J-S13024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KIRBY STEWART, A/K/A KEVIN :
WILLIAMS :
:
Appellant : No. 1457 MDA 2021
Appeal from the PCRA Order Entered October 8, 2021
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004395-1999
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: APRIL 28, 2022
Appellant, Kirby Stewart, a/k/a Kevin Williams, appeals pro se from the
order entered in the Lancaster County Court of Common Pleas, which
dismissed his pro se “Petition for Review,” which the court treated as a serial
untimely petition for collateral relief under the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
After being extradited from New York to Pennsylvania, the trial court convicted
Appellant of first-degree murder on March 29, 2000, in connection with
Appellant’s instruction to his associates to kill Victim in retaliation for Victim’s
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
J-S13024-22
theft of money and guns from a crack house maintained by Appellant. The
court sentenced Appellant on the day of his conviction to life imprisonment.
This Court affirmed Appellant’s judgment of sentence on March 30, 2001, and
our Supreme Court denied allowance of appeal on August 20, 2001. See
Commonwealth v. Stewart, 777 A.2d 510 (Pa.Super. 2001), appeal denied,
566 Pa. 681, 784 A.2d 117 (2001). Since that time, Appellant has
unsuccessfully litigated numerous PCRA petitions.
On September 22, 2021, Appellant filed the current pro se “Petition for
Review,” claiming that his extradition from New York to Pennsylvania was
illegal. Appellant claimed his prayer for relief should be construed as a petition
for writ of habeas corpus, and not under the confines of the PCRA.
Nevertheless, the court treated Appellant’s filing as an untimely serial PCRA
petition and denied relief on October 8, 2021.2 Appellant timely filed a pro se
notice of appeal on November 2, 2021. On November 10, 2021, the court
ordered Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied on November 22, 2021.
____________________________________________
2 The record is unclear whether the court issued notice of its intent to dismiss
Appellant’s petition without a hearing, per Pa.R.Crim.P. 907. Appellant has
not raised this issue on appeal, so he waived any defect in notice. See
Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013) (explaining
appellant’s failure to raise on appeal PCRA court’s failure to provide Rule 907
notice results in waiver of claim). Moreover, failure to issue Rule 907 notice
is not reversible error where the petition is untimely. Id. See also
Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911 (2000) (indicating
court’s failure to provide notice of intent to dismiss without hearing does not
warrant remand, where petition fails in all respects).
-2-
J-S13024-22
Appellant raises the following issues for our review:
[Appellant’s] extradition was illegal?
The judge abused his judicial discretion in this case?
(Appellant’s Brief at 4).
Preliminarily, we observe that any petition for post-conviction collateral
relief will generally be considered a PCRA petition, regardless of the title of
the filing, if the petition raises issues for which the relief sought is available
under the PCRA. See generally Commonwealth v. Fahy, 558 Pa. 313, 737
A.2d 214 (1999); Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564
(1999); 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). The writ of habeas corpus continues to exist as a separate remedy
only if the claim raised is not cognizable under the PCRA. Peterkin, supra
at 552, 722 A.2d at 640. See also Commonwealth v. Beck, 848 A.2d 987
(Pa.Super. 2004) (explaining petition for writ of habeas corpus will be deemed
PCRA petition if it raises issues that are generally cognizable under PCRA);
Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa.Super. 2001) (stating
“any collateral petition raising issues with respect to remedies offered under
the PCRA will be considered a PCRA petition”). When considering what types
of claims fall within the ambit of the PCRA, “the scope of the PCRA eligibility
requirements should not be narrowly confined to its specifically enumerated
-3-
J-S13024-22
areas of review.” Commonwealth v. Hackett, 598 Pa. 350, 363, 956 A.2d
978, 986 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d
277 (2009). “Such narrow construction would be inconsistent with the
legislative intent to channel post-conviction claims into the PCRA’s framework,
and would instead create a bifurcated system of post-conviction review where
some post-conviction claims are cognizable under the PCRA while others are
not.” Id. (internal citation omitted). See also 42 Pa.C.S.A. § 9543(a)(2)
(describing claims eligible for relief under PCRA).
Additionally, the timeliness of a PCRA petition is a jurisdictional
requisite. Taylor, supra. 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 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
review.” 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the
timeliness provisions in the PCRA allow for very limited circumstances under
which the late filing of a petition will be excused. See 42 Pa.C.S.A. §
9545(b)(1).
Instantly, Appellant challenges the propriety of his conviction and
sentence based on his alleged illegal extradition from New York to
Pennsylvania. Despite his effort to distance his current petition from the
PCRA, Appellant’s petition poses claims directly related to the PCRA statute;
-4-
J-S13024-22
as presented, he challenges the legality of his conviction and sentence. See
generally Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super. 2007),
appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (holding any collateral
attack on legality of sentence must be raised in PCRA petition). See also
Reed v. Garman, No. 1029 MDA 2019 (Pa.Super. filed Feb. 10, 2020)
(unpublished memorandum),3 appeal denied, ___ Pa. ___, 237 A.3d 983
(2020) (holding court properly addressed appellant’s challenge to legality of
his extradition proceeding under PCRA). Thus, the court properly treated
Appellant’s most recent prayer for collateral relief as a PCRA petition. See
Peterkin, supra; Deaner, supra.
Further, although challenges to the legality of a conviction and/or
sentence are subject to review within the PCRA, a petition asserting those
claims must still first satisfy the PCRA’s time limits or demonstrate the
application of a statutory timeliness exception. Fowler, supra at 592. Here,
our Supreme Court denied allowance of appeal from the judgment of sentence
on August 20, 2001. Appellant did not seek further direct review. Therefore,
his judgment of sentence became final on November 18, 2001, upon
expiration of the time to file a petition for writ of certiorari with the United
States Supreme Court. See U.S.Sup.Ct.R. 13 (allowing ninety (90) days to
file petition for writ of certiorari). Appellant filed the current, pro se serial
____________________________________________
3 See Pa.R.A.P. 126(b) (explaining we may rely on unpublished decisions from
this Court filed after May 1, 2019 for persuasive value).
-5-
J-S13024-22
petition for collateral relief on September 22, 2021, which is patently untimely.
See 42 Pa.C.S.A. § 9545(b)(1).
In his effort to keep his current petition outside the PCRA, Appellant
does not demonstrate on appeal any of the statutory exceptions required to
revive an otherwise untimely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1)(i-
iii). Thus, Appellant’s petition remains a patently untimely PCRA petition.
Further, Appellant already litigated this claim in a prior collateral relief
petition. Specifically, on July 24, 2008, Appellant filed a petition for habeas
corpus relief claiming his extradition from New York was illegal. The trial court
denied relief, and this Court affirmed on September 9, 2009. In doing so, this
Court held:
A claim challenging the legality of his extradition should
have been brought in the asylum state, New York, prior to
his extradition to the demanding state, Pennsylvania. See
Commonwealth v. Carlos, 462 Pa. 262, 267, 341 A.2d 71,
73 (1975). Simply put, once a defendant is extradited the
legality of the extradition is moot. See Commonwealth v.
Caffrey, 508 A.2d 322, 323-324 (Pa.Super. 1986)
(plurality) (holding demanding state not appropriate forum
in which to test, by writ of habeas corpus, the legality of
extradition). See also 18 STANDARD PENNSYLVANIA
PRACTICE 2d § 98:22, Generally; 16 WEST’S PA. PRAC.,
CRIMINAL PRACTICE § 10.2, Extradition generally.
Commonwealth v. Stewart, No. 1696 MDA 2008, unpublished
memorandum at 2 (Pa.Super. filed Sept. 9, 2009) (emphasis in original).4
____________________________________________
4Additionally, this Court noted that to the extent the claim was cognizable
under the PCRA, the petition was untimely with no exceptions pled. See id.
-6-
J-S13024-22
Thus, Appellant is also ineligible for PCRA relief because the claim on appeal
has been previously litigated. See 42 Pa.C.S.A. § 9543(a)(3) (stating
petitioner is ineligible for PCRA relief if allegation of error has been previously
litigated).
Even if the claim falls outside of the PCRA, Appellant is still not entitled
to relief, because this Court has already considered Appellant’s challenge to
the legality of his extradition and held that the extradition issue is moot. See
Stewart, supra. See also Commonwealth v. McCandless, 880 A.2d
1262, 1267 (Pa.Super. 2005), appeal dismissed as improvidently granted, 593
Pa. 657, 933 A.2d 650 (2007) (explaining general rule that under “law of the
case” doctrine, court involved in later phases of litigated matter should not
reopen questions decided by another judge of same court or by higher court
in earlier phases of matter). Based upon the foregoing, we affirm the order
denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/28/2022
-7-