J-S65034-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

ERNEST McKNIGHT, :

:

Appellant : No. 3442 EDA 2016

Appeal from the PCRA Order October 19, 2016

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): CP-51-CR-0209971-1993

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 16, 2017

Ernest McKnight (“McKnight”), pro se, appeals from the Order 

dismissing his second Petition filed pursuant to the Post Conviction Relief Act 

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546.1 We affirm. 

In its Opinion, the PCRA court set forth the relevant factual and 

procedural history, which we adopt for the purpose of this appeal. See PCRA 

Court Opinion, 1/19/17, at 1-2.

On appeal, McKnight initially raised the following issues for our review:

 

1 Although McKnight styled his Petition as a Writ of Habeas Corpus, the PCRA 

court properly treated it as a Petition filed pursuant to the PCRA. See 42 

Pa.C.S.A. § 9542 (providing that “[t]he action established in this subchapter 

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 and coram nobis.”); see 

also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (holding that 

“[n]o other statutory or common law remedy ‘for the same purpose’ is 

intended to be available; instead, such remedies are explicitly ‘encompassed’ 

within the PCRA.”).
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1. Was all prior counsel[] ineffective for failing to raise the issue 

of [McKnight’s] illegal sentence he originally received from the 

[trial court?]

2. Is it correct that illegal/incorrect senten[c]es are never 

waived[?]

3. In the interest of fundamental fairness, cruel and unusual 

punishment, due process, equal protection and procedural due 

process[,] does a person (such as [McKnight]) who violate[s]

their county probation/parole are resentenced to a term of 

state incarceration, in violation of 42 Pa.C.S.A. [§] 5505[?]

Brief for Appellant at 2 (some capitalization omitted).

McKnight subsequently filed an Amended Brief, in which he restates his 

issues as follows:

1. Is it not correct the sentencing court erred as a matter of law, 

when; at the initial time of sentencing, the court did not 

“suspend” [McKnight’s] term of imprisonment before the court 

imposed his sentence of probation, thus resulting in [McKnight] 

receiving an “illegally imposed” [O]rder of probation?

2. Is it not correct the court sentenced [McKnight] to an “illegal” 

sentence of probation, thus rendering the sentence that he 

received for a violation of probation also illegal, as well?

Amended Brief for Appellant at 2 (capitalization omitted, emphasis in original).

We review an order dismissing a petition under the PCRA in 

the light most favorable to the prevailing party at the PCRA level. 

This review is limited to the findings of the PCRA court and the 

evidence of record. We will not disturb a PCRA court’s ruling if it 

is supported by evidence of record and is free of legal error. This 

Court may affirm a PCRA court’s decision on any grounds if the 

record supports it. We grant great deference to the factual 

findings of the PCRA court and will not disturb those findings 

unless they have no support in the record. However, we afford no 

such deference to its legal conclusions. Further, where the 

petitioner raises questions of law, our standard of review is de 

novo and our scope of review is plenary. 
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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted).

Under the PCRA, any PCRA petition “including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment of 

sentence 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.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are 

jurisdictional in nature, and a court may not address the merits of the issues 

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht, 

994 A.2d 1091, 1093 (Pa. 2010).

Here, McKnight’s judgment of sentence became final on June 7, 2010, 

when the period of time to file an appeal with our Supreme Court expired. 

See 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Rojas, 874 

A.2d 638, 643 (Pa. Super. 2005). McKnight had until June 7, 2011, to file the 

instant PCRA Petition, but did not do so until March 24, 2015. Thus, 

McKnight’s Petition is facially untimely under the PCRA.

Pennsylvania courts may consider an untimely PCRA petition if the 

appellant can explicitly plead and prove one of three exceptions set forth under 

42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these 
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exceptions “shall be filed within 60 days of the date the claim could have been 

presented.” Id. § 9545(b)(2); see also Albrecht, 994 A.2d at 1094.

Here, McKnight has failed to plead or prove the applicability of any of 

the exceptions to the PCRA timeliness requirements. See 42 Pa.C.S.A. 

§ 9545(b)(1); see also Albrecht, 994 A.2d at 1094.2 Accordingly, McKnight 

has failed to overcome the untimeliness of his Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2017

 

2 Rather than addressing any of the PCRA timeliness exceptions, McKnight 

incorrectly argues that his illegal sentencing claim is (1) cognizable under the 

PCRA; and (2) cannot be waived. Brief for Appellant at 9. While illegal 

sentencing claims are cognizable under the PCRA, see 42 Pa.C.S.A. 

§ 9543(a)(2)(vii), a PCRA court is without jurisdiction to address such claims 

unless the petition was timely filed or the petitioner is able to satisfy one of 

the timeliness exceptions. See Commonwealth v. Jackson, 30 A.3d 516, 

523 (Pa. Super. 2011) (holding that “when the one-year filing deadline of 

section 9545 has expired, and no statutory exception has been pled or proven, 

a PCRA court cannot invoke inherent jurisdiction to correct orders, judgments 

and decrees, even if the error is patent and obvious.”).
7890480111 

1 42 Pa. Cons. Stat. §§ 9541-95 6. 

I 

This appeal comes bef e the Superior Court fo !lowing the dismissal of a Post Conviction 

I 

Relief Act ("PCRA")1 petitio filed on March 24, 20 JS, On October 19, 2016, the lower court 

. ·. I 

dismissed the PCRA petition fo the reasons set forth bell w. 

i 

I. PROCEDURAL HIST RY . I 

On January 11, 1993, E est McKnight (hereina er referred to as "Petitioner") and an armed 

. I . . companion robbed two boys f their money. On May! 14, 1993, Petitioner appeared before the 

I 

Honorable Arthur S. Kafrisse and entered negotiate guilty pleas to two counts of robbery, 

. I 

conspiracy, and possessing an instrument of crime. ~titioner was sentenced on one count of 

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robbery to eleven and one-ha f to twenty-three mont ~, incarceration followed by three years' 

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probation. No further penalty was imposed as to the remaining convictions. Petitioner did not 

pursue a direct appeal. On Mar h 22, 1994, while on p \ole for the robbery offense, Petitioner was 

arrested on drug-related charge but fled this jurisdiction ~hortly thereafter. 

On July 11, 2007, after bsconding for approxim I tely thirteen years, Petitioner was arrested 

in Pennsylvania for robbery. n November 9, 2007, ri! llowing a violation of probation hearing, 

! 

Petitioner was sentenced to fi e to seventeen years' · lprisonment. Petitioner filed a "Petition to 

I CP-51-CR-0209971-1993 ~omm. v. Mcknight, Ernest 

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I 

LEON W. TUCKER, J. 

ERNEST MCKNIGHT 

vs. 

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CP-51-CR-0209971-1993 

3442 EDA 2016 

OPINION 

Appea :~:/:-'or.t Trial 

Office of Jl.i..;i.:.-i.:J.i ,;lecords 

MMON PLEAS OF P ADELPlllA COUNTY 

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ICIAL DISTRICT O PENNSYLVANIA 

CRIMINAL TRIAL iIVISION 

COMMONWEALTH OF PE 

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FILED 

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Circulated 10/26/2017 11:54 AM
2 

2 Commonwealth v. McKnight, 981 A.2d 928 (Pa. Super. 2009) (unpublished memorandum). 

3 Commonwealth v. McKnight, f A.3d 628 (Pa. 2010). 

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en bane). 

5 Commonwealth v. McKnight, 75 A.3d 547 (Pa. Super. 2013) (unpublished memorandum). 

6 The Honorable Leon W. T~cker issued the order and opinion in this matter in his capacity as 

Supervising Judge of the Criminal Section of the Court of Common Pleas of Philadelphia - Trial 

Division as of March 7, 2016, ~s the trial judge is no longer sitting. 

Vacate and Reconsider Senten~" and on November 21, 2007, the court vacated the sentence. On 

February 5, 2008, a second vfolation of probation hearing was held. The court imposed a new 

sentence of eight to eighteen ylars' imprisonment. On February 25, 2008, the court again vacated 

its sentence. On March 19, ~008, a third violation of probation hearing was held. The court 

resentenced Petitioner to eighi to eighteen years' imprisonment. Following a direct appeal, the 

Superior Court affirmed the jhdgment of sentence on July 28, 2009.2 On March 9, 2010, the 

Pennsylvania Supreme Court dried allocatur.3 

On September 16, 201°' Petitioner filed his first pro se PCRA petition. Counsel was 

appointed and subsequently filjd a Turner/Finley no merit letter.4 On April 19, 2012, the PCRA 

court issued an order denying the petition and permitted counsel to withdraw. The Superior Court 

affirmed the dismissal on Ap11il 8, 2013.5 Petitioner did not seek allocatur in the Pennsylvania 

Supreme Court. 

On March 24, 2015, Petitioner filed the instant "habeas corpus" collateral petition, his 

second. Petitioner submitted tumerous supplemental petitions seeking both habeas corpus and 

PCRA relief. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Petitioner was served 

notice of the PCRA court's inJntion to dismiss his petition on July 12, 2016. Petitioner submitted a 

response to the Rule 907 notiJ on July 25, 2016. On October 19, 2016, the PCRA court dismissed 

I . his petition as untimely.6 On Jctober 28, 2016, the instant notice of appeal was timely filed to the 

Superior Court. 
Pennsylvania, or at the expirati n of time for seeking the review." Id. § 9545(b)(3). 

3 

discretionary review in the upreme Court of the United States and the Supreme Court of 

Cons. Stat. § 9545(b)(l). A ju gment is deemed final "at the conclusion of direct review, including 

petition, shall be filed within ne year of the date the underlying judgment becomes final. 42 Pa. 

Robinson, 12 A.3d 477 (Pa. uper. 2011). A PCRA petition, including a second or subsequent 

B. Petitioner's current p tition was manifestly untimely under the PCRA. 

Petitioner's PCRA petiJon challenging the legality of his sentence was facially untimely. As 

a prefatory matter, the timelinJss of a PCRA petition is a jurisdictional requisite. Commonwealth v. 

pursuant to the PCRA' s dictate . 

that fell outside the purview f the PCRA. Thus, this court was constrained to review his claim 

sentences may obtain collater relief."). Moreover, Petitioner did not raise any alternative claims 

Cons. Stat. § 9542 ("This sub hapter provides for an action by which persons ... serving illegal 

Commonwealth v. Taylor, 65 Aj.3d 462, 465-66 (Pa. Super. 2013). 

Here, Petitioner's legality of sentence claim was cognizable under the PCRA. See 42 Pa 

It is well-settled that th PCRA is intended to be the sole means of achieving post-conviction 

relief. 42 Pa.C.S. § 95 · 2; Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011). Unless the 

PCRA could not provi e for a potential remedy, the PCRA statute subsumes the writ of 

habeas corpus. Fahy, upra at 223-224; Commonwealth v. Chester, 733 A.2d 1242 (Pa. 

1999). Issues that are c gnizable 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 al o Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super. 2001) (a 

collateral petition that r ises an issue that the PCRA statute could remedy is to be considered 

a PCRA petition). Phr sed differently, a defendant cannot escape the PCRA time-bar by 

titling his petition or m tion as a writ of habeas corpus. 

Superior Court, 

PCRA because they raised a laim potentially remediable under the PCRA. As iterated by the 

Petitioner's instant sub issions seeking habeas corpus relief fell within the ambit of the 

A. Petitioner's habeas co pus petition was reviewed pursuant to the dictates of the PCRA. 

II. DISCUSSION 
7 The "governmental interfer nee" exception, § 9545(b)(l)(i) requires a petitioner to plead and 

prove: (1) the failure to previ usly raise the claim was the result of interference by government 

officials and (2) the informati n on which he relies could not have been obtained earlier with the 

exercise of due diligence. Co monwealth v. Williams, 105 A.3d 1234, 1240 (Pa. 2014) (citing 

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)). 

4 

in Commonwealth v. Wendo ski, 420 A.2d 628 (Pal Super. 1980) (addressing revocation of 

9545(b)(l)(i).7 See 907 Respo se, 7/25/16 at 3. Petitioner argued that the Superior Court's decision 

notice styled "Amended Petiti n" wherein he invoked the "governmental interference" exception, § 

Petitioner's sole refere e to the PCRA's time-bar was found in his response to the Rule 907 

Id § 9545(b)(l)(i)-(iii). 

(iii) the right asserted i a constitutional right that was recognized by the Supreme Court of 

the United States or th Supreme Court of Pennsylvania after the time period provided in 

this section and has bee held by that court to apply retroactively. 

(ii) the facts upon whi the claim is predicated! were unknown to the petitioner and could 

not have been ascertain d by the exercise of due diligence; or 

(i) the failure to raise e claim previously was the result of interference by government 

officials with the prese tation of the claim in violation of the Constitution or laws of this 

Commonwealth or the onstitution or laws of the United States; 

must prove: 

subsections 9545(b)(l)(i)-(iii). To invoke an exception, a petition must allege and the petitioner 

,. petitioner alleges and proves o e of the three narrow efceptions to the mandatory time-bar under 

Despite the one-year eadline, the PCRA permits the late filing of a petition where a 

untimely by approximately fo years: See 42 Pa. Cons. Stat.§ 9545(b)(l). 

Ct. R. 13 (effective January 1, 1990). His current petition, filed on March 24, 2015, was therefore 

filing a petition for writ of cert orari in the United States Supreme Court expired. See id.; U.S. Sup. 

Petitioner's judgment o sentence became final for purposes of the PCRA on June 7, 2010, 

ninety days after the Pennsyl ania Supreme Court denied allowance of appeal and the time for 

C. Petitioner was not elig hie for the limited timeliness exception under 42 Pa. Cons. Stat. 

§ 9545 (b )(1 )(i). 
8. Even if Petitioner established jurisdiction, no relief would be due. Contrary to Petitioner's 

argument, a court can revoke a\ defendant's probation even before the probation has actually begun, 

where revocation was based on actions occurring during the parole period and not the probationary 

period. See Commonwealth t. Ware, 737 A.2d 251 (Pa. Super. 1999); Commonwealth v. 

Wendowski, 420 A.2d 628 (Pa. \super. 1980) (holding that a defendant's probationary sentence could 

be revoked prior to commencement of such sentence if his conduct after the probationary sentence 

was imposed, but before it ~egan, warranted such revocation). Moreover, the Superior Court 

previously determined that P titioner' s revocation sentence was legal. See Commonwealth v. 

McKnight, 2013 WL 11271520 at 4 (Pa. Super. 2013). 

5 

BY THE COURT: 

affirmed. 

This court has once again evaluated a collateral petition filed by Mr. McKnight. Petitioner 

failed to meet his burden of ptving an exception to the PCRA's statutory time-bar. Accordingly, 

for the reasons stated herein, ~he decision of the court dismissing the PCRA petition should be 

I 

statutory time-bar. 8 

III. CONCLUSION 

probation sentences) dissuaded him · from seeking collateral relief and therefore constituted 

governmental interference. P+tioner failed, however, to demonstrate how the Superior Court's 

1980 decision in Wendowski nt just "influenced," but actually obstructed his timely presentation of 

a claim for collateral relief. Petitioner therefore failed to plead and prove an exception to the 

I