J-S74043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

HADDRICK BYRD

                            Appellant                   No. 849 EDA 2016


                   Appeal from the PCRA Order March 4, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1114802-1974


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                           FILED OCTOBER 31, 2016

         Haddrick Byrd (Appellant) appeals from the March 4, 2016 order

denying as untimely his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

         Following a jury trial in September of 1976, Appellant was found guilty

of robbery, possessing an instrument of crime, four counts of aggravated

assault, and five counts of simple assault.1     Appellant had robbed a Miles-

David clothing store at 639 South Street in Philadelphia.        Appellant was

sentenced to thirty-three and one-half to sixty-seven years’ incarceration.

Appellant’s post-sentence motions were denied.


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1
  Respectively, see 18 Pa.C.S. §§ 3701, 907, 2702, and 2701. Appellant is
also serving a life sentence for an unrelated case.

*
    Former Justice specially assigned to the Superior Court.
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       We reversed Appellant's judgment of sentence on direct appeal,

finding a violation of his right to a speedy trial under former Pa.R.Crim.P.

1100.2    Commonwealth v. Byrd, 378 A.2d 921 (Pa. Super. 1977).             Our

Supreme      Court reversed and remanded for         an   evidentiary   hearing.

Commonwealth v. Byrd, 425 A.2d 722 (Pa. 1981). On remand, the trial

court found no violation of Rule 1100, and we affirmed on March 18, 1987.

Commonwealth v. Byrd, 526 A.2d 811 (Pa. Super. 1987).               Appellant's

petition for allocatur was denied on October 19, 1987. Commonwealth v.

Byrd, 535 A.2d 81 (Pa. 1987) (table). Appellant did not petition the United

States Supreme Court for review.

       On October 18, 1994, Appellant pro se filed his first petition for relief

under the PCRA alleging, inter alia, that the trial court lacked subject-matter

jurisdiction because the charges against him were dismissed prior to trial.

Newly appointed counsel reviewed the record and filed a "no merit'' letter

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988).

After an independent review of the record, the PCRA court dismissed the

petition without hearing. We affirmed on March 19, 1996, save vacating his

one- and two-year sentences for simple assault. Commonwealth v. Byrd,

678 A.2d 824 (Pa. Super. 1996). Appellant did not seek allocatur.



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2
 See Pa.R.Crim.P. 600 credits (“renumbered Rule 600 and amended March
1, 200, effective April 1, 2001.”).



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          In the matter instantly before this Court, Appellant pro se filed a

petition for writ of habeas corpus on February 4, 2014, asserting that he was

being illegally held because the charges against him were dismissed prior to

trial.3      That same day, Appellant’s petition was transferred to the

Philadelphia Criminal Trial Division.4           The Honorable Jeffrey P. Minehart

concluded Appellant’s claims were cognizable under the PCRA and untimely

filed.5 On August 21, 2015, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition without a hearing. Appellant filed

a timely response.

          In March of 2016, the court dismissed Appellant’s petition as untimely

by order and opinion and noted that the issues therein were previously

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3
 The lower court criminal docket reflects the filing date of February 4, 2014,
however a civil docket report within the certified record notes January 17,
2014 as the original filing date.
4
  Appellant subsequently filed a second habeas corpus petition on January
16, 2015, which was also transferred to the Philadelphia Criminal Trial
Division on February 3, 2015.
5
  A review of this Court’s database reveals the instant PCRA petition may be
Appellant’s third, as his second was internally docketed at No. 880
Philadelphia 1997. In said appeal, styled as a writ of habeas corpus,
Appellant raised the constitutionality of his imprisonment given that a grand
jury did not indict him.      In our memorandum of April 27, 1998, we
concluded the appeal was properly treated as a PCRA, and affirmed the
dismissal of his PCRA as previously litigated. For reasons unknown to this
court, the 880 Philadelphia 1997 disposition does not appear in the instant
record of our court nor the record of the lower court. Whether or not this is
Appellant’s second or third PCRA petition is of no moment in our instant
disposition.



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litigated.   Appellant timely appealed pro se and filed a court-ordered

Pa.R.A.P. 1925(b) statement.

      Appellant presents the following questions for our review:

      1.     Did the PCRA court commit error and abuse its discretion in
      treating Appellant’s habeas corpus petition under 42 Pa.C.S.A. §§
      6501-6505 as a petition under the PCRA 42 Pa.C.S.A. §§ 9541-
      9546 and dismissing it as untimely filed without an evidentiary
      hearing when the claims raised are not cognizable under the
      PCRA?

      2.     Did the PCRA court commit error and abuse its discretion in
      failing to address whether the district attorney’s office
      perpetrated a fraud on the court in proceeding to trial against the
      Appellant while knowing the charges were dismissed and thus the
      trial court lacked statutory and constitutional authority to proceed
      in this case and impose a void judgement/sentence and
      commitment order in violation of due process?

Appellant’s Brief at viii.

      In his first issue, Appellant contends the PCRA court erred when it

reviewed his petition for writ of habeas corpus under the PCRA. Appellant’s

Brief at 3-7. Appellant’s contention is incorrect.

      The PCRA is the “sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same

purpose…, including habeas corpus.” 42 Pa.C.S. § 9542. Both the PCRA and

the state habeas corpus statute contemplate that the PCRA subsumes the

writ of habeas corpus in circumstances where the PCRA provides a remedy

for the claim. Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998).

      Here, Appellant challenges the legality of his sentence. Such a claim is

cognizable under the PCRA. See 42 Pa.C.S. § 9542 (providing that “persons


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serving illegal sentences” may obtain relief under the PCRA); see also

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super 2004) (“Issues

concerning the legality of sentence are cognizable under the PCRA.”).

Additionally, the PCRA specifically provides relief for individuals serving

sentences resulting from constitutional violations and sentences imposed by

courts without jurisdiction. 42 Pa.C.S § 9543(a)(2)(i), (viii).

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court’s findings deference unless there is no

support for them in the certified record.     Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).         Because the PCRA provides a

remedy for Appellant’s claims, the lower court was correct in treating the

petition as a request for relief under the PCRA.

      We must next address the PCRA timeliness requirements.               The

timeliness of Appellant’s petition implicates jurisdiction and may not be

altered or disregarded in order to address the merits of his claim.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, all petitions seeking collateral relief must be filed within one year of

the date the judgment of sentence becomes final.          Id.     A judgment of

sentence becomes final at conclusion of direct review or at expiration of time

for seeking that review. 42 Pa.C.S.A. § 9545(b)(3).

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       Here, Appellant’s judgement of sentence was affirmed on March 18,

1987, and our Supreme Court denied allocator on October 19, 1987.

Appellant had ninety days to seek certiorari in the United States Supreme

Court after the Pennsylvania Supreme Court denied allocatur.         Sup. Ct. R.

13.   Thus, his sentence became final on January 17, 1988.6           42 Pa.C.S.

§9545(b)(3). The instant PCRA was filed on January 17, 2014, more than

twenty-six years after his judgment of sentence became final.                 The

Appellant’s petition is patently untimely, and for this Court to have

jurisdiction to review the merits of Appellant’s claims, he must prove the

applicability of one of the exceptions to the timeliness requirement.

       There are three 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


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6
  We note that Appellant’s judgment of sentence became final prior to the
amendments to the PCRA enacted November 17, 1995, however this has no
bearing on the instant analysis, as the instant petition is not Appellant’s first.
Commonwealth v. Fenati, 732 A.2d 625, 627 (Pa. Super. 1999) (where a
defendant's judgment of sentence became final before the effective date of
the amendments, his first PCRA petition will be considered timely if it is filed
within one year of the effective date of the amendments [January 16,
1996]); Act of November 17, 1995, P.L. 1118, No. 32 (Spec. Sess. No. 1) §
3(1).



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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). Appellant has the burden of proving an exception

to the time bar. Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa.

2008).   In addition, a petition seeking relief pursuant to a statutory

exception must adhere to the additional requirement of filing the claim

within 60 days of the date the claim could have been first presented.    42

Pa.C.S. § 9545(b)(2).

      Here, Appellant’s petition does not plead or prove an exception to the

timeliness requirement.     Consequently, the PCRA court did not have

jurisdiction to review the merits of Appellant’s claims. See Commonwealth

v. Fahy, 737 A.2d 214, 223 (Pa. Super. 1999) (“Although the legality of a

sentence is always subject to review within the PCRA, claims must first

satisfy the PCRA’s time limits or one of the exceptions thereto.”). Thus, we

affirm the PCRA court’s denial of Appellant’s untimely PCRA petition.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2016



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