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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KAWANIA MAE MCINTOSH :
:
Appellant : No. 1474 MDA 2017
Appeal from the Order Entered October 13, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003040-1993
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED APRIL 18, 2018
Appellant, Kawania Mae McIntosh, appeals pro se from the order
entered in the Berks County Court of Common Pleas, which dismissed as
untimely her serial petition for collateral relief (labeled a petition for writ of
habeas corpus), per the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On April 5, 1994, the court convicted Appellant of first-degree
murder, robbery, receiving stolen property, abuse of a corpse, and other
offenses. The court sentenced Appellant on April 19, 1994, to life
imprisonment for the murder conviction and imposed a consecutive 5 to 20
years’ imprisonment for some of the remaining offenses. This Court affirmed
the judgment of sentence on March 27, 1995, and our Supreme Court denied
allowance of appeal on August 29, 1995. See Commonwealth v. McIntosh,
660 A.2d 655 (Pa.Super. 1995), appeal denied, 544 Pa. 644, 664 A.2d 973
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(1995).
Appellant timely filed her first PCRA petition pro se on January 16,
1997.1 The court appointed counsel, who filed a motion to withdraw and “no-
merit” letter per Turner/Finley2 on July 28, 1997. On August 5, 1997, the
court issued appropriate Pa.R.Crim.P. 907 notice and granted counsel’s
request to withdraw. The court denied PCRA relief on August 20, 1997. This
Court affirmed on October 15, 1998. See Commonwealth v. McIntosh,
731 A.2d 196 (Pa.Super. 1998).
From 2000 to 2014, Appellant filed at least two more unsuccessful PCRA
petitions. On July 25, 2017, Appellant filed the current pro se petition for writ
of habeas corpus, which the court treated as a serial PCRA petition. The court
issued Rule 907 notice on August 30, 2017. Appellant filed a premature notice
of appeal on September 21, 2017.3 The court denied PCRA relief on October
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1 The 1995 amendments to the PCRA gave Appellant a grace period to file her
first PCRA petition within one year of January 16, 1996, the effective date of
the amendments. See Commonwealth v. Thomas, 718 A.2d 326, 329
(Pa.Super. 1998) (en banc) (holding: “[I]t was the intention of the legislature
to permit an otherwise untimely first PCRA petition to be filed within one year
following the effective date of the 1995 PCRA amendments, but that exception
was not intended to apply to subsequent petitions regardless of when a first
petition was filed”).
2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 On October 2, 2017, the court ordered Appellant to file a concise statement
of errors per Pa.R.A.P. 1925(b). The PCRA court opinion indicates Appellant
filed her concise statement on October 18, 2017, but it was too vague to
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13, 2017.4
Preliminarily, any petition for post-conviction collateral relief will
generally be considered a PCRA petition, even if captioned as a request for
habeas corpus relief, if the petition raises issues for which the relief sought is
available under the PCRA. See Commonwealth v. Peterkin, 554 Pa. 547,
722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole means
of obtaining collateral relief and encompasses all other common law and
statutory remedies for same purpose). As well, the timeliness of a PCRA
petition is a jurisdictional requisite. Commonwealth v. Zeigler, 148 A.3d
849 (Pa.Super. 2016). A PCRA petition must be filed within one year of the
date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A
judgment is “final” at the conclusion of direct review or at the expiration of
time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The exceptions to the
PCRA time-bar allow for very limited circumstances under which the late filing
of a petition will be excused; a petitioner asserting an exception must file a
petition within 60 days of the date the claim could have been presented. See
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permit meaningful review. Nevertheless, the certified docket entries and
record do not contain Appellant’s statement. Based on our disposition that
Appellant’s current PCRA petition is untimely, we decline to address any non-
compliance with Rule 1925(b).
4Appellant’s premature notice of appeal relates forward to October 13, 2017.
See Pa.R.A.P. 905(a)(5) (stating: “A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof”).
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42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant alleges the denial of a fair trial, due process of law,
and the ineffectiveness of trial counsel. These claims are cognizable under
the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(i), (ii) (describing as cognizable
under PCRA claims of constitutional violations and ineffectiveness of counsel).
Thus, the court properly treated Appellant’s most recent prayer for collateral
relief as a PCRA petition. See Peterkin, supra. Here, Appellant’s judgment
of sentence became final on November 27, 1995, upon expiration of the time
to file a petition for writ of certiorari in the United States Supreme Court. See
U.S.Sup.Ct.R. 13. Appellant filed the current PCRA petition on July 25, 2017,
which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant did not
acknowledge the untimeliness of her petition and made only a passing
reference to the exception at Section 9545(b)(1)(ii). Nevertheless, Appellant
failed to explain how this exception applies to her case. Thus, the court
properly dismissed Appellant’s petition as untimely. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:04/18/18
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