J-S21019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DALE MICHAEL WAKEFIELD                  :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ROBERT GILMORE                          :    No. 1371 WDA 2019

              Appeal from the Order Entered August 26, 2019
     In the Court of Common Pleas of Somerset County Civil Division at
                          No(s): 517 Civil 2019


BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                              FILED JUNE 03, 2020

      Appellant, Dale Michael Wakefield, appeals pro se from the August 26,

2019 Order entered in the Somerset County Court of Common Pleas Civil

Division dismissing his Petition for Writ of Habeas Corpus and denying his

request to proceed In Forma Pauperis (“IFP”). After careful review, we affirm.

      The relevant facts and procedural history are, briefly, as follows. Since

2014, Appellant has been serving a life sentence at SCI-Somerset imposed

after he pleaded guilty to Murder and Aggravated Assault.

      In early 2018, the Commonwealth charged Appellant with one count

each of Criminal Homicide, Assault by Prisoner, and Aggravated Assault after

prison staff discovered Appellant’s cellmate dead in their shared cell in the

Restricted Housing Unit. On May 14, 2018, the Commonwealth filed a notice

of aggravating circumstances and intent to seek the death penalty. Appellant

waived his right to counsel and filed pro se numerous pretrial motions.
J-S21019-20



        On May 2, 2018, Appellant filed pro se1 a Request to Proceed IFP and a

Petition for Writ of Habeas Corpus in which he claimed that Criminal Homicide

is not a valid charge and that it, therefore, fails to confer necessary subject

matter jurisdiction over his case to the court of common pleas.        The civil

division of the Somerset County Court of Common Pleas transferred the

Petition to the criminal division for disposition.

        On January 25, 2019, the criminal trial court held a hearing on

Appellant’s Petition, and thereafter denied it.2

        Relevant to this Appeal, on August 15, 2019, Appellant again filed pro

se in the civil division a Petition for Writ of Habeas Corpus and request to

proceed IFP raising the same issues and presenting the same arguments as

in his May 2, 2018 Petition, i.e., that Criminal Homicide is a non-existent

offense and that the criminal division of the court of common pleas, therefore,

lacked subject matter jurisdiction. The civil division declined to transfer this

Petition to the criminal division and, instead, denied Appellant’s request to




____________________________________________


1   See Docket Number 249 Civil 2018.

2 The certified record for the instant appeal contains the Notes of Testimony
from the January 25, 2019 hearing on Appellant’s first Petition for Habeas
Corpus and a copy of the Petition, admitted as an Exhibit.




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J-S21019-20



proceed IFP and dismissed Appellant’s Petition for Writ of Habeas Corpus.3

This appeal followed.4

       Appellant raises the following issues for our review:

       [1.] Whether the lower court judge abused his discretion in
       denying the Writ of Habeas Corpus by ignoring lack of subject
       matter jurisdiction?

       [2.] Whether the lower court judge abused his discretion in
       denying the Writ of Habeas Corpus by ignoring and disregarding
       settled law and intervening binding precedent in the Pennsylvania
       Supreme Court’s decision in Commonwealth v. Kemmerer, []
       584 A.2d 940 ([Pa.] 1991)?

       [3.] Whether the lower court judge abused his discretion by
       unlawfully suspending the privilege of the writ of habeas corpus?

       [4.] Whether the lower court judge abused his discretion and
       obstructed justice by violating [] Appellant’s state and federal
       constitutional rights by suspending the writ of habeas corpus?

       [5.] Whether the lower court judge abused his discretion and
       willfully disregarded substantive due process, along with
       procedural due process of Pa.R.Crim.P. 502?

       [6.] Whether the lower court judge abused his discretion and
       cause[d] a miscarriage of justice by denying the writ of habeas
       corpus where there was no lawful authority to arrest and
       subsequently detain Appellant?

       [7.] Whether the lower court judge abused his discretion and
       violated his oath of office by denying the writ of habeas corpus to
       an innocent petitioner?



____________________________________________


3 The trial court ruled that Appellant’s reliance on Commonwealth v.
Kemmerer, 584 A.2d 940 (Pa. 1991), discussed infra, was misplaced and,
therefore, his substantive claims were frivolous.

4 Appellant complied with the trial court’s Order to file a Pa.R.A.P. 1925(b)
Statement. The trial court did not file a Rule 1925(a) Opinion.

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J-S21019-20


      [8.] Whether the lower court judge abused his discretion by
      suspending the writ of habeas corpus in violation of separation of
      powers?

Appellant’s Brief at 2-3.

      Each of Appellant’s issues challenges the trial court’s Order dismissing

his second Petition for Writ of Habeas Corpus.

      We review the denial of a petition for writ of habeas corpus for an abuse

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

2003).

      Before we address the merits of Appellant’s claims, we consider whether

Appellant’s Petition was properly before the trial court.

      Pursuant to the doctrine of res judicata, once a court of competent

jurisdiction considers and decides an issue, the court’s final judgment

constitutes an absolute bar to a subsequent action involving the same claim.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa. Super.

2016).     The application of res judicata “reflects the refusal of the law to

tolerate    a   multiplicity   of   litigation.”   Day   v.   Volkswagenwerk

Aktiengesellschaft, 464 A.2d 1313, 1316 (Pa. Super. 1983). The doctrine

bars a subsequent action when both lawsuits contain the following elements

in common:

      (1) identity of the thing sued upon; (2) identity of the cause of
      action; (3) identity of the parties; (4) identity of the capacity of
      the parties.




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J-S21019-20



Robinson Coal Co. v. Goodall, 72 A.3d 685, 689 (Pa. Super. 2013) (citations

and internal punctuation omitted). Moreover,

       [i]n determining whether res judicata should apply, a court may
       consider whether the factual allegations of both actions are the
       same, whether the same evidence is necessary to prove each
       action and whether both actions seek compensation for the same
       damages. If the acts or transactions giving rise to causes of action
       are identical, there may be sufficient identity between two actions
       for the [holding] in the first action to be res judicata in the second.

Dempsey v. Cessna Aircraft Co., 653 A.2d 679, 681 (Pa. Super. 1995) (en

banc) (internal citations and quotation marks omitted).

       As noted above, Appellant had previously filed a Petition for Writ of

Habeas Corpus in which, relying on Kemmerer, supra,5 as he does here, he

challenged the “existence” of the offense of Criminal Homicide and asserted

that its “non-existence” resulted in the court’s lack of subject matter

jurisdiction over his case.        See N.T., 1/25/19 at 14-20.       After hearing

argument, the criminal division of the Somerset County Court of Common

Pleas dismissed Appellant’s Petition.6 Id. at 20.

____________________________________________


5 In Kemmerer, the Pennsylvania Supreme Court held that Pa.R.Crim.P.
1120(d) did not preclude the Commonwealth from reprosecuting the
defendant for second-degree murder, third-degree murder, and voluntary
manslaughter after a jury found the defendant not guilty of first-degree
murder and voluntary manslaughter. Kemmerer, 584 A.2d at 945. In so
holding, the Court rejected the defendant’s claim that because the various
degrees of manslaughter and murder fell under the umbrella of criminal
homicide, they are necessarily included in one another. Id. at 944-45.

6 The trial court concluded that 18 Pa.C.S. § 2501(a), defining Criminal
Homicide, is a constitutionally appropriate charge, and, therefore, Appellant’s
claims lacked merit.

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J-S21019-20


       In the instant Petition, filed at a separate civil docket number, Appellant

raised the same claims and presented the same arguments as those

previously adjudicated by the criminal division of the Court of Common Pleas.

In particular, the factual allegations in the Petitions are the same, the acts

giving rise to the relief sought by Appellant are the same, the identity and

capacity of the parties are the same, and the relief sought is the same.

       Following our review, we conclude that the doctrine of res judicata

barred Appellant from seeking the same relief in the instant Petition.

       Accordingly, the trial court did not abuse its discretion in dismissing

Appellant’s Petition for Writ of Habeas Corpus.

       Order affirmed.7

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2020




____________________________________________


7 It is well-settled that we may affirm on different grounds than those
advanced by the trial court. Commonwealth v. Thompson, 778 A.2d 1215,
1223 n.6 (Pa. Super. 2001).

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