Com. v. Evans, W. (memorandum)

Annotate this Case

Download PDF

J-S23043-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WYATT EVANS Appellant No. 2882 EDA 2013 Appeal from the PCRA Order of October 2, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-1023471-1980 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and WECHT, J. MEMORANDUM BY WECHT, J.: FILED JUNE 24, 2014 Wyatt Evans appeals from the October 2, 2013 order that dismissed his pro se petition for collateral relief pursuant to the Post-Conviction Relief - untimely by more than twenty years, and he has failed to establish any of the exceptions to the timeliness requirements of the PCRA. Thus, we lack jurisdiction over this case, and we affirm. The PCRA court aptly has summarized the factual and lengthy procedural history of this case, as follows: On June 5, 1981, following a jury trial before the Honorable Charles Mirarchi, Jr., [Evans] was found guilty of [second-degree murder], robbery, kidnapping, criminal conspiracy, and possession of a prohibited offensive weapon. 1 On November 17, ____________________________________________ 1 18 Pa.C.S. §§ 2502(b), 3701(a)(1), 2901(a), 903(a), and 908(a). J-S23043-14 1981, [Evans] was sentenced to a term of life imprisonment for second[-]degree murder, consecutive prison terms of five to ten offensive weapons counts, a concurrent prison term of ten to twenty years for the robbery count, and a prison term of ten to the robbery count, but concurrently to the murder count. [Evans] appealed and [on July 13, 1984], the Pennsylvania Superior Court vacated the sentences for robbery, kidnapping, and prohibited offensive weapons but affirmed the judgment of sentence otherwise. [The Pennsylvania Supreme Court denied 984]. On November 1, 1984, [Evans] filed his first pro se petition under the [PCRA]. Counsel was appointed, and two [a]mended was dismissed. The dismissal was affirmed by the Superior Court on August 14, 1987. On April 13, 1989, [Evans] filed his second PCRA petition. After review, it was dismissed on April 17, 1989. The Superior Court affirmed the dismissal on March 23, 1990. [The Pennsylvania etition for allowance of appeal]. On July 18, 1996, [Evans] filed his third PCRA petition. After to Pa.R.Crim.P. 907, Evans] filed a fourth PCRA petition. s dismissed on November 4, 1996. [O]n August 11, 1997, [Evans] filed an appeal, which was dismissed as untimely. On September 10, 1997, [Evans] filed a fifth PCRA petition. After review, this petition was dismissed [on] October 22, 1997. [Evans] filed an appeal, and the Superior Court affirmed the dismissal on February 1, 1999. On March 1, 2002, [Evans] filed his sixth PCRA petition. review, this petition was dismissed on May 22, 2002. -2- After J-S23043-14 On November 10, 2009, [Evans] filed the instant PCRA petition, his seventh.[2] -2. On December 27, 2010, and August 13, 2012, Evans filed amended petitions. On August 7, 2013, the PCRA court filed notice of its intent to ____________________________________________ 2 Habeas Corpus court chose to treat his submission as his seventh PCRA petition. See appeal. In relevant part, Evans argues that his mandatory life sentence for second-degree murder was rendered illegal by the United States Supreme Miller v. Alabama, 132 S.Ct. 2455, 2457-58 (2012) sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide Such a claim is cognizable under the PCRA. See subchapter provides an action by which . . . persons serving illegal It is well-settled that the PCRA is intended to be the sole means of achieving post-conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun, 32 A.3d 697, 699-700 (Pa. 2011). Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus. Commonwealth v. Fahy, 737 A.2d 214, 223 224 (Pa. 1999). Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. See Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998); see also Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001) (a collateral petition that raises an issue that the PCRA statute could remedy is to be considered a PCRA petition). Phrased differently, a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus. Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) the instant case to be a PCRA petition. -3- J-S23043-14 ing pursuant to Rule 907. On October untimely. On October 11, 2013, Evans filed a notice of appeal. The PCRA court did not order Evans to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Evans did not file one. On November 6, 2013, the PCRA court issued its Rule 1925(a) opinion. deprived of equal protection of the law that violated the [Fifth and Fourteenth Amendments to the United States Constitution], where the PCRA court did not apply the juvenile sentencing limitation laws [recognized in Miller v. Alabama Before addressi timeliness of his PCRA petition. It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied literally by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted.3 Commonwealth v. Murray, 753 A.2d 201, 202-03 ____________________________________________ 3 typically are not waivable. Commonwealth v. Vasquez, 744 A.2d 1280, lost should it be raised for the first time in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa. Super. 2007). -4- J-S23043-14 (Pa. 2000); Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). requirements] in order to reach the merits of the claims raised in a PCRA Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). PCRA petitions, including second or subsequent applications, must be filed becomes final. See 42 Pa.C.S. § 9545(b)(1). For the purposes of the PCRA, a judgment bec 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 See 42 Pa.C.S. § 9545(b)(3). Instantly, Evans was sentenced on November 17, 1981. Evans filed a timely appeal to this Court, which vacated three of his convictions but ultimately affirmed his term of life imprisonment on July 13, 1984. Thereafter, Evans petitioned the Supreme Court of Pennsylvania for petition on or about October 17, 1984. Thereafter, Evans had ninety days in which to file an appeal with the United States Supreme Court. U.S.C. § 2101(c). January 15, 1985. See 28 However, Evans did not seek an appeal to the United See 42 Pa.C.S. § -5- J-S23043-14 petition was filed on November 10, 2009. As such, it was filed over twenty- Despite such facial untimeliness, a time-barred PCRA petition nonetheless will be considered timely if (but only if) the petitioner pleads and proves one of the following three exceptions to the one-year time limit enumerated in 42 Pa.C.S. §§ 9545(b)(1)(i)-(iii) of the PCRA: (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. 42 Pa.C.S. §§ 9545(b)(1)(i)petitioner must plead it and satisfy the burden of proof. Additionally, any exception must be raised within sixty days of the date that the claim could See Commonwealth v. Feliciano, 69 A.3d 1270, 1275 (Pa. Super. 2013). Moreover, a petitioner relying upon a retroactive constitutional right for relief bears a very specific burden of proof: Subsection (iii) of Section 9545[(b)(1)] has two requirements. First, it provides that 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 provided -6- J-S23043-14 mean that the action has already occurred, i.e. already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed. Commonwealth v. Copenhefer, 941 A.2d 646, 649 50 (Pa. 2007) (quoting Commonwealth v. Abdul Salaam, 812 A.2d 497, 501 (Pa. 2002)). Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014). Evans argues that the United States Supreme Court announced a retroactive constitutional right in Miller that is applicable in his case. Brief for Evans at 6-7. By his own omission, Evans was at least eighteen years old at the time that he committed the crimes that are the subject of this appeal. Nonetheless, he asserts that the holding of Miller should apply for the purposes of rendering his instant appeal timely. We disagree. In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), the Pennsylvania Supreme Court held that the holding in Miller would not be applied retroactively in Pennsylvania. 81 A.3d at 10-11. Additionally, Evans is not the first petitioner who has sought to circumvent the timeliness requirements of the PCRA by relying upon Miller. In Seskey, a panel of this Cunningham to determine that Miller does not provide an exception to timeliness in the PCRA context: -7- J-S23043-14 Recently, in Cunningham, our Supreme Court held that the constitutional right announced by the United States Supreme Court in Miller does not apply retroactively. 81 A.3d at 10. Consequently, [a]ppellant cannot rely upon Miller or subsection 9545(b)(iii) to establish jurisdiction over his untimely PCRA petition in any Pennsylvania court. Hence, we lack jurisdiction to review the merits of [a]ppellant's issues . . . . Seskey, 86 A.3d at 243. Evans has failed to establish that the exception to PCRA timeliness at subsection 9545(b)(1)(iii) applies to his case. Because Evans has failed to establish that his PCRA petition is subject to one of the timeliness exceptions at 42 Pa.C.S. § 9545(b)(1), he has failed CRA petition as untimely. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/24/2014 -8-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.