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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Commonwealth v. Pace, 750 WDA 1999 (unpublished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 Commonwealth v. Pace, 1835 WDA 2002 (unpublished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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