Com. v. Castaphney, G. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GREGORY LAMAR CASTAPHNEY, :
:
Appellant. : No. 400 WDA 2018
Appeal from the PCRA Order, March 6, 2018,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0009626-1992.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 13, 2018
Gregory Lamar Castaphney appeals pro se from the order denying as
untimely his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The pertinent facts and procedural history are as follows: On July 13,
1993, a jury convicted Castaphney of first-degree murder and the trial court
sentenced him immediately thereafter to life in prison. Following the denial
of post-trial motions, Castaphney filed a timely appeal to this Court. On April
5, 1995, this Court affirmed his judgment of sentence, and on November 28,
1995, our Supreme court denied allocatur. Commonwealth v. Castaphney,
663 A.2d 245 (Pa. Super. 1995) (unpublished memorandum), appeal denied,
670 A.2d 140 (Pa. 1995). Castaphney did not seek further review.
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On February 19, 2002, Castaphney filed a pro se PCRA petition and an
amended petition on May 9, 2002. The PCRA court appointed counsel. PCRA
counsel filed a motion to withdraw and “no-merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Castaphney filed a pro
se response. On February 26, 2003, the PCRA court issued Pa.R.Crim.P. 907
notice of its intent to dismiss Castaphney’s PCRA petition without a hearing,
and granted PCRA counsel’s motion to withdraw. Castaphney again filed a pro
se response. By order entered March 25, 2003, the PCRA court dismissed
Castapheny’s PCRA petition. Castaphney filed an appeal to this Court, we
affirmed the denial of post-conviction relief on April 23, 2004, and, on
November 24, 2004, our Supreme Court denied allocatur. Commonwealth
v. Castaphney, 852 A.3d 1244 (Pa. Super. 2004) (unpublished
memorandum), appeal denied, 863 A.3d 1142 (Pa. 2004).
On November 27, 2017, Castaphney filed the instant pro se PCRA
petition, his second. On January 9, 2018, the PCRA court issued Pa.R.Crim.P.
907 notice of its intent to dismiss Castaphney’s second PCRA petition without
a hearing because it was untimely. Castaphney filed a response. By order
entered March 6, 2018, the PCRA court dismissed Castaphney’s second
petition. This appeal followed. The PCRA court did not require Pa.R.A.P. 1925
compliance.
Castaphney raises the following issue on appeal:
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Did the PCRA court err in denying [Castaphney’s] PCRA
petition to strike the void judgment rendered by the
Allegheny Court of Common Pleas for lack of Subject Matter
Jurisdiction, where a fatal defect appears in the record?
Castaphney’s Brief at 4.
Before addressing this issue, we must first determine whether the PCRA
court correctly determined that Castaphney’s second PCRA petition was
untimely filed. This Court’s standard of review regarding an order dismissing
a petition under the PCRA is to ascertain whether “the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d
185, 191-92 (Pa. Super. 2013) (citations omitted).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that he meets an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii).1 A PCRA petition invoking one of these statutory
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1 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.
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exceptions must “be filed within 60 days of the date the claims could have
been presented.” See Commonwealth v. Hernandez, 79 A.3d 649, 651-
52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).
Asserted exceptions to the time restrictions for a PCRA petition must be
included in the petition, and may not be raised for the first time on appeal.
Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).
Here, because Castaphney did not seek further review following our
Supreme Court’s denial of allocatur on November 28, 1995, his judgment of
sentence became final ninety days thereafter, or on February 26, 1996. See
42 Pa.C.S.A. § 9543(b)(3). Thus, for purposes of the PCRA’s time bar,
Castaphney had to file his PCRA petition by February 26, 1997. Castaphney
filed his second petition on November 27, 2017. Thus, the petition is untimely,
unless Castaphney satisfied his burden of pleading and proving that one of the
enumerated exceptions applies. See Hernandez, supra.____________________________________________
(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
(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.A. §§ 9545(b)(1)(i), (ii), and (iii).
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Castaphney has failed to prove any exception to the PCRA’s time bar.
Instead, he argues that because he was charged with criminal homicide
generally, rather than first-degree murder specifically, “a fatal defect appears
on the record,” and the trial court never possessed subject matter jurisdiction.
Castaphney’s Brief at 6. Thus, Castaphney claims that his judgment of
sentence should be voided despite the passage of over twenty years.
Castaphney cites no PCRA precedent to support his claim.2 Although a
jurisdictional challenge is specifically recognized as a basis for relief under the
PCRA pursuant to 42 Pa.C.S.A. section 9543(a)(2) (viii) (specifying that a
claim that a conviction resulted from a “proceeding in a tribunal without
jurisdiction” is subject to the PCRA), this claim must still be timely filed to get
post-conviction relief. Since more than one year has passed since his
judgment of sentence became final, in order for the PCRA court to address his
second petition, Castaphney was required to plead and prove one or more of
the PCRA’s time-bar exceptions. Because he has failed to plead, let alone
prove, any time-bar exception, the PCRA court properly concluded that
Castaphney’s second petition was untimely.
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2 To support his claim that challenges to subject matter jurisdiction cannot be
waived and may be raised at any time, Castaphney cites to Commonwealth
v. Serrano, 61 A.3d 279 (Pa. Super. 2013), and other direct appeal cases
that resulted in the appellate court vacating a conviction and judgment of
sentence. See Castaphney’s Brief at 10-11. These cases have no application
to the collateral review process.
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Nevertheless, we note that Castaphney’s claim that a “fatal defect
appears on the face of the record” is baseless. This Court has held a criminal
information charging a defendant with the general charge of criminal homicide
is sufficient to inform him of the crime with which he was charged, and that
the information was not defective for failing to specifically charge him with the
various degrees of murder. Commonwealth v. McMullen, 616 A.2d 14, 15-
16 (Pa. Super. 1992), reversed in part on other grounds, 681 A.2d 717 (Pa.
1996); see also Commonwealth v. Chambers, 852 A.2d 1197 (Pa. Super.
2004) (explaining that an information need not specify the degrees of murder
in order to sustain a verdict of second-degree murder). Thus, even if timely,
Castaphney’s challenge to the trial court’s subject matter jurisdiction would
not entitle him to post-conviction relief.
Here the PCRA court properly concluded that it lacked jurisdiction to
consider the merits of Castaphney’s untimely PCRA petition. We therefore
affirm the PCRA court’s order denying his second PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2018
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