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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANTHONY PITTS
Appellant No. 459 EDA 2016
Appeal from the PCRA Order January 15, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0508691-1989
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 16, 2016
Appellant, Anthony Pitts, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas dismissing his serial Post
Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant challenges
the legality of his sentence. We affirm the PCRA court’s order and deny the
Commonwealth’s motion to accept its brief as timely filed.
On March 12, 1990, the trial court convicted Appellant of first-degree
murder and possessing an instrument of crime (“PIC”). The court sentenced
Appellant on June 6, 1990, to life imprisonment for murder, and a
concurrent two to five years’ imprisonment for PIC. This Court affirmed the
judgment of sentence on August 16, 1991, and our Supreme Court denied
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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allowance of appeal on February 10, 1992. Appellant filed his first PCRA
petition pro se on December 26, 1996. The PCRA court appointed counsel,
and subsequently dismissed Appellant’s petition. This Court affirmed the
dismissal. Thereafter, Appellant litigated several unsuccessful PCRA
petitions between 2004 and 2014.
On January 23, 2015, Appellant filed the instant pro se “Petition for
Writ of Habeas Corpus Ad Subjiciendum,” which the court treated as his
current PCRA petition. The PCRA court issued notice of its intent to dismiss
Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907.
Appellant filed a pro se response, and the PCRA court dismissed Appellant’s
petition as untimely on January 15, 2016.
Appellant timely filed a pro se notice of appeal on January 29, 2016. A
review of the record and docket reveals the PCRA court did not order
Appellant to 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:
I. Should the petition filed [be] treated as a writ of
habeas corpus as there is no remedy available
through PCRA?
II. Did the PCRA court err by not addressing the fact
that Appellant is serving an illegal sentence, which is
never waived and may be raised at any time?
Appellant’s Brief at 3.
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Appellant argues his sentence of life imprisonment for first-degree
murder was illegal because at the time of his sentence, 18 Pa.C.S. § 1102
“improperly directed the [s]entencing [c]ourt to 18 Pa.C.S. § 1311(d), which
had already been repealed.” Id. at 8. We conclude Appellant is not entitled
to relief.
“[T]he PCRA subsumes the remedy of habeas corpus with respect to
remedies offered under the PCRA[.]” Commonwealth v. Peterkin, 722
A.2d 638, 640 (Pa. 1998). As claims challenging the legality of a sentence
are cognizable under the PCRA, a petitioner must first satisfy the PCRA’s
jurisdictional time limits. Commonwealth v. Jackson, 30 A.3d 516, 521-
22 (Pa. Super. 2011).
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As our Supreme Court has explained:
[T]he PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. We have also held
that even where the PCRA court does not address the
applicability of the PCRA timing mandate, th[e] Court will
consider the issue sua sponte, as it is a threshold question
implicating our subject matter jurisdiction and ability to
grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations
omitted).
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A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (some citations and footnote omitted). Pursuant to 42
Pa.C.S. § 9545(b)(3), “[a] judgment becomes final at the conclusion of
direct review by this Court or the United States Supreme Court, or at the
expiration of the time seeking such review.” Commonwealth v. Jones, 54
A.3d 14, 17 (Pa. 2012) (citations omitted).
When a petition is filed outside the one-year time limit, the petitioner
must plead and prove the applicability of one of the three exceptions to the
PCRA timeliness requirements. Commonwealth v. Johnston, 42 A.3d
1120, 1126 (Pa. Super. 2012) (“If the petition is determined to be untimely,
and no exception has been pled and proven, the petition must be dismissed
without a hearing because Pennsylvania courts are without jurisdiction to
consider the merits of the petition.” (citation omitted)). The three
exceptions to the general one-year time limitation are:
(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
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(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).
Instantly, the PCRA court properly regarded Appellant’s petition as a
PCRA petition. See Peterkin, 722 A.2d at 640. Appellant’s judgment of
sentence became final on May 10, 1992, ninety-days after our Supreme
Court denied allowance of appeal. See Jones, 54 A.3d at 17; 42 Pa.C.S. §
9545(b)(3). Thus, his current petition, which was filed more than twenty-
two years later on January 23, 2015, is untimely on its face. Moreover,
Appellant has not asserted that any of the timeliness exceptions in Section
9545(b)(i)-(iii) apply in this case. Accordingly, the PCRA court lacked
jurisdiction to consider the merits of Appellant’s claim, and we affirm the
dismissal of Appellant’s untimely PCRA petition. See Johnston, 42 A.3d at
1126.
Order affirmed. Commonwealth’s motion to accept its brief as timely
filed is denied.2
2
Given our disposition, we deny the Commonwealth’s motion to accept its
brief as timely filed as moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
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