J-S65038-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RENE RUIZ-MAYO 

Appellant

v.

MARK GARMAN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 600 MDA 2019

Appeal from the Order Entered March 20, 2019

In the Court of Common Pleas of Lancaster County Civil Division at 

No(s): CI-18-10615

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JANUARY 06, 2020

Appellant, Rene Ruiz-Mayo (“Appellant” or “Ruiz-Mayo”), pro se, appeals 

from the order entered March 20, 2019, that dismissed, without a hearing, 

the petition that he styled as a “Petition for Writ of Habeas Corpus ad 

Subjiciendum” but that the Court of Common Pleas deemed a third petition 

filed under the Post Conviction Relief Act (“PCRA”).

1

 We affirm.

On April 3, 2012, Ruiz-Mayo, represented by John E. Churchville, 

Esquire . . . , entered a negotiated guilty plea to a variety of 

crimes.1 The trial court accepted the negotiated plea and, on the

same date, imposed an aggregate prison sentence of twenty-five 

to fifty years. Ruiz-Mayo did not file a direct appeal.

1 Ruiz-Mayo pled guilty to three separate docket numbers. 

At docket number [CP-36-CR-0005694-2011], Ruiz-Mayo 

pled guilty to one count of criminal attempt (homicide), four 

counts each of first-degree aggravated assault and second 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541–9546.
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degree aggravated assault, one count of firearms without 

license, and two counts of recklessly endangering another 

person. At docket number [CP-36-CR-0005678-2011], 

Ruiz-Mayo pled guilty to one count each of firearms without 

license and receiving stolen property. At docket number 

[CP-36-CR-0000024-2012], Ruiz-Mayo pled guilty to one 

count each of delivery of cocaine and criminal use of a 

communication facility.

Ruiz-Mayo filed his first PCRA Petition on June 25, 2012. The PCRA 

court appointed Christopher P. Lyden, Esquire (“Attorney Lyden”), 

as Ruiz-Mayo’s counsel. Counsel filed a Turner/Finley2 no-merit 

letter and Petition to Withdraw. The PCRA court issued a 

Pa.R.Crim.P. 907 Notice of intent to dismiss the petition, and RuizMayo did not file a response. The PCRA court granted Attorney 

Lyden’s Petition to Withdraw and dismissed the PCRA Petition on 

March 21, 2013. Ruiz-Mayo did not file a Notice of Appeal.

2 Commonwealth v [Geary] Turner, 544 A.2d 927 (Pa. 

1988); Commonwealth v. Finley, 550 A.2d 230 (Pa. 

Super. 1988) (en banc).

Ruiz-Mayo filed [his second] PCRA Petition on July 10, 2014. The 

PCRA court appointed Vincent J. Quinn, Esquire (“Attorney 

Quinn”), as Ruiz-Mayo’s counsel. Attorney Quinn filed a 

Turner/Finley no-merit letter and Petition to Withdraw. The 

PCRA court issued a Pa.R.Crim.P. 907 Notice of intent to dismiss 

the Petition, and Ruiz-Mayo did not file a response. Thereafter, 

the PCRA court granted Attorney Quinn’s Petition to Withdraw and 

dismissed the PCRA Petition. Ruiz-Mayo filed a timely Notice of 

Appeal.

Commonwealth v. Ruiz-Mayo, No. 435 MDA 2015, unpublished 

memorandum at 1-2 (Pa. Super. filed September 24, 2015). This Court 

affirmed the order dismissing Appellant’s second PCRA petition. Id. at 1, 5.

On December 10, 2018, Appellant pro se filed a “Petition for Writ of 

Habeas Corpus ad Subjiciendum”, which the lower court deemed a third PCRA 
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petition and dismissed without a hearing on March 20, 2019.2 On April 15, 

2019, Appellant filed this timely appeal.3

Appellant presents the following issues for our review:

1. Whether there is statutory authorization for the imposed 

sentence(s)?

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2 A review of the record reveals that the lower court failed to issue notice of 

its intent to deny the petition after deeming it a PCRA petition, as is required 

by Pa.R.Crim.P. 907.

Although the notice requirement set forth in Rule 907 has been 

held to be mandatory, see Commonwealth v. Feighery, 443 

Pa.Super. 327, 661 A.2d 437 (1995) (Feighery discussed 

Pa.R.Crim.P. 1507, which was renumbered as Rule 907 as of 

April 1, 2001), Appellant has not objected to its omission and 

thereby has waived the issue. See Commonwealth v. Williams,

909 A.2d 383 (Pa.Super.2006); see also Commonwealth v. 

Guthrie, 749 A.2d 502 (Pa.Super.2000). Moreover, the Supreme 

Court has indicated, on at least one occasion, that when a PCRA 

petition is untimely filed, the failure to provide such notice is not 

reversible error. Commonwealth v. Pursell, 561 Pa. 214, 749 

A.2d 911 (2000); see also Commonwealth v. Davis, 916 A.2d 

1206 (Pa.Super.2007).

Commonwealth v. Boyd, 923 A.2d 513, 514 n.1 (Pa. Super. 2007). 

Analogously, Appellant in the current appeal has not objected to the omission 

of a Rule 907 notice and, accordingly, has waived the issue. Id. Additionally, 

as discussed below, Appellant’s petition was properly deemed an untimely 

PCRA petition by the lower court, and the court’s failure to provide a Rule 907 

Notice consequently is not reversible error. Id.

3 The lower court did not order and Appellant did not file a statement of errors 

complained of on appeal. The court had filed an opinion with its order 

dismissing Appellant’s petition. On May 10, 2019, the court entered an 

“Opinion Sur Appeal” stating that the opinion accompanying its order dated 

March 20, 2019, would serve as its opinion pursuant to Pa.R.A.P. 1925(a).
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2. Whether Purdon's Pennsylvania Consolidated Statutes 

Annotated contain the mandatory enacting clause from the 

legislature?

3. Whether the 1968 Pennsylvania Constitution contain[s] a 

general saving[] clause and/or saving[] schedule applicable to 

criminal prosecution?

4. Whether the trial court have subject matter jurisdiction with 

the lack of enacting clause for Purdon’s Pennsylvania Consolidated 

Statutes Annotated?

5. Whether the trial court have subject matter jurisdiction with 

the lack of a general saving clause and/or saving[] schedule 

applicable to criminal prosecutions for the 1968 Pennsylvania 

Constitution?

6. Whether the Relator/Peti[ti]oner/Appellant indicted by a 

grand jury?

7. Whether the Relator/Petitioner/Appellant waived his Fifth 

Amendment right to have a bill of indictment submitted to a grand 

jury?

Appellant’s Brief at 4 (lower court’s answers and unnecessary capitalization 

omitted).

Preliminarily, we note that habeas corpus petitions have been subsumed 

into the PCRA. 42 Pa.C.S. § 9542 (“The action established in this subchapter 

[-- i.e., the PCRA --] shall be the sole means of obtaining collateral relief and 

encompasses all other common law and statutory remedies for the same 

purpose that exist when this subchapter takes effect, including habeas 

corpus”); see also Commonwealth v. Emma Turner, 80 A.3d 754, 770 

(Pa. 2013) (PCRA “subsumes the remedies of habeas corpus”). Ergo, the 

lower court was correct that Appellant’s petition would properly be considered 

a PCRA petition, irrespective of the name given to it by Appellant.
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“We review the denial of PCRA relief to decide whether the PCRA court’s 

factual determinations are supported by the record and are free of legal error.” 

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting 

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

of sentence is final, unless the petition alleges and the petitioner proves one 

of the three exceptions to the time limitations for filing the petition set forth 

in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).

4

 

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4

 The three exceptions to the timeliness requirement are:

(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 and 

has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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Appellant’s judgment of sentence became final thirty days after his 

sentencing – i.e., May 3, 2012. Pa.R.A.P. 903(a). Appellant had one year 

thereafter to file a PCRA petition – i.e., until May 3, 2013. 42 Pa.C.S. 

§ 9545(b)(1). Appellant filed the current petition on December 10, 2018, 

greater than five years late. Therefore, Appellant’s petition was patently 

untimely, and he has not pleaded a timeliness exception to the requirements 

of the PCRA. Consequently, the PCRA court was without jurisdiction to review 

the merits of majority of Appellant’s claims and properly dismissed his 

petition.5

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5 We note that Appellant’s first appellate issue is a challenge to the legality of 

his sentence. Appellant’s Brief at 4, 7.

One well-established exception is that challenges to the legality of 

the sentence are never waived. This means that a court may 

entertain a challenge to the legality of the sentence so long as the 

court has jurisdiction to hear the claim. In the PCRA context, 

jurisdiction is tied to the filing of a timely PCRA petition.

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (en banc). 

As Appellant’s PCRA petition is untimely, this Court does not have jurisdiction 

to hear Appellant’s PCRA petition, and we thereby cannot entertain his 

challenge to the legality of his sentence.

We further observe that Appellant’s fourth and fifth issues on appeal are

challenges to the trial court’s subject matter jurisdiction, Appellant’s Brief at 

4, 10-11, and “subject matter jurisdiction[ is] an issue not susceptible to 

waiver.” Commonwealth v. Jones, 929 A.2d 205, 208 (Pa. 2007),

Subject matter jurisdiction is purely a question of law. Id. at 211. “Our 

standard of review is de novo, and our scope of review is plenary.” Id.

(citation omitted); see also Commonwealth v. McGarry, 172 A.3d 60, 65 

(Pa. Super. 2017) (“[i]ssues pertaining to jurisdiction are pure questions of 

law, and an appellate court’s scope of review is plenary”; “[q]uestions of law 
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For the reasons given above, we discern no error of law, and, hence, we 

affirm the order below. See Medina, 209 A.3d at 996.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/06/2020

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are subject to a de novo standard of review” (citation omitted)), appeal 

denied, 185 A.3d 966 (Pa. 2018).

Controversies arising out of violations of the Crimes Code are 

entrusted to the original jurisdiction of the courts of common pleas 

for resolution. See 18 Pa.C.S. § 102. Every jurist within that tier 

of the unified judicial system is competent to hear and decide a 

matter arising out of the Crimes Code. Pa. Const. Art. 5, § 5 

(establishing the jurisdiction of the courts of common pleas within 

the unified judicial system).

Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003); see also 

McGarry, 172 A.3d at 66 (“All courts of common pleas have statewide subject 

matter jurisdiction in cases arising under the Crimes Code pursuant to 42 

Pa.C.S. § 931.” (additional citation and internal brackets omitted)). Appellant 

was charged with violations of the Crimes Code, and, thus, the Court of 

Common Pleas had jurisdiction to hear his case.