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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARVEY TABRON
Appellant No. 654 EDA 2014
Appeal from the PCRA Order February 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0414231-1976
BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2014
Appellant, Harvey Tabron, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which dismissed his petition
filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We
affirm.
The trial court sets forth the relevant facts and procedural history of
this appeal as follows:
On November 9, 1976, following a jury trial, [Appellant]
was found guilty of second degree murder[2] and two
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*Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2502.
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counts of robbery[3] before the Honorable Judge Albert F.
Sabo.1 On January 7, 1977, [Appellant] was sentenced to
serve a mandatory term of life imprisonment on the
murder conviction, and concurrent terms of ten to twenty
years’ imprisonment for the robbery convictions by Judge
Sabo. [Appellant] did not file an appeal from the
judgment of sentence.
1
The instant matter was administratively assigned to
this [c]ourt for a decision following its appointment
to the position of Supervising Judge of the Criminal
Division of the Court of Common Pleas of
Philadelphia County.
[Appellant] filed his first petition seeking post conviction
collateral relief on October 3, 1977, following which
counsel was appointed to represent him.2 After two
hearings before the Honorable Edward J. Blake,
[Appellant’s] PCHA petition was denied on October 29,
1980. The [Superior] Court affirmed the denial on
September 22, 1983.
2
It is noted that [Appellant] filed his first petition for
relief pursuant to the Post Conviction Hearing Act
(PCHA), 42 Pa.C.S.A. 9541 et seq. (repealed and
replaced by the PCRA for petitions filed on or after
April 13, 1988). Because the instant petition is not
[Appellant’s] first, the one-year grace period
provided in the 1996 amendments to the PCRA “does
not apply to second or subsequent petitions,
regardless of when the first petition was filed.”
Commonwealth v. Fairiror, 809 A.2d 396, 398
(Pa.Super.2002), appeal denied, 827 A.2d 429
([Pa.]2003).
[Appellant] filed his second petition seeking post-
conviction collateral relief on January 14, 1997. The trial
court denied his petition without a hearing on July 14,
1997. The Superior Court affirmed the court’s order on
December 28, 1998. No further appeal was taken.
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3
18 Pa.C.S. § 3701.
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Trial Court Pa.R.A.P. 1925(a) Opinion, filed June 3, 2014, at 1-2.
On June 15, 2012, Appellant filed the instant petition, which he styled
as a petition for a writ of habeas corpus. The court issued Pa.R.Crim.P. 907
notice of its intention to dismiss the petition as an untimely PCRA petition on
August 7, 2012. After Appellant responded to the notice on August 27,
2012, the court dismissed the petition on February 10, 2014. On February
24, 2014, Appellant timely filed a notice of appeal. The court did not order,
nor did Appellant file, a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
DID THE TRIAL COURT ERR [BY IMPOSING A LIFE]
SENTENCE ON JANUARY 07, 1977[?]
DID THE TRIAL COURT ERR IN FAILING TO FIND THE
TRIAL COUNSEL INEFFECTIVE FOR FAILING TO PROPERLY
PRESENT A DEFENSE FOR APPELLANT, AND NOT
OBJECTING TO THE IMPOSED SENTENCE[?]
DID THE TRIAL COURT IMPOSE AN ILLEGAL SENTENCE ON
JANUARY 07, 1977[?]
SHOULD THE CASE BE REMANDED FOR FURTHER REVIEW,
AND CORRECTION OF SENTENCE[?]
Appellant’s Brief at 7.
Initially, we must determine whether the trial court properly treated
Appellant’s purported habeas corpus petition as a PCRA petition. We
observe:
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. 42 Pa.C.S. § 9542;
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Commonwealth v. Haun, [32 A.3d 697] ([Pa.]2011). Unless
the PCRA could not provide for a potential remedy, the PCRA
statute subsumes the writ of habeas corpus. [Commonwealth
v.] Fahy, [737 A.2d 214,] 223–224 [Pa.1999];
Commonwealth v. Chester, [733 A.2d 1242] (Pa.1999).[4]
Issues that are cognizable under the PCRA must be raised in a
timely PCRA petition and cannot be raised in a habeas corpus
petition. See Commonwealth v. Peterkin, [722 A.2d 638]
([Pa.]1998); see also Commonwealth v. Deaner, 779 A.2d
578 (Pa.Super.2001) (a collateral petition that raises an issue
that the PCRA statute could remedy is to be considered a PCRA
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).
Although Appellant purports to file a writ of habeas corpus, his claims
for relief fall within the purview of the PCRA, because (1) he is currently
serving a term of imprisonment, and (2) he alleges an illegal sentence claim.
42 Pa.C.S. § 9543(a). Therefore, the lower court properly treated
Appellant’s alleged habeas corpus petition as a PCRA petition, and issued its
order as a denial of PCRA relief. See Taylor, supra (treating appellant’s
writ of habeas corpus as a PCRA petition).
Our review of a PCRA court’s decision “is limited to examining whether
the PCRA court’s findings of fact are supported by the record, and whether
its conclusions of law are free from legal error.” Commonwealth v.
Koehler, 36 A.3d 121, 131 (Pa.2012).
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4
Abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726
(Pa.2002).
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Before addressing the merits of Appellant’s claims, we must first
consider the timeliness of his PCRA petition because it implicates the
jurisdiction of both this Court and the PCRA court. Commonwealth v.
Williams, 35 A.3d 44, 52 (Pa.Super.2011) (citation omitted), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. Further, to
“accord finality to the collateral review process[,]” the PCRA “confers no
authority upon this Court to fashion ad hoc equitable exceptions to the PCRA
timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011).
With respect to jurisdiction under the PCRA, this Court has further
explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed 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.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).
This Court may review a PCRA petition filed more than one year after the
judgment of sentence becomes final only if the claim falls within one of the
following three statutory exceptions, which the petitioner must plead and
prove:
§ 9545. Jurisdiction and proceedings
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* * *
(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 of sentence becomes final,
unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim 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). Further, even if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Finally, a heightened standard applies to a second or subsequent PCRA
petition to avoid “serial requests for post-conviction relief.”
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). A second or
subsequent PCRA petition “will not be entertained unless a strong prima
facie showing is offered to demonstrate that a miscarriage of justice may
have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248, 1251
(Pa.2006). In a second or subsequent post-conviction proceeding, “all
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issues are waived except those which implicate a defendant’s innocence or
which raise the possibility that the proceedings resulting in conviction were
so unfair that a miscarriage of justice which no civilized society can tolerate
occurred.” Commonwealth v. Williams, 660 A.2d 614, 618
(Pa.Super.1995).
Appellant argues that the sentencing court erred in imposing a term of
life imprisonment under the version of 18 Pa.C.S. § 2502 in effect in 1977.
He claims that the court should have applied the version of Section 2502 in
effect in 1974, which he claims carried a penalty of ten (10) to twenty (20)
year’s incarceration.
Instantly, Appellant’s judgment of sentence became final on February
6, 1977, thirty (30) days after the pronouncement of his sentence, which he
did not appeal. He filed this PCRA petition on June 15, 2012, over thirty-
four (34) years after the expiration of his time limit. Thus, Appellant’s
petition is facially untimely, and we must determine whether Appellant has
pled and proved any of the exceptions to the PCRA time limitation. See 42
Pa.C.S. § 9545(b)(1).
In his reply brief, Appellant attempts to invoke an exception to the
PCRA time bar by claiming that the facts upon which the claim is predicated
were unknown to him and could not have been ascertained by the exercise
of due diligence. In the first place, Appellant fails to explain why he did not
become aware of the alleged discrepancy between the 1974 and 1977
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versions of Section 2502 until 2012. He fails, in other words, to
demonstrate that he raised this claim within 60 days of the date he first
could have presented it. 42 Pa.C.S. 9545(b)(2). Moreover, Appellant did
not plead and prove this exception to the time bar in his PCRA petition, but
raised it for the first time in his reply brief. Thus, he has waived this issue.
See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007)
(“exceptions to the [PCRA] time bar must be pled in the PCRA petition, and
may not be raised for the first time on appeal”); see also Pa.R.A.P. Rule
302(a) (issues not raised in the lower court are waived and cannot be raised
for the first time on appeal).
In short, Appellant’s petition is time-barred, and even if it were timely,
he has waived the sentencing issue that he now attempts to raise on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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