J-S85029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

EDWARD T. GOODMAN

                            Appellant                 No. 387 EDA 2016


                     Appeal from the Order January 13, 2016
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0901011-1978


BEFORE: OLSON, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                          FILED JANUARY 31, 2017

        Appellant, Edward T. Goodman, pro se appeals from the January 13,

2016 order denying his petition for a writ of habeas corpus filed under 42

Pa.C.S. § 6503(a). We affirm.

        Appellant and eight other MOVE members were tried by the trial court,

sitting without a jury, from December 1979 to May 1980. Appellant was

found guilty of third degree murder, voluntary manslaughter, seven counts

of attempted murder, seven counts of aggravated assault, seven counts of

simple assault and one count of criminal conspiracy.1         See Notes of

Testimony (N.T.), 8/4/81, at 15. In August 1981, Appellant was sentenced

to ten to twenty years of incarceration on the murder charge plus eight

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1
    18 Pa.C.S. § 2502(c), 2503, 2502, 2702, 2701 and 903, respectively.

*
    Retired Senior Judge assigned to the Superior Court.
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consecutive terms of two and one-half to ten years of incarceration for the

attempted murders and conspiracy charge resulting in an aggregate term of

thirty to one hundred years of imprisonment.       Id. at 17-18.      No further

penalty was imposed on the aggravated assault.         Id. Appellant appealed,

and this Court affirmed his sentence in June 1985.         Commonwealth v.

Africa, 499 A.2d 397 (Pa. Super. 1985) (unpublished memorandum), appeal

denied, 544 A.2d 959 (Pa. 1988).

     Appellant filed two petitions under the Post Conviction Relief Act

(PCRA),   42   Pa.C.S.   §§   9541-9546,   both   of   which   were   dismissed.

Commonwealth v. Africa, 790 A.2d 355 (Pa. Super. 2001), appeal denied,

816 A.2d 1101 (Pa. 2003) (unpublished memorandum); Commonwealth v.

Goodman, 87 A. 3d 390 (Pa. Super. 2013), appeal denied, 87 A.3d 318 (Pa.

2014).

     In April 2014, Appellant pro se filed the instant habeas corpus petition

seeking relief from his sentence, as the Department of Corrections (DOC) did

not possess his sentencing order containing statutory authorization for his

continued detention. In June 2015, treating Appellant’s petition under the

PCRA, the lower court issued a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907, and Appellant filed a timely response.       On January 13,

2016, by memorandum order and opinion, the court denied Appellant’s




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petition.2    Appellant timely appealed.         The lower court did not direct

Appellant to file a court-ordered PA.R.A.P. 1925(b) statement.

       Appellant raises the following issues for our review:

       [1.] Whether the [lower court] abused its discretion in dismissing
       Appellant’s [p]etition for [w]rit of [h]abeas [c]orpus [a]d
       [s]ubjiciendum as an untimely petition pursuant to the Post
       Conviction Relief Act (PCRA)?

       [2.] Whether the [lower court] abused its discretion in dismissing
       Appellant’s [p]etition for [w]rit of [h]abeas [c]orpus [a]d
       [s]ubjiciendum since he is confined absent a [s]entencing
       [o]rder required by 42 Pa.C.S.A. § 9764(a)(8)?

Appellant’s Brief at 3.

       As an initial matter, we note Appellant’s first issue is raised for the first

time on appeal and, as such, is waived.          See Pa.R.A.P. 302 (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

       Appellant’s second claim, alleging that the DOC had no authority to

confine him absent a written sentencing order, is identical to the challenge

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2
   In its combined opinion and order, the lower court conceded that
Appellant’s petition should be considered a petition for writ for habeas
corpus and accordingly concluded that the petition was meritless.
Memorandum Opinion and Order, 1/13/16, at 2 (citing Joseph v. Glunt, 96
A.3d 365 (Pa. Super. 2014) [hereinafter cited as Joseph] (holding claim
that defendant's confinement is illegal “due to the inability of the DOC to
‘produce a written sentencing order related to [his] judgment of sentence’
constitutes claim legitimately sounding in habeas corpus”) (citations
omitted)), appeal denied, 101 A.3d 787 (Pa. 2014).




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raised in Joseph.3        The trial court correctly concluded that this Court's

holding in Joseph is controlling precedent. Thus, we will treat Appellant's

petition as a petition for writ of habeas corpus instead of a petition pursuant

to the PCRA, which only encompasses claims challenging the legality of

sentence. See 42 Pa.C.S. § 9542 (“This subchapter provides for an action

by which persons . . . serving illegal sentences may obtain collateral relief”).

       In reviewing a petition for writ of habeas corpus, our standard of

review is as follows:

       Our standard of review of a trial court's order denying a petition
       for writ of habeas corpus is limited to abuse of discretion. Thus,
       we may reverse the court's order where the court has misapplied
       the law or exercised its discretion in a manner lacking reason. As
       in all matters on appeal, the appellant bears the burden of
       persuasion to demonstrate his entitlement to the relief he
       requests.

Rivera v. Pa. Dep't of Corr., 837 A.2d 525, 528 (Pa. Super. 2003)

(citations omitted).

       The statute cited by Appellant in support of his argument provides, in

pertinent part:

       § 9764. Information required upon commitment and subsequent
       disposition

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3
  Here, as in Joseph, Appellant filed a request with the DOC for a copy of
his sentencing order pursuant to the Right-to-Know Law, 65 Pa.C.S. §§
67.101-.3104. Petition for Writ of Habeas Corpus, 4/8/14, at 2, Exhibit A.
This request was denied as the Records Supervisor of the State Correctional
Institution at Mahanoy sent Appellant an Attestation that the order did not
exist. Writ of Habeas Corpus, 4/8/14, at 2, Exhibit B.



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      (a) General rule. -- Upon commitment of an inmate to the
      custody of the Department of Corrections, the sheriff or
      transporting official shall provide to the institution's records
      officer or duty officer, in addition to a copy of the court
      commitment form DC–300B generated from the Common Pleas
      Criminal Court Case Management System of the unified judicial
      system, the following information:

            ***

      (8) A copy of the sentencing order and any detainers filed
      against the inmate which the county has notice.

42 Pa.C.S. § 9764(a)(8).

      Appellant also cites 37 Pa. Code § 91.3 (“Reception of inmates”) in

support of his claims, which provides as follows:

      [The DOC] will accept and confine those persons committed to it
      under lawful court orders ... when information has been provided
      to [the DOC] as required by 42 Pa.C.S. § 9764 (relating to
      information required upon commitment and subsequent
      disposition).

37 Pa. Code § 91.3; see Appellant’s Brief at 10.

      Though Appellant attempts to construe Section 9764 to provide the

remedy of a prisoner's release for the DOC's failure to comply with this

statute, we observed in Joseph:

      The language and structure of section 9764, viewed in context,
      make clear that the statute pertains not to the DOC's authority
      to detain a duly-sentenced prisoner, but, rather, sets forth the
      procedures and prerogatives associated with the transfer of an
      inmate from county to state detention. None of the provisions of
      section 9764 indicate an affirmative obligation on the part of the
      DOC to maintain and produce the documents enumerated in
      subsection 9764(a) upon the request of the incarcerated person.
      Moreover, section 9764 neither expressly vests, nor
      implies the vestiture, in a prisoner of any remedy for
      deviation from the procedures prescribed within.

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Joseph, 96 A.3d at 371 (emphasis supplied) (footnote omitted).

      The lower court reviewed the record and confirmed that the Honorable

Edwin Malmed entered sentencing orders in this matter on August 4, 1981.

Memorandum Opinion and Order, 1/13/16, at 2. Appellant’s sentences were

outlined in the notes of testimony of the sentencing hearing and accurately

docketed by the clerk of courts. N.T., 8/4/81, at 17-78. Thus, the DOC has

the continuing authority to detain a prisoner even without the possession of

the written sentencing order if the record of his judgment of sentence is

maintained by the sentencing court. Id. at 365.

      Accordingly, we discern no abuse of discretion and conclude that the

trial court correctly denied Appellant's petition for habeas relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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