Com. v. Palmer, S. ( 2020 )

J-S07029-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEPHEN PALMER :
:
Appellant : No. 756 EDA 2019
Appeal from the PCRA Order Entered February 25, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1204301-2000
BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY KING, J.: FILED MARCH 04, 2020
Appellant, Stephen Palmer, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which denied his serial petition
for collateral relief. On November 2, 2001, the court convicted Appellant of
first-degree murder, recklessly endangering another person, and possessing
instruments of crime. The court sentenced Appellant to life imprisonment for
the murder conviction and imposed lesser terms of imprisonment for the other
offenses. This Court affirmed the judgment of sentence on January 10, 2003.
See Commonwealth v. Palmer, 3490 EDA 2001 (Pa.Super. 2003)
(unpublished memorandum). Appellant did not seek further direct review.
Between 2004 and 2017, Appellant unsuccessfully litigated multiple
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* Retired Senior Judge assigned to the Superior Court.
J-S07029-20
petitions for collateral relief. On March 28, 2018, Appellant filed the current,
serial pro se petition for collateral relief, seeking habeas corpus relief.
Appellant amended his petition on August 17, 2018 and November 16, 2018.
The court treated Appellant’s filings under the Post Conviction Relief Act
(“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546, and issued Pa.R.Crim.P. 907 notice
on January 28, 2019. Appellant responded pro se, and the court denied relief
on February 25, 2019. Appellant timely appealed pro se on March 8, 2019.
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). Additionally, 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 PCRA timeliness
exceptions allow very limited circumstances to excuse the late filing of a
petition. See 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).
Instantly, Appellant raised three claims in his current petition and
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amendments: (1) his murder conviction is unconstitutional because only a
capital murder defendant can be convicted of first-degree murder; (2) the
first-degree murder sentencing statute is void for vagueness because it does
not give fair notice that life imprisonment means “without the possibility of
parole”; and (3) layered ineffectiveness of counsel for failure to obtain mental
health testing to assert diminished capacity or mistaken self-defense, and
failure to preserve this claim in a prior PCRA petition.
Appellant’s first and third claims are cognizable under the PCRA. See
42 Pa.C.S.A. § 9543(a)(2)(i), (ii) (describing claims of constitutional violations
and ineffectiveness of counsel as cognizable under PCRA); Peterkin, supra.
Here, Appellant’s sentence became final on February 9, 2003, upon expiration
of the time to file a petition for allowance of appeal in our Supreme Court.
See Pa.R.A.P. 1113(a). Appellant filed the current, serial PCRA petition on
March 28, 2018, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant did not assert a time-bar exception regarding his claim that his first-
degree murder conviction is unconstitutional. See id. As well, Appellant
unsuccessfully litigated his ineffectiveness claim in an earlier PCRA petition.1
See Commonwealth v. Palmer, 3289 EDA 2005 (Pa.Super. 2007)
(unpublished memorandum). See also 42 Pa.C.S.A. § 9543(a)(3) (stating to
be eligible for relief under PCRA, claim must not be previously litigated or
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1 Although this Court initially concluded the ineffectiveness claim was waived,
this Court went on to say the claim lacked arguable merit in any event.
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waived). Further, although Appellant’s “void for vagueness” claim falls outside
the PCRA, he waived it by failing to raise it at sentencing or in a post-sentence
motion. See Commonwealth v. Smith, 194 A.3d 126 (Pa.Super. 2018),
appeal denied, ___ Pa. ___, 208 A.3d 64 (2019) (holding claim that 18
Pa.C.S.A. § 1102 is void for vagueness falls outside of PCRA and seeks habeas
corpus remedy; but, appellant waived challenge where he did not raise it at
sentencing or in post-sentence motion). Thus, Appellant is not entitled to
collateral relief on any of his claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/20
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