J-S06035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES E. HARMON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1593 MDA 2022

Appeal from the PCRA Order Entered September 21, 2022

In the Court of Common Pleas of Franklin County Criminal Division at 

No(s): CP-28-MD-0000375-1978

BEFORE: STABILE, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: MARCH 15, 2023

Appellant, James E. Harmon, appeals from the September 21, 2022, 

Order entered in the Court of Common Pleas of Franklin County dismissing 

Appellant’s self-styled petition for writ of habeas corpus as his eighth pro 

se petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9545. Concluding that Appellant's petition amounts to an 

untimely serial PCRA petition, we affirm.

This Court previously has summarized the factual and procedural history 

of Appellant's case, as follows:

On February 7, 1979, after a [non-jury trial], Appellant was found 

guilty of murder in the second degree and robbery. On August 

29, 1979, the [c]ourt imposed the following sentences to be 

served consecutively: mandatory life imprisonment for the 

second[-] degree murder conviction and five (5) to twenty (20) 

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* Former Justice specially assigned to the Superior Court.
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years of incarceration for the robbery conviction. Over the next 

thirty years, Appellant filed several [PCRA petitions]; none of the 

[petitions] filed has resulted in relief. [However, in 1986, a federal 

district court ruled Appellant's consecutive robbery sentence was 

null and void.]

Commonwealth v. Harmon, 1852 MDA 2017 (Pa. Super. filed May 31, 2018) 

(unpublished memorandum decision), quoting PCRA Court Opinion, 1/21/17, 

at 2-3 (footnote omitted).

Most recently, on February 6, 2022, Appellant filed with the 

Pennsylvania Commonwealth Court a civil Petition for Writ of Habeas Corpus

challenging the legality of his second-degree murder sentence nunc pro tunc. 

The Commonwealth Court transferred this matter to the trial court for want of 

jurisdiction by order of February 23, 2022. On March 17, 2022, the trial court 

construed Appellant’s filing as an untimely PCRA petition and denied him relief. 

This appeal followed.

Our standard of review from the denial of a PCRA petition “is limited to 

examining whether the PCRA court's determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 

Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019) (citation omitted). “The 

PCRA court's credibility determinations, when supported by the record, are 

binding on this Court; however, we apply a de novo standard of review to 

the PCRA court's legal conclusions.” Commonwealth v. Mitchell, 105 A.3d 

1257, 1265 (Pa. 2014) (citation omitted).
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In Appellant’s pro se appellate brief, he maintains that the PCRA court 

erred when it treated his habeas corpus petition as an untimely PCRA petition. 

In the alternative, he argues that his legality of sentence claim is not waivable.

Before we may address the merits of Appellant’s claim, however, we 

must properly construe the nature of the petition in which he raised the claim. 

We have noted that one may not circumvent PCRA time limits applicable to 

issues cognizable under the PCRA simply by couching such issues in a selfstyled writ of habeas corpus:

We recognize that, [i]t 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 ( [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) ]; Commonwealth v. Chester, ... 733 A.2d 1242 ([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) ([stating that] 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).

Appellant’s claim arguably may be construed as stating either of two 

alternate theories of relief. Under the first theory, Appellant’s claim challenges 

the legality of his sentencing order because the order allegedly failed to cite 

to 18 Pa.C.S. § 1102(b), which explicitly authorizes a life sentence for seconddegree murder, and instead only cited to 18 Pa.C.S. § 2502(b), which does 
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not mention the applicable sentence. See Brief for Appellant, at pp. iv, iv-I, 

and 11.

1

 Under the second theory, Appellant’s claim expresses a void-forvagueness2 challenge in which he argues that 18 Pa.C.S. 2502(b),3 defining 

second-degree murder, and, by implication, Section 1102(b),4 providing the 

sentence for second-degree murder, failed to authorize a life sentence for 

second-degree murder. Such a claim also implicates the legality of one’s 

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1 Even if we were to address this claim on the merits, we would affirm that it 

offers Appellant no relief, because the trial court possessed authority to 

pronounce sentence in the instant matter. See Commonwealth v. 

Stultz, 114 A.3d 865 (Pa. Super. 2015) (failure to cite a statute in a 

sentencing order does not render a sentence illegal where court has statutory 

authority to pronounce sentence).

2 “A statute will only be found unconstitutional if the statute is so vague that 

persons of common intelligence must necessarily guess at its meaning and 

differ as to its application.” Commonwealth v. Brensinger, 218 A.3d 440, 

456 (Pa. Super. 2019) (citation and quotation marks omitted).

3 Section 2502, “Murder”, provides in relevant part:

(b) Murder of the second degree.--A criminal homicide 

constitutes murder of the second degree when it is committed 

while defendant was engaged as a principal or an accomplice in 

the perpetration of a felony.

18 Pa.C.S.A. § 2502(b).

4 Section 1102, “Sentence for Murder”, provides in relevant part:

(b) Second degree.--Except as provided under section 1102.1, 

a person who has been convicted of murder of the second degree, 

of second degree murder of an unborn child or of second degree 

murder of a law enforcement officer shall be sentenced to a term 

of life imprisonment.

18 Pa.C.S.A. § 1102(b). 
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sentence. See Commonwealth v. Prinkey, 277 A.3d 554, 562 (Pa. 2022)

(citing, inter alia, Commonwealth v. Moore, 247 A.3d 990, 997 (Pa. 2021)

(explaining that, because a sentencing court does not have authority to 

sentence a defendant under a sentencing statute that is unconstitutionally 

vague, a void-for-vagueness challenge “is exactly the type of claim” that we 

held “implicated the legality of the sentence . . . and found cognizable under 

the PCRA . . . .”)).

Under either theory, therefore, Appellant’s self-styled habeas corpus

petition raised a legality of sentence claim that would be cognizable under the 

PCRA and subject to the PCRA timeliness provisions. See Moore, supra at 

993. Accordingly, as did the PCRA court below, we deem Appellant’s habeas 

corpus petition a serial PCRA petition.

The timeliness requirements of the PCRA are jurisdictional in nature and 

cannot be ignored or set aside. See Commonwealth v. Bennett, 930 A.2d 

1264, 1267 (Pa. 2007). The relevant statutory provision of the PCRA provide 

as follows:

(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;
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(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.

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within one year of the date the claim 

could have been presented.

(3) For purposes of this subchapter, a judgment 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). 

Under this framework, an appellant must either file a petition within one 

year of his judgment of sentence becoming final under Section 9545(b)(3), or 

“plead” and “prove” that one of the enumerated exceptions apply. “[T]here 

is no generalized equitable exception to the jurisdictional one-year time bar 

pertaining to post-conviction petitions.” Commonwealth v. Brown, 943 

A.2d 264, 267 (Pa. 2008).

For the purposes of the PCRA, Appellant's sentence became final ninety 

days after our Supreme Court affirmed his judgment of sentence on June 4, 

1981, when the time for him to seek a writ of certiorari to the United States 

Supreme Court from the Pennsylvania Supreme Court's denial of 

his allocatur petition expired. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. 

Rule 20.1 (effective Nov. 21, 1980 through Jan. 1, 1990 until replaced by U.S. 
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Sup. Ct. Rule 13). Thus, Appellant's most recent petition was facially untimely 

by over forty years when it was filed. 

Furthermore, Appellant has neither pled nor proven any of the 

timeliness exceptions under Section 9545(b)(1). Therefore, because 

Appellant's petition for PCRA relief is untimely and not subject to any 

exception, the PCRA court lacked jurisdiction to entertain the petition. 

Accordingly, we conclude the PCRA court correctly dismissed Appellant’s 

eighth PCRA petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2023