J-S07019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    HARRY LEO LICIAGA                          :
                                               :
                       Appellant               :      No. 2216 EDA 2019

               Appeal from the PCRA Order Entered July 17, 2019
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003464-1989


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                 FILED MARCH 13, 2020

        Appellant, Harry Leo Liciaga, appeals pro se from the order entered in

the Lehigh County Court of Common Pleas, denying his pro se petition for writ

of habeas corpus, which the court treated as a serial petition filed under the

Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm.

        A prior panel of this Court set forth the relevant procedural history of

this appeal as follows:

           On May 22, 1990, following a jury trial, Appellant was
           convicted of second-degree murder and related offenses.
           The trial court sentenced Appellant on November 1, 1990 to
           life imprisonment. … Appellant filed a timely notice of
           appeal…. This Court affirmed the judgment of sentence on
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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
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          August 15, 1996.[2] Appellant did not seek further direct
          appeal.

          On May 19, 1997, Appellant filed a timely PCRA petition.
          That petition was subsequently denied by the PCRA court on
          December 15, 1998. On appeal, this Court affirmed the
          denial of Appellant’s PCRA petition on November 10, 1999.
          Appellant did not seek further appeal.

Commonwealth v. Liciaga, No. 3156 EDA 2012, unpublished memorandum

at 1-2 (Pa.Super. filed Aug. 21, 2013) (internal citations omitted).

       Appellant subsequently filed several unsuccessful petitions for collateral

review. On June 25, 2019, Appellant filed the instant pro se petition for writ

of habeas corpus, arguing the sentencing statute for second-degree murder,

18 Pa.C.S.A § 1102(b), is void for vagueness and violates his due process

rights.3 Relying on Commonwealth v. Rouse, 191 A.3d 1 (Pa.Super. 2018),

Appellant also asserted that his claim was not cognizable under the PCRA.

       Despite Appellant’s assertions, the court treated Appellant’s filing as a

PCRA petition. On June 27, 2019, the court filed its Pa.R.Crim.P. 907 notice

of intent to dismiss Appellant’s petition. Specifically, the court determined

that Appellant had failed to “establish a prima facie showing that the


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2 On appeal, Appellant argued: 1) the Commonwealth committed discovery
violations; 2) the trial court improperly commented on a witness’s credibility;
and 3) the trial court erred in refusing to grant a mistrial after a witness opined
that Appellant was capable of committing murder. See Commonwealth v.
Liciaga, No. 429 PHL 1995, unpublished memorandum at 2-9 (Pa.Super. filed
Aug. 15, 1996).

3Section 1102(b) mandates that “a person who has been convicted of murder
of the second degree…shall be sentenced to a term of life imprisonment.”

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proceedings which resulted in his conviction were so unfair that a miscarriage

of justice occurred which no civilized society could tolerate, or that he was

innocent of the crimes for which he was charged.” (Order, filed 6/27/19, at

2) (internal footnote and quotation marks omitted). Appellant timely filed a

pro se response to the Rule 907 notice, reiterating his argument that the void-

for-vagueness challenge was not cognizable under the PCRA.         On July 17,

2019, the court denied Appellant’s petition.

      Appellant timely filed a pro se notice of appeal on August 5, 2019. On

August 15, 2019, the court ordered Appellant to file a Pa.R.A.P 1925(b)

concise statement of errors complained of on appeal. Appellant timely filed

his pro se Rule 1925(b) statement on August 27, 2019.

      In his appeal, Appellant raises the following issue for our review:

         WHETHER THE [PCRA] COURT ABUSED ITS DISCRETION IN
         DISMISSING APPELLANT’S PETITION FOR HABEAS CORPUS
         RELIEF ALLEGING HE IS ILLEGALLY CONFINED ON THE
         BASIS OF PENAL STATUTE 18 PA.C.S.A § 1102(b) THAT IS
         UNCONSTITUTIONAL AND VOID UNDER THE VAGUENESS
         DOCTRINE BECAUSE HE WAS NOT CHARGED UNDER THIS
         STATUTE?

(Appellant’s Brief at 3).

      Appellant argues Section 1102(b) governed the imposition of his

sentence for second-degree murder, but the statute is void for vagueness.

Relying on Rouse, supra, Appellant contends his claim is not cognizable

under the PCRA, and he properly raised the issue in a petition for writ of

habeas corpus.     Moreover, Appellant insists he did not waive his claim,


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because he “was not informed on the record that failure to raise this issue at

sentencing or post-sentence would affect his right to raise this issue forever.”

(Appellant’s Brief at 12). Appellant concludes that the court should not have

treated his filing as a PCRA petition, and this Court must reverse the order

denying relief. We disagree.

      Preliminarily, the PCRA is “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.” 42 Pa.C.S.A. § 9542. “Under the plain words of the statute,

if the underlying substantive claim is one that could potentially be remedied

under the PCRA, that claim is exclusive to the PCRA. It is only where the

PCRA does not encompass a claim that other collateral procedures are

available.”   Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super.

2004), cert denied, 546 U.S. 909, 126 S.Ct. 264, 163 L.Ed.2d 237 (2005)

(citations omitted) (emphasis in original).

      Regarding the question of whether the PCRA encompasses Appellant’s

claim, this Court addressed a similar issue in Rouse. There, the petitioner

submitted a pro se petition for writ of habeas corpus, contending that Section

1102(b) was void for vagueness. The PCRA court construed the petitioner’s

argument as a challenge to the legality of his sentence and treated his filing

as a PCRA petition. On appeal, this Court determined that the petitioner’s

void-for-vagueness argument was not cognizable under the PCRA:


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           [B]ecause [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, supra at 7.

      Ultimately, this Court treated the filing as a petition for habeas corpus

relief, but it held that the petitioner had waived his claim:

           [The petitioner’s] void-for-vagueness claim, just like all
           claims (but for the three categories of illegal-sentencing
           claims …), is subject to waiver. Habeas 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. As [the
           petitioner’s] claim could have been raised at his sentencing
           hearing, or in a post-sentence motion, he failed to exhaust
           all available remedies before resorting to habeas corpus.
           Accordingly, we deem his claim waived and, therefore,
           affirm the trial court’s order dismissing his petition on that
           basis. To the extent our legal reasoning differs from the
           trial court’s, we note that as an appellate court, we may
           affirm on any legal basis supported by the certified record.

Id. at 6-7 (internal citations and quotation marks omitted).           See also

Commonwealth v. McNeil, 665 A.2d 1247, 1250 (Pa.Super. 1995)

(explaining issues are not cognizable under remedy of habeas corpus if they

could have been considered and corrected in regular course of appellate

review).


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       Instantly, pursuant to Rouse, Appellant’s specific void-for-vagueness

claim was not cognizable under the PCRA.         See Rouse, supra at 6-7.

Nevertheless, Appellant failed to raise his claim at sentencing or in a post-

sentence motion. Because Appellant “failed to exhaust all available remedies

before seeking relief under habeas corpus,” Appellant waived his claim.4 See

id. Therefore, we affirm the order denying Appellant’s petition, albeit on a

different basis. Id.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/20




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4 To the extent Appellant suggests the sentencing court or counsel should
have informed him on the record about the possibility of waiving this claim,
Appellant’s assertion does not comport with the Pennsylvania Rule of Criminal
Procedure governing notice of post-sentence rights.       See Pa.R.Crim.P.
704(C)(3) (discussing notice of post-sentence rights).

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