J-S12041-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
EX REL. THEODORE W. SCHELL SR.,           :           PENNSYLVANIA
                                          :
                 v.                       :
                                          :
MICHAEL WENEROWICZ,                       :
SUPERINTENDENT, SCI GRATERFORD,           :
ET AL., JACK J. WHELAN, ESQUIRE,          :
DELAWARE COUNTY DISTRICT                  :
ATTORNEY,                                 :
                                          :
APPEAL OF: THEODORE W. SCHELL,            :
SR.                                       :   No. 1272 EDA 2015

                 Appeal from the Order Dated March 31, 2015,
              in the Court of Common Pleas of Delaware County,
                     Civil Division, at No(s): 2013-0004380

BEFORE:     MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 18, 2016

      Theodore W. Schell, Sr. (Schell) appeals pro se from an order denying

his petition for writ of habeas corpus ad subjiciendum. We affirm.

      The trial court summarized the background underlying this matter as

follows.

            [Schell] was convicted by a jury of two counts each of
      murder in the first degree, aggravated assault, recklessly
      endangering another person, as well as one count of possessing
      an instrument of crime on January 30, 1976. A jury found
      [Schell] guilty of the shooting deaths of his ex-wife’s parents.
      Following the trial, [Schell] was sentenced to [consecutive]
      terms of life imprisonment for the first[-]degree murder
      convictions [] on September 14, 1977. A direct appeal was filed
      to the Superior Court on October 6, 1977 and on June 1, 1979,
      the Superior Court affirmed the judgment of sentence after
      finding that [Schell] had failed to preserve any of the issues for
      appellate review. Commonwealth v. Schell, [] 405 A.2d 330

*Retired Senior Judge assigned to the Superior Court.
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      ([Pa. Super.] 1979). Thereafter, Schell filed a petition under the
      Post-Conviction Hearing Act (hereinafter referred to as “PCHA”)
      on March 27, 1981. On April 18, 1983, the PCHA Court denied
      relief, but granted [Schell] the right to file an appeal nunc pro
      tunc. [Schell] filed his appeal, and the Superior Court affirmed
      his judgment of sentence. Commonwealth v. S[c]hell, 503
      A.2d 51 (Pa. Super. 1985) (unpublished memorandum). The
      Pennsylvania Supreme Court denied allowance of appeal on
      December 2, 1986.

             Several petitions under the Post-Conviction Relief Act
      (hereinafter referred to as “PCRA”) followed[, …. which were,
      a]ccording to this court’s calculations, his fourth and fifth overall.
      After a review of the case, this court denied these petitions. The
      Superior Court affirmed both of these denials. [Schell] then filed
      a [p]etition for [w]rit of [h]abeas [c]orpus ad subjiciendum on
      May 3, 2013. On April 14, 2014, he filed an amended petition.
      Following another thorough review of the record in this case, the
      court dismissed [Schell’s] petition on March 31, 2015. A motion
      for reconsideration was denied on April 15, 2015. This [timely-
      filed] appeal followed.

Trial Court Opinion, 10/15/2015, at 1-2 (footnotes and some citations

omitted).1

      We now try to discern Schell’s arguments on appeal. As is common

with pro se prisoner litigation of this type, the arguments presented to us

are confusing and inartfully-stated.        Schell co-mingles numerous legal

principles in a lengthy dialogue about his conviction and sentence.

      We first consider Schell’s claims regarding his sentencing order.

Schell’s Brief at 1-9. “Schell does not deny that he was found guilty by the

1
   The trial court did not order Schell to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, Schell did
file a statement, which was essentially a copy of his writ of habeas corpus ad
subjiciendum.



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jury of murder in the first degree … [and] the Commonwealth was not

seeking the death sentence in this case, but [was] rather seeking

consecutive life sentences.” Schell’s Brief at 2.   However, Schell contends

that during a closing argument, the Commonwealth stated that a life

sentence was only 7½ to 15 years’ incarceration, and that he would be

eligible for parole. Id. Schell argues that because he has served that time,

he is entitled to be released from prison. Moreover, Schell claims that the

document relied upon by the trial court, a court commitment document

stating that Schell was sentenced to life in prison, is invalid as a sentencing

order.

            Initially, we note that the Pennsylvania Supreme Court,
      albeit in a per curiam opinion, has held that a claim that a
      defendant’s sentence is illegal due to the inability of the DOC to
      “produce a written sentencing order related to [his] judgment of
      sentence” constitutes a claim legitimately sounding in habeas
      corpus. Brown v. Penna. Dept. of Corr., [] 81 A.3d 814, 815
      ([Pa.] 2013) (per curiam) (citing Commonwealth ex rel.
      Bryant v. Hendrick, [] 280 A.2d 110, 112 ([Pa.] 1971);
      Warren v. DOC, [] 616 A.2d 140, 142 ([Pa. Cmwlth.] 1992)
      (“An application for a writ of habeas corpus requests the
      applicant’s release from prison.”)).

            Our standard of review in this context is axiomatic:

                  The ancient writ of habeas corpus is inherited
            from the common law, referred to by Sir William
            Blackstone as the most celebrated writ in the English
            law. The writ lies to secure the immediate release of
            one who has been detained unlawfully, in violation of
            due process. [T]raditionally, the writ has functioned
            only to test the legality of the petitioner’s detention.




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     Commonwealth v. Wolfe, [] 605 A.2d 1271, 1272–73 ([Pa.
     Super.] 1992) (internal citations omitted). “Under Pennsylvania
     statute, habeas corpus is a civil remedy [that] lies solely for
     commitments under criminal process.” Commonwealth v.
     McNeil, [] 665 A.2d 1247, 1249–50 ([Pa. Super.] 1995) (citing
     Wolfe, 605 A.2d at 1273). “Habeas corpus is an extraordinary
     remedy and may only be invoked when other remedies in the
     ordinary course have been exhausted or are not available.” Id.
     (citing Commonwealth ex rel. Kennedy v. Myers, [] 143 A.2d
     660, 661 ([Pa.] 1958)). “Our standard of review of a trial court’s
     order denying a petition for [a] writ of habeas corpus is limited
     to [an] abuse of discretion.” Rivera v. Penna. Dep’t of Corrs.,
     837 A.2d 525, 528 (Pa. Super. 2003).

Joseph v. Glunt, 96 A.3d 365, 368-69 (Pa. Super. 2014).

     In response to Schell’s arguments, the trial court offered the following:

           This court has reviewed [Schell’s] record including the
     notes of testimony from [Schell’s] sentencing hearing on
     September 14, 1977, the previous opinions authored by the
     sentencing judge and those of the Superior Court, and the court
     commitment order dated September 14, 1977. They all reveal
     that [Schell] was sentenced to two consecutive life sentences by
     the Honorable Robert A. Wright. While [Schell] maintains that a
     sentencing order has not been provided to the DOC to reflect
     this sentence, the record clearly reflects his sentence, and he is
     not entitled to relief on this claim.

Trial Court Opinion, 10/15/2015, at 4.

     The trial court’s conclusion is consistent with the holding in Joseph,

wherein Joseph set forth similar arguments.

            [Joseph] has cited no apposite legal authorities
     demonstrating that the undisputed record of his judgment of
     sentence maintained by the sentencing court constitutes
     insufficient authority for his continuing detention. See T.C.O. at
     2 (“Through use of the Common Pleas Case Management
     System, the [thirteen] page criminal docket of [Joseph] ... was
     obtained. This docket shows that [Joseph] was found guilty of
     First Degree Murder.... He was sentenced to life without parole



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      by ... Judge John F. Cherry.”); see also Dauphin County
      Criminal Docket CP–22–CR–0001269–2009 at 6. … [C]ourts
      confronting this issue in the past have deemed a record of the
      valid imposition of a sentence as sufficient authority to maintain
      a prisoner’s detention notwithstanding the absence of a written
      sentencing order[.] Both the criminal docket provided by the
      trial court and the transcript of the sentencing hearing confirm
      the imposition, and legitimacy, of [Joseph’s] sentence.

            Based upon the foregoing, we discern no merit in
      [Joseph’s] arguments. The trial court properly reviewed the
      record and discovered a valid sentencing order contained
      therein. Moreover, the trial court correctly concluded that,
      even in the absence of a written sentencing order, the
      DOC had continuing authority to detain [Joseph].

Joseph, 96 A.3d at 372 (emphasis added).        Thus, we conclude the trial

court did not abuse its discretion in denying Schell’s petition for writ of

habeas corpus as the DOC has continuing authority to detain him because he

was sentenced to life in prison.

      Schell next sets forth a series of arguments about the evidence

presented against him at trial. Schell’s Brief at 14-24.    For example, he

argues that the Commonwealth questioned a witness improperly; that the

Commonwealth presented “false” testimony; and, that the Commonwealth

suppressed forensic evidence.

            It 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.




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

(citations omitted).

      Schell’s aforementioned contentions had remedies available from PCRA

proceedings. Accordingly, those claims are subject to the jurisdictional time-

bar of the PCRA.

      Generally, a PCRA petition must be filed within one year from the
      date a judgment becomes final.[2] There are three exceptions to
      this time requirement: (1) interference by government officials
      in the presentation of the claim; (2) newly discovered facts; and
      (3) an after-recognized constitutional right. When a petitioner
      alleges and proves that one of these exceptions is met, the
      petition will be considered timely. A PCRA petition invoking one
      of these exceptions must be filed within 60 days of the date the
      claims could have been presented. The timeliness requirements
      of the PCRA are jurisdictional in nature and, accordingly, a PCRA
      court cannot hear untimely petitions.

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(footnote added; citations and quotation marks omitted).

      On December 2, 1986, our Supreme Court denied Schell’s petition for

allowance of appeal, and Schell did not file a writ of certiorari to the United




2
  “PCRA petitioners whose judgment of sentence became final prior to the
effective date of the amendments to the PCRA ha[d] until January 17, 1997
to file a timely [petition].” Commonwealth v. Baldwin, 789 A.2d 728, 730
(Pa. Super. 2001). As discussed infra, Appellant’s judgment of sentence
became final prior to 1997; thus, Appellant had the benefit of this additional
time to file timely his first PCRA petition.


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States Supreme Court. Accordingly, Appellant had until January 17, 1997 to

file timely a PCRA petition.3

      The instant petition, filed on May 3, 2013, is patently untimely. The

PCRA court had no jurisdiction to entertain Appellant’s petition unless he

pled and offered proof of one or more of the three statutory exceptions to

the time bar.    See 42 Pa.C.S. § 9545(b)(1).    Appellant failed to do so.

Accordingly, the PCRA court properly dismissed his petition to the extent he

was raising claims with remedies available under the PCRA.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/18/2016




3
   Appellant did file timely his first PCRA petition, and was denied relief.
Subsequently, Appellant filed several untimely petitions prior to filing the
instant petition for writ of habeas corpus.


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