J-S81035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RUSSELL WESLEY MOSS

Appellant No. 1582 EDA 2016

Appeal from the PCRA Order May 9, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002091-2002

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2016

 Appellant Russell Moss appeals from the order of the Court of 

Common Pleas of Delaware County denying his fourth petition pursuant to 

the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm the 

PCRA court’s order.

In July 2003, Appellant entered open guilty pleas to third-degree 

murder and solicitation to commit murder in connection with the 1983 

shooting of Ellen Lewis. Appellant admitted to hiring Rodney Griffin to kill 

Ms. Lewis, who was cooperating with Philadelphia police in their investigation 

of a unrelated bank fraud scheme in which Lewis and Appellant had been 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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involved. Griffin was initially convicted of first-degree murder of Ellen Lewis 

and sentenced to death. In exchange for his testimony against Appellant, 

Griffin was removed from death row and allowed to serve a life sentence. 

On September 23, 2003, the trial court sentenced Appellant to eight to 

twenty years imprisonment on the murder charge and a concurrent term of 

five to ten years imprisonment on the solicitation charge. This Court 

affirmed the judgment of sentence on February 28, 2005.

Appellant filed his initial PCRA petition, which the lower court 

dismissed on December 28, 2006. This Court affirmed the dismissal on 

October 11, 2007. Appellant filed his second PCRA petition on July 21, 

2014, which was dismissed as untimely filed. On November 17, 2015, this 

Court affirmed the dismissal of his second PCRA petition. While his second 

PCRA petition was pending, Appellant filed his third PCRA petition on April 

20, 2015, which the court dismissed without prejudice on April 27, 2015. 

This Court affirmed the dismissal of Appellant’s third petition, citing 

Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000), 

which indicates that a subsequent PCRA petition cannot be filed until the 

resolution of the review of a previous PCRA petition or the expiration of the 

time for seeking such review.

On November 25, 2015, Appellant filed his fourth PCRA petition 

arguing that he had “after-discovered evidence” that Rodney Griffin had 

agreed to testify against Appellant only after the prosecution promised 

Griffin that they would remove him from death row and allow him to serve a 
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sentence of life imprisonment. Appellant claimed that he first learned of 

Griffin’s arrangement with the prosecution from his cellmate, Dante Ruffin 

on March 19, 2015. In addition to this claim, Appellant argued that his 

sentence was illegal as the trial court imposed a sentence in excess of the 

mandatory minimum sentence, even after the Commonwealth agreed to 

waive the application of the mandatory minimum. Moreover, in the case 

that the lower court found Appellant ineligible for relief under the PCRA, 

Appellant suggested that his claims could be construed as a petition for writ 

of habeas corpus.

On April 7, 2016, the PCRA court issued notice of its intent to dismiss 

Appellant’s petition, which it deemed untimely filed, without a hearing 

pursuant to Pa.R.Crim.P. 907. On April 27, 2016, Appellant submitted his 

response to the notice of intent to dismiss. On May 9, 2016, the PCRA court 

dismissed Appellant’s petition. This timely appeal followed. Appellant 

complied with the PCRA court’s direction to file a statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

When reviewing the denial of a PCRA petition, we are guided by the 

following standard:

The standard of review for an order denying post-conviction 

relief is limited to whether the record 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 certified record.

Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations 

omitted).
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It is well-established that “the PCRA's timeliness requirements are 

jurisdictional in nature and must be strictly construed; courts may not 

address the merits of the issues raised in a petition if it is not timely filed.” 

Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011) 

(citations omitted). Generally, a PCRA petition must be filed within one year 

of the date the judgment of sentence becomes final unless the petitioner 

meets his burden to plead and prove one of the exceptions enumerated in 

42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability 

to raise a claim as a result of governmental interference; (2) the discovery 

of previously unknown facts or evidence that would have supported a claim; 

or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). However, the PCRA limits the reach of the exceptions by providing that 

a petition invoking any of the exceptions must be filed within 60 days of the 

date the claim first could have been presented. Leggett, 16 A.3d at 1146 

(citing 42 Pa.C.S. § 9545(b)(2)).

As noted above, the trial court sentenced Appellant on September 23, 

2003. This Court affirmed Appellant’s judgment of sentence on February 28, 

2005. Appellant did not seek review in our Supreme Court. Section 

9545(b)(3) of the PCRA provides that a judgment of sentence becomes final 

at the conclusion of direct review or the expiration of the time for seeking 

the review. 42 Pa.C.S. § 9543(b)(3). As a result, Appellant’s judgment of 

sentence became final after the 30-day period in which he was allowed to 

seek review in our Supreme Court. See Pa.R.A.P. 1113(a) (stating that “a 
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petition for allowance of appeal shall be filed with the Prothonotary of the 

Supreme Court within 30 days after the entry of the order of the Superior 

Court ... sought to be reviewed”). Thus, Appellant’s sentence became final 

on March 30, 2005. As Appellant filed his fourth PCRA petition on November 

25, 2015, over ten years after his sentence became final, his petition is 

facially untimely.

To the extent that Appellant claims that his petition falls under the 

newly discovered fact PCRA timeliness exception, his argument fails. 

Appellant now concedes that the agreement between Griffin and the 

Commonwealth was disclosed to Appellant in a written document at 

Appellant’s arraignment on September 5, 2002. Appellant did not recall that 

he also included a copy of this document in his direct appeal brief to this 

Court. Thus, Appellant has not pled and proven that one of the timeliness 

exceptions to the PCRA applies. As a result, we have no jurisdiction to 

review his untimely claims under the PCRA.

Moreover, we reject Appellant’s attempt to escape the PCRA’s time bar 

by claiming he is entitled to characterize his filing as a petition for writ of 

habeas corpus. Appellant’s remaining claim challenging the trial court’s 

authority to sentence him to a term exceeding the mandatory minimum, 

which the Commonwealth waived, raises a challenge to the legality of 

sentence, a claim which is cognizable under the PCRA. “Issues that are 

cognizable under the PCRA must be raised in a timely PCRA petition and 

cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor, 
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65 A.3d 462, 466 (Pa.Super. 2013). See 42 Pa.C.S. § 9542 (“This 

subchapter provides for an action by which persons ... serving illegal 

sentences may obtain collateral relief”). It is well-established that the PCRA 

“shall be the sole means of obtaining collateral relief and encompasses all 

other common law and statutory remedies ... including habeas corpus and 

coram nobis.” Commonwealth v. Descardes, --- Pa.---, 136 A.3d 493, 

497–98 (2016) (citing 42 Pa.C.S. § 9542). Accordingly, we decline to review 

his claim and conclude that the PCRA court correctly dismissed Appellant’s 

PCRA petition as untimely filed.

Order affirmed. Appellant’s application to file a supplemental brief is 

granted.2

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016

____________________________________________

2 Appellant requested to file a supplemental brief to further explain why this 

Court should find him eligible for habeas relief, arguing that his claim 

implicates the discretionary aspects of sentence. Even assuming arguendo

that Appellant had raised a challenge to the trial court’s discretion, he fails to 

acknowledge that such issues, while not cognizable under the PCRA, must be 

preserved and raised on direct appeal.