J-S16007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER BOCELLI

                            Appellant                No. 1386 EDA 2015


                      Appeal from the Order April 15, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004064-1990


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 19, 2016

        Appellant Christopher Bocelli appeals from the order of the Chester

County Court of Common Pleas denying Appellant’s petition for writ of

habeas corpus ad subjiciendum, and various other petitions, motions, and

applications. We affirm.

        On July 19, 1991, a jury convicted Appellant of murder in the first

degree, robbery, aggravated assault, and criminal conspiracy.1 On February

8, 1995, the trial court sentenced Appellant to life imprisonment without

parole for the first-degree murder conviction and concurrent sentences of 10

to 20 years’ incarceration for the robbery conviction and 5 to 10 years’

incarceration for the criminal conspiracy conviction. The aggravated assault

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1
    18 Pa.C.S. §§ 2502(1), 3701(a), 2702(a), and 903, respectively.
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conviction merged for sentencing purposes.                   This Court affirmed the

judgment of sentence on October 19, 1995, and the Supreme Court of

Pennsylvania denied Appellant’s petition for allowance of appeal.

       On March 26, 2001, Appellant filed a pro se petition pursuant to the

Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.                   The PCRA court

appointed counsel, who filed a petition to withdraw. On December 28, 2005,

the trial court granted counsel’s petition to withdraw and dismissed the PCRA

petition.    On March 26, 2007, this Court found the trial court failed to follow

the dictates of Turner/Finley2 and remanded the case for further

proceedings.

       After   remand,      counsel     filed     a   no-merit     letter   pursuant   to

Turner/Finley and a petition to withdraw. On January 14, 2011, the trial

court issued a notice of intent to dismiss the PCRA petition and, on March

25, 2011, the trial court dismissed the petition and granted counsel’s

petition to withdraw.3

       During the pendency of the PCRA proceedings, and following the

conclusion     of   the   proceedings,         Appellant   filed   numerous    petitions,



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2
 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1987) (en banc).
3
  During the PCRA proceedings, both before and after remand, the trial court
issued numerous orders appointing new counsel.




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applications, and appeals, in the trial court, this Court, the Supreme Court of

Pennsylvania, and the Commonwealth Court of Pennsylvania.4

       On November 6, 2014, Appellant filed a petition for writ of habeas

corpus ad subjiciendum. On November 14, 2014, he filed a motion for order

to show cause. On January 29, 2015, the Commonwealth filed an answer.5

Appellant     subsequently      filed   numerous    other    documents,      including

documents entitled: “Defendant’s Statement of Objections and Notice of

False Representation,” “Motion to Cease and Desist all Contact,” “Application

for   Relief,”   and    “Affiant’s   Acceptance    and    Affidavit   in   Support   of

Administrative Record.”

       On April 15, 2015, the trial court denied and dismissed Appellant’s

pending petitions, motions, and applications. On April 27, 2015, Appellant

filed a motion for reconsideration. On May 6, 2015, the trial court denied

and dismissed the motion for reconsideration.            On May 8, 2015, Appellant

filed a timely notice of appeal.6 The trial court did not order Appellant to file
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4
  Appellant also filed at least one petition for habeas corpus in the United
States District Court for the Eastern District of Pennsylvania.
5
 On December 16, 2014, Appellant filed a motion for modification of order
and application for immediate hearing. The trial court denied the motion for
modification and application for immediate hearing on January 8, 2015.
6
   Appellant filed additional applications and petitions following the filing of
the notice of appeal, including a July 8, 2015 petition for writ of habeas
corpus. The trial court denied this petition. Appellant filed a notice of
appeal, which was docketed at 2394 EDA 2015. This Court dismissed that
appeal on November 24, 2015 for failure to file a brief.



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a statement pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

On May 27, 2015, the trial court issued a statement pursuant to Rule

1925(a), incorporating its April 15, 2015 order.

       Appellant raises the following issues on appeal:

          1. Did the [trial] court abuse its discretion by overriding or
          misapplying the law in denying and summarily dismissing
          [Appellant’s] petition for writ of habeas corpus without a
          hearing by adjudicating the matter upon unverified
          documents from outside of the record and without
          considering facts upon the face of the record?

          2. Did the [trial] court abuse its discretion in referring to
          and relying upon findings of guilt reached by the jury
          which were not recorded pursuant to the form and rule
          regarding the recording of the verdict?

          3. Did the [trial] court abuse its discretion by not creating
          an order discharging [Appellant] from civil arrest and
          commitment as a matter of right once [Appellant’s]
          commitment exceeded 60 days upon judgment for court
          costs which was deferred until year 2099?

Appellant’s Brief at 4-5.

       Appellant appears to claim his incarceration is illegal because the trial

court failed to produce a written sentencing order.7          Such a challenge

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7
  In a prior appeal to this Court, Appellant argued he was entitled to bail
because of the lack of the written sentencing order. See Commonwealth
v. Bocelli, 1593 EDA 2011 (Pa.Super. filed Feb. 6, 2012). This Court found
Appellant was not entitled to relief, reasoning:

          In any event, the certified record contains the transcripts
          of Appellant’s trial, including a recording of the guilty
          verdict. Even assuming, arguendo, that Appellant has yet
          to be sentenced, at best, Appellant is in the posture of
(Footnote Continued Next Page)


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properly is addressed as a writ of habeas corpus. See Joseph v. Glunt, 96

A.3d 365, 368-69 (Pa.Super.2014) (noting claim that defendant’s “sentence

is illegal due to the inability of the DOC to ‘produce a written sentencing

order related to [] judgment of sentence’” sounds in habeas corpus).

      The writ of habeas corpus “lies to secure the immediate release of one

who has been detained unlawfully, in violation of due process.” Joseph, 96

A.3d at 369 (quoting Commonwealth v. Wolfe, 605 A.2d 1271, 1272–73

(Pa.Super.1992)). “[T]raditionally, the writ has functioned only to test the

legality of the petitioner’s detention.” Id. Further, “[h]abeas corpus is an

extraordinary remedy and may only be invoked when other remedies in the

ordinary course have been exhausted or are not available.” Id. (quoting

Commonwealth v. McNeil, 665 A.2d 1247, 1249–50 (Pa.Super.1995)).

This Court’s “standard of review of a trial court’s order denying a petition for

[a] writ of habeas corpus is limited to” determining whether the trial court

abused its discretion. Id. (quoting Rivera v. Penna. Dep't of Corrs., 837

A.2d 525, 528 (Pa.Super.2003)).

      The certified record establishes a jury convicted Appellant of first-

degree murder, robbery, aggravated assault, and conspiracy.             When a

person is found guilty of first-degree murder, the only possible sentences are

                       _______________________
(Footnote Continued)

            having been convicted of murder in the first degree. That
            posture alone prohibits his release on bail.

Id. at 2.



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death or life imprisonment without parole. 18 Pa.C.S. § 1102(a).8 Further,

the certified record contains the transcript from the sentencing hearing and

the sentencing sheet, both of which confirm Appellant was sentenced to life

imprisonment without parole, 10 to 20 years’ incarceration for robbery, and

5 to 10 years’ incarceration for criminal conspiracy. A failure to provide a

written sentencing order does not provide Appellant relief. See Joseph, 96

A.3d at 370.

       Further, to the extent Appellant challenges his conviction by claiming

the Commonwealth agreed to his version of the facts when it did not file an

answer to some of his filings, the claim is meritless. See, e.g., Appellant’s

Brief at 6, 8.    The Commonwealth does not admit facts when it does not

respond to a motion or petition. See, e.g., Pa.R.Crim.P. 906(A) (“Except as

provided in paragraph (E), an answer to a petition for post-conviction

collateral relief is not required unless ordered by the judge. When the judge

has not ordered an answer, the attorney for the Commonwealth may elect to

answer, but the failure to file one shall not constitute an admission of the

well-pleaded facts alleged in the petition.”); Comments to Pa.R.Crim.P. 575

(“Paragraph (B)(1) changes prior practice by providing that the failure to

answer a motion in a criminal case never constitutes an admission.

Although this prohibition applies in all cases, even those in which an answer

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8
  A version of this statute was in effect when the trial court sentenced
Appellant. See 18 Pa.C.S. § 1102 (1983).



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has been ordered in a specific case or is required by the rules, the judge

would have discretion to impose other appropriate sanctions if a party fails

to file an answer ordered by the judge or required by the rules.”).

      To the extent Appellant challenges the legality of his sentence, rather

than the Department of Corrections’ authority to keep him imprisoned

without a sentencing order, such a challenge constitutes an untimely PCRA

petition. 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.”);

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa.Super.2013) (“Unless

the PCRA could not provide for a potential remedy, the PCRA statute

subsumes the writ of habeas corpus.”).        Appellant’s judgment of sentence

became final in 1996 and his November 6, 2014 petition is facially untimely.

Appellant has not alleged the applicability of any exception to the PCRA’s

requirement that all PCRA petitions be filed within one year of the date

Appellant’s judgment of sentence became final.          42 Pa.C.S. § 9545(b)

(providing a one-year time bar for the filing of PCRA petitions and providing

three exceptions to the time bar). Accordingly, any challenge to the legality

of Appellant’s sentence would constitute an untimely PCRA petition, which

we cannot review. Id.; Taylor, 65 A.3d at 466 (“Issues that are cognizable

under the PCRA must be raised in a timely PCRA petition and cannot be

raised in a habeas corpus petition”).

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     Accordingly, the trial court did not abuse its discretion and properly

denied and dismissed Appellant’s petitions, motions, and applications.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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