J-S19045-19

* Retired Senior Judge Assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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S.W.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2132 EDA 2018

Appeal from the PCRA Order Entered June 20, 2018

in the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002904-2003

BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 21, 2019

S.W.1 (Appellant) appeals from the order entered on June 20, 2018, 

dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541-9546. We affirm.

This Court has set forth the factual and procedural history as follows.

On September 5, 2005, Appellant was convicted by a jury 

of two counts of rape, two counts of involuntary deviate sexual 

intercourse with a child, and two counts of indecent assault. His 

convictions stemmed from the abuse of his three-year old 

daughter, C.W. Appellant was sentenced on January 4, 2006, to 

an aggregate term of 11 to 22 years’ incarceration. He filed a 

timely appeal and this Court affirmed his judgment of sentence on 

December 31, 2007. Commonwealth v. [S.W.], 945 A.2d 773 

(Pa. Super. 2007) (unpublished memorandum). Appellant did not 

file a petition for allowance of appeal with our Supreme Court; 

however, he subsequently filed a timely PCRA petition seeking 

 

1 Because Appellant’s underlying convictions involve the sexual assault of his 

biological daughter, who shares Appellant’s last name, we have changed 

Appellant’s and the victim’s names to initials to protect the victim’s privacy.
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restoration of his right to do so. That PCRA petition was granted 

and Appellant filed a nunc pro tunc petition for allowance of appeal 

to our Supreme Court, which was denied on April 20, 2010. 

Commonwealth v. [S.W.], 992 A.2d 889 (Pa. 2010).

Commonwealth v. S.W., 116 A.3d 697 (Pa. Super. 2014) (unpublished 

memorandum at 1-2). Thereafter, Appellant filed a timely pro se PCRA 

petition. Counsel was appointed, who filed an amended PCRA petition on 

Appellant’s behalf. The PCRA court denied that petition after a hearing, and 

on December 23, 2014, this Court affirmed the order denying that petition. 

Id.

On September 11, 2017, Appellant filed another pro se PCRA petition. 

The PCRA court appointed counsel, who filed an amended PCRA petition on 

February 6, 2018. In the amended PCRA petition, Appellant contended, inter 

alia, that the registration provisions of Pennsylvania’s Sex Offender 

Registration and Notification Act (SORNA) violate the ex post facto clauses of 

the U.S. and Pennsylvania constitutions. Amended PCRA Petition, 2/6/2018, 

at ¶ 20. Appellant further contended his petition was timely filed pursuant to

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

2

 Id. at ¶¶ 21-22, 24-

26. 

The Commonwealth filed an answer to the amended petition, and on 

May 1, 2018, the PCRA court issued notice of its intent to dismiss the petition 

 

2

In Muniz, our Supreme Court held that certain registration provisions of 

SORNA are punitive and retroactive application of those provisions violates 

the ex post facto clause of the Pennsylvania constitution.
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without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not respond, 

and the PCRA court dismissed the petition on June 20, 2018. Appellant timely 

filed a notice of appeal, and both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925.

On appeal, Appellant argues, pursuant to Muniz, that the registration 

requirements of SORNA cannot be applied retroactively to Appellant’s 

convictions. Appellant’s Brief at 12-14, 16-37. In Appellant’s February 6, 

2018 filing, counsel filed what she titled “Amended Petition for Post-Conviction 

Relief under the Post-Conviction Relief Act and/or Habeas Corpus Relief under 

Article I, Section 14 of the Pennsylvania Constitution and/or Motion to Correct 

Illegal Sentence.” The PCRA court treated the filing as a PCRA petition. 

Appellant also argues on appeal that SORNA’s registration requirements 

amount to custody and the lower court erred in not issuing a writ of habeas 

corpus barring registration requirements under SORNA. See Appellant’s Brief

at 14-16. As we have explained, 

[i]t is well-settled that the PCRA is intended to be the sole means 

of achieving post-conviction relief. Unless the PCRA could not 

provide for a potential remedy, the PCRA statute subsumes the 

writ of habeas corpus. Issues that are cognizable under the PCRA 

must be raised in a timely PCRA petition and cannot be raised in 

a habeas corpus 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) (citations 

omitted); see also 42 Pa.C.S. § 9542. 
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In his February 6, 2018 filing, Appellant invoked Muniz. This Court has 

held that “invocation of Muniz implicates the legality of [the] sentence, which 

is an issue cognizable under the PCRA and, therefore, subject to the PCRA’s 

timeliness requirements.” Commonwealth v. Greco, 203 A.3d 1120, 1123 

(Pa. Super. 2019). “[C]laims challenging application of SORNA’s registration 

provisions ... are properly considered under the PCRA.” Id. Accordingly, 

Appellant’s February 6, 2018 filing is a PCRA petition. In any event, Appellant 

waived his habeas corpus issue by failing to raise it in his Pa.R.A.P. 1925(b) 

statement. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) 

(“Any issues not raised in a 1925(b) statement will be deemed waived.”); Rule 

1925(b) Statement, 8/13/2018. 

We now turn to whether this PCRA petition was timely filed. Any PCRA 

petition, including second and subsequent petitions, must either (1) be filed 

within one year of the judgment of sentence becoming final, or (2) plead and 

prove a timeliness exception. 42 Pa.C.S. § 9545(b). Furthermore, the 

petition “shall be filed within 60 days of the date the claim could have been 

presented.”3 42 Pa.C.S. § 9545(b)(2). 

“For purposes of [the PCRA], a judgment [of sentence] becomes final at 

the conclusion of direct review, including discretionary review in the Supreme 

 

3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2) 

in order to extend the time for filing a petition from 60 days to one year from 

the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act 

2018-146 (S.B. 915), effective December 24, 2018.
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Court of the United States and the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). 

Here, Appellant was sentenced on January 4, 2006. This Court affirmed,

and his judgment of sentence became final after the expiration of time for 

seeking review of our Supreme Court’s denial of his petition for allowance of 

appeal on April 20, 2010. See U.S. Sup. Ct. Rule 13 (requiring petition for 

writ of certiorari to be filed within 90 days after entry of the order denying 

discretionary review by state court of last resort). Appellant then had one 

year to file a timely PCRA petition. Thus, Appellant’s petition filed on 

September 11, 2017, is facially untimely, and he was required to plead and 

prove an exception to the timeliness requirements.

In his amended petition and on appeal, Appellant attempts to plead the 

new-retroactive-right exception4 by invoking Muniz. Amended PCRA Petition, 

 

4 This exception provides as follows. 

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 

petitioner proves that:

***

(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)(iii).
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2/6/2018, at ¶¶ 12, 17-19, 21-22, 24-25; Appellant’s Brief at 14, 16-17, 26. 

This Court considered whether Muniz applied under similar circumstances in 

Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018). In that case, 

this Court acknowledged

that this Court has declared that, “Muniz created a substantive 

rule that retroactively applies in the collateral context.” 

Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa. 

Super. 2017). However, because [Murphy’s] PCRA petition is 

untimely (unlike the petition at issue in Rivera–Figueroa), he 

must demonstrate that the Pennsylvania Supreme Court has 

held that Muniz applies retroactively in order to satisfy 

[sub]section 9545(b)(1)(iii). Because at this time, no such 

holding has been issued by our Supreme Court, [Murphy] cannot 

rely on Muniz to meet th[e third] timeliness exception.

Murphy, 180 A.3d at 405-06 (emphasis in original; some citations omitted). 

In other words, this Court concluded that the holding in Muniz does not 

apply at this point to untimely-filed PCRA petitions. This Court acknowledges 

that “if the Pennsylvania Supreme Court issues a decision holding that Muniz

applies retroactively, [Appellant] can then file a PCRA petition, within [one 

year] of that decision, attempting to invoke the ‘new[-]retroactive[-]right’ 

exception in [sub]section 9545(b)(1)(iii).” Murphy, 180 A.3d at 406 n.1. 

Based on the foregoing, we conclude that Appellant’s petition was filed 

untimely, and he has not proven an exception to the timeliness requirements. 

Thus, he is not entitled to relief. See Commonwealth v. Albrecht, 994 A.2d 

1091, 1095 (Pa. 2010) (affirming dismissal of PCRA petition without a hearing 

because the appellant failed to meet burden of establishing timeliness 

exception).
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2019