J-S81012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

BRAHEIM JAMIER GOLDSBOROUGH

                        Appellant                    No. 67 EDA 2016


                  Appeal from the Order December 8, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002740-2009



BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 19, 2016

     Braheim Jamier Goldsborough appeals pro se from the order entered

December 8, 2015, denying his habeas corpus petition. We affirm.

     The facts of Appellant’s underlying conviction are as follows.        On

February 5, 2009, state police received reliable information that Appellant

had concealed a large amount of cocaine in a grey Nissan 350Z. Relying on

this information, state troopers established surveillance on the 300 block of

Rural Avenue, in Chester.    Troopers observed Appellant exit a residence,

enter the Nissan, and briefly sit in the driver’s seat.      Troopers detained

Appellant as he exited the vehicle. A search of Appellant’s person revealed

he possessed a digital scale with cocaine residue and marijuana. A search of

the Nissan yielded five clear plastic bags of cocaine with an aggregate

* Former Justice specially assigned to the Superior Court.
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weight of 549 grams, and additional bags containing a common cutting

agent.

      Based on the foregoing, Appellant was charged with possession of a

controlled substance (marijuana), possession of a controlled substance with

intent to deliver (cocaine), and possession of drug paraphernalia. Following

a four day trial, Appellant was convicted of possession of a controlled

substance (marijuana) and possession of a controlled substance with intent

to deliver (cocaine). The court sentenced Appellant to sixty to 120 months

incarceration, plus fines and forfeiture of cash seized during his arrest.

Appellant appealed his judgment of sentence, and this Court affirmed on

April 21, 2014.      Commonwealth v. Goldsborough, 100 A.3d 296

(Pa.Super. 2014) (unpublished memorandum).           Appellant did not petition

the Pennsylvania Supreme Court for allowance of appeal.

      Thereafter, Appellant filed a timely counseled PCRA petition.        Upon

order of the court, Appellant filed an amended PCRA petition alleging

ineffectiveness of trial counsel, and a hearing on that petition was held on

June 5, 2015. On September 14, 2015, the court denied Appellant’s PCRA

petition. Appellant did not file a post-trial motion or pursue appellate relief.

      On November 16, 2015, Appellant filed a pro se motion styled as a

habeas for discharge. In that petition, Appellant asserted that the court had

granted, rather than denied, his PCRA petition on September 14, 2015. He

requested that he be released from custody. The court denied Appellant’s

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petition by order filed December 8, 2015. This timely appeal followed. The

court did not direct Appellant to file a Rule 1925(b) concise statement of

errors complained of on appeal. The court authored a Rule 1925(a) opinion.

This matter is now ready for our review.

      Appellant raises two claims for our consideration:

      I.      Whether [trial counsel] Jacquie L. Jones rendered
              ineffective assistance of counsel by failing to compel
              identification of the confidential informant, call witnesses,
              testify to violations of sequestration order, seek a mistrial,
              or file objections and post-sentence motions?

      II.     Whether [PCRA counsel] Richard Bobbe rendered
              ineffective assistance of counsel in his presentation of
              Appellant during PCRA proceedings?

Appellant’s brief at 3.

      At the outset, we observe that, generally, petitions filed after a

judgment of sentence has become final are treated as petitions under the

PCRA.       Commonwealth v. Stout, 978 A.2d 984, 986 (Pa.Super. 2009)

(“for the most part, the PCRA has subsumed the writ of habeas corpus as a

means for obtaining post-conviction relief from a judgment of sentence.”);

42 Pa.C.S. § 9542 (“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”).

However, in construing the scope of the PCRA, “Pennsylvania Courts have

repeatedly held that the PCRA contemplates only challenges to the propriety

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of a conviction or sentence.”      Commonwealth v. Masker, 34 A.3d 841,

843 (Pa.Super. 2011) (en banc) (listing cases).

      A claim is cognizable under the PCRA if the conviction or sentence

resulted from one 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.

      (ii)    Ineffective   assistance   of counsel 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.

      (iii)   A plea of guilty unlawfully induced where the
              circumstances make it likely that the inducement caused
              the petitioner to plead guilty and the petitioner is innocent.

      (iv)    The improper obstruction by government officials of the
              petitioner’s right of appeal where a meritorious appealable
              issue existed and was properly preserved in the trial court.

      ...

      (vi)    The unavailability at the time of trial of exculpatory
              evidence that has subsequently become available and
              would have changed the outcome of the trial if it had been
              introduced.

      (vii) The imposition of sentence was greater than the lawful
            maximum.

      (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).




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       Instantly, Appellant’s habeas corpus petition did not raise a challenge

to his conviction or sentence. Rather, Appellant asserted that he was being

wrongfully incarcerated since the PCRA court purportedly granted his PCRA

petition. Appellant’s contentions that trial and PCRA counsel were ineffective

were raised for the first time on appeal, and were not included in his habeas

petition.1   Thus, insofar as Appellant’s petition raised a claim of wrongful

incarceration, it was not cognizable under the PCRA. See Commonwealth

v. West, 938 A.2d 1034 (Pa. 2007) (finding dispute properly analyzed

pursuant to habeas corpus petition where issue was not cognizable under

the PCRA); 42 Pa.C.S. § 9543(a)(2). As such, we will review this petition

under the standards applicable to a writ of habeas corpus.

       Our review of a writ of habeas corpus is conducted based on the

following:


____________________________________________


1
   It is well-settled that all constitutionally-cognizable claims of ineffective
assistance of counsel are reviewable under the PCRA. Commonwealth ex
rel. Dadario v. Goldberg, 773 A.2d 126, 130 (Pa. 2001). Pursuant to
Dadario, if Appellant’s claims of counsel ineffectiveness were presented in
his habeas petition, that petition would be reviewed as a second PCRA
petition. However, Appellant’s habeas petition did not raise these issues.
Nevertheless, if Appellant’s habeas petition was treated as a second PCRA
petition, it was untimely as he filed it more than one year after his judgment
of sentence became final and did not aver any exceptions to the PCRA timing
requirements. Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011)
(finding this Court lacks jurisdiction to consider a PCRA petition filed after
the deadline enumerated in 42 Pa.C.S. § 9545, and the petitioner has not
pled and proven that a statutory exception applies).



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      Where a petitioner is legally detained in prison, he is not entitled
      to the writ of habeas corpus[.] To secure issuance of the writ,
      the prisoner must show that he has a right to be discharged[.]
      The writ of habeas corpus does not issue unless the petition
      contains allegations which, if true, establish that the prisoner is
      being illegally detained[.] 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[.] The writ
      may not be used to invoke judicial determination of questions
      which do not affect the lawfulness of petitioner’s custody and
      detention.

Commonwealth ex rel. Codispoti v. Rundle, 190 A.2d 153, 154

(Pa.Super. 1963) (internal quotation marks and citations omitted).           We

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

discretion. Commonwealth v. Judge, 916 A.2d 511, 521 n.13 (Pa. 2007).

      Appellant’s habeas petition alleged that he filed an amended PCRA

petition on March 13, 2015.        Habeas Petition, 11/16/15, at ¶3.         He

contended that the court issued an order granting the amended petition on

September 14, 2015, and appended a copy of the docket reflecting that

disposition to his petition. Id. at ¶ 6. Appellant asserted that “the granting

of said PCRA terminate[d] the prosecution of this case.”       Id. at ¶ 7.   As

Appellant remained incarcerated, he requested the court order his release

from custody.

      The court denied Appellant’s habeas petition finding that his underlying

PCRA petition was denied on September 14, 2015. Opinion, 2/24/16, at 1.

The court observed that the order and findings supporting its denial of

Appellant’s PCRA petition were served upon Appellant’s counsel.        It found

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that Appellant’s PCRA counsel had provided Appellant with the original order

denying his PCRA petition. Id. at 3. Furthermore, it noted that the docket

entry reflecting that Appellant’s PCRA petition had been granted was the

result of a clerical error, and that the underlying document reflected that the

petition was denied. Lastly, the court reviewed the docket and an affidavit

submitted by the Director of the Office of Judicial Support of Delaware

County. Based on its review, the court found that the erroneous entry was

corrected on October 13, 2015. Hence, the court denied Appellant’s habeas

petition.

      We discern no abuse of discretion in the court’s denial of Appellant’s

habeas petition.   Appellant relied solely on a clerical error to support his

claim. The record reflects that Appellant had notice that his PCRA petition

was denied, and that the inaccurate docket entry was corrected prior to the

filing of his habeas petition.   Furthermore, Appellant does not present any

argument on appeal to support his assertion that he is currently being

illegally detained, or that the court erred in denying his habeas petition.

Indeed, his current claims are waived as they were not presented below.

Pa.R.A.P. 302(a). Thus, he is not entitled to relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




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