J-S10002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DANIEL R. WITUCKI                        :
                                          :
                    Appellant             :   No. 1498 MDA 2019

           Appeal from the PCRA Order Entered August 28, 2019
              In the Court of Common Pleas of Tioga County
           Criminal Division at No(s): CP-59-CR-0000568-1998


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                        FILED MARCH 09, 2020

      Daniel R. Witucki appeals, pro se, from the order dismissing his petition

for writ of habeas corpus pursuant to the Post Conviction Relief Act (PCRA),

see 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

      In June of 1998, a jury convicted Witucki of first-degree murder for

fatally shooting the victim three times with a rifle. He was sentenced the same

day to a mandatory term of life imprisonment. This Court affirmed his

judgment of sentence, and our Supreme Court subsequently denied his

petition for allowance of appeal.

      In November of 2000, Witucki filed his first PCRA petition, pro se.

Counsel was appointed who filed an amended petition. After a hearing, the

PCRA court denied the petition. We affirmed the denial and our Supreme Court
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denied allowance of appeal. Witucki subsequently filed serial unsuccessful

petitions for collateral relief in 2012, 2014, and 2016.

      On February 15, 2018, Witucki filed a petition for writ of habeas corpus.

In the petition he alleged he is illegally confined because the sentencing

statute for first-degree murder, 18 Pa.C.S. § 1102(a), is void for vagueness

and unconstitutional because it only applies to capital cases. He also

specifically averred that his claim was not cognizable under the PCRA.

      The PCRA court, concluding that Witucki’s claim asserted the illegality

of his sentence, treated his habeas petition as a PCRA petition subject to the

PCRA’s timeliness provisions. On that basis, the PCRA court determined that

Witucki’s petition was untimely, and that he had not pled an exception to the

time bar. As such, the court issued notice, pursuant to Pa.R.Crim.P. 907, of

its intent to dismiss his petition. After receiving a response from Witucki, the

court dismissed the petition on June 1, 2018. We affirmed the dismissal.

      On March 7, 2019, Witucki filed his most recent petition for writ of

habeas corpus. This time, he again argued that he is illegally confined based

on Section 1102(a) being void for vagueness, but this time contending that

the statute does not give fair notice that life imprisonment means life

imprisonment without parole.

      The PCRA court dismissed the petition, which it labeled as “essentially a

PCRA petition”, finding Witucki is not entitled to relief because there are no




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genuine issues of material fact. See PCRA Court Order, 8/28/2019. The court

further found the petition to be entirely frivolous. See id. This appeal followed.

      Preliminarily, we must determine whether the remedy Moore is seeking

on appeal may be addressed under habeas corpus review or if a remedy exists

under the PCRA. If “a defendant's post-conviction claims are cognizable under

the PCRA, the common law and statutory remedies now subsumed by the

PCRA are not separately available to the defendant.” Commonwealth v.

Hall, 771 A.2d 1232, 1235 (Pa. 2001) (citations omitted). The PCRA

incorporates the remedy of habeas corpus if it offers the petitioner a remedy

pursuant to that Act. See Commonwealth v. West, 938 A.2d 1034, 1043

(Pa. 2007). Similarly, the writ of habeas corpus is not an available remedy if

relief could be obtained via a post-conviction hearing proceeding. See 42

Pa.C.S.A. § 6503. Therefore, regardless of how the petition is styled, “a

defendant cannot escape the PCRA time-bar by titling his motion as a writ of

habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.

2013) (footnote omitted).

      A filing pursuant to the PCRA “provides for an action by which … persons

serving illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542.

The PCRA is the sole pathway to obtain collateral relief, which therefore

subsumes common law and statutory remedies including the right to habeas

corpus relief. See id.; see also Commonwealth v. Deaner, 779 A.2d 578,

580 (Pa. Super. 2001) (“It is well settled that any collateral petition raising


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issues with respect to remedies offered under the PCRA will be considered a

PCRA petition.”).

      This     Court   has   addressed    a    similar   challenge   previously   in

Commonwealth v. Rouse, 191 A.3d 1 (Pa. Super. 2018). Specifically, in

Rouse, the appellant submitted a pro se habeas corpus petition, asserting

that the sentencing statute for second-degree murder was “void for

vagueness, in violation of his due process rights.” Id. at 2. The PCRA court

treated his petition as a PCRA petition after concluding that the appellant’s

claim “asserted the illegality of his sentence.” Id. at 3. On appeal, this Court

disagreed, and held that the appellant’s assertion that the statute was void

for vagueness did not qualify as a challenge under the PCRA statute. See id.

at 7. Instead, this Court treated the appellant’s submission as a petition for

habeas corpus relief, but ultimately held that that his claim was waived

because he failed to “exhaust all available remedies before resorting to habeas

corpus.” Id.

      We find this case to be very similar to Rouse. Witucki’s petition likewise

asserted that the first-degree murder sentencing statutes are unconstitutional

and void under the vagueness doctrine because they fail to give notice that

the true punishment is life imprisonment without parole. Pursuant to Rouse,

this claim qualifies as a petition for habeas corpus relief, not a PCRA petition.




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See Rouse, 191 A.3d at 7. Nonetheless, we conclude that Witucki has waived

his claim, although for a different rationale than in Rouse.1

       Our review of the record indicates that Witucki’s Pa.R.A.P. 1925(b)

statement and subsequently filed brief do not correspond to the same issue

raised. In fact, his brief appears to raise arguments related to his appeal from

the denial of his previous petition for writ of habeas corpus in 2018.

       Specifically, his current appellate brief filed on December 10, 2019,

states that it is an appeal from the PCRA court’s June 1, 2018 order and sets

out an argument based on the issues raised in his February 15, 2018 petition

for habeas corpus, namely that he is illegally confined because the first-degree

murder statute is void for vagueness in that first-degree murder can only be

entered in a capital case. See Appellant’s Brief, at 8. His Rule 1925(b)

statement similarly claims that the statute is unconstitutionally vague since

he believes it can only be applied in a capital case. See Statement of Matters

Complained of on Appeal, 10/28/2019, at ¶ 1.

       However, the current appeal was taken from the most recent petition

for habeas corpus which was filed on March 7, 2019, and dismissed on August



____________________________________________


1 Witucki acknowledges that he did not raise this issue before the sentencing
court or in a post-sentence motion. See id. (finding waiver based on failure
to preserve habeas issue at an earlier stage). However, he argues he is
exempt from waiver because he was not explicitly told that he had to raise
such claims in a post-sentence motion to preserve them. We find that we need
not address this issue, as we ultimately find waiver based on a different
rationale.

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28, 2019. In his most recent petition, he bases his argument on the fact that

the statute does not give adequate notice that life imprisonment means life

without parole. See Petition for Habeas Corpus Relief, 3/7/2019, at 2. As the

issue he develops in his brief is distinct from the issue raised in his petition,

we conclude both issues are waived. The issue raised in his petition has been

waived for failure to adequately develop it on appeal.2 He has waived the issue

presented in his brief by failing to preserve in the court below. See Pa.R.A.P.

302(a).

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/09/2020




____________________________________________


2 A pro se litigant is entitled to no special benefit and must comply with all
applicable requirements. See Commonwealth v. Lyons, 833 A.2d 245, 251–
52 (Pa. Super. 2003). “When issues are not properly raised and developed in
briefs, when the briefs are wholly inadequate to present specific issues for
review[,] a Court will not consider the merits thereof.” Branch Banking and
Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006).

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