               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin D. Jordan,                            :
                     Appellant              :
                                            :    No. 496 C.D. 2016
              v.                            :
                                            :    Submitted: June 24, 2016
Trevor A. Wingard and                       :
Kathleen G. Kane                            :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                        FILED: November 21, 2016


              Kevin D. Jordan (Appellant) appeals, pro se, from the October 6, 2015
order of the Court of Common Pleas of Montgomery County (trial court), which
sustained the amended preliminary objections of Trevor A. Wingard and Kathleen G.
Kane (together, Appellees)1 and dismissed Appellant’s application for writ of habeas
corpus ad subjiciendum.


                             Facts and Procedural History
              On March 26, 2009, a jury found Appellant guilty of criminal
conspiracy, criminal attempt, criminal solicitation, possessing instruments of crime,

       1
         When this litigation commenced, Appellee Wingard was the superintendent at the State
Correctional Institution at Somerset (SCI-Somerset) and Appellee Kane was the Attorney General
of Pennsylvania.
and criminal use of a communication facility.2 On June 16, 2009, Appellant was
sentenced to an aggregate term of twelve to twenty-four years’ incarceration and is
currently confined at SCI-Somerset.3
               On October 21, 2011, Appellant filed a pro se petition for relief pursuant
to the Pennsylvania Post Conviction Relief Act (PCRA)4 with the trial court, which
was dismissed on July 11, 2012.5
               On January 20, 2015, Appellant filed the instant habeas corpus
application with the trial court, alleging that his conviction was procured by fraud and
unlawful spoliation of evidence. Specifically, Appellant alleged that: false testimony
was provided to a grand jury to obtain an indictment for crimes he never committed;
the   Commonwealth            intentionally     destroyed      exculpatory   evidence;   the
Commonwealth lost evidence depicting the overt acts that allegedly were the basis for
his conspiracy charges; he was precluded from offering testimony regarding the
legitimate purpose of the alleged instruments of crime for which he was convicted;
and he was charged with a fabricated firearm charge as a pretense to keep him
imprisoned to maintain the integrity of an ongoing narcotics investigation. Appellant
also averred that the trial court’s sentence was illegal because it applied the
mandatory minimum sentence in section 9714 of the Sentencing Code6 in violation of

      2
          See 18 Pa.C.S. §§901-903, 907, and 7512, respectively.

      3
         The Pennsylvania Superior Court affirmed the sentence and the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal.

      4
          42 Pa.C.S. §§9541-9546.

      5
         The Pennsylvania Superior Court affirmed the denial of post-conviction relief and
Appellant did not seek allowance of appeal to the Pennsylvania Supreme Court.

      6
          42 Pa.C.S. §9714.



                                                 2
the United States Supreme Court’s decision in Alleyne v. United States, __ U.S. __,
133 S.Ct. 2151 (2013), which held that any fact that increases mandatory minimum
sentencing is an element of the crime that must be submitted to a jury and found
beyond a reasonable doubt.
              On January 27, 2015, Appellees filed preliminary objections to
Appellant’s habeas application, alleging that, although Appellant is seeking a writ of
habeas corpus, the trial court did not have jurisdiction over the application because it
constituted an untimely PCRA petition.7 Appellees noted that the PCRA is the sole
means for achieving post-conviction relief and subsumes the writ of habeas corpus
unless the PCRA does not provide a remedy. According to Appellees, Appellant’s
claim is cognizable under the PCRA because he was convicted of a crime, is
currently imprisoned for that crime, and is challenging the constitutionality of his
sentence. Therefore, Appellees argued that Appellant’s application must be treated as
a PCRA petition, the trial court lacked jurisdiction over the PCRA petition because it
was not filed within the one-year statute of limitations, and Appellant did not satisfy
any of the exceptions to the timeliness requirement.
              On February 7, 2015, Appellant filed preliminary objections to
Appellees’ preliminary objections, arguing, inter alia, that Appellees’ preliminary
objections should be overruled because Appellant’s firearm charge was nolle prossed
and, therefore, he could not challenge the same or obtain relief under the PCRA.
              On February 12, 2015, Appellees filed a response to Appellant’s
preliminary objections, asserting that Appellant’s argument that his conviction was

       7
          On January 27, 2015, Appellees also filed a motion to amend preliminary objections for
failure to provide the requisite Notice to Plead, which the trial court granted on February 6, 2015.
Appellees filed amended preliminary objections on February 9, 2015, and Appellant filed a
response to Appellees’ amended preliminary objections on March 2, 2015.



                                                 3
unlawfully obtained constitutes a collateral attack on his conviction and, therefore, is
cognizable under the PCRA.8
               By order dated April 23, 2015, the trial court overruled Appellant’s
preliminary objections and directed him to file a response to Appellees’ preliminary
objections within twenty days, which Appellant filed on May 6, 2015. On July 28,
2015, Appellant filed a motion for summary judgment, alleging that no genuine issue
of material fact exists and that he is entitled to judgment as a matter of law because
the firearm charge was nolle prossed and, therefore, he is ineligible for PCRA relief.
On August 13, 2015, Appellees filed a motion to strike Appellant’s motion for
summary judgment, alleging that Appellant’s motion for summary judgment was
premature because the pleadings had not closed; specifically, Appellees’ amended
preliminary objections were still pending.
               By order dated October 6, 2015, the trial court sustained Appellees’
amended preliminary objections and dismissed Appellant’s habeas application
without prejudice to file a PCRA petition in the trial court’s criminal division.9
Appellant filed a timely appeal.10




       8
         By order dated April 16, 2015, the trial court transferred and consolidated the matter with a
case pending in the trial court’s criminal division. However, by order dated April 22, 2015, the trial
court vacated its April 16, 2015 order.

       9
        On October 28, 2015, Appellant filed a motion requesting clarification of the trial court’s
October 6, 2015 order directing Appellant to file a PCRA petition because any PCRA petition
would be untimely. This motion is currently outstanding.

       10
          By order dated February 16, 2016, the Pennsylvania Superior Court transferred the present
matter to this Court pursuant to Pennsylvania Rule of Appellate Procedure 751.




                                                  4
              On appeal to this Court,11 Appellant argues that the trial court erred in
determining that his claim was cognizable under the PCRA because it involved a
firearm charge that was nolle prossed. According to Appellant, he does not meet the
eligibility requirements for PCRA relief and, therefore, the only relief available to
him is through a habeas application. Additionally, Appellant alleges that the trial
court erred in sustaining Appellees’ preliminary objections and dismissing his
complaint without prejudice to file a PCRA petition because any subsequent PCRA
petition would be untimely. Appellant further avers that the trial court should have
conducted an evidentiary hearing on his habeas petition because he has pled facts
demonstrating that a firearm was planted to preserve the integrity of an ongoing
narcotics investigation, which indicates fraud on the court and an abuse of process.
Moreover, Appellant argues that an evidentiary hearing is warranted because the
Commonwealth deliberately destroyed exculpatory evidence and committed unlawful
spoliation of evidence.
              Conversely, Appellees argue that the trial court’s decision was proper
because Appellant was convicted of a crime, is currently imprisoned for that crime,
and alleges that he is serving an illegal sentence in violation of his constitutional
rights. According to Appellees, Appellant is seeking to collaterally attack his current
conviction, which makes his claims cognizable under the PCRA.




       11
           Our review of a trial court’s order sustaining preliminary objections and dismissing a
complaint is limited to determining whether the trial court abused its discretion or committed an
error of law. Podolak v. Tobyhanna Township Board of Supervisors, 37 A.3d 1283, 1286-87 (Pa.
Cmwlth. 2012).



                                               5
                                     Discussion
            Regarding habeas corpus relief, the general rule is that “an application
for habeas corpus to inquire into the cause of detention may be brought by or on
behalf of any person restrained of his liberty within this Commonwealth under any
pretense whatsoever.”    42 Pa.C.S. §6503(a).      However, “[w]here a person is
restrained by virtue of sentence after conviction for a criminal offense, the writ of
habeas corpus shall not be available if a remedy may be had by post-conviction
hearing proceedings authorized by law.” 42 Pa.C.S. §6503(b).
            Indeed, the PCRA states:

            This subchapter provides for an action by which persons
            convicted of crimes they did not commit and persons
            serving illegal sentences may obtain collateral relief. The
            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. This subchapter
            is not intended to limit the availability of remedies in the
            trial court or on direct appeal from the judgment of
            sentence, to provide a means for raising issues waived in
            prior proceedings or to provide relief from collateral
            consequence of a criminal conviction. . . .
42 Pa.C.S. §9542 (emphasis added).
            Section 9543(a) of the PCRA states the eligibility requirements for
PCRA relief:

            (a) General Rule.-- To be eligible for relief under this
            subchapter, the petitioner must plead and prove by a
            preponderance of the evidence all of the following:

                   (1) That the petitioner has been convicted of a crime
                   under the laws of this Commonwealth and is at the
                   time relief is granted:


                                         6
                          (i)    currently serving a sentence of
                          imprisonment, probation or parole for the
                          crime;

                                     *      *      *

                    (2) That the conviction or sentence resulted from one
                    or more of the following:

                          (i) A violation of the Constitution of this
                          Commonwealth or the Constitution or laws of
                          the United States which, in the circumstances
                          of the particular case, so undermined the truth-
                          determining process that no reliable
                          adjudication of guilt or innocence could have
                          taken place.

                                     *      *      *

                    (3) That the allegation of error has not been
                    previously litigated or waived.

                    (4) That the failure to litigate the issue prior to or
                    during trial, during unitary review or on direct appeal
                    could not have been the result of any rational,
                    strategic or tactical decision by counsel. [12]
42 Pa.C.S. §9543(a) (emphasis added).
             It is well settled that “[i]ssues concerning the legality of sentence are
cognizable under the PCRA.” Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super.
2004). Cf. Commonwealth v. West, 938 A.2d 1034, 1044 (Pa. 2007) (holding that the
defendant’s challenge fell outside the ambit of the PCRA because his claim “[did] not
implicate the truth determining process underlying his conviction and sentence, nor
[did] it implicate the legality of the sentence imposed.”). However, the writ of habeas


      12
         By Pennsylvania Supreme Court order of August 11, 1997, section 9543(a)(4) of the
PCRA is permanently suspended insofar as it references “unitary review.”



                                            7
corpus continues to exist as a separate remedy if the claim raised is not cognizable
under the PCRA. Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. Super. 1998).
               In his habeas application, Appellant challenged the legality of his
current sentence and the process that led to his conviction. Specifically, Appellant
alleged that his sentence is unconstitutional because: the Commonwealth improperly
sought mandatory sentencing under 42 Pa.C.S. §9714(a)(1) in violation of the United
States Supreme Court’s decision in Alleyne; the Pennsylvania Attorney General’s
Office procured a grand jury indictment by fraud and the presentation of false
testimony for crimes he never committed; the Commonwealth intentionally destroyed
material, exculpatory evidence and lost evidence that was within its sole possession;
the Commonwealth never proved he committed overt acts necessary for a conspiracy
conviction; and he was precluded from offering testimony regarding the legitimate
purpose of the alleged instruments of crime for which he was convicted. Because
Appellant’s claims implicate the truth-determining process and the legality of the
sentence imposed, these claims are clearly cognizable under the PCRA and should be
brought under the same.13
              Regarding Appellant’s claim that he does not meet the necessary
eligibility requirements under section 9543(a) of the PCRA, i.e., a conviction, to
challenge his firearm charge under the PCRA, we agree.                      Appellant was not
convicted of the firearm charge and, therefore, cannot challenge the same under the
PCRA. Because Appellant cannot challenge the withdrawn firearm charge under the
PCRA, the writ of habeas corpus continues to exist as a separate remedy.

       13
         This Court is unpersuaded by Appellant’s argument that the trial court erred in dismissing
his habeas application because any subsequent PCRA petition would be untimely. “[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, 466 (Pa. Super. 2013).



                                                8
               However, “[t]his Court may affirm the order of the trial court on any
basis apparent form the record.” In re Tax Claim Bureau of Lehigh County 2012
Judicial Tax Sale, 107 A.3d 853, 860 n.9 (Pa. Cmwlth. 2015). Accordingly, we now
consider the merits of Appellant’s firearm claim in the context of his habeas
application.
               The Pennsylvania Superior Court has stated that “[t]he writ of habeas
corpus does not issue unless the petition contains allegations which, if true, establish
that the prisoner is being illegally detained.” Commonwealth ex rel. Codispoti v.
Rundle, 190 A.2d 153, 154 (Pa. Super. 1963) (emphasis added). “The function of
habeas corpus is not to correct a practice but only to ascertain whether the procedure
complained of has resulted in an unlawful detention.”           Id.   In other words,
“[a]llegations which have no bearing on whether [a] petitioner is at present being
improperly or unlawfully detained are not proper subject for habeas corpus.”
Commonwealth ex rel. Davis v. Baldi, 124 A.2d 390, 392 (Pa. Super. 1956)
(emphasis added). See also Commonwealth ex rel. Gearhart v. Cavell, 144 A.2d 451,
452 (Pa. Super. 1958) (“[T]he writ of habeas corpus cannot be used to challenge a
sentence which the relator is not serving.”).
               Here, it is undisputed that Appellant’s firearm claim was withdrawn and
he is not currently detained on that charge. To the extent that Appellant seeks to
satisfy the “detention” requirement by claiming that he is currently incarcerated for
crimes for which he was convicted, then these claims would necessarily have to be
brought under the PCRA as a challenge to the legality of those convictions. That is,
any investigatory or prosecutorial misconduct associated with the firearm charge that
led to Appellant’s convictions, whether directly or indirectly, would amount to a
collateral attack on his convictions, which falls under the exclusive purview of the



                                           9
PCRA. Thus, even if Appellant was improperly detained as a pretext to maintain the
integrity of an ongoing narcotics investigation, the writ of habeas corpus does not
issue in the present matter because, if true, Appellant’s allegations have no bearing on
whether he is presently being improperly or unlawfully detained. Consequently, the
writ of habeas corpus is not available to Appellant to challenge his withdrawn firearm
charge because his allegations have no bearing on whether his current detention is
unlawful.
             Therefore, the trial court did not err in concluding that habeas relief is
unavailable to Appellant for his claims challenging the legality of his sentence
because they must be brought under the PCRA. Similarly, although he does not meet
the eligibility requirements to challenge his withdrawn firearm charge under the
PCRA, habeas relief is unavailable to Appellant because his allegations have no
bearing on whether his current detention is unlawful.
             Accordingly, the trial court’s order is affirmed.14




                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge




      14
          Based on our foregoing disposition, we need not address Appellant’s remaining
arguments.



                                           10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kevin D. Jordan,                      :
                   Appellant          :
                                      :    No. 496 C.D. 2016
            v.                        :
                                      :
Trevor A. Wingard and                 :
Kathleen G. Kane                      :



                                  ORDER


            AND NOW, this 21st day of November, 2016, the October 6, 2015
order of the Court of Common Pleas of Montgomery County is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
