            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Marcel Cook,                           :
                       Petitioner      :
                                       :
      v.                               : No. 472 M.D. 2019
                                       : SUBMITTED: April 17, 2020
Tom Wolf, Governor of                  :
Pennsylvania, et al.,                  :
                    Respondents        :

BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                           FILED: May 13, 2020

      Before this Court, in our original jurisdiction, are the preliminary objections
of Respondents Tom Wolf, Governor of Pennsylvania (Governor Wolf), Joe
Scarnati, President Pro Tempore of the Pennsylvania State Senate, and Mike Turzai,
Speaker of the Pennsylvania House of Representatives, to a petition for review filed
by Marcel Cook (Cook). Cook, currently serving a sentence of life imprisonment
following his 1986 guilty plea to second-degree murder, seeks release from the State
Correctional Institution in Benner Township, Bellefonte, Pennsylvania (SCI-
Benner). Cook argues he is entitled to relief on the basis that Section 1102(a)-(b) of
the Crimes Code,1 which establishes the sentences for murder of the first and second
degree, is unconstitutionally vague and unenforceable. Governor Wolf objects that
Cook’s petition seeks relief in the nature of habeas corpus, which is not within the
jurisdiction of this Court. After thorough review, we sustain Governor Wolf’s

      1
          18 Pa.C.S. § 1102(a)-(b).
preliminary objections on jurisdictional grounds and transfer this matter to a court
of proper jurisdiction, pursuant to Section 5103(a) of the Judicial Code.2

                                         I. Background
       Cook is currently serving a sentence of life imprisonment following entry of
a guilty plea to second-degree murder on July 22, 1986. Cook Petition, Ex. A. In a
petition for review filed with this Court on August 22, 2019, Cook argues that
Section 1102(a)-(b) of the Crimes Code, which imposes a term of life imprisonment
for first- and second-degree murder, is unconstitutionally vague. Cook asserts that
Section 1102(a)-(b) only provides for a sentence of life imprisonment and
Pennsylvania judges are impermissibly imposing sentences of life imprisonment,
without parole, for these offenses. Cook concedes that Section 6137(a)(1) of the
Prisons and Parole Code3 prohibits the Pennsylvania Board of Probation and Parole4
from releasing an inmate serving a term of life imprisonment.                     He maintains,
however, that Section 1102(a)-(b) of the Crimes Code is constitutionally invalid, as


       2
          42 Pa.C.S. § 5103(a). Section 5103(a) provides that, if a matter is brought in a court of
this Commonwealth which does not have jurisdiction, the court shall not quash the matter, but
shall transfer the record thereof to the proper tribunal of this Commonwealth.

       3
         61 Pa. C.S. § 6137(a)(1). Section 6137(a)(1) was enacted by the Act of August 11, 2009,
P.L. 147, and thus not in effect on July 22, 1986, the date Cook pleaded guilty to second-degree
murder. Cook’s eligibility for parole was governed by Section 21 of the Pennsylvania Board of
Probation and Parole Law, Act of August 6, 1941, P.L. 861, as amended, formerly 61 P.S. § 331.21,
repealed by Section 11(b) of the Act of August 11, 2009, P.L. 147. Section 21 likewise prohibited
parole for an inmate serving a sentence of life imprisonment.

       4
          Subsequent to the filing of Cook’s petition for review, the Pennsylvania Board of
Probation and Parole has been renamed the Pennsylvania Parole Board. See Section 15, 16, and
16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective February 18, 2020); see also
Sections 6101 and 6111(a) of the Prisons and Parole Code, as amended, 61 Pa.C.S. §§ 6101,
6111(a).



                                                2
it “fails to give a person of ordinary intelligence fair notice” that the penalty for first-
and second-degree murder is life imprisonment without parole. Cook Petition at 9.
       Cook further contends that the enactment of Section 1102(a)-(b) violated
Article III, Sections 1 and 3 of the Pennsylvania Constitution.5 Beyond citing the
aforementioned constitutional provisions, however, Cook fails to elucidate how the
legislative process behind Section 1102(a)-(b) was constitutionally deficient. By
way of relief, Cook seeks release from imprisonment.6
       Governor Wolf filed preliminary objections asserting the following: (1)
Cook’s petition was improperly served;7 (2) Cook’s petition seeks relief in the nature
of habeas corpus, a matter which falls outside this Court’s subject matter
jurisdiction; and (3) Cook failed to exhaust his statutory remedies under the Post
Conviction Relief Act (PCRA).8
       Respondents Scarnati and Turzai filed preliminary objections, arguing as
follows: (1) Cook failed to exhaust his statutory remedies under the PCRA; (2) Cook
failed to aver facts to substantiate claims under Article III, Sections 1 and 3 of the

       5
         Article III, Section 1 provides that “[n]o law shall be passed except by bill, and no bill
shall be so altered or amended, on its passage through either House, as to change its original
purpose.” Pa. Const. art. III, § 1. Article III, Section 3 provides that “[n]o bill shall be passed
containing more than one subject, which shall be clearly expressed in its title, except a general
appropriation bill or a bill codifying or compiling the law or a part thereof.” Pa. Const. art. III, §
3.

       6
        We note that Cook raised the unconstitutionality of Section 1102(b) of the Crimes Code
in Commonwealth v. Cook (Pa. Super., No. 317 WDA 2017, filed November 19, 2018), 2018 WL
6038568, an unreported decision of the Superior Court, which affirmed the lower court’s dismissal
of Cook’s fourteenth petition seeking post-conviction relief as untimely filed.

       7
        Following Cook’s compliance with the service requirements of Pa. R.A.P. 1514(c), this
Court overruled Governor Wolf’s first preliminary objection by order dated January 15, 2020.

       8
           42 Pa.C.S. §§ 9541-9546.



                                                  3
Pennsylvania Constitution; (3) Cook failed to state a claim upon which relief could
be granted; and (4) Respondents Scarnati and Turzai are immune from suit under the
Speech and Debate Clause found in Article II, Section 15 of the Pennsylvania
Constitution.9
                                           II. Discussion
       At the outset, we must address the jurisdictional issue raised by Governor
Wolf in his preliminary objections.10
       Per Section 761(a)(1)(i) of the Judicial Code, this Court has original
jurisdiction of all civil actions or proceedings:

               (1) against the Commonwealth government, including any
               officer thereof, acting in his official capacity, except:

               (i) actions or proceedings in the nature of applications for
               a writ of habeas corpus or post-conviction relief not


       9
          Article II, Section 15 of the Pennsylvania Constitution provides that “[t]he members of
the General Assembly shall in all cases, except treason, felony, violation of their oath of office,
and breach or surety of the peace, be privileged from arrest during their attendance at the sessions
of their respective Houses and in going to and returning from the same; and for any speech or
debate in either House they shall not be questioned in any other place.” Pa. Const. art. III, § 15.

       10
          Cook asserts in his reply brief that Governor Wolf’s brief in support of his preliminary
objections was untimely filed, and, as a consequence, this Court should dismiss Governor Wolf’s
preliminary objections with prejudice. All Respondents were directed by this Court’s January 15,
2020 order to file briefs in support of their preliminary objections by February 14, 2020. In a
subsequent order dated February 18, 2020, this Court extended the deadline to March 16, 2020.
Governor Wolf’s brief in support of his preliminary objections was timely filed on March 16, 2020.

        Cook further contends that Respondents failed to address claims Cook asserted in his
amended complaint. Cook filed a response, styled as an amended petition, to Governor Wolf’s
preliminary objections on October 17, 2019. This response was stricken by this Court as a
piecemeal filing by order dated October 22, 2019. Cook was granted leave to file an amended
petition for review within 30 days of the order’s exit date of October 23, 2019. Cook’s subsequent
“Motion for Leave to File an Amended Complaint” was received by this Court on November 26,
2019, and denied by this Court by order dated December 17, 2019.


                                                 4
             ancillary to proceedings within the appellate jurisdiction
             of the court.

42 Pa.C.S. § 761(a)(1)(i) (emphasis added).
      Habeas corpus relief is available where a petitioner seeks to test the legality
of his commitment and detention. Wilson v. Pa. Bureau of Corr., 480 A.2d 392, 393
(Pa. Cmwlth. 1984). This Court’s power to issue writs of habeas corpus must be
narrowly confined to matters ancillary to proceedings in our appellate jurisdiction.
Brown v. Dep’t of Corr., 601 A.2d 1345, 1347 (Pa. Cmwlth. 1992).
      At the conclusion of his petition for review, Cook seeks “relief, from such
violation that warrants discharge of [Cook] forth with [sic] . . . .” Cook Petition at
14.    Cook seeks no other relief beyond his release from imprisonment.
Consequently, we must interpret his petition for review as an application for a writ
of habeas corpus. Cook has not identified any proceedings, and this Court is not
aware of any, that are within the appellate jurisdiction of this Court and ancillary to
Cook’s application for habeas corpus. As a consequence, we agree with Governor
Wolf that this Court lacks jurisdiction over Cook’s application for a writ of habeas
corpus. Accordingly, Governor Wolf’s preliminary objection raising lack of subject
matter jurisdiction is sustained.
                                    III.   Conclusion
      As Cook’s petition for review seeks to challenge the legality of his
confinement and, by way of relief, requests his release from imprisonment, we are
constrained to treat this matter as an application for a writ of habeas corpus. As no
other proceeding involving Cook is pending in our appellate jurisdiction, this Court
lacks subject matter jurisdiction to dispose of Cook’s application for a writ of habeas
corpus. Governor Wolf’s preliminary objection raising lack of subject matter
jurisdiction is therefore sustained. Cook’s sentence of life imprisonment was entered


                                           5
by the Court of Common Pleas of Allegheny County. Cook Petition, Ex. B.
Accordingly, Cook’s application for a writ of habeas corpus is transferred to the
Court of Common Pleas of Allegheny County, which will address the remainder of
Governor Wolf’s preliminary objections, as well as those raised by Respondents
Scarnati and Turzai.

                                      __________________________________
                                      ELLEN CEISLER, Judge

Judges Fizzano Cannon and Crompton did not participate in the decision of this case.




                                         6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marcel Cook,                           :
                   Petitioner          :
                                       :
      v.                               : No. 472 M.D. 2019
                                       :
Tom Wolf, Governor of                  :
Pennsylvania, et al.,                  :
                    Respondents        :

                                      ORDER


      AND NOW, this 13th day of May, 2020, the preliminary objection of
Respondent Tom Wolf, Governor of Pennsylvania, raising lack of subject matter
jurisdiction is sustained. The application of Marcel Cook for a writ of habeas corpus
is transferred to the Court of Common Pleas of Allegheny County, which shall
address the remainder of Governor Wolf’s preliminary objections, as well as those
filed by Joe Scarnati, President Pro Tempore of the Pennsylvania State Senate, and
Mike Turzai, Speaker of the Pennsylvania House of Representatives.                The
Prothonotary of this Court shall transfer the record together with a certified copy of
the docket entries to the prothonotary of the Court of Common Pleas of Allegheny
County.
      Jurisdiction is relinquished.

                                       __________________________________
                                       ELLEN CEISLER, Judge
