Com. v. Crumpton, M.

J-S50043-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MUSTAFA CRUMPTON, :
:
Appellant : No. 3282 EDA 2019
Appeal from the PCRA Order Entered October 31, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0904631-2005
BEFORE: BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: Filed: April 30, 2021
Appellant, Mustafa Crumpton, appeals from the order entered on
October 31, 2019, dismissing his petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
In light of our disposition, a detailed recitation of the facts is
unnecessary. Briefly, at approximately 10:00 p.m. on April 23, 2005,
Appellant and a co-conspirator robbed the Side Street Café, located at East
Venango Street in Philadelphia, at gunpoint. Following the robbery, they
fled the area in a white car, which they crashed while being pursued by
police. N.T., 9/12/07, at 44–45, 136.
In its opinion, the PCRA court set forth the relevant procedural history
as follows:
* Retired Senior Judge assigned to the Superior Court.
J-S50043-20
On September 20, 2007, following a jury trial before the
Honorable Lillian H. Ransom, [Appellant] was convicted of
criminal conspiracy and fleeing or attempting to elude an
officer.[1] The jury hung on all remaining charges, including
firearms not to be carried without a license, possessing
instruments of crime, robbery, and aggravated assault.
[Appellant] was released on bail but failed to appear for his re-
trial on May 9, 2008. The trial court granted the
Commonwealth’s oral motion to proceed with sentencing in
absentia on [Appellant’s] conspiracy and fleeing convictions
rather than retry [Appellant] in absentia on the hung charges.
[Appellant] was sentenced to a five to ten year mandatory
maximum sentence pursuant to 18 Pa.C.S. [§] 9712(a) for his
criminal conspiracy conviction[,] and no further penalty was
imposed for the fleeing or attempting to elude an officer
conviction. [Appellant] did not file a direct appeal. [Appellant
did not begin serving his sentence until February 26, 2018, when
he was finally apprehended and arrested on an outstanding
warrant.]
On April 24, 2018, [Appellant] filed his first, and instant,
PCRA petition, seeking an evidentiary hearing or new sentencing
hearing pursuant to 42 Pa.C.S.A. § 9543(a)(2)(vii) and 42
Pa.C.S.A. § 9543(a)(2)(ii). He claimed the trial court improperly
imposed the five to ten year mandatory [minimum] sentence
and raised several claims of ineffective assistance of counsel.
[Appellant] filed a supplemental petition on November 30, 2018,
and the Commonwealth filed its motion to dismiss on March 15,
2019. On October 1, 2019, th[e PCRA c]ourt sent [Appellant] a
Notice of Intent to Dismiss Pursuant to [Pa.R.Crim.P.] 907.
[Appellant] replied to the [Rule] 907 Notice on October 21,
2019. [In his response, Appellant suggested for the first time
that the PCRA court consider his PCRA petition as a petition for
coram nobis or habeas corpus relief.] On October 31, 2019, th[e
PCRA c]ourt dismissed [Appellant’s] petition as untimely.
[Appellant] filed a Notice of Appeal to [the] Superior Court on
November 6, 2019.
PCRA Court Opinion, 5/29/20, at 1–2 (footnotes omitted).
1 18 Pa.C.S. § 903(a)(1) and 75 Pa.C.S. § 3733(a), respectively.
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Appellant filed a concise statement and amended concise statement
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The PCRA
court filed a Rule 1925(a) opinion. On appeal, Appellant presents the
following issue for our review:
1. Should the lower court have granted the PCRA Petition and/or
deemed it a habeas corpus petition and granted a new
sentencing hearing, where the sentence was clearly imposed
without a valid basis under 42 Pa.C.S. §9712(a) as it required
evidence that Appellant visibly possessed a weapon?
Appellant’s Brief at 2.
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
Initially, we address whether this appeal is properly before us. The
PCRA court dismissed Appellant’s petition as untimely. “As the timeliness of
a PCRA petition is a question of law, our standard of review is de novo and
our scope of review is plenary.” Commonwealth v. Callahan, 101 A.3d
118, 121 (Pa. Super. 2014) (citation omitted). Moreover, the timeliness of a
PCRA petition is a jurisdictional threshold that may not be disregarded in
order to reach the merits of the claims raised in an untimely PCRA petition.
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Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). “We
have repeatedly stated it is the [petitioner’s] burden to allege and prove that
one of the timeliness exceptions applies. Whether [a petitioner] has carried
his burden is a threshold inquiry prior to considering the merits of any
claim.” Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
A PCRA petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S.
§ 9545(b)(1). A judgment of sentence becomes 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 the review.” 42 Pa.C.S. § 9545(b)(3). When a petitioner
files a PCRA petition beyond the one-year time-bar, he must plead and prove
at least one of the following 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
(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.
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Id. at § 9545(b)(1)(i)–(iii). A petition raising one of the above exceptions
“shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).2
The record reveals that Appellant’s judgment of sentence became final
on June 9, 2008, thirty days after the trial court imposed sentence and the
time for filing a direct appeal expired.3 42 Pa.C.S. § 9545(b)(3);
Pa.R.Crim.P. 720(A)(3). Appellant’s petition, filed almost ten years later on
April 24, 2018, was patently untimely.
In his PCRA petition, Appellant averred that the petition was timely
because he filed it within sixty days of learning of his 2008 sentencing.
PCRA Petition, 4/24/18, at ¶ 21. In his response to the PCRA Court’s notice
of intent to dismiss, Appellant argued that his petition also was timely
because he filed it within one year of the United States Supreme Court’s
decision in McCoy v. Louisiana, ___ U.S. ___, 138 S.Ct. 1500 (2018).
Answer to Notice of Intent to Dismiss, 10/21/19, at 2. Alternatively,
Appellant asked the PCRA court to reclassify his PCRA petition as a petition
2 This subsection was amended, effective December 24, 2018, to extend the
time for filing from sixty days of the date the claim could have been
presented to one year, for claims arising on or after December 24, 2017.
This amendment does not apply to Appellant’s PCRA petition because his
claim arose at the time of his sentencing, i.e., on May 9, 2008, for the
reasons explained infra.
3 The thirtieth day, June 8, 2008, fell on a Sunday. See 1 Pa.C.S. § 1908
(“Whenever the last day of [a period of time referred to in a statute] shall
fall on . . . Sunday, . . . such day shall be omitted from the computation.”).
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for coram nobis or habeas corpus relief. Id. at 5. On appeal, Appellant
attempts to circumvent the timeliness requirements of the PCRA by arguing
that his petition, “while originally styled as a PCRA [p]etition, was really a
petition seeking habeas corpus relief.” Appellant’s Brief at 9. Appellant
argues that his petition did not seek relief under the PCRA, nor did it raise
any errors cognizable under the PCRA; instead, Appellant sought relief for an
invalid sentence. Id. at 10–12; see also Appellant’s Reply Brief at
unnumbered 2 (arguing that because he “is challenging the continuing
validity of his sentence, it is a claim that falls outside the grounds
contemplated by the PCRA”).
The PCRA provides “the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect, including habeas
corpus and coram nobis.” 42 Pa.C.S. § 9542. Our Supreme Court has
clarified “that the PCRA subsumes the remedy of habeas corpus with respect
to remedies offered under the PCRA and that any petition seeking relief
under the PCRA must be filed within one year of final judgment.”
Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998). “[T]he writ of
habeas corpus is not available as an alternative basis for relief when, under
the framework of the PCRA, a petition would be considered previously
litigated, waived or untimely.” Commonwealth v. Kutnyak, 781 A.2d
1259, 1261 (Pa. Super. 2001) (citation omitted). Finally,
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[a]lthough legality of sentence is always subject to review within
the PCRA, claims must still first satisfy the PCRA’s time limits or
one of the exceptions thereto. Thus, a collateral claim regarding
the legality of a sentence can be lost for failure to raise it in a
timely manner under the PCRA.
Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019),
appeal denied, 216 A.3d 1044 (Pa. 2019).
Appellant’s petitions raised claims challenging the effective assistance
of counsel and the legality of his sentence. See generally PCRA Petition,
4/24/18 (raising the ineffective assistance of counsel); see also
Supplemental PCRA Petition, 11/30/18, at 6 (“[T]he trial court imposed a
sentence … greater than the lawful maximum for the crimes for which he
was actually convicted.”). Because these claims are cognizable under the
PCRA, the PCRA court properly treated Appellant’s petition as one filed under
the PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii), (vii). Accordingly, we must now
turn to the untimeliness of Appellant’s petition.
Appellant attempted to plead and prove two exceptions in the PCRA
court. In his initial petition, Appellant invoked the newly discovered-facts
exception pursuant to 42 Pa.C.S. § 9545(b)(1)(ii) based on his discovery
that he had been sentenced in absentia. Then, in his response to the Rule
907 notice of intent to dismiss his PCRA petition, Appellant invoked the
newly recognized retroactive-right exception pursuant to 42 Pa.C.S. §
9545(b)(1)(iii) based upon McCoy.
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We first review Appellant’s invocation of the newly discovered-facts
exception. Appellant’s underlying sentencing claim arose when he was
sentenced in absentia on May 9, 2008. Nearly ten years passed from
Appellant’s sentencing until the filing of his PCRA petition. Therefore, he
cannot invoke the newly discovered-facts exception, which requires that a
petition raising such an exception be filed within sixty days of the date the
claim arose. 42 Pa.C.S. § 9545(b)(2). Moreover, in attempting to raise this
exception, Appellant did not explain how his sentence “could not have been
ascertained by the exercise of due diligence” during that time. Id. at §
9545(b)(1)(ii). Appellant cannot rely on his evasion from authorities for
nearly a decade to explain why he was unaware of his sentence until his
arrest in 2018 or alter the fact that his underlying claim arose in 2008. As
such, he has failed to plead and prove this exception.
Finally, we turn to Appellant’s reliance on McCoy for the newly
recognized retroactive-right exception. Presuming that he filed his claim
within the applicable time frame, Appellant acknowledged that neither the
Pennsylvania Supreme Court nor the Supreme Court of the United States
has held that the right announced in McCoy applies retroactively. See
Answer to Notice of Intent to Dismiss, 10/21/19, at 2. Thus, Appellant also
has failed to plead and prove this exception.
Because we conclude that the PCRA court did not err in determining
that Appellant’s petition was a request for PCRA relief and in finding that the
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petition was untimely filed without an exception, we affirm the order of the
PCRA court.
Order affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:4/30/21
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