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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FELIX ALVAREZ
Appellant No. 402 EDA 2017
Appeal from the PCRA Order January 4, 2017
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004764-2007
BEFORE: OLSON, OTT, and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 13, 2017
Appellant, Felix Alvarez, appeals from the order entered on January 4,
2017, treating and dismissing his habeas corpus petition as an untimely
petition filed pursuant to 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. On June 25, 2006, Appellant participated in a shooting outside an
Allentown nightclub. Bullets struck and killed a woman and a male victim
sustained injuries to his chest and foot. In November 2009, a jury convicted
Appellant of third-degree murder, attempted murder, aggravated assault,
four counts of recklessly endangering another person (REAP), and criminal
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conspiracy.1 On December 23, 2009, the trial court sentenced Appellant to
an aggregate term of twenty-eight to sixty years of imprisonment. We
affirmed Appellant’s judgment of sentence on April 1, 2011. See
Commonwealth v. Alvarez, 29 A.3d 822 (Pa. Super. 2011) (unpublished
memorandum). Appellant did not seek further review. As such, Appellant’s
judgment became final on May 1, 2011, when the time to petition for
allowance of appeal to our Supreme Court expired. See 42 Pa.C.S.A.
§ 9545(b)(3) (judgment of sentence becomes final upon the expiration of
the time for seeking further review); see also Pa.R.A.P. 1113(a) (“... a
petition for allowance of appeal shall be filed with the Prothonotary of the
Supreme Court within 30 days of the entry of the order of the Superior Court
sought to be reviewed ...”).
On February 6, 2012, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel and conducted a hearing, on June 5, 2012, wherein
several witnesses testified regarding various issues. The PCRA court
ultimately denied relief. We affirmed that decision and our Supreme Court
denied further review. See Commonwealth v. Alvarez, 91 A.3d 1278 (Pa.
Super. 2013) (unpublished memorandum), appeal denied, Commonwealth
v. Alvarez, 93 A.3d 461 (Pa. 2014).
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1 18 Pa.C.S.A. §§ 2502(c), 2502/901, 2702, 2705, and 903, respectively.
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On November 20, 2014, Appellant filed a pro se application for relief.
The trial court treated the filing as a PCRA petition and dismissed it as
untimely on December 12, 2014. On July 17, 2015, this Court affirmed the
dismissal in an unpublished memorandum. See Commonwealth v.
Alvarez, 125 A.3d 452 (Pa. Super. 2015) (unpublished memorandum). Our
Supreme Court denied further review. See Commonwealth v. Alvarez,
129 A.3d 1240 (Pa. 2015).
Instantly, Appellant filed a pro se motion for habeas corpus relief on
December 2, 2016. The trial court determined that the issues raised therein
were cognizable claims under the PCRA and subject to the PCRA’s
jurisdictional time-bar. Thus, on December 6, 2016, the trial court gave
Appellant notice of its intent to dismiss the petition without an evidentiary
hearing pursuant to Pa.R.Crim.P. 907. Appellant filed a timely response.
However, because Appellant did not raise any exceptions to the PCRA’s
one-year timing requirement, the trial court determined that Appellant’s
collateral petition was patently untimely. As such, the trial court entered an
order dismissing Appellant’s PCRA petition on January 4, 2017. This timely
appeal resulted.2
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2 Appellant filed a pro se notice of appeal and corresponding concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On January 26, 2017, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a). Appellant and the Commonwealth filed timely briefs with this
Court. Thereafter, Appellant filed a timely response to the Commonwealth’s
brief.
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Appellant presents the following issues, pro se, for our review:
A. Whether the Commonwealth failed to acquit on all the
charges [on Appellant’s] claim of double jeopardy on lesser
included offenses o[n the] first criminal information,
third[-]degree murder and [the] lesser included offenses.
The evidence did not support a conviction.
B. Whether the evidence presented at trial was both legally and
factually insufficient to prove that [Appellant] acted with
malice as required for a third[-]degree murder conviction, as
there was no malice to convict for a first[-]degree murder
conviction.
C. Whether there was insufficient evidence to support a
first[-]degree murder conviction when [Appellant] was
acquitted on the first[-]degree murder and lesser included
offenses and conspiracy conviction.
D. Whether the lower court[’]s imposition of an aggregate
sentence of twenty[-]eight (28) to (60) sixty years [was
illegal].
Appellant’s Brief at 4.
Before examining the merits of Appellant’s claims, we must first
determine whether there was jurisdiction to entertain Appellant’s petition.
This Court has previously determined:
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. 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.
In Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007),
[this Court] collected cases and reiterated that all motions filed
after a judgment of sentence is final are to be construed as PCRA
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petitions. More recently, in Commonwealth v. Jackson, 30
A.3d 516 (Pa. Super. 2011), this Court held that a defendant's
motion to correct his illegal sentence was properly addressed as
a PCRA petition, stating broadly, “any petition filed after the
judgment of sentence becomes final will be treated as a PCRA
petition.” Id. at 521. [However, t]he common law writ of
habeas corpus has not been eliminated. In both
Commonwealth v. West, 938 A.2d 1034 (Pa. 2007) and
Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007), our
Supreme Court held that claims that fall outside the sphere of
the PCRA can be advanced via a writ of habeas corpus.
Commonwealth v. Taylor, 65 A.3d 462, 465–466 (Pa. Super. 2013) (some
internal citations omitted; footnote incorporated).
Here, as set forth above, to the extent that Appellant’s current
challenge to the imposition of his aggregate sentence constituted an illegal
sentence, we have determined that the PCRA is the proper means of
advancing and reviewing such a claim. Taylor, supra, citing Jackson.
Sufficiency of the evidence claims are properly asserted on direct appeal, but
can also be raised under the PCRA in terms of counsel ineffectiveness. See
Commonwealth v. Natividad, 938 A.2d 310, 329 (Pa. 2007). Accordingly,
we conclude that the trial court properly treated Appellant’s current petition
under the PCRA.
This Court has recently stated:
A PCRA petition, including a second or subsequent petition, must
be filed within one year of the date the judgment becomes final,
unless appellant can plead and prove one of three exceptions set
forth under 42 Pa.C.S.A. § 9545(b)(1), and that the petition was
filed within 60 days of the date the claim could have been
presented. These time limits are jurisdictional in nature,
implicating a court's very power to adjudicate a controversy.
Accordingly, the period for filing a PCRA petition is not subject to
the doctrine of equitable tolling. Instead, the time for filing can
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be extended only if the PCRA permits it to be extended, i.e., by
operation of one of the statutorily enumerated exceptions to the
PCRA time-bar. Our Supreme Court has repeatedly stated it is
the petitioner's burden to allege and prove that one of the
timeliness exceptions applies.
Commonwealth v. Smallwood, 155 A.3d 1054, 1059–1060 (Pa. Super.
2017) (internal citations, quotations, brackets, and footnote omitted).
Moreover, “[i]t is well settled that allegations of ineffective assistance of
counsel will not overcome the jurisdictional timeliness requirements of the
PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
In this case, as previously mentioned, Appellant’s judgment of
sentence became final on May 1, 2011. Thus, his current petition, filed on
December 2, 2016, is patently untimely. Upon review, Appellant did not
plead or prove an exception to the PCRA’s one-year timing requirement. We
note that in his reply to the Commonwealth’s appellate brief, Appellant cites
two Pennsylvania Supreme Court cases for the first time, ostensibly
attempting to invoke an exception to the PCRA’s timing requirement. See
Appellant’s Reply Brief, at 2-3. However, exceptions to the PCRA cannot be
raised for the first time on appeal. See Wharton, 886 A.2d at 1126, citing
Pa.R.A.P. Rule 302 (stating “issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). Hence, Appellant’s
current petition was untimely and not subject to exception. Accordingly, the
trial court properly dismissed Appellant’s PCRA petition for lack of
jurisdiction.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
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