J-S14042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                     Appellee                  :
                                               :
                v.                             :
                                               :
    DEANDRE TREMAIN THOMPSON                   :
                                               :
                     Appellant                 :   No. 1325 MDA 2016

                  Appeal from the Order Entered July 27, 2016
                in the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0002326-2012

BEFORE:      GANTMAN, P.J., SHOGAN, and STRASSBURGER*, JJ

MEMORANDUM BY STRASSBURGER, J.:                          FILED APRIL 11, 2017

        Deandre Tremain Thompson (Appellant) pro se appeals from the order

entered July 27, 2016, denying his petition for writ of habeas corpus. We

affirm.

        In 2012, Appellant was charged “with sexually abusing two minor girls,

D.M. and T.F.” Trial Court Opinion, 10/25/2012, at 2. Appellant had been

incarcerated on unrelated charges since 2008.          According to the girls, the

sexual abuse occurred prior to Appellant’s incarceration “while he was

supposed to be babysitting them.” Id.              After being appointed several

attorneys and being granted numerous continuances, Appellant pro se filed a

petition for writ of habeas corpus on July 21, 2014. According to Appellant,


____________________________________________




*
    Retired Senior Judge assigned to the Superior Court.
J-S14042-17


he was “never arrested on a warrant, in contravention of [Pa.R.Crim.P.]

509.” Petition for Writ of Habeas Corpus, 7/21/2014, at ¶ 7.                  The

Commonwealth agreed that Appellant was never arrested, but responded

that   Appellant   was   served   properly   with   a   summons    pursuant    to

Pa.R.Crim.P. 511. Commonwealth’s Answer, 7/28/2014, at ¶ 7.          A hearing

on Appellant’s petition was held on July 31, 2014, and on August 11, 2014,

the trial court issued an opinion, which provided the following.

       [Appellant] is accurate that the record clearly shows he was
       never arrested, in contravention of Pa.R.Crim.P. 509.         In
       addition, although the record indicates that [Appellant] was
       served with a summons on April 20, 2012, due to lack of further
       evidence of service and [Appellant’s] testimony otherwise, [the
       trial court] concludes that the summons was not properly served
       pursuant to Pa.R.Crim.P. 511. Despite these concerning defects,
       the Commonwealth is accurate that Pa.R.Crim.P. 109 applies,
       and [Appellant] is not entitled to relief at this time. Rule 109
       states:

            A defendant shall not be discharged nor shall a case
            be dismissed because of a defect in the form or
            content of a complaint, citation, summons, or
            warrant, or a defect in the procedures of these rules,
            unless the defendant raises the defect … before the
            conclusion of the preliminary hearing in a court case,
            and the defect is prejudicial to the rights of the
            defendant.

       Pa.R.Crim.P. 109.       Preliminarily, as noted in the Rule,
       [Appellant] was required to raise the defect before the
       conclusion of the preliminary hearing which was held on or about
       December 18, 2012…. Therefore, as [Appellant’s] preliminary
       hearing was held over a year and a half ago, his request is too
       late.

             In addition, [Appellant] must show how the defect is
       prejudicial to his rights.     At the July 31, 2014 hearing,
       [Appellant] testified that he would be ready to defend himself at

                                     -2-
J-S14042-17


        trial, yet also testified that he has had reluctance and difficulty
        thinking about the case going to trial because he has been
        unlawfully detained.

               In effect, [Appellant] argues that he has been prejudiced
        due to his preoccupation with this issue. [Appellant] asserts that
        he has been so focused on the defects pertaining to his lack of
        arrest and improper service of summons that any trial
        preparation and attention to the merits of his case has become
        difficult.

Trial Court Opinion, 8/11/2014, at 4-5 (some citations and footnotes

omitted).     Concluding that Appellant’s petition was late and that his

preoccupation with the issue of service did not amount to actual prejudice,

the trial court denied Appellant’s petition.

        After a jury trial, at which Appellant elected to proceed pro se with

stand-by counsel, Appellant was found guilty of all charges. On November

6, 2015, Appellant was sentenced to an aggregate term of 66 to 174 years

of incarceration.     The trial court also found that Appellant was a sexually

violent predator (SVP).1 Appellant did not file a direct appeal.

        On April 18, 2016, Appellant filed pro se the petition for writ of habeas

corpus at issue in this appeal, in which he contended, inter alia, that no

arrest warrant or summons was ever served in this case.            Counsel was

appointed and informed Appellant that he intended to represent Appellant

within the framework of the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546.       Appellant then indicated his desire to proceed pro se and
____________________________________________


1
    See 42 Pa.C.S. § 9979.24.



                                           -3-
J-S14042-17


remain committed to his petition for writ of habeas corpus. The trial court

conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81

(Pa. 1999), and permitted Appellant to proceed pro se. In addition, the trial

court concluded that Appellant was not raising any issue it had not

considered already in denying Appellant’s prior petition for writ of habeas

corpus. Thus, the trial court denied Appellant’s petition. Order, 7/27/2016.

Appellant pro se timely filed a notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.2

        We begin our review by noting the relevant legal principles. It is well-

settled that the PCRA is intended to be the sole means of achieving post-

conviction relief. Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.

2013). “[T]he PCRA subsumes all forms of collateral relief, including habeas

corpus, to the extent a remedy is available under such enactment.”

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). “[C]laims that

fall outside the eligibility parameters of the PCRA may be raised through a

writ of habeas corpus.” Commonwealth v. Masker, 34 A.3d 841, 850 (Pa.

Super. 2011) (en banc).            Our Supreme Court has explained that “the

boundaries of cognizable claims under the PCRA can only be extended so far

as is consistent with the purposes of the statute.”        Commonwealth v.

Judge, 916 A.2d 511, 520 (Pa. 2007).

____________________________________________


2
    The Commonwealth has not filed a brief on appeal.



                                           -4-
J-S14042-17


      Here, Appellant is once again arguing that this case should be

dismissed because he was never served an arrest warrant or summons.

However, as the trial court points out, this amounts to an argument that the

trial court erred in denying his prior petition for writ of habeas corpus. See

Order, 7/27/2016, at 2 (“[Appellant] having raised no new issues that were

not considered by this [c]ourt in its August 11, 2014 [o]pinion, the petition

for writ of habeas corpus … is denied.”). However, the remedy available to

Appellant for purported trial court error in denying that petition is not the

filing of a new petition; rather, it was the filing of a direct appeal from his

judgment of sentence.

      Under Pennsylvania statute, habeas corpus is a civil remedy
      which lies solely for commitments under criminal process.
      Habeas corpus is an extraordinary remedy and may only be
      invoked when other remedies in the ordinary course have been
      exhausted or are not available. If a petitioner is in custody by
      virtue of a judgment of sentence of a court of competent
      jurisdiction, the writ generally will not lie. Pennsylvania law
      explicitly states that in cases where a person has been
      restrained by virtue of sentence after conviction for a criminal
      offense, the writ of habeas corpus shall not be available if a
      remedy may be had by post conviction hearing proceedings
      authorized by law. Issues are not cognizable under the
      statutory remedy of habeas corpus if they could have
      been considered and corrected in the regular course of
      appellate review or by post-conviction proceedings
      authorized by law.

Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa. Super. 1999)

(quoting Commonwealth v. McNeil, 665 A.2d 1247, 1249-50 (Pa. Super.

1995) (citations omitted) (emphasis added)).




                                     -5-
J-S14042-17


       Here, Appellant was sentenced on November 6, 2015, and he had 30

days, or until December 7, 2015, to file timely a notice of appeal raising this

issue. See Pa.R.A.P. 903. He did not do so. Because Appellant could have

raised this issue in a direct appeal, but did not, Appellant is not entitled to

relief. Accordingly, we affirm the order of the trial court denying Appellant’s

petition for writ of habeas corpus.3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




____________________________________________


3
 “[W]e may affirm the trial court’s decision on any basis.” Commonwealth
v. McCulligan, 905 A.2d 983, 988 (Pa. Super. 2006).



                                           -6-
