (holding that
        where a petitioner’s judgment of sentence became final on
        or before the effective date of the amendment to the
        PCRA, the amended PCRA contained a provision whereby a
        first PCRA petition could be filed by January 16, 1997,
        even if the conviction in question became final more than a
        year prior to the date of the filing). [Appellant’s] most
        recently filed PCRA petition was neither his first nor was it
        filed within one year of the date the amendment took
        effect.

PCRA Court Opinion (PCO), 2/7/17, at 1-2 (one footnote omitted).


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      After Appellant filed his pro se notice of appeal, the PCRA court issued

a Pa.R.A.P. 1925(a) opinion, despite not having ordered Appellant to file a

Rule 1925(b) statement. Herein, Appellant raises one issue for our review:

“Is Appellant’s Life Without Parole Sentence pursuant to Title 18 [P.S.] §

4701 illegal and subject to correction?” Appellant’s Brief at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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;



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            (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)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on February 24,

1974, at the conclusion of the 90-day time period for seeking review of his

judgment of sentence with the United States Supreme Court.            See 42

Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(directing that under the PCRA, petitioner’s judgment of sentence becomes

final ninety days after our Supreme Court rejects his or her petition for

allowance of appeal since petitioner had ninety additional days to seek

review with the United States Supreme Court).       Thus, his present petition

filed in 2012 is patently untimely and, for this Court to have jurisdiction to

review the merits thereof, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      Instantly, Appellant does not specify which exception he is attempting

to satisfy. Instead, he presents an extremely confusing argument in which


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he seemingly avers that his sentence of life imprisonment was rendered

illegal by our Supreme Court’s decision in Commonwealth v. Bradley, 295

A.2d 842 (Pa. 1972).

       More specifically, Appellant claims that in Bradley, our Supreme Court

struck down the statute under which his first-degree murder sentence was

imposed, i.e., 18 P.S. § 4701 (repealed).       Section 4701 read, in pertinent

part: “Whoever is convicted of the crime of murder of the first degree is

guilty of a felony and shall be sentenced to suffer death in the manner

provided by law, or to undergo imprisonment for life, at the discretion of the

jury trying the case, which shall, in the manner hereinafter provided, fix the

penalty.” Commonwealth v. McKenna, 383 A.2d 174, 178 n.7 (Pa. Super.

1978).    The Bradley Court, following Furman v. Georgia, 408 U.S. 238

(1972), deemed section 4701 unconstitutional to the extent it left “unbridled

discretion in the sentencing body to determine whether or not a sentence of

death should be imposed in a particular case.” McKenna, 383 A.2d at 177

(emphasis added).         Thus, it is clear that Bradley invalidated death

sentences imposed under section 4701; Appellant, however, received a

sentence of life imprisonment for his murder conviction. Consequently, the

Commonwealth maintains that Bradley “had no bearing on life sentences,

like   [Appellant’s],   that   were   imposed   pursuant   to   [section]   4701.”

Commonwealth’s Brief at 14 (citing Commonwealth v. Edwards, 426 A.2d

550, 553 (Pa. 1981) (“The question of the validity of a death penalty statute

is moot when no death penalty is imposed.”)).

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      We cannot examine what impact Bradley had on Appellant’s sentence,

as we do not have jurisdiction to review this untimely, post-conviction claim.

Although Appellant’s argument purportedly challenges the legality of his

sentence, to invoke this Court’s jurisdiction, he must prove that a timeliness

exception applies. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999) (holding that claims challenging the legality of sentence are subject to

review within PCRA, but must first satisfy the PCRA’s time limits). Appellant

fails to offer any discussion of how the Court’s decision in Bradley meets

one of the above-stated timeliness exceptions.          Moreover, even if it did,

Appellant   clearly   cannot   satisfy   the   60-day   requirement   of   section

9545(b)(2) based on a case issued in 1972. Accordingly, Appellant has not

demonstrated that the PCRA court erred by denying his untimely-filed

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2018




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