J-A10027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL BARONI                             :
                                               :
                       Appellant               :   No. 3593 EDA 2018

                 Appeal from the Order Dated October 31, 2018
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000845-1982


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                    FILED MAY 31, 2019

       Michael Baroni appeals from the order entered October 31, 2018, in the

Delaware County Court of Common Pleas, denying his petition for writ of

habeas corpus.1 Baroni seeks relief from the two concurrent sentences of life

imprisonment imposed on April 7, 1983, following his jury conviction of two

counts of second-degree murder and related offenses, in connection with the

January 25, 1982 fire which took the lives of a three-month-old infant and her

four-year-old sister. On appeal, Baroni argues (1) habeas corpus relief is the

proper remedy for his claim, and (2) the trial court erred in finding he was not

entitled to relief based on his assertion that that the statute under which he




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1   See 42 Pa.C.S.A. §§ 6501–6505.
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was sentenced, 18 Pa.C.S.A. § 1102(b), is unconstitutionally vague. For the

reasons below, we affirm.

      As we write primarily for the parties, a detailed factual and procedural

history is unnecessary. As noted above, a jury convicted Baroni of murder in

the second degree and related offenses in 1982; the trial court sentenced him

to two concurrent mandatory life sentences in 1983. This Court affirmed the

judgment of sentence on March 22, 1985. Commonwealth v. Baroni, 494

A.2d 475 (Pa. Super. 1985) (unpublished memorandum). The Pennsylvania

Supreme Court denied leave to appeal on October 4, 1985.

      Since that time, Baroni has filed numerous petitions in both state and

federal court in an attempt to overturn his conviction. Relevant to the instant

proceeding, on September 5, 2018, this Court denied Baroni’s eighth PCRA

petition.   Commonwealth v. Baroni, 198 A.3d 423 (Pa. Super. 2018)

(unpublished memorandum).         On September 24, 2018, Baroni filed the

instant, pro se petition for a writ of habeas corpus. On October 31, 2018, the

trial court denied the petition, and this timely appeal followed. The trial court

did not order Baroni to file a concise statement of errors complained of on

appeal.

      On January 3, 2019, the trial court issued an opinion. In its opinion, the

trial court stated that, if it deemed Baroni’s pleadings to be a ninth PCRA

petition, it lacked jurisdiction to consider it pursuant to the Pennsylvania

Supreme Court’s decision in Commonwealth v. Lark, 746 A.2d 585, 588


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(Pa. 2000).2 Trial Court Opinion, 1/03/2019, at 1. It further held that, if it

treated the pleadings as a petition for a writ of habeas corpus, Baroni had

waived his claim because he had not raised it at sentencing. Id. at 2.

        Preliminarily, we must determine whether we review Baroni’s petition

under the habeas corpus statute or under the PCRA.            Although the PCRA

explicitly states it “shall be the sole means of obtaining collateral relief,”3 “the

privilege of the writ of habeas corpus has not been suspended in this

Commonwealth” and is available “for the rare instance where the PCRA offers

no remedy.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007).

        In a recent decision, a panel of this Court addressed the same issue

raised by Baroni, and held that a challenge to a sentencing statute as void for

vagueness was appropriately addressed via a petition for a writ of habeas

corpus rather than the PCRA. See Commonwealth v. Smith, 194 A.3d 126,

136-138 (Pa. Super. 2018).           In Smith, this Court distinguished between

constitutional challenges to a sentencing statute as void for vagueness and

challenges to an illegal sentence under the PCRA, Id., and stated:

        [a]ppellant’s void-for-vagueness claim is a sentencing issue that
        presents a legal question that is qualitatively distinct from the
        categories of illegal sentences recognized by our courts. It does
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2 The Lark Court held “when an appellant’s PCRA appeal is pending before a
court, a subsequent PCRA petition cannot be filed until the resolution of review
of the pending PCRA petition by the highest state court in which review is
sought, or upon the expiration of the time for seeking such review.” Lark,
supra at 588.

3   42 Pa.C.S.A. § 9542.

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      not challenge the sentencing court’s authority or actions insomuch
      as it challenges the legislature’s alleged failure. . . .

Id. at 138.

      Thus, pursuant to Smith, we will evaluate Baroni’s pleading as a petition

for a writ of habeas corpus rather than a PCRA petition. In considering an

order denying a petition for writ of habeas corpus, we must consider the

following:

      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.

                                   ****

      Accordingly, the writ may be used only to extricate a petitioner
      from illegal confinement or to secure relief from conditions of
      confinement that constitute cruel and unusual punishment.

Rivera v. Pennsylvania Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super.

2003), appeal denied, 857 A.2d 680 (Pa. 2004).

      In Smith, we held that even though a defendant could raise a void for

vagueness challenge to a sentencing statute in a petition for a writ of habeas

corpus and, thus, it was not subject to the PCRA’s timeliness requirement, the

claim was subject to ordinary waiver analysis. Id. However, we held that the

appellant had waived his sentencing challenge because, “[it] could have been

raised at his sentencing hearing, or in a post-sentence motion, he failed to




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exhaust all available remedies before resorting to the habeas corpus remedy.”

Id.

       Here, as the trial court correctly noted, Baroni did not raise this claim at

sentencing or in a post-sentence motion. Trial Ct. Op., at 2. Thus, Baroni

failed to exhaust all available remedies and waived his claim. Smith, supra

at 138.

       Accordingly, we find no abuse of discretion on the part of the trial court

in denying Baroni’s petition for writ of habeas corpus.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/19




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4Moreover, we agree with the trial court that if Baroni’s petition was to be
deemed a PCRA petition, the court lacked jurisdiction to review it pursuant to
our Supreme Court’s decision in Lark, supra.

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