J-S65024-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FREDDIE MOULTRIE,

Appellant No. 176 EDA 2014

Appeal from the PCRA Order of December 16, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0300071-2002

CP-51-CR-0300081-2002

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 18, 2014

Appellant, Freddie Moultrie, appeals from the order entered on 

December 16, 2013, dismissing his pro se petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The PCRA court set forth the facts and procedural history of this case 

as follows:

On July 16, 2002, [Appellant] appeared before the 

Honorable Carolyn Engel Temin and pled guilty to two 

counts of robbery; two counts of possessing an instrument 

of crime (“PIC”); and one count of criminal conspiracy. 

Evidence adduced at the plea [hearing] established that on 

June 8, 2001, [Appellant] robbed a CVS store. He 

demanded cash from the store clerk at [gunpoint]; the clerk 

complied. On June 15, 2001, [Appellant] robbed the 

assistant manager of the ABC Auto Parts store, using a 

handgun. [Appellant] threatened to shoot the assistant 

manager and demanded money from the cash register. 

[Appellant] received $800[.00] in cash, and fled in a 

getaway car. On September 26, 2002, the [trial] court 

sentenced [Appellant] to consecutive terms of eight to 
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twenty years’ imprisonment for both robbery counts, and a 

term of twenty years of probation for one count of PIC. No 

further sentence was imposed on the remaining charges.

[Appellant] filed a timely appeal of the judgment of 

sentence and counsel was appointed to represent him. 

Appellate counsel, however, failed to file a brief and [this 

Court] dismissed the appeal without prejudice. [Appellant] 

then filed a timely PCRA petition for the reinstatement of his 

appellate rights on November 7, 2003. After an amended 

petition was filed with the assistance of counsel, the PCRA 

court granted [Appellant] relief and allowed him to appeal 

the judgment of sentence nunc pro tunc. [This Court] 

affirmed the judgment of sentence on March 23, 2006. 

[Appellant] did not seek relief with the Pennsylvania 

Supreme Court, and, consequently the judgment of 

sentence became final on April 22, 2006. On April 23, 

2013, [Appellant] filed a pro se “petition for writ of habeas 

corpus.” PCRA counsel was appointed on June 18, 2013. 

PCRA counsel filed a detailed and thorough [] no-merit 

letter [pursuant to Commonwealth v. Finley, 550 A.2d 

213 (Pa. Super. 1988)] on September 23, 2013. Counsel’s 

letter indicated that although [Appellant] may have a claim 

of arguable merit, that claim was jurisdictionally timebarred, and no exception applied. After careful review of 

counsel’s Finley letter and an independent review of the 

entire record, [PCRA counsel was permitted to withdraw, 

and Appellant] was given notice on October 9, 2013, of [the 

PCRA] court’s intention to dismiss the petition pursuant to 

Pa.R.Crim.P. 907. [Appellant] filed a timely pro se response 

to the Rule 907 notice. [The PCRA] court carefully 

reviewed [Appellant’s] response, but did not discern the 

existence of any exception that would grant [it] jurisdiction 

under the PCRA. As such, [Appellant’s] PCRA petition was 

dismissed by order [] on December 17, 2013. [Appellant] 

then filed a timely [pro se] appeal.

PCRA Court Opinion, 4/23/2014, at 1-2 (footnotes omitted).

On appeal, Appellant presents the following issues pro se:

1. Did the PCRA court below abuse its discretion by 

characterizing Appellant’s writ of habeas corpus as a 
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PCRA petition and denying relief based upon the PCRA’s 

one-year jurisdictional timing requirement?

2. Did the court below abuse its discretion by failing to 

correct Appellant’s illegal sentence, a claim that cannot 

be waived?

3. Did the lower court or the District Attorney’s Office 

willfully destroy Appellant’s guilty plea colloquy and 

sentencing hearing transcripts to evade addressing a 

meritorious claim, that appointed counsel so much as 

conceded in his Finley letter?

Appellant’s Brief at 4 (numbered and rephrased for clarity and ease of 

discussion).

In his first issue presented, Appellant claims that the trial court erred 

in treating his writ of habeas corpus as a petition under the PCRA. Id. at 9-

10. He argues that his sentence was “an act of fraud” by the court because 

his sentence for PIC is illegal as it exceeds the statutory maximum for that 

crime. Id. at 9. Appellant asserts that the trial court had the inherent 

power to correct his illegal sentence. Id. at 9-10.

This Court has recently determined:

It is well-settled that the PCRA is intended to be the sole 

means of achieving post-conviction relief. Unless the PCRA 

could not provide for a potential remedy, the PCRA statute 

subsumes the writ of habeas corpus. Issues that are 

cognizable under the PCRA must be raised in a timely PCRA 

petition and cannot be raised in a habeas corpus 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, 465-466 (Pa. Super. 2013) 

(citations omitted). 
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A habeas corpus motion challenging a sentence as exceeding the 

statutory maximum allowable must be treated as a PCRA petition. Id. at 

468; see also 42 Pa.C.S.A. § 9542 (The PCRA “provides for an action by 

which persons convicted of crimes they did not commit and persons serving 

illegal sentences may obtain collateral relief.”). Here, Appellant is collaterally 

challenging his sentence imposed for PIC as illegal. Hence, despite titling his 

motion as a writ of habeas corpus, the trial court properly treated it as PCRA 

petition. Accordingly, Appellant’s first issue is without merit.

Next, we examine Appellant’s remaining contentions together. 

Appellant claims that the trial court erred by dismissing his petition because 

illegality of sentence claims cannot be waived. Appellant’s Brief at 13. He 

maintains that the trial court was ethically obligated, and legally bound, to 

correct the sentence. Id. at 14. He claims that the trial court should reach 

the merits of his sentencing claim because appointed counsel conceded it 

was potentially meritorious. Id. at 15. Finally, Appellant contends that the 

notes of testimony from his 2002 sentencing hearing were willfully destroyed 

by the Commonwealth and that such a fact was previously unknown to him, 

thus, qualifying as an exception to the PCRA’s one-year jurisdictional timebar. Id. at 16. 

Our review of a PCRA court's decision is limited to examining whether 

the PCRA court's findings of fact are supported by the record, and whether 

its conclusions of law are free from legal error. Commonwealth v. 

Johnson, 51 A.3d 237, 242-243 (Pa. Super. 2012) (citation and quotation 
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omitted). Claims challenging the legality of sentence are subject to review 

within the PCRA, but must first satisfy the PCRA's time limits. 

Commonwealth v. Jackson, 30 A.3d 516, 522 (Pa. Super. 2011).

“Because the PCRA time limitations implicate our jurisdiction and may 

not be altered or disregarded in order to address the merits of a petition, we 

must start by examining the timeliness of Appellant's petition.” 

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citations 

omitted). Under the PCRA, “[a]ny petition under this subchapter, including a 

second or subsequent petition, shall be filed within one year of the date the 

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). 

In the case sub judice, this Court affirmed Appellant’s judgment of 

sentence on March 23, 2006. Appellant did not appeal our determination to 

the Pennsylvania Supreme Court. Thus, his judgment of sentence became 

final on April 22, 2006, thirty days after this Court affirmed his judgment of 

sentence and the time for filing a petition for allowance of appeal with the 

Pennsylvania Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); 

Pa.R.A.P. 1113. As such, Appellant’s PCRA petition filed in April 2013 was 

patently untimely.

There are three exceptions to the PCRA’s one-year timing requirement. 

To invoke one of the exceptions, the PCRA petition must allege, and the 

petitioner must prove, 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 
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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.A. § 9545(b)(1)(i)-(iii). “[E]xceptions to the time bar must be 

pled in the PCRA petition, and may not be raised for the first time on 

appeal.” Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 

2007); see also Pa.R.A.P. 302(a). 

Here, Appellant did not plead or prove an exception to the PCRA’s oneyear time timing requirement in his PCRA petition. For the first time on 

appeal, Appellant argues that the transcripts from his sentencing hearing 

were willfully destroyed and this “fact” was previously unknown to him. We 

simply lack jurisdiction to review any claim Appellant raises for the first time 

on appeal.1 Burton, 936 A.2d at 525.

____________________________________________

1

 Even if Appellant preserved this claim before the PCRA court, we would 

conclude that he did not properly invoke the timeliness exception set forth at 

42 Pa.C.S.A. § 9545(b)(1)(ii). The thrust of Appellant’s claim alleges that 

the sentencing court imposed an illegal sentence for Appellant’s PIC 

conviction because it ordered him to serve a sentence that exceeded the 

statutory maximum. This admittedly meritorious claim involved a straight 

forward question of law that turns exclusively upon the provisions of the trial 

court sentencing order and the statutorily allowable punishment applicable 

to a PIC conviction. Appellant has not explained, and in our view cannot 

explain, how the existence or destruction of the transcript of his sentencing 

(Footnote Continued Next Page)
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In sum, the trial court properly treated Appellant’s illegality of 

sentence issue under the parameters of the PCRA. Appellant presented the 

claim in an untimely manner as mandated under the PCRA. We lack 

jurisdiction to address Appellant’s belated invocation of an exception to the 

PCRA. For all of the foregoing reasons, neither the PCRA court nor this Court 

has jurisdiction to reach the merits of Appellant’s underlying contention. 

Accordingly, the PCRA court properly dismissed Appellant’s petition as 

untimely. 

Order affirmed. 

 Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/18/2014

(Footnote Continued) _______________________

hearing is relevant to proving his challenge to the legality of his PIC 

sentence. Because Appellant cannot establish that his sentencing claim is 

predicated upon any allegedly unknown or unknowable fact, he is not 

entitled to relief.