J-S81035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RUSSELL WESLEY MOSS
Appellant No. 1582 EDA 2016
Appeal from the PCRA Order May 9, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002091-2002
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2016
Appellant Russell Moss appeals from the order of the Court of
Common Pleas of Delaware County denying his fourth petition pursuant to
the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm the
PCRA court’s order.
In July 2003, Appellant entered open guilty pleas to third-degree
murder and solicitation to commit murder in connection with the 1983
shooting of Ellen Lewis. Appellant admitted to hiring Rodney Griffin to kill
Ms. Lewis, who was cooperating with Philadelphia police in their investigation
of a unrelated bank fraud scheme in which Lewis and Appellant had been ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S81035-16
involved. Griffin was initially convicted of first-degree murder of Ellen Lewis
and sentenced to death. In exchange for his testimony against Appellant,
Griffin was removed from death row and allowed to serve a life sentence.
On September 23, 2003, the trial court sentenced Appellant to eight to
twenty years imprisonment on the murder charge and a concurrent term of
five to ten years imprisonment on the solicitation charge. This Court
affirmed the judgment of sentence on February 28, 2005.
Appellant filed his initial PCRA petition, which the lower court
dismissed on December 28, 2006. This Court affirmed the dismissal on
October 11, 2007. Appellant filed his second PCRA petition on July 21,
2014, which was dismissed as untimely filed. On November 17, 2015, this
Court affirmed the dismissal of his second PCRA petition. While his second
PCRA petition was pending, Appellant filed his third PCRA petition on April
20, 2015, which the court dismissed without prejudice on April 27, 2015.
This Court affirmed the dismissal of Appellant’s third petition, citing
Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000),
which indicates that a subsequent PCRA petition cannot be filed until the
resolution of the review of a previous PCRA petition or the expiration of the
time for seeking such review.
On November 25, 2015, Appellant filed his fourth PCRA petition
arguing that he had “after-discovered evidence” that Rodney Griffin had
agreed to testify against Appellant only after the prosecution promised
Griffin that they would remove him from death row and allow him to serve a
-2- J-S81035-16
sentence of life imprisonment. Appellant claimed that he first learned of
Griffin’s arrangement with the prosecution from his cellmate, Dante Ruffin
on March 19, 2015. In addition to this claim, Appellant argued that his
sentence was illegal as the trial court imposed a sentence in excess of the
mandatory minimum sentence, even after the Commonwealth agreed to
waive the application of the mandatory minimum. Moreover, in the case
that the lower court found Appellant ineligible for relief under the PCRA,
Appellant suggested that his claims could be construed as a petition for writ
of habeas corpus.
On April 7, 2016, the PCRA court issued notice of its intent to dismiss
Appellant’s petition, which it deemed untimely filed, without a hearing
pursuant to Pa.R.Crim.P. 907. On April 27, 2016, Appellant submitted his
response to the notice of intent to dismiss. On May 9, 2016, the PCRA court
dismissed Appellant’s petition. This timely appeal followed. Appellant
complied with the PCRA court’s direction to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
When reviewing the denial of a PCRA petition, we are guided by the
following standard:
The standard of review for an order denying post-conviction relief is limited to whether the record supports the PCRA court's determination, and whether that decision is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations
omitted).
-3- J-S81035-16
It is well-established that “the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)
(citations omitted). Generally, a PCRA petition must be filed within one year
of the date the judgment of sentence becomes final unless the petitioner
meets his burden to plead and prove one of the exceptions enumerated in
42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability
to raise a claim as a result of governmental interference; (2) the discovery
of previously unknown facts or evidence that would have supported a claim;
or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). However, the PCRA limits the reach of the exceptions by providing that
a petition invoking any of the exceptions must be filed within 60 days of the
date the claim first could have been presented. Leggett, 16 A.3d at 1146
(citing 42 Pa.C.S. § 9545(b)(2)).
As noted above, the trial court sentenced Appellant on September 23,
2003. This Court affirmed Appellant’s judgment of sentence on February 28,
2005. Appellant did not seek review in our Supreme Court. Section
9545(b)(3) of the PCRA provides that a judgment of sentence becomes final
at the conclusion of direct review or the expiration of the time for seeking
the review. 42 Pa.C.S. § 9543(b)(3). As a result, Appellant’s judgment of
sentence became final after the 30-day period in which he was allowed to
seek review in our Supreme Court. See Pa.R.A.P. 1113(a) (stating that “a
-4- J-S81035-16
petition for allowance of appeal shall be filed with the Prothonotary of the
Supreme Court within 30 days after the entry of the order of the Superior
Court … sought to be reviewed”). Thus, Appellant’s sentence became final
on March 30, 2005. As Appellant filed his fourth PCRA petition on November
25, 2015, over ten years after his sentence became final, his petition is
facially untimely.
To the extent that Appellant claims that his petition falls under the
newly discovered fact PCRA timeliness exception, his argument fails.
Appellant now concedes that the agreement between Griffin and the
Commonwealth was disclosed to Appellant in a written document at
Appellant’s arraignment on September 5, 2002. Appellant did not recall that
he also included a copy of this document in his direct appeal brief to this
Court. Thus, Appellant has not pled and proven that one of the timeliness
exceptions to the PCRA applies. As a result, we have no jurisdiction to
Free access — add to your briefcase to read the full text and ask questions with AI
J-S81035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RUSSELL WESLEY MOSS
Appellant No. 1582 EDA 2016
Appeal from the PCRA Order May 9, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002091-2002
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2016
Appellant Russell Moss appeals from the order of the Court of
Common Pleas of Delaware County denying his fourth petition pursuant to
the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm the
PCRA court’s order.
In July 2003, Appellant entered open guilty pleas to third-degree
murder and solicitation to commit murder in connection with the 1983
shooting of Ellen Lewis. Appellant admitted to hiring Rodney Griffin to kill
Ms. Lewis, who was cooperating with Philadelphia police in their investigation
of a unrelated bank fraud scheme in which Lewis and Appellant had been ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S81035-16
involved. Griffin was initially convicted of first-degree murder of Ellen Lewis
and sentenced to death. In exchange for his testimony against Appellant,
Griffin was removed from death row and allowed to serve a life sentence.
On September 23, 2003, the trial court sentenced Appellant to eight to
twenty years imprisonment on the murder charge and a concurrent term of
five to ten years imprisonment on the solicitation charge. This Court
affirmed the judgment of sentence on February 28, 2005.
Appellant filed his initial PCRA petition, which the lower court
dismissed on December 28, 2006. This Court affirmed the dismissal on
October 11, 2007. Appellant filed his second PCRA petition on July 21,
2014, which was dismissed as untimely filed. On November 17, 2015, this
Court affirmed the dismissal of his second PCRA petition. While his second
PCRA petition was pending, Appellant filed his third PCRA petition on April
20, 2015, which the court dismissed without prejudice on April 27, 2015.
This Court affirmed the dismissal of Appellant’s third petition, citing
Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000),
which indicates that a subsequent PCRA petition cannot be filed until the
resolution of the review of a previous PCRA petition or the expiration of the
time for seeking such review.
On November 25, 2015, Appellant filed his fourth PCRA petition
arguing that he had “after-discovered evidence” that Rodney Griffin had
agreed to testify against Appellant only after the prosecution promised
Griffin that they would remove him from death row and allow him to serve a
-2- J-S81035-16
sentence of life imprisonment. Appellant claimed that he first learned of
Griffin’s arrangement with the prosecution from his cellmate, Dante Ruffin
on March 19, 2015. In addition to this claim, Appellant argued that his
sentence was illegal as the trial court imposed a sentence in excess of the
mandatory minimum sentence, even after the Commonwealth agreed to
waive the application of the mandatory minimum. Moreover, in the case
that the lower court found Appellant ineligible for relief under the PCRA,
Appellant suggested that his claims could be construed as a petition for writ
of habeas corpus.
On April 7, 2016, the PCRA court issued notice of its intent to dismiss
Appellant’s petition, which it deemed untimely filed, without a hearing
pursuant to Pa.R.Crim.P. 907. On April 27, 2016, Appellant submitted his
response to the notice of intent to dismiss. On May 9, 2016, the PCRA court
dismissed Appellant’s petition. This timely appeal followed. Appellant
complied with the PCRA court’s direction to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
When reviewing the denial of a PCRA petition, we are guided by the
following standard:
The standard of review for an order denying post-conviction relief is limited to whether the record supports the PCRA court's determination, and whether that decision is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Allen, 48 A.3d 1283, 1285 (Pa.Super. 2012) (citations
omitted).
-3- J-S81035-16
It is well-established that “the PCRA's timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may not
address the merits of the issues raised in a petition if it is not timely filed.”
Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011)
(citations omitted). Generally, a PCRA petition must be filed within one year
of the date the judgment of sentence becomes final unless the petitioner
meets his burden to plead and prove one of the exceptions enumerated in
42 Pa.C.S. § 9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability
to raise a claim as a result of governmental interference; (2) the discovery
of previously unknown facts or evidence that would have supported a claim;
or (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-
(iii). However, the PCRA limits the reach of the exceptions by providing that
a petition invoking any of the exceptions must be filed within 60 days of the
date the claim first could have been presented. Leggett, 16 A.3d at 1146
(citing 42 Pa.C.S. § 9545(b)(2)).
As noted above, the trial court sentenced Appellant on September 23,
2003. This Court affirmed Appellant’s judgment of sentence on February 28,
2005. Appellant did not seek review in our Supreme Court. Section
9545(b)(3) of the PCRA provides that a judgment of sentence becomes final
at the conclusion of direct review or the expiration of the time for seeking
the review. 42 Pa.C.S. § 9543(b)(3). As a result, Appellant’s judgment of
sentence became final after the 30-day period in which he was allowed to
seek review in our Supreme Court. See Pa.R.A.P. 1113(a) (stating that “a
-4- J-S81035-16
petition for allowance of appeal shall be filed with the Prothonotary of the
Supreme Court within 30 days after the entry of the order of the Superior
Court … sought to be reviewed”). Thus, Appellant’s sentence became final
on March 30, 2005. As Appellant filed his fourth PCRA petition on November
25, 2015, over ten years after his sentence became final, his petition is
facially untimely.
To the extent that Appellant claims that his petition falls under the
newly discovered fact PCRA timeliness exception, his argument fails.
Appellant now concedes that the agreement between Griffin and the
Commonwealth was disclosed to Appellant in a written document at
Appellant’s arraignment on September 5, 2002. Appellant did not recall that
he also included a copy of this document in his direct appeal brief to this
Court. Thus, Appellant has not pled and proven that one of the timeliness
exceptions to the PCRA applies. As a result, we have no jurisdiction to
review his untimely claims under the PCRA.
Moreover, we reject Appellant’s attempt to escape the PCRA’s time bar
by claiming he is entitled to characterize his filing as a petition for writ of
habeas corpus. Appellant’s remaining claim challenging the trial court’s
authority to sentence him to a term exceeding the mandatory minimum,
which the Commonwealth waived, raises a challenge to the legality of
sentence, a claim which is cognizable under the PCRA. “Issues that are
cognizable under the PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition.” Commonwealth v. Taylor,
-5- J-S81035-16
65 A.3d 462, 466 (Pa.Super. 2013). See 42 Pa.C.S. § 9542 (“This
subchapter provides for an action by which persons … serving illegal
sentences may obtain collateral relief”). It is well-established that the PCRA
“shall be the sole means of obtaining collateral relief and encompasses all
other common law and statutory remedies … including habeas corpus and
coram nobis.” Commonwealth v. Descardes, --- Pa.---, 136 A.3d 493,
497–98 (2016) (citing 42 Pa.C.S. § 9542). Accordingly, we decline to review
his claim and conclude that the PCRA court correctly dismissed Appellant’s
PCRA petition as untimely filed.
Order affirmed. Appellant’s application to file a supplemental brief is
granted.2
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/23/2016
____________________________________________
2 Appellant requested to file a supplemental brief to further explain why this Court should find him eligible for habeas relief, arguing that his claim implicates the discretionary aspects of sentence. Even assuming arguendo that Appellant had raised a challenge to the trial court’s discretion, he fails to acknowledge that such issues, while not cognizable under the PCRA, must be preserved and raised on direct appeal.
-6-