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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : ERNEST WOODALL, : No. 565 WDA 2013 : Appellant :

Appeal from the Order, February 25, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0008320-1996

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, J J.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 14, 2015 Ernest Woodall appeals, pro se , from the order of February 25, 2013, dismissing his serial PCRA 1 petition as untimely. We affirm. The facts of this case were described in a prior m emorandum of this

court: On May 5, 1996, two uniformed Pittsburgh

police officers on routine patrol in a marked wagon noticed Appellant’s vehicle parked in the middle of the street with the engine idling and a door open, blocking traffic in either direction, while he was standing on the sidewalk, talking to a female. One of the police officers, Edward Dent, knew Appellant personally from the neighborhood, and from towing his vehicle a week earlier. When Officer Dent aske d him to move his vehicle, Appellant responded, “Fuck you,” and ran to the back of the vehicle. Both officers followed. ( See N.T. Trial, 11/9-12/04, at 37-44).

1 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9 546.J. S76001/14

- 2 - In the scuffle which ensued, Appellant attempted to draw a .45 Glock handgun from his waistband, but it fell to the ground. He managed t o run away. The police began to follow him, but decided to stay behind to secure the Glock, which was loaded and equipped with a laser sight, and other firearms found in Appellant’s vehicle, a .9 millimeter Smith & Wesson handgun, and an SKS assault rifle, both also loaded. ( Id. at 53-56). The two officers radioed for back-up and prepared t o tow the vehicle. However, Appellant soon returned, this time with an AK-47 assault rifle, which he pointed at th e police, saying, “I want my shit, give me my shit now.” ( Id. at 58). When they did not comply, he fired at them, now six police in all, including tho se who had arrived in response to the radio call. Appellant then escaped. The police apprehended Appellant the next day, but he fled the jurisdiction soon after he was charged. He was not discovered until almost seven years later, when the National Crime Information Center informed an FBI agent assigned to the Pittsburgh Fugitive Task Force that there was a possible fingerprint match between one “Joseph Brown,” a/k/a “Allan Alphonso Garner,” recently arrested in Montgomery County, Alabama, and Appellant. Appellant was arrested in February, 2003, in the office of his Alabama parole officer, and eventually returned to Pittsburgh through the Interstate Agreement on Detainers (IAD), 42 Pa.C.S.A. §§ 9101-9108. Following a hearing, the trial court denied pre-trial motions, and trial commenced in November of 2004. After the jury convicted Appellant of four counts of attempted homicide, six counts of aggravated assault, and one count of violation of t he Uniform Firearms Act (VUFA), the trial court sentenced him to an aggregate term of thirty-two to eighty years’ imprisonment. This Court affirmed th eJ. S76001/14

- 3 - judgment of sentence, and our Supreme Court denied allowance of appeal on May 10, 2007. On December 19, 2007, Appellant filed a timely pro se petition for PCRA relief. The PCRA court appointed counsel, who filed an amended petition. After the PCRA court filed notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907, counsel filed a second amended petition and response to the notice of intent. The PCRA court dismissed the petition on May 4, 2009. Appellant filed a timely pro se notice of appeal, and the PCRA court appointed counsel to represent him.

Commonwealth v. Woodall , No. 897 WDA 2009, unpublished memorandum at 1-3 (Pa.Super. filed October 20, 2010 ). This court affirmed dismissal of appellant’s first PCRA petition on Oct ober 20, 2010. Appellant did not file a petition for allowance of appeal wit h the Pennsylvania Supreme

Court. On November 10, 2011, appellant filed a second pro se PCRA petition, which was dismissed without a hearing, following Ru le 907 notice, on December 2, 2011. No direct appeal was taken from this dismissal. On December 16, 2011, 2 appellant filed, pro se , a petition for habeas corpus relief which was properly treated as a third PCRA

2 Appellant’s petition was not docketed until Decemb er 21, 2011. However, we are mindful of the so-called “prisoner mailbox r ule,” pursuant to which a document is deemed filed on the date that a prisone r delivers it to prison authorities for mailing. Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997). The record indicates that appellant’s petit ion was mailed from SCI-Dallas on December 16, 2011. (Docket #93.)J. S76001/14

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petition. 3 On January 22, 2013, the PCRA court gave Rule 907 notice of its intent to dismiss the petition within 20 days witho ut a hearing; and with no response forthcoming from appellant, his petition w as dismissed on February 25, 2013. Appellant filed a timely pro se notice of appeal on March 13, 2013. On April 15, 2013, appellant was o rdered to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b); appellant timely complied on May 3, 2013, and on May 13, 2013, the PCRA court filed a Rule 1925(a) o pinion.

The standard of review for an order denying post-conviction relief is limited to whether the re cord supports the PCRA court’s determination, and whether that decision is free of legal error. The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certifi ed record. Furthermore, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuin e issue concerning any material fact and the petition er is not entitled to post-conviction collateral relie f, and no purpose would be served by any further proceedings.

Commonwealth v. Johnson , 945 A.2d 185, 188 (Pa.Super. 2008), appeal denied , 956 A.2d 433 (Pa. 2008), quoting Commonwealth v. Taylor , 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations o mitted).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition.

3 Appellant’s petition for writ of habeas corpus is properly treated as a serial PCRA petition, since the PCRA is the sole me ans by which a defendant may obtain collateral relief and subsumes the remed y of habeas corpus with respect to remedies offered under the Post-Con viction Relief Act. 42 Pa.C.S.A. § 9542.J. S76001/14

- 5 - Commonwealth v. Robinson , 575 Pa. 500, 508, 837 A.2d 1157, 1161 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide a PCRA petition, including a second o r subsequent petition, shall be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz , 830 A.2d 1273, 1275 (Pa.Super.2003); Commonwealth v. Vega , 754 A.2d 714, 717 (Pa.Super.2000). A judgment is deemed 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 seek ing the review.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco , 996 A.2d 1076, 1079 (Pa.Super. 2010).

The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)( 1). To invoke an exception, a petition must allege and prove: (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 andJ. S76001/14

- 6 - has been held by that court to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for on e of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the dat e that the claim could have been first brought, the t rial court has no power to address the substantive merit s of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor , 562 Pa. 70, 77, 753 A.2d 780, 783 (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080. Instantly, the Supreme Court of Pennsylvania denie d allowance of appeal on May 10, 2007. Commonwealth v. Woodall , No. 526 WAL 2006 ( per curiam ). Therefore, appellant’s judgment of sentence bec ame final for PCRA purposes on or about August 8, 2007, upon expi ration of the time to file a petition for writ of certiorari with the United States Supreme Court.

See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13, 28 U.S.C.A. (petition

for writ of certiorari is deemed timely when it is filed within 90 days a fter

denial of allocatur ). Appellant filed the current petition, his third , on December 16, 2011, over four years later. Therefor e, appellant’s current PCRA petition is manifestly untimely on its face. Appellant does not attempt to plead and prove any of the three exceptions to the one-year jurisdictional time bar. Instead, he claims that his sentence is illegal because his four conviction s of attempted homicide should have merged for sentencing purposes. Appell ant receivedJ. S76001/14

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consecutive sentences of 8 to 20 years’ imprisonmen t on each of the four counts of attempted homicide. Appellant argues tha t an illegal sentence is always subject to correction and cites 18 Pa.C.S.A. § 906, “Multiple convictions of inchoate crimes barred,” which provi des: “A person may not

be convicted of more than one of the inchoate crime s of criminal attempt, criminal solicitation or criminal conspiracy for co nduct designed to commit or

to culminate in the commission of the same crime.” Appellant is correct that the concept of merger im plicates the legality of sentencing and is generally non-waivable ( see , e.g. , Commonwealth v. Duffy , 832 A.2d 1132, 1136 (Pa.Super. 2003), appeal denied , 845 A.2d 816 (Pa. 2004)); however, such a claim is still sub ject to the PCRA’s time

limitations.

The timeliness requirements of the PCRA do not vary based “on the nature of the constitutional violatio ns alleged therein . . . . To the contrary, . . . the PCRA’s timeliness requirements . . . are intended t o apply to all PCRA petitions, regardless of the natu re of the individual claims raised therein.” Commonwealth v. Murray , 562 Pa. 1, 753 A.2d 201, 202-03 (2000). Because the “PCRA’s timeliness requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untim ely manner.”

Commonwealth v. Howard , 788 A.2d 351, 356 (Pa. 2002), quoting Murray , 753 A.2d at 203. Indeed, “even claims that a sen tence was illegal, an issue deemed incapable of being waived, are not beyond the jurisdictionalJ. S76001/14

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time restrictions.” Commonwealth v. Grafton , 928 A.2d 1112, 1114 (Pa.Super. 2007), citing Commonwealth v. Fahy , 737 A.2d 214 (Pa. 1999); Commonwealth v. Beck , 848 A.2d 987 (Pa.Super. 2004). Therefore, appellant’s illegal sentencing claim doe s not operate as an independent exception to the PCRA’s jurisdictional time bar. At any rate, appellant’s argument is misplaced. H is conviction of four separate counts of attempted homicide did not merge for sentencing purposes where they related to four individual vict ims. The record reflects that appellant shot at four different police office rs. Appellant’s conduct was designed to culminate in the commission of separate and distinct crimes. Therefore, the convictions did not merge. See Commonwealth v. Graves , 508 A.2d 1198 (Pa. 1986) ( per curiam ) (conspiracy and solicitation did not merge where each was directed at a different end; “ inchoate crimes merge only when directed to the commission of the same cr ime, not merely because they arise out of the same incident”); Commonwealth v. Hassine , 490 A.2d 438, 465 (Pa.Super. 1985), overruled on different grounds , Commonwealth v. Schaeffer , 536 A.2d 354 (Pa.Super. 1987) ( en banc ) (sentences for conspiracy and attempt would not mer ge where there were two separate victims). As appellant’s petition was untimely filed, the PC RA court did not have jurisdiction to consider it. The PCRA court did no t err in denying appellant’s petition.J. S76001/14

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Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 1/14/2015