J-S59017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK BROWN                                 :
                                               :
                       Appellant               :   No. 802 EDA 2019

              Appeal from the PCRA Order Entered March 5, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0306772-1990


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 20, 2020

       Appellant Mark Brown appeals pro se from the order denying his petition

for writ of habeas corpus.1 Appellant argues that the trial court abused its

discretion by denying his request for clarification of his sentence. We affirm.

       We previously summarized the underlying facts and procedural history

of this matter as follows:

       In 1990, a jury convicted Appellant of first-degree murder, arson,
       and engaging in activities of corrupt organizations. In 1994,
       Appellant was sentenced to life imprisonment for murder, and to
       a consecutive prison sentence of forty-three to eighty-six months
       on the corrupt organizations charge. We affirmed the judgment
       of sentence on April 5, 1995. Appellant did not seek review by
       the Supreme Court of Pennsylvania. Appellant thereafter filed
       several PCRA petitions, none of which were successful.


____________________________________________


1 As discussed below, the trial court initially dismissed Appellant’s petition as
a serial untimely Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546
petition.
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      Appellant did have success, however, in federal court: in 2008,
      Appellant filed a pro se petition for a writ of habeas corpus in the
      United States District Court for the Eastern District of
      Pennsylvania. As a result of that petition, the District Court issued
      an order instructing that Appellant’s conviction for violating the
      corrupt organizations law be vacated and Appellant be
      resentenced without regard to that charge.

                                 *     *      *

      In December 2010, Appellant was again sentenced, following a
      hearing, to life imprisonment for first-degree murder.

      Appellant appealed from his 2010 resentencing. He asserted that
      the corrupt organizations charge adversely affected the evidence
      presented against him at trial on the other two charges, and,
      because his corrupt organizations conviction has since been
      vacated, he should be awarded a new trial on the remaining
      charges. On September 20, 2012, we affirmed the trial court’s
      denial of a new trial, because

         a claim for a new trial and challenges to the admission of
         evidence are not within the scope of an appeal from
         resentencing pursuant to a federal habeas corpus petition.
         Guilt was established for the [murder and arson] charges in
         1990, more than twenty years ago, and Appellant’s last
         PCRA petition was dismissed in 2004. . . . [O]nly issues
         pertaining to the resentencing procedure [can] be raised on
         appeal from that resentencing.

Commonwealth v. Brown, 3007 EDA 2016 at 9 (Pa. Super. filed June 26,

2017) (unpublished mem.) (citation omitted) (some formatting altered).

      Appellant subsequently filed an untimely PCRA petition, which the PCRA

court dismissed.   On appeal, this Court affirmed the PCRA court’s ruling,

explaining that

      Appellant’s conviction on the corrupt organizations charge has
      been vacated through the federal habeas petition, Appellant has
      consequently been resentenced by the trial court, and Appellant’s
      PCRA petition comes within one year after that judgment became

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      final. However, the finality of the convictions which Appellant
      seeks to challenge has remained undisturbed since May 5, 1995,
      when the period in which Appellant could have sought review by
      the Pennsylvania Supreme Court expired and his direct appeal
      concluded. Therefore, Appellant cannot now file a PCRA petition
      raising errors unrelated to his resentencing. To allow otherwise
      would thwart the jurisdictional timeliness requirements of the
      PCRA.

Id. at 9.

      On July 6, 2018, Appellant filed the instant pro se petition for writ of

habeas corpus seeking clarification of his sentence for first-degree murder.

Specifically, Appellant argued there was “ambiguity” in the statute under

which he was sentenced, as it “may or may not preclude eligibility for parole.”

Appellant’s Pet. for Writ of Habeas Corpus, 7/6/18, at 4.

      The Commonwealth filed a response in which it agreed with Appellant

that his claim was not cognizable under the PCRA.                However, the

Commonwealth argued that Appellant waived his habeas claim by failing to

raise it previously. Nonetheless, the Commonwealth asserted that Appellant’s

claim was meritless.

      Initially, the trial court regarded Appellant’s petition as an untimely

PCRA petition. On January 31, 2019, the trial court issued a notice of intent

to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. The Rule 907

notice stated that (1) Appellant’s petition was untimely, (2) Appellant’s claims

had no arguable merit, and (3) Appellant’s claims were previously litigated.

See Trial Ct. Rule 907 Notice, 1/31/19. Appellant filed a pro se response on




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February 12, 2019, asserting that habeas corpus was the proper vehicle for

his claim. On March 5, 2019, the trial court dismissed Appellant’s petition.

      On March 12, 2019, the trial court docketed Appellant’s pro se notice of

appeal. Appellant subsequently filed a timely court-ordered Pa.R.A.P. 1925(b)

statement.      The trial court issued a Rule 1925(a) opinion asserting that

although Appellant raised a habeas claim, he waived the issue by failing to

raise it at sentencing, in a post-sentence motion, or on direct appeal. See

Trial Ct. Op., 4/15/19, at 6-7.

      On appeal, Appellant raises one issue for our review:

      Whether the trial court erred by denying Appellant’s petition for
      writ of habeas corpus relief seeking clarification as to whether the
      statute under which he was sentenced, 42 Pa.C.S. § 9711,
      possessed an eligibility to apply for parole component?

Appellant’s Brief at 3 (some formatting altered).

      Appellant argues that “[t]he statutes governing first degree murder

appear[] to have extreme flaws which directly [a]ffect the legality,

constitutionality, and applicability of the sentences imposed for such

convictions.”    Id. at 8.   Appellant acknowledges that an offender may be

sentenced to life without parole for first-degree murder. Id. at 7. However,

he notes that while Section 9714(a)(2) “specifies a sentencing condition of

‘without parole,’” for repeat offenders, Section 9711 “only authorizes a

sentence of life imprisonment, with no additional sentencing condition

preventing parole eligibility.” Id. Appellant does not explicitly claim that his

sentence exceeds the statutory maximum. Instead, he suggests that because


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Section 9711 does not mention parole, the legislature’s intent is unclear.

Therefore, Appellant argues that he is entitled to a writ of habeas corpus to

clarify whether he is eligible for parole. Id. at 11. Finally, Appellant asserts

that his issue is not waived, as “he was not informed on the record that failure

to [file a post-sentence motion] would affect his right to raise issues upon

appeal.” Id. at 9.

      Initially, we must determine whether Appellant’s claim is cognizable

under the PCRA. This determination presents a question of law over which

our standard of review is de novo and our scope of review plenary.

Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super. 2018) (en

banc), appeal denied, 190 A.3d 1134 (Pa. 2018).

      “It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief.   Unless the PCRA could not provide for a

potential remedy, the PCRA statute subsumes the writ of habeas corpus.”

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013)

(citations omitted); see also 42 Pa.C.S. § 9542. Accordingly, if an issue is

“cognizable under the PCRA,” it “must be raised in a timely PCRA petition, and

cannot be raised in a habeas corpus petition.”       Taylor, 65 A.3d at 466

(citations omitted).

      Section 9543 defines the eligibility requirements for the PCRA and

provides that a petitioner may seek relief under the PCRA for “a conviction or

sentence” that resulted from one or more of the following:




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      (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.

                                   *     *       *

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

      (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2)(i)-(ii), (vii)-(viii).

      Even if a claim is not cognizable under the PCRA, it is well settled that

“[h]abeas corpus is an extraordinary remedy and is available after other

remedies have been exhausted or ineffectual or nonexistent. It will not issue

if another remedy exists and is available.” See Commonwealth v. Rouse,

191 A.3d 1, 6 (Pa. Super. 2018) (citation omitted). A habeas petition is not

a substitute for a direct appeal. See Com. ex rel. Ashmon v. Banmiller,

137 A.2d 236, 238 (Pa. 1958); Com. ex rel. Smith v. Cavell, 144 A.2d 505,

506 (Pa. Super. 1958). Therefore, challenges to a conviction or sentence that

could have been raised at trial or in a direct appeal are waived for purposes

of a habeas petition. See Com. ex rel. Brogan v. Banmiller, 136 A.2d 141,

142 (Pa. Super. 1957); accord Rouse, 191 A.3d at 7.

      In Rouse, this Court addressed a petitioner’s claim that the second-

degree murder statute was “void for vagueness because it fails to give


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adequate notice that a sentence of life imprisonment is, in fact, life

imprisonment without the possibility of parole.” Id. at 2 n.1. Initially, the

trial court treated the petitioner’s filing as a PCRA challenging the legality of

his sentence. Id. On appeal, this Court held that the petitioner’s claim was

not cognizable under the PCRA. Id. The Rouse Court explained that

          because [the petitioner’s] claim does not challenge the imposition
          of a sentence in excess of the lawful maximum, it does not fall
          under the purview of Section 9543(a)(2)(vii). And, to the extent
          that Section 9543(a)(2)(vii) encompasses all illegal-sentencing
          issues, [the petitioner’s] claim does not implicate any category of
          illegal sentences previously recognized by Pennsylvania Courts.
          Moreover, because [the petitioner’s] constitutional challenge to
          Section 1102(b) does not implicate his guilt or innocence for the
          underlying offense, his void-for-vagueness claim cannot arise
          under the typical provision used to address constitutional errors,
          Section 9543(a)(2)(i).

Rouse, 191 A.3d at 7.

          Ultimately, the Rouse Court held that the petitioner’s claim, “just like

all claims (but for the three categories of illegal-sentencing claims), is subject

to waiver.” Id. at 6 (citation omitted). Further, because the petitioner could

have raised the issue “at his sentencing hearing, or in a post-sentence motion,

he failed to exhaust all available remedies before resorting to habeas corpus.”

Id. at 7.

          Here, Appellant’s claim is properly regarded as a petition for writ of

habeas corpus. See id. When reviewing the denial of a claim for habeas

relief,

          [o]ur standard of review . . . is limited to abuse of discretion.
          Thus, we may reverse the court’s order where the court has

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

2003) (citations omitted).

      Here, the trial court addressed Appellant’s claim in its Rule 1925(a)

opinion as follows:

      Appellant challenges his sentence of life imprisonment without the
      possibility of parole for his conviction of first-degree murder. Our
      Superior Court has recently addressed the propriety of bringing
      that issue under the purview of a petition for a writ of habeas
      corpus as opposed to the [PCRA] in [Rouse, 191 A.3d at 1]. [In
      Rouse, the C]ourt determined that such a claim does not allege
      that the sentence impermissibly exceeded the statutory maximum
      and therefore was not one which falls within the meaning of
      “illegal sentence” as defined in the PCRA statute. . . . As in Rouse,
      this issue could have been raised at [Appellant’s] sentencing
      hearing, in post-sentencing motions or in the several appeals filed
      in this matter and [A]ppellant’s failure to do so constitutes a
      waiver.

Trial Ct. Op. at 6-7.

      Based on our review of the record, we agree with the trial court that

Appellant’s issue was not cognizable under the PCRA. See Montgomery, 181

A.3d at 367; see also Rouse, 191 A.3d at 7. Further as Appellant waived his

habeas claim by failing to raise it previously, we discern no reversible error in




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the trial court’s decision to deny relief.2 See Rivera, 837 A.2d at 528; see

also Rouse, 191 A.3d at 7. Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/20




____________________________________________


2 To the extent Appellant argues that trial counsel failed to fully advise him of
his post-sentence or appellate rights, this claim is waived due to Appellant’s
failure to raise in in the trial court. See also Pa.R.A.P. 302(a) (stating that
“[i]ssues not raised in the lower court are waived and cannot be raised for the
first time on appeal”). Nonetheless, his claim would be cognizable under the
PCRA. Because Appellant did not establish an exception to the PCRA time-
bar, we would have no jurisdiction to address this issue. See 42 Pa.C.S. §
9545(b). Moreover, Appellant’s claim would be waived based on his failure to
raise the issue in his prior PCRA petitions. See 42 Pa.C.S. § 9544(b) (stating
that “an issue is waived if the petitioner could have raised it but failed to do
so . . . on appeal or in a prior state postconviction proceeding”).


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