Com. v. Smith, K.

J-S22013-18
2018 Pa. Super. 211
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
KEITH SMITH,
Appellant No. 1751 EDA 2017
Appeal from the PCRA Order Entered May 8, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0503171-2000
CP-51-CR-0503181-2000
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
OPINION BY BENDER, P.J.E.: Filed July 20, 2018
Appellant, Keith Smith, appeals from the order dismissing, as untimely,
his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm.
On September 25, 2001, [Appellant] was convicted by a jury
of first-degree murder, [18 Pa.C.S. § 2502(a),] possessing an
instrument of crime, [18 Pa.C.S. § 907,] and recklessly
endangering another person, [18 Pa.C.S. § 2705]. In our
memorandum affirming [Appellant]’s judgment of sentence, we
summarized the pertinent facts underlying these convictions as
follows:
[O]n October 15, 1999, at approximately 3:30 p.m., the
victim Clifton Walker was shot at the intersection of 34th
and Mt. Vernon Streets, Philadelphia. At the time of the
shooting, the victim was with a group of friends and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S22013-18
acquaintances, including Commonwealth witnesses Huey
Hewitt and Kirk Dunson. The shooter stood in the
intersection and fired at least eight shots, hitting the victim
from the rear three times. Two of the shots entered the
victim’s buttocks; the fatal bullet entered at the shoulder
blade, severed the aorta, exited and hit the victim’s chin and
exited a second time. The police obtained statements from
the two above-named witnesses on the evening of the
incident in which each of them identified [Appellant] as the
shooter. At a later time, each of the witnesses recanted
their identifications of [Appellant] and attributed their
inculpatory statements to police misconduct, i.e.,
withholding of medical treatment of Hewitt and physical
abuse of Dunson. At trial, neither witness identified
[Appellant] as the shooter. The Commonwealth was
permitted to utilize their prior inconsistent statements as
substantive evidence of [Appellant]’s guilt.
Commonwealth v. Smith, No. 554 EDA 2002, [unpublished
memorandum] at 1–2 (Pa. Super. [filed] May 6, 2003). On
September 26, 2001, [Appellant] was sentenced to life
imprisonment. On May 6, 2003, we affirmed the judgment of
sentence. Id. at 1, 6. The Pennsylvania Supreme Court denied
[Appellant]’s petition for allowance of appeal. Commonwealth
v. Smith, 836 A.2d 122 (Pa. 2003)[].
On June 24, 2004, [Appellant] filed his first PCRA petition.
Following the appointment of counsel and the filing of an amended
petition, the PCRA court dismissed the petition without a hearing.
On June 5, 2007, we affirmed the denial. Commonwealth v.
Smith, No. 1399 EDA 2006, [unpublished memorandum] at 7 (Pa.
Super. [filed] June 5, 2007). On March 14, 2008, the
Pennsylvania Supreme Court denied [Appellant]’s petition for
allowance of appeal. Commonwealth v. Smith, 945 A.2d 170
(Pa. 2008)[].
On December 9, 2009, [Appellant] filed a second pro se
PCRA petition, which the PCRA court dismissed as untimely on
August 20, 2010. On November 30, 2011, we also found the
petition to be untimely, and affirmed the PCRA court's dismissal
order. Commonwealth v. Smith, No. 2552 EDA 2010,
[unpublished memorandum] at 1, 7 (Pa. Super. [filed] Nov. 30,
2011). On June 20, 2012, the Pennsylvania Supreme Court
denied [Appellant]’s petition for allowance of appeal.
Commonwealth v. Smith, 47 A.3d 847 (Pa. 2012)[].
-2-
J-S22013-18
[Appellant] filed his third and fourth PCRA petitions on
March 27, 2012 and August 15, 2012, respectively. The PCRA
court dismissed both petitions as untimely on February 12, 2013.
On February 11, 2013, [Appellant] filed his fifth PCRA petition. …
On April 5, 2013, the PCRA court entered an order dismissing
Smith's fifth petition.
Commonwealth v. Smith, No. 1264 EDA 2013, unpublished memorandum
at 1-3 (Pa. Super. filed February 28, 2014). This Court affirmed the denial of
Appellant’s fifth PCRA petition as untimely on February 28, 2014. Id. at 10.
Our Supreme Court denied his petition for allowance of appeal on October 7,
2014. Commonwealth v. Smith, 97 A.3d 817 (Pa. 2014).
The matter sub judice arose as follows:
The instant [PCRA] petition was filed on October 14, 2014,
followed by several amended petitions dated February 20, 2015,
March 9, 2015, December 4, 2015 and a PCRA petition styled as
a writ of habeas corpus on January 4, 2017. Pursuant to
Pa.R.Crim.P. 907, th[e PCRA] court sent a notice of intent to
dismiss the petition as untimely without exception on March 22,
2017. In response to th[e] court's 907 notice, [Appellant] filed
another petition on April 6, 2017. Th[e PCRA] court formally
dismissed the petition on May 8, 2017. [Appellant] timely filed a
notice of appeal to the Pennsylvania Superior Court on May 23,
2017.
PCRA Court Opinion (“PCO”), 7/25/17, at 2 (footnote omitted).
Appellant now presents the following questions for our review, which we
set forth verbatim:
1. Whether the PCRA Court erred in denying [appellant's] Post-
Conviction Petition as untimely when {appellant] did established
that Government officials interfered with the presentation of the
claim, failure to turn over impeachment and exculpatory evidence
{David Jefferson's] statement that was given to detectives was in
violation of Brady within the plain language of the timeliness
exception set forth at 42 Pa C.S.A 9545 (b) (1) (i) (iii) and {after
-
-3-
J-S22013-18
discovered facts claim} section 9545 (b) (1) (ii), and filing claim
within sixty days (60) satisfying 9545 (b) (2)?
2. Whether {appellant} is entitled to a new trial or remand for an
evidentiary hearing based upon the affidavit of {David
Jefferson's} admitting that he gave a statement to detectives on
10/15/1999 that he was with {Clift Walker} the victim in this case
prior to the shooting and stated within affidavit {Clift Walker} had
words with males from North-Philly, was impeachment evidence
and exculpatory to the argument of the witnesses out-of court
statements that was admitted at trial, which {after-discovered
fact} was provided to {appellant} by way of affidavit by {David
Jefferson} sent to {appellant} by mail?
3. Whether the District Attorney's failure to disclose impeachment
and exculpatory evidence to {appellant} proving his innocence,
that he did not shoot {Cliff Walker} because of an argument, and
Whether {appellant's} confrontation Clause Rights were violated
under the sixth Amendment "to be confronted with witnesses
against him" those whom were actually present for the argument
which the prosecution used towards proving {appellant's} guilt
violates the prosecutions obligation under the Fourteenth
Amendment Due Process and substantive Due Process right?
4. Whether trial counsel was ineffective for failing to investigate
and present at trial impeachment and exculpatory evidence,
especially {Kelly Smith} who was not on the corner of 34th and
MT. Vernon street standing around with males and who did not
argue with {Clift Walker} prior to him being shot, and was not
with {appellant} in a vehicle before the shooting?
5. Whether the PCRA Court erred and improperly dismissed
{appellant's} PCRA Petition as untimely without an evidentiary
hearing to review whether trial counsel was ineffective assistance
by failing to investigate and call Rasheeda Brennan, Malik Walker,
Edward Johnson, whom had knowledge of {appellant's}
whereabouts as alibi witnesses, violated {appellant's} sixth
Amendment right "to obtain witnesses in his favor"?
6. Whether the PCRA Court erred in denying {appellant} Post-
conviction Petition as untimely filed, when {appellant} filed
several issues under Pa.R.Crim.P. 905(A), requesting right to
Amend, which such right shall be freely allowed to achieve
substantial justice, where {appellant} clearly filed amendment
before PCRA Court Order of May 8, 2017?
-4-
J-S22013-18
7. Whether the PCRA Court erred by denying {appellant} Habeas
Corpus Review under the "Legality of sentence claim", which
cannot be waived, where the PCRA Court does not subsume any
remedy that address the challenge of the penal statute 18
Pa.C.S.A. 1102(A) constitutionality, as to whether a Judge has
statutory authority to impose a further condition upon a sentence
without parole, pursuant 1102(A)?
8. Whether the PCRA Court erred by denying relief, vacation of
sentence, remand, evidentiary hearing, as to the Pennsylvania
statute of 18 Pa. C.S.A. 1102(A) violates Due Process; is
unconstitutional and void under the Vagueness Doctrine: because
the statute fails to give a person of ordinary intelligence fair notice
that its true penalty is life imprisonment "without parole", and the
legality of sentence is in question/ subject matter jurisdiction
which cannot be waived?
9. Whether the PCRA Court erred by denying relief Due, where the
sentencing Court has never docketed a "sentencing order", nor
furnished one upon {appellant} to have properly challenged the
legality of the sentence imposed from the actual sentencing order
and contents stated therein, did/does violate Due Process and
substantive Due Process rights, where {appellant} could have
raised the claim within one year of his judgment becoming final,
had the sentencing order been docketed and provided by the Clerk
of Courts/ judge, thus making the sentence legality a question of
merits review?
10. Whether the PCRA Court erred, by failing to review the Law,
where the trial Court violated {appellant's} Due Process right of
the Fifth, Fourteenth, sixth Amendment and pursuant Pa.
Constitution article 1 sections 9, 10, as the trial court was without
jurisdiction to try, convict or sentence {appellant},: because the
Commonwealth criminal complaint/information was void for
vagueness Doctrine, and failed to confront {appellant} with
formal and specific accusations of the crimes charged for
Recklessly endangering another Person, and first degree Murder
elements, as a challenge to a Courts subject matter jurisdiction is
non-waivable?
11. Did the Pcra Court erred, by failing to address the claim of
whether the [appellant's] 5th, 6th, 14th Amendment constitution
rights were violated by the trail Courts instruction that, "there was
no evidence of voluntary manslaughter, nor elements of
manslaughter in this case and those are not for your consideration
-5-
J-S22013-18
here", when the commonwealth's case in chief was predicated
upon a killing caused by provocation and heat of passion?
N.T.1200
12. Did the PCRA Court erred, by failing to address the claim of
whether the Commonwealth suppressed, withheld,
misrepresented material evidence of the autopsy's findings, that
was favorable to [appellant] and material to guilt rendering the
conviction unreliable, warranting a new trial?
13). Whether the PCRA Court erred, by denying relief, of Did the
trial Court abuse discretion or commit an error of law, by imposing
an illegal sentencing condition "without parole", that's not within
the laws of the Pennsylvania act. No 1974-46 H.B.1060 P.L.
213§4, violated Defendants constitutional rights of the fifth, eight,
fourteenth Amendment?
14). Whether the PCRA Court erred, by denying relief, of Did the
trial Court abuse discretion or commit an error Of law, by imposing
an illegal sentence, enacting the crimes code statute 18.Pa. C.S.
§ 2502 as the sentencing statute, without statutory authority,
lacked subject matter jurisdiction, where the General Assembly,
"never" gave authorization to judges, to charge, punish, and
sentence defendants, under the same statute, violated
Defendants constitutional rights, under the fifth, eight, fourteenth
Amendment?
Appellant’s Brief at 2-5.
Our standard of review of an appeal from the denial of a PCRA petition
is well-settled:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court's ruling if it
is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court's decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
-6-
J-S22013-18
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted).
Before we address any specific claim for relief, however, we must begin
by addressing the timeliness of Appellant's petition, because the PCRA’s time
limitations implicate our jurisdiction and may not be altered or disregarded in
order to address the merits of a petition. Commonwealth v. Bennett, 930
A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges
and the petitioner proves that:
(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
(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.
-7-
J-S22013-18
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
In his attempt to bypass the PCRA’s timeliness requirements, Appellant
makes multiple arguments. First, he contends the government officials
interfered with his Brady1 claim, thereby invoking the timeliness exception
set forth in 42 Pa.C.S. § 9545(b)(1)(i). Second, he argues that an affidavit
provided by David Jefferson (hereinafter “Jefferson Affidavit”) constitutes
newly-discovered evidence for purposes of Section 9545(b)(1)(ii). Third,
Appellant asserts government interference based on the Commonwealth’s
purported failure to disclose the victim’s autopsy results after Appellant
requested and was denied them from Philadelphia’s medical examiner in
January of 2016 and, similarly, after he requested and was denied them from
the Philadelphia Department of Public Records between February and May of
2016. Fourth, Appellant asserts newly-discovered facts based on an affidavit
he received from Kelly Smith that he claims contains exculpatory evidence
and therefore establishes that counsel was ineffective for failing to call Smith
as a witness at trial. Finally, Appellant asserts that he is entitled to habeas
corpus relief based on an illegality of sentencing claim, which he asserts is not
____________________________________________
1 Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the United States
Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Id. at 87.
-8-
J-S22013-18
cognizable under the PCRA and, therefore, the PCRA court should not have
dismissed it as an untimely PCRA petition.
Appellant’s first and second timeliness-exception arguments are
interrelated, as both appear to hinge on Appellant’s receipt of the Jefferson
Affidavit on August 14, 2014.2 Therein, David Jefferson stated that he was
driving around with the victim, his cousin, on the day of and just prior to the
fatal shooting. Jefferson Affidavit, 7/29/14, at 1 (unnumbered pages).
Jefferson further indicated that, earlier that day, the victim “had some words
with some dudes from … [N]orth [P]hilly.” Id. He dropped the victim off
near or at the location of the shooting. Id. Soon thereafter, he heard the
sound of gunshots. Id. As he returned to that location, he was stopped by
police, who took him to a hospital where a shooting victim told police that
Jefferson was not the culprit.3 Id. Police then transported Jefferson to
“homicide down [at] 8th and [R]ace.” Id. Jefferson stated that, at that time,
he told police about his interaction with the victim that day, including the fact
that the victim had an argument with the “dudes” from North Philadelphia.
Id.
Appellant contends that Jefferson’s statement to police on the day of the
shooting, as described in the Jefferson affidavit, was withheld from the
defense at his trial, despite ostensibly constituting “exculpatory and
____________________________________________
2 The affidavit was dated July 29, 2014.
3It is not clear whether this references the shooting that led to the victim’s
death, or an unrelated shooting.
-9-
J-S22013-18
impeachment evidence.” Appellant’s Brief at 18. Appellant argues that
August 14, 2014, the date of his receipt of the Jefferson Affidavit, was “the
first time the new claim could have been raised and presented….” Id. at 19.
Appellant asserts that Section 9545(b)(1)(i) applies to excuse the
untimely filing of his PCRA petition. However, Appellant appears to rely
entirely on the failure of the Commonwealth to disclose Jefferson’s statement
to police at trial as the basis for this claim. This argument appears to confuse
the standard for establishing a Brady violation with that required to establish
a valid argument for application of the interference by government officials
timeliness exception set forth in Section 9545(b)(1)(i). Even assuming the
failure to disclose Jefferson’s statement constituted a Brady violation,
Appellant is not entitled to an indefinite period to raise that claim by invocation
of the government interference exception. “Although a Brady violation may
fall within the governmental interference exception, the petitioner must plead
and prove that the failure to previously raise these claims was the result of
interference by government officials, and that the information could not have
been obtained earlier with the exercise of due diligence.” Commonwealth
v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006).
Appellant also asserts that his discovery of Jefferson’s statement to
police, as described in the Jefferson Affidavit, constitutes a newly-discovered
fact for purposes of Section 9545(b)(1)(ii), which explicitly requires due
diligence in the discovering of new facts previously unknown to a petitioner.
Thus, under both exceptions, Appellant must demonstrate that he acted with
- 10 -
J-S22013-18
due diligence in obtaining the Jefferson Affidavit. “Due diligence requires
neither perfect vigilance nor punctilious care, but rather it requires reasonable
efforts by a petitioner, based on the particular circumstances, to uncover facts
that may support a claim for collateral relief.” Commonwealth v. Burton,
121 A.3d 1063, 1071 (Pa. Super. 2015), affirmed, 158 A.3d 618 (Pa. 2017).
For the reasons that follow, we agree with the PCRA court that Appellant was
not duly diligent in his acquisition of the Jefferson Affidavit.
The PCRA court concluded that:
[A]fter a thorough review of [A]ppellant’s record, it was revealed
that [he] was [previously] aware that Jefferson was detained and
questioned about the homicide. In his November 2009 [PCRA]
petition, [Appellant] included a correspondence from the
Commonwealth dated May 17, 2000[,] listing the names of
witnesses interviewed as well as statements given to police
officers. See PCRA Petition 11/6/2009 at Exhibit P. Included in
the discovery submitted to defense counsel was an investigative
report by Sergeant Scott Murphy, one of the officers interviewing
witnesses. In his Investigation Interview Record, he stated that
he detained Jefferson and took his statement. See PCRA Petition
10/14/14 [at] Exhibit F. Therefore, while the statement may not
have been submitted to defense counsel, [Appellant], at the very
least[,] was aware of its existence as it was referred to in Murphy’s
report. At no time did [Appellant] show that he exercised due
diligence by attempting to obtain the statement at an earlier time,
despite being aware of Jefferson’s presence since 2000.
PCO at 5-6. We agree with the PCRA court’s analysis.
Additionally, in the Jefferson Affidavit, Jefferson indicated that he spoke
with Appellant’s sister, Kaisha Smith, in 2011, about his conversation with
police in 1999. Jefferson Affidavit at 1 (unnumbered pages). Thus, even if
Appellant acted diligently in seeking out Jefferson during the time between
- 11 -
J-S22013-18
2000 and 2011, Appellant does not explain why it took an additional three
years for him to present an affidavit from Jefferson. For these reasons, we
conclude that Appellant failed to demonstrate that he acted with due diligence
in presenting his Brady claim premised on Jefferson’s Affidavit. This
conclusion is fatal to his attempts to invoke the PCRA timeliness exceptions
set forth in Section 9545(b)(1)(i) and (b)(1)(ii). Moreover, because
Appellant’s lack of due diligence is apparent on the face of the record, there
are no genuine issues of material fact that would justify a remand for an
evidentiary hearing. See Commonwealth v. Keaton, 45 A.3d 1050, 1071
(Pa. 2012) (holding that remand was unnecessary “for further development
of [a] record-based claim” where the reasons for the PCRA court’s decision
were already supported by the existing record).
Next, Appellant invokes the government interference exception based
on the Commonwealth’s failure to disclose evidence from the autopsy
including photos and other evidence of the location of the victim’s wounds,
despite Appellant’s requests made in January to May of 2016, which Appellant
claims is the basis for a Brady claim. The PCRA court determined that any
such Brady claim was waived because Appellant could have raised it at trial,
during his direct appeal, or in any one of his prior PCRA petitions. PCO at 6.
We agree. Even if Appellant could meet a timeliness exception, he makes no
attempts to explain why the absence of such evidence at trial did not provoke
him or his prior attorneys to raise a related Brady claim at, or immediately
after, his trial. In any event, and for essentially the same reason, Appellant’s
- 12 -
J-S22013-18
failure to explain why his 2016 requests for evidence from the victim’s autopsy
could not have been made in the 16 years since his trial demonstrates that he
failed to plead and/or prove that he acted with due diligence in attempting to
discover the contents of the autopsy report that were allegedly withheld from
him. It is no more apparent now than it was at trial that such evidence, even
if helpful to the defense (a purely speculative claim in its own right), was not
presented by the Commonwealth, and/or that it was not disclosed to the
defense.
Next, Appellant asserts newly-discovered facts in the form of an affidavit
provided to him by Kelly Smith. However, Appellant again fails to plead and
prove he acted with due diligence in securing that affidavit as required under
Section 9545(b)(1)(ii). In Appellant’s brief, he states that “[o]n January 15,
2001[,] [Appellant] sent counsel a detailed letter of all the witnesses he
wanted called for trial and for counsel to interview those witnesses, [n]amely:
Kelly [S]mith, ….” Appellant’s Brief at 37 (emphasis added). Appellant
provides no explanation how or why it took until July 10, 2014, more than 13
years, to obtain a statement from Kelly Smith. Thus, we agree with the PCRA
court that Appellant cannot avail himself of the newly-discovered fact
exception based on Kelly’s affidavit.4
____________________________________________
4 The PCRA court rejected this claim on a different basis, indicating that
Appellant failed to meet the 60-day requirement of Section 9545(b)(2).
However, Appellant’s previous PCRA petition was still under review with our
Supreme Court until October 7, 2014 and, therefore, he could not file a new
- 13 -
J-S22013-18
Finally, Appellant claims that the PCRA court erred by denying his
attempt to seek relief under the writ of habeas corpus. Essentially, Appellant
asserts that the sentencing provision applied to his murder conviction is void
for vagueness, in that it ostensibly does not provide adequate notice that the
penalty of “life imprisonment” means life imprisonment without the possibility
of parole. 18 Pa.C.S. § 1102. The PCRA court construed Appellant’s habeas
petition as an amendment to the PCRA petition under consideration herein,
reasoning that the constitutionality of his sentence was a claim that was fully
cognizable under the PCRA. PCO at 3.
Appellant makes no argument that his habeas petition is timely under
Section 9545(b)(1). Instead, he claims that the PCRA court erred by
construing his habeas petition as a PCRA petition. Specifically, he asserts that
his void-for-vagueness claim is not cognizable under the PCRA statute and,
therefore, that the statute’s timeliness provisions do not apply to his habeas
petition. For the following reasons, we agree.
Section 9542 provides, in pertinent part, that:
This subchapter provides for an action by which persons convicted
of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief. The action established in
this subchapter shall be the sole means of obtaining
collateral relief and encompasses all other common law and
____________________________________________
PCRA petition until that time. Nevertheless, because Appellant has failed to
demonstrate that he acted with due diligence in obtaining Kelly’s affidavit, he
cannot satisfy the newly-discovered fact exception to the PCRA’s timeliness
requirements. See Ford, 44 A.3d at 1194 (“This Court may affirm a PCRA
court's decision on any grounds if the record supports it.”).
- 14 -
J-S22013-18
statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus….
42 Pa.C.S. § 9542 (emphasis added). Appellant correctly notes that this
provision exists in tension with the eligibility-for-relief provisions of the PCRA
statute. Section 9543 provides, in pertinent part, as follows:
(a) General rule.--To be eligible for relief under this subchapter,
the petitioner must plead and prove by a preponderance of the
evidence all of the following:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is at the time relief is
granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the
crime; or
(iii) serving a sentence which must expire before the
person may commence serving the disputed sentence.
(2) That the conviction or sentence resulted from one or
more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or laws of the
United States which, in the circumstances of the
particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined
the truth-determining process that no reliable
adjudication of guilt or innocence could have taken
place.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement
caused the petitioner to plead guilty and the petitioner
is innocent.
- 15 -
J-S22013-18
(iv) The improper obstruction by government officials
of the petitioner's right of appeal where a meritorious
appealable issue existed and was properly preserved
in the trial court.
…
(vi) The unavailability at the time of trial of
exculpatory evidence that has subsequently become
available and would have changed the outcome of the
trial if it had been introduced.
(vii) The imposition of a sentence greater than
the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S. § 9543(a) (emphasis added).
There is no dispute that the Appellant’s habeas petition satisfies Section
9543(a)(1), as Appellant is currently serving a sentence of imprisonment.
However, the only provisions of Section 9543(a)(2) that might arguably
pertain to sentencing claims which, like the one presented by Appellant in his
habeas petition, do not also pertain to matters of underlying guilt or
innocence, are Sections 9543(a)(2)(vii) and (viii). As the jurisdiction of the
trial/sentencing court is not in question, that leaves only Section
9543(a)(2)(vii), which permits relief under the PCRA statute for claims
involving the “imposition of a sentence greater than the lawful maximum.” 42
Pa.C.S. § 9543(a)(2)(vii). Appellant asserts that the void-for-vagueness claim
set forth in his habeas petition (essentially a due process claim), does not
posit that his sentence exceeds the lawful maximum for first-degree murder
and, therefore, is not a claim that is eligible for relief under the PCRA statute.
- 16 -
J-S22013-18
The PCRA court does not indicate in its opinion why it construed
Appellant’s void-for-vagueness argument as an illegal-sentencing claim that
is cognizable under the PCRA. Instead, it states, citing Commonwealth v.
Hacket, 956 A.2d 978 (Pa. 2008) that “constitutional challenges are fully
cognizable under the PCRA….” PCO at 3. However, in Hacket, our Supreme
Court narrowly ruled that claims raised pursuant to Batson v. Kentucky, 476
U.S. 79 (1986), are cognizable under the PCRA, as it was similar to other
issues previously found to be cognizable under the PCRA, and dissimilar to
claims “which fall outside the PCRA’s statutory scheme.” Hacket, 956 A.2d
at 986.
Appellant does not explicitly claim that his sentence exceeds the lawful
maximum, nor is his claim easily construed as such. Instead, he contends
that—in crafting the sentencing statute for first-degree murder—the
legislature failed to give adequate or reasonable notice of the penalty for that
offense, especially in light of other sentencing provisions, such as the
minimum/maximum rule.5 If anything, Appellant is challenging the minimum
sentence imposed (that is, that no minimum sentence was imposed); he does
not claim that his sentence exceeded the lawful maximum.
____________________________________________
5 When imposing a sentence of “total confinement,” 42 Pa.C.S. § 9756(a),
“[t]he court shall impose a minimum sentence of confinement which shall not
exceed one-half of the maximum sentence imposed[,]” 42 Pa.C.S. §
9756(b)(1) (emphasis added).
- 17 -
J-S22013-18
Nor does Appellant’s claim fall within the well-recognized categories of
illegal sentencing issues that are cognizable under the PCRA under applicable
case law.
The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
that is applied to three narrow categories of cases. Those
categories are: “(1) claims that the sentence fell ‘outside of the
legal parameters prescribed by the applicable statute’; (2) claims
involving merger/double jeopardy; and (3) claims implicating the
rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000).”
Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (citations
omitted). The latter category includes claims that arise under the progeny of
Apprendi, including Alleyne v. United States, 570 U.S. 99 (2013).
Additionally, “[t]his Court has also held that claims pertaining to the Eighth
Amendment's Cruel and Unusual Punishment Clause also pertain to the
legality of the sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 122
(Pa. Super. 2014). None of these categories apply to Appellant’s issue, which
is grounded in due process concerns.
Lawrence is instructive here. In that case, the appellant challenged
the constitutionality of the sentencing provision for juveniles convicted of
murder, 18 Pa.C.S. § 1102.1, arguing, inter alia, that the statute violated
equal protection and ex post facto principles. Lawrence, 99 A.3d at 118. In
order to escape waiver concerns, the appellant argued that his claims
implicated the legality of his sentence. However, the Lawrence Court
determined those issues were not illegal-sentencing claims, despite the fact
that they targeted a sentencing statute. The Court reasoned that:
- 18 -
J-S22013-18
In our view, there is a meaningful difference between the
remaining two arguments [the a]ppellant raises in this case and
issues pertaining to the Eighth Amendment, merger, Apprendi
and Alleyne. The Eighth Amendment, merger, Apprendi, and
even Alleyne all directly circumscribe the trial court's sentencing
process and sentencing authority. Stated another way, the goal
of the Cruel and Unusual Punishment Clause, the merger doctrine,
Apprendi and Alleyne is to protect defendants from the
imposition of punishments by trial judges that are
unconstitutional, imposed through unconstitutional processes, or
are a “greater punishment than the legislature intended.”
[Commonwealth v.] Andrews, [768 A.2d 309, 313 (Pa. 2001)].
However, as is relevant in this case, the Equal Protection Clause
and the Ex Post Facto Clauses serve to restrict legislative power.
[The a]ppellant does not argue that the trial court did not follow
Section 1102.1's mandate or text in carrying out its traditional
sentencing function. Nor does Appellant argue that any part of
the sentencing process was unconstitutional. Rather, [the
a]ppellant argues that the General Assembly passed a statute
that, in his view, unconstitutionally treats some juveniles
differently than others, and retroactively changes the punishment
for the crime after it was committed. These arguments do not
address the same concerns as the Eighth Amendment, the merger
doctrine, Apprendi and Alleyne. Because [the a]ppellant's Equal
Protection and Ex Post Facto Clause arguments directly seek
protection from legislatures, not judges, we hold that these
arguments fall into the category of “a sentencing issue that
presents a legal question [rather than a claim that the] sentence
[is] illegal.” Commonwealth v. Cartrette, 83 A.3d 1030, 1036
n.5 (Pa. Super. 2013) (en banc) (citation omitted).
Lawrence, 99 A.3d at 123–24 (some internal citations omitted, emphasis in
original).
Likewise, here, Appellant’s void-for-vagueness claim is a sentencing
issue that presents a legal question that is qualitatively distinct from the
categories of illegal sentences recognized by our courts. It does not challenge
the sentencing court’s authority or actions insomuch as it challenges the
- 19 -
J-S22013-18
legislature’s alleged failure to provide adequate notice of the penalty for first-
degree murder.
However, Appellant’s void-for-vagueness claim, just like all claims (but
for the three categories of illegal-sentencing claims, see Munday, supra), is
subject to waiver. “Habeas corpus is an extraordinary remedy and is available
after other remedies have been exhausted or ineffectual or nonexistent. It
will not issue if another remedy exists and is available.” Commonwealth ex
rel. Johnson v. Bookbinder, 247 A.2d 644, 646 (Pa. Super. 1968). As
Appellant’s claim could have been raised at his sentencing hearing, or in a
post-sentence motion, he failed to exhaust all available remedies before
resorting to the habeas corpus remedy. Accordingly, we deem his claim
waived and, therefore, affirm the PCRA court’s order dismissing his petition
on that basis. “To the extent our legal reasoning differs from the trial court’s,
we note that as an appellate court, we may affirm on any legal basis supported
by the certified record.” Commonwealth v. Williams, 125 A.3d 425, 433
n.8 (Pa. Super. 2015).
As Appellant has failed to successfully invoke any exception to the
PCRA’s timeliness restrictions, and because the issue raised in his habeas
petition was waived, we conclude that the PCRA court’s order dismissing his
petition and related amendments was supported by the record and free of
legal error.
Order affirmed.
Judge Stabile joins this opinion.
- 20 -
J-S22013-18
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
- 21 -