J-S03007-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHRISTOPHER POLLER,

Appellant No. 1181 EDA 2017

Appeal from the PCRA Order Entered March 20, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1124322-1993

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 28, 2018

Appellant, Christopher Poller, appeals pro se from the post-conviction 

court’s March 20, 2017 order denying his petition for writ of habeas corpus, 

which the court treated as untimely petition under the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

The facts of Appellant’s underlying criminal conviction are not 

necessary to our disposition of his appeal. The PCRA court summarized the 

procedural history of Appellant’s case, as follows:

On June 2, 1994, following a jury trial before the 

Honorable Paul Ribner, [Appellant] was convicted of second 

degree murder, criminal conspiracy, robbery and possession of 

an instrument of crime. On December 7, 1994, Judge Ribner 

imposed a sentence of life imprisonment without parole for the 

murder conviction, and concurrent terms of imprisonment for the 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S03007-18

- 2 -

other convictions. [Appellant] filed a direct appeal and the 

Pennsylvania Superior Court affirmed the trial court’s judgment 

of sentence on May 8, 1996.2 The Pennsylvania Supreme Court 

denied allocator December 20, 1996.3

2 Commonwealth v. Poller, 679 A.2d 849 (Pa. Super. 

1996) (unpublished memorandum).

3 Commonwealth v. Poller, 687 A.2d 377 (Pa. 1996).

[Appellant] filed his first pro se petition for collateral relief 

pursuant to the [PCRA] on December 15, 1997. Counsel was 

appointed and subsequently filed a “no merit” letter pursuant to 

Turner/Finley.

5

 On February 25, 1999, the PCRA court 

dismissed [Appellant’s] petition. The Pennsylvania Superior 

[C]ourt affirmed the dismissal on October 17, 2000, and the

Pennsylvania Supreme Court denied allocatur on March 30, 

2001.6 Thereafter, [Appellant] filed several PCRA petitions. All 

were denied.

5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 

1988).

6 Commonwealth v. Poller, 767 A.2d 1112 (Pa. Super. 

2000) (unpublished memorandum), appeal denied, 786 

A.2d 987 (Pa. 2001).

On December 19, 2016, [Appellant] filed the instant pro se

PCRA petition, styled as a writ of habeas corpus. This court sent 

a notice of its intent to dismiss7 the petition as untimely without

exception on January 31, 2017. [Appellant] filed a response to 

the 907 notice on February 10, 2017. The PCRA petition was 

formally dismissed by this court on March 20, 2017. [Appellant]

timely filed a notice of appeal to the Pennsylvania Superior Court 

on April 3, 2017.

7 Pursuant to Pa.R.Crim.P. 907.

PCRA Court Opinion (PCO), 5/22/17, at 1-2.

The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) 

statement, but it filed a Rule 1925(a) opinion on May 22, 2017. Herein, 

Appellant raises the following issue for our review: “The lower court abused 
J-S03007-18

- 3 -

its discretion when it dismissed the petition filed by [] Appellant and 

pertaining to this instant case.” Appellant’s Brief at 3.

In the Argument section of Appellant’s brief, he contends that the 

PCRA court erred by treating his writ of habeas corpus as a PCRA petition, 

where his sentencing claim is not cognizable under the PCRA. According to 

Appellant, the statute under which he was sentenced, 18 Pa.C.S. § 1102(b), 

“violates due process and is unconstitutional, and void under the vagueness 

doctrine, because the statute fails to give a person of ordinary intelligence 

fair notice that its true penalty is life imprisonment ‘without parole.’” 

Appellant’s Brief at 7. Appellant avers that the PCRA does not offer relief for 

this claim, because “the PCRA ... provides ‘only’ for challenges to sentences 

that have been imposed in excess of the lawful maximum.” Id. at 9 

(emphasis omitted). Thus, Appellant maintains that his challenge to the 

constitutionality of section 1102(b) should have been considered by the 

lower court as a writ of habeas corpus claim. 

We disagree. Appellant is challenging the legality of his sentence, and 

our Supreme Court has stated that, “legality of sentence is always subject to 

review within the PCRA” even where, as here, the claim is not grounded on

an assertion that the sentence exceeds the lawful maximum. 

Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (finding that 

the appellant was not precluded from obtaining relief under the PCRA where 

he alleged that his sentence was illegal because the statute under which his 

sentence was imposed is unconstitutional under Alleyne) (quoting 
J-S03007-18

- 4 -

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)). Therefore, the 

lower court did not err in treating Appellant’s writ of habeas corpus as a 

PCRA petition.

Because Appellant’s petition presents a cognizable PCRA claim, we 

must next assess the timeliness of his petition, because the PCRA time 

limitations implicate our jurisdiction and may not be altered or disregarded 

in order to address the merits of a petition. See Commonwealth v. 

Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition 

for post-conviction relief, including a second or subsequent one, must be 

filed within one year of the date the judgment of sentence becomes final, 

unless one of the following exceptions set forth in 42 Pa.C.S. § 

9545(b)(1)(i)-(iii) applies:

(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 [Appellant] 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;

(ii) the facts upon which the claim is predicated were 

unknown to the [Appellant] 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 
J-S03007-18

- 5 -

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). Any petition attempting to invoke one of 

these exceptions “shall be filed within 60 days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2).

Here, as the PCRA court points out, Appellant’s “judgment of sentence 

became final on or about March 20, 1997, ninety (90) days after the 

Pennsylvania Supreme Court denied allocator and the time for filing a 

petition for writ of certiorari with the United States Supreme Court expired.” 

PCO at 4. Therefore, his present petition, filed on August 13, 2015, is 

patently untimely and, for this Court to have jurisdiction to review the merits 

thereof, Appellant must prove that he meets one of the exceptions to the 

timeliness requirements set forth in 42 Pa.C.S. § 9545(b). 

Appellant wholly fails to meet this burden, as he does not argue the 

applicability of any timeliness exception. Instead, he merely claims that his 

petition does not raise a claim that is cognizable under the PCRA, and he 

then proceeds to discuss why 18 Pa.C.S. § 1102(b) is unconstitutionally 

vague. Because, for the reasons stated supra, Appellant’s sentencing 

challenge is reviewable under the PCRA, and he fails to plead, let alone 

prove, the applicability of any timeliness exception, we do not have 

jurisdiction to address the merits of his sentencing argument. Accordingly, 

the record supports the PCRA court’s decision to dismiss, as untimely, 

Appellant’s petition, and we ascertain no legal error in that determination. 

See Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007) (stating 
J-S03007-18

- 6 -

that an appellate court’s standard of review regarding an order denying a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/28/18