J-S81007-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

CYPRIAN DIAZ

                        Appellant                   No. 1132 EDA 2016


                Appeal from the PCRA Order March 11, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0704571-2003



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

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 22, 2017

     Cyprian Diaz appeals from the March 11, 2016 order denying him

PCRA relief in this 2003 case.      The appeal concerns whether Appellant’s

request for relief was properly treated as a petition for relief under the

PCRA. We affirm.

     After a bench trial, Appellant was found guilty of first degree homicide

and related offenses. The Commonwealth established that Appellant, while

an adult, shot and killed his former wife and her husband.         Appellant

unsuccessfully pursued relief on direct appeal.   Commonwealth v. Diaz,

927 A.2d 649 (Pa.Super. 2007) (unpublished memorandum). Appellant was

granted leave to file a Petition for Allowance of Appeal Nunc Pro Tunc, which

was ultimately denied by our Supreme Court on February 12, 2010.

* Former Justice specially assigned to the Superior Court.
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Commonwealth v. Diaz, 989 A.2d 914 (Pa. 2010). Appellant also pursued

PCRA relief, which was denied by the PCRA court and affirmed on appeal by

this Court. Commonwealth v. Diaz, 96 A.3d 1079 (Pa.Super. 2014). He

filed for discretionary review with our Supreme Court, which was denied on

May 15, 2014.        Commonwealth v. Diaz, 63 EAL 2014 (Pa. 2014)

(unpublished in Atlantic Reporter).

      On December 11, 2015, Appellant filed the instant petition, styled as a

request for habeas corpus relief.       On February 8, 2016, the trial court

determined that the petition must be treated as a request for relief under

the PCRA, and, since Appellant failed to plead and prove an exception to the

one-year time bar, issued a notice of intent to dismiss informing him of

those procedural defects.     On February 26, 2016, Appellant replied to the

notice, again averring that his request for relief was not cognizable under

the PCRA. The court thereafter denied the petition on March 11, 2016. This

appeal followed. Appellant raises the following claims for our review:

      A. Whether the trial court abused its discretion in dismissing
      Appellant's petition for writ of Habeas Corpus Ad Subjiciendum
      where the verdict announced by the court of guilty on the first
      degree murder offense was in error in that the court did not
      have jurisdiction of the matter, where the criminal information
      filed in this action w[as] fatally defective since i[t] failed to recite
      all of the essential elements of the offense and failed to inform
      Appellant of the precise charge he was required to defend
      against at trial?

      B. Whether Appellant is illegally confined based on the verdict
      and sentence being vitiated and non-existent as a result of the
      fatally defective criminal information and eliminates all questions

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      of w[ai]ver, timeliness and due diligence as bars to the relief
      sought?

Appellant’s brief at 3.

      Our task is to determine if the court properly treated this petition as a

request for relief under the PCRA.   This Court's “standard of review of the

denial of a PCRA petition is limited to examining whether the evidence of

record supports the court's determination and whether its decision is free of

legal error.” Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa.Super.

2015). Whether the present claim is cognizable under the PCRA is a matter

of law subject to de novo review, not an abuse of discretion as maintained

by Appellant. The following principles inform our determination of this legal

question.

      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. Issues that are cognizable under the
      PCRA must be raised in a timely PCRA petition and cannot be
      raised in a habeas corpus petition.        Phrased differently, a
      defendant cannot escape the PCRA time-bar by titling his
      petition or motion as a writ of habeas corpus.

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

(citations and footnote omitted).

      Herein, Appellant alleges that the claim raised is not cognizable under

the PCRA because he is illegally confined.     He reaches this conclusion by

arguing that 18 Pa.C.S. § 1102, which provides the applicable sentences for

homicide, violates due process and is void for vagueness because it does not


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directly state that the punishment of life imprisonment is ineligible for

parole. 18 Pa.C.S. § 1102(a)(1) (“[A] person who has been convicted of a

murder of the first degree . . . shall be sentenced to death or to a term of

life imprisonment”); 61 Pa.C.S. § 6137(a)(1) (“The board may . . . release

on parole any inmate . . . except an inmate condemned to death or serving

life imprisonment[.]”).      Additionally, Appellant claims that the criminal

information simply charged him with homicide generally, and did not clearly

specify the various elements of first degree homicide. Appellant avers that

these defects violated his due process right to fair notice and as a result

divested the trial court of subject matter jurisdiction. Hence, his conviction

was illegal, and, in turn, so is his confinement.

      The court properly treated this request for relief as a PCRA petition.

Issues that may be brought under the PCRA must be brought under the

PCRA.       The PCRA specifically states that a claim that “the conviction or

sentence resulted from . . . [a] proceeding in a tribunal without jurisdiction”

is cognizable.      42 Pa.C.S. § 9543(a)(2)(viii).    Due process claims are

similarly    cognizable   under   the   PCRA.   42   Pa.C.S.   §   9543(a)(2)(i).

Additionally, the salient facts necessary to forward that claim were clearly

known during the time period in which he was permitted to seek PCRA relief.

See Commonwealth v. Dickerson, 900 A.2d 407 (Pa.Super. 2006)

(rejecting untimely PCRA claim that trial court lacked subject matter

jurisdiction; the facts upon which the claim is predicated were known and

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thus the claim was not subject to any exception).          Hence, while Appellant

has failed to plead and prove an exception to the time-bar, he could not

have done so in any event.

       Additionally, while the PCRA court properly concluded that it lacked

jurisdiction to address the substance of his claim, we note that subject

matter jurisdiction simply requires “that the court be competent to hear the

case and that the defendant be provided with a ‘formal and specific

accusation of the crimes charged.’” Commonwealth v. Hatchin, 709 A.2d

405, 408 (Pa.Super. 1998) (quoting Commonwealth v. Little, 314 A.2d

270, 273 (Pa. 1974)). Both requirements were met. An information need

not specify a particular degree of murder. Commonwealth v. Chambers,

852 A.2d 1197 (Pa.Super. 2004). Assuming arguendo that a citizen must be

informed of parole eligibility as a matter of due process, the fact that parole

eligibility   is   codified   elsewhere   constitutes   adequate   notice.   See

Commonwealth v. Bell, 645 A.2d 211 (Pa. 1994) (rejecting due process

claim that mandatory minimum statute is unconstitutionally vague because

it failed to expressly provide a maximum, as “one can be reasonably implied

when . . . read together” with other pertinent statutes).

       Accordingly, the PCRA court properly concluded that the instant

petition is cognizable under the PCRA and that it lacked jurisdiction.        Its

decision is free of legal error and we affirm.

       Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017




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