J-S77025-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

HARVEY TABRON

Appellant No. 654 EDA 2014

Appeal from the PCRA Order February 10, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0414231-1976

BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2014

Appellant, Harvey Tabron, appeals pro se from the order entered in 

the Philadelphia County Court of Common Pleas, which dismissed his petition 

filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We 

affirm.

The trial court sets forth the relevant facts and procedural history of 

this appeal as follows:

On November 9, 1976, following a jury trial, [Appellant] 

was found guilty of second degree murder[2] and two 

____________________________________________

*Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 2502.
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counts of robbery[3] before the Honorable Judge Albert F. 

Sabo.1  On January 7, 1977, [Appellant] was sentenced to 

serve a mandatory term of life imprisonment on the 

murder conviction, and concurrent terms of ten to twenty 

years’ imprisonment for the robbery convictions by Judge 

Sabo. [Appellant] did not file an appeal from the 

judgment of sentence. 

1 The instant matter was administratively assigned to 

this [c]ourt for a decision following its appointment 

to the position of Supervising Judge of the Criminal 

Division of the Court of Common Pleas of 

Philadelphia County.

[Appellant] filed his first petition seeking post conviction 

collateral relief on October 3, 1977, following which 

counsel was appointed to represent him.2 After two 

hearings before the Honorable Edward J. Blake, 

[Appellant’s] PCHA petition was denied on October 29, 

1980. The [Superior] Court affirmed the denial on 

September 22, 1983. 

2 It is noted that [Appellant] filed his first petition for 

relief pursuant to the Post Conviction Hearing Act 

(PCHA), 42 Pa.C.S.A. 9541 et seq. (repealed and 

replaced by the PCRA for petitions filed on or after 

April 13, 1988). Because the instant petition is not 

[Appellant’s] first, the one-year grace period 

provided in the 1996 amendments to the PCRA “does 

not apply to second or subsequent petitions, 

regardless of when the first petition was filed.” 

Commonwealth v. Fairiror, 809 A.2d 396, 398 

(Pa.Super.2002), appeal denied, 827 A.2d 429 

([Pa.]2003).

[Appellant] filed his second petition seeking postconviction collateral relief on January 14, 1997. The trial 

court denied his petition without a hearing on July 14, 

1997. The Superior Court affirmed the court’s order on 

December 28, 1998. No further appeal was taken. 

____________________________________________

3 18 Pa.C.S. § 3701.
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Trial Court Pa.R.A.P. 1925(a) Opinion, filed June 3, 2014, at 1-2.

On June 15, 2012, Appellant filed the instant petition, which he styled 

as a petition for a writ of habeas corpus. The court issued Pa.R.Crim.P. 907 

notice of its intention to dismiss the petition as an untimely PCRA petition on 

August 7, 2012. After Appellant responded to the notice on August 27, 

2012, the court dismissed the petition on February 10, 2014. On February 

24, 2014, Appellant timely filed a notice of appeal. The court did not order, 

nor did Appellant file, a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).

Appellant raises the following issues for our review:

DID THE TRIAL COURT ERR [BY IMPOSING A LIFE] 

SENTENCE ON JANUARY 07, 1977[?]

DID THE TRIAL COURT ERR IN FAILING TO FIND THE 

TRIAL COUNSEL INEFFECTIVE FOR FAILING TO PROPERLY 

PRESENT A DEFENSE FOR APPELLANT, AND NOT 

OBJECTING TO THE IMPOSED SENTENCE[?]

DID THE TRIAL COURT IMPOSE AN ILLEGAL SENTENCE ON 

JANUARY 07, 1977[?]

SHOULD THE CASE BE REMANDED FOR FURTHER REVIEW, 

AND CORRECTION OF SENTENCE[?]

Appellant’s Brief at 7.

Initially, we must determine whether the trial court properly treated 

Appellant’s purported habeas corpus petition as a PCRA petition. We 

observe:

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

of achieving post-conviction relief. 42 Pa.C.S. § 9542; 
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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).[4] 

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).

Although Appellant purports to file a writ of habeas corpus, his claims 

for relief fall within the purview of the PCRA, because (1) he is currently 

serving a term of imprisonment, and (2) he alleges an illegal sentence claim. 

42 Pa.C.S. § 9543(a). Therefore, the lower court properly treated 

Appellant’s alleged habeas corpus petition as a PCRA petition, and issued its 

order as a denial of PCRA relief. See Taylor, supra (treating appellant’s 

writ of habeas corpus as a PCRA petition).

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. 

Koehler, 36 A.3d 121, 131 (Pa.2012). 

____________________________________________

4 Abrogated on other grounds by Commonwealth v. Grant, 813 A.2d 726 

(Pa.2002).
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Before addressing the merits of Appellant’s claims, we must first 

consider the timeliness of his PCRA petition because it implicates the 

jurisdiction of both this Court and the PCRA court. Commonwealth v. 

Williams, 35 A.3d 44, 52 (Pa.Super.2011) (citation omitted), appeal 

denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no 

court has jurisdiction to hear an untimely PCRA petition.” Id. Further, to 

“accord finality to the collateral review process[,]” the PCRA “confers no 

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA 

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). 

With respect to jurisdiction under the PCRA, this Court has further 

explained: 

The most recent amendments to the PCRA...provide a 

PCRA petition, including a second or subsequent petition, 

shall be filed within one year of the date the underlying 

judgment becomes final. 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 seeking the review. 

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

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011). 

This Court may review a PCRA petition filed more than one year after the 

judgment of sentence becomes final only if the claim falls within one of the 

following three statutory exceptions, which the petitioner must plead and 

prove:

§ 9545. Jurisdiction and proceedings
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* * *

(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 of sentence becomes final, 

unless the petition alleges and the petitioner proves that:

(i) the failure to raise the claim 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). Further, even if a petition pleads one of these 

exceptions, the petition will not be considered unless it is “filed within 60 

days of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2).

Finally, a heightened standard applies to a second or subsequent PCRA 

petition to avoid “serial requests for post-conviction relief.” 

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011). A second or

subsequent PCRA petition “will not be entertained unless a strong prima 

facie showing is offered to demonstrate that a miscarriage of justice may 

have occurred.” Commonwealth v. Hawkins, 953 A.2d 1248, 1251 

(Pa.2006). In a second or subsequent post-conviction proceeding, “all 
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issues are waived except those which implicate a defendant’s innocence or 

which raise the possibility that the proceedings resulting in conviction were 

so unfair that a miscarriage of justice which no civilized society can tolerate 

occurred.” Commonwealth v. Williams, 660 A.2d 614, 618 

(Pa.Super.1995).

Appellant argues that the sentencing court erred in imposing a term of 

life imprisonment under the version of 18 Pa.C.S. § 2502 in effect in 1977. 

He claims that the court should have applied the version of Section 2502 in 

effect in 1974, which he claims carried a penalty of ten (10) to twenty (20) 

year’s incarceration. 

Instantly, Appellant’s judgment of sentence became final on February 

6, 1977, thirty (30) days after the pronouncement of his sentence, which he 

did not appeal. He filed this PCRA petition on June 15, 2012, over thirtyfour (34) years after the expiration of his time limit. Thus, Appellant’s 

petition is facially untimely, and we must determine whether Appellant has 

pled and proved any of the exceptions to the PCRA time limitation. See 42 

Pa.C.S. § 9545(b)(1).

In his reply brief, Appellant attempts to invoke an exception to the 

PCRA time bar by claiming that the facts upon which the claim is predicated 

were unknown to him and could not have been ascertained by the exercise 

of due diligence. In the first place, Appellant fails to explain why he did not 

become aware of the alleged discrepancy between the 1974 and 1977 
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versions of Section 2502 until 2012. He fails, in other words, to 

demonstrate that he raised this claim within 60 days of the date he first 

could have presented it. 42 Pa.C.S. 9545(b)(2). Moreover, Appellant did 

not plead and prove this exception to the time bar in his PCRA petition, but 

raised it for the first time in his reply brief. Thus, he has waived this issue. 

See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007) 

(“exceptions to the [PCRA] time bar must be pled in the PCRA petition, and 

may not be raised for the first time on appeal”); see also Pa.R.A.P. Rule 

302(a) (issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal). 

In short, Appellant’s petition is time-barred, and even if it were timely, 

he has waived the sentencing issue that he now attempts to raise on appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2014