J-S18043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

WILLIE E. POLITE

                                  Appellant            No. 1657 EDA 2016


                      Appeal from the Order May 13, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0832881-1991

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 18, 2017

        Appellant, Willie E. Polite, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his petition for writ of

habeas corpus and all supplemental petitions. We affirm.

        We adopt the facts as set forth by a prior panel of this Court:

           On July 5, 1991 Donna Phillips went to the home of her
           friend, Viola Yarnell, at 519 North 54th Street. No one
           responded to her knocks on the door, but she could hear
           the footsteps of Ms. Yarnell’s one and a half year old
           daughter. When she tried the doorknob, she found the
           door unlocked and entered. Inside she encountered the
           child who had blood splattered on her dress. As she went
           farther into the apartment she saw blood on the wall and
           then discovered the lifeless body of Viola Yarnell lying on
           the floor. The victim was pronounced dead at the scene.
           The body had endured twenty (20) incised wounds or cuts
           and three (3) stab wounds penetrating the right and left
           chest, right lung and heart. Following an investigation by
           Philadelphia homicide detectives, statements were taken

*
    Former Justice specially assigned to the Superior Court.
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           from acquaintances of [Appellant] who acknowledged that
           he had admitted stabbing Viola Yarnell to death. . . .

Commonwealth v. Polite, 01515 Phl 1993 (unpublished memorandum at

2) (Pa. Super. Apr. 13, 1994).1

        A prior panel of this Court stated the procedural posture of this case as

follows:

              On March 27, 1992, following a jury trial, [Appellant]
           was convicted of first degree murder and possession of an
           instrument of crime. [Appellant’s] convictions stemmed
           from the murder of Viola Yarrell. Thereafter, on April 27,
           1993, [Appellant] was sentenced to a term of life
           imprisonment for the first-degree murder conviction and a
           concurrent term of two and a half (21/2) to five (5) years
           for the conviction of possession of an instrument of crime.

              [Appellant] filed a direct appeal on April 30, 1993. This
           Court confirmed [his] judgment of sentence on April 13,
           1994. See Commonwealth v. Polite, 645 A.2d 892 (Pa.
           Super. 1994) (unpublished memorandum). Our Supreme
           Court denied [his] application for review on October 6,
           1994. See Commonwealth v. Polite, [ ] 649 A.2d 670
           (Pa. 1994) (table).

              On May 2, 1996, [Appellant] filed a [Post Conviction
           Relief Act[2] (“PCRA”)] petition. The petition was denied by
           the PCRA court’s order entered on May 9, 1997.
           [Appellant] did not appeal the denial of his petition.

              On January 20, 2000, [Appellant] filed a pro se PCRA
           petition, his second such petition, which was subsequently
           amended, by privately retained counsel, on September 21,
           2000. On March 9, 2001, the PCRA court entered an order
           again denying [Appellant’s] PCRA petition. [Appellant]

1
  We note this Court stated the facts as they “were adequately described by
the trial court[.]” Id.
2
    42 Pa.C.S. §§ 9541-9546.



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         appealed the dismissal of his petition, however, this Court
         affirmed the denial of the petition on May 16, 2002. See
         Commonwealth v. Polite, 804 A.2d 59 (Pa. Super. 2002)
         (unpublished memorandum).

             On November 5, 2003, [Appellant] filed another pro se
         PCRA petition, his third such petition. The PCRA court
         appointed counsel and counsel subsequently filed, on July
         28, 2004, a Turner/Finley “no merit” letter.4 On July 28,
         2004, the PCRA court provided [Appellant] with notice of
         its intent to dismiss the petition pursuant to Pa.R.Crim.P.
         [907]. Thereafter, on September 21, 2004, the PCRA
         court entered an order dismissing [his] PCRA petition. . . .
         ____________
         4
            Commonwealth v. Turner, [ ] 544 A.2d 927 ([Pa.]
         1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.
         Super. 1988) (en banc).

Commonwealth v. Polite, 2919 EDA 2004, (unpublished memorandum at

1-3), (Pa. Super. Nov. 30, 2005) (some footnotes omitted).           This Court

affirmed the order denying Appellant’s third PCRA petition.        See id.   On

February 21, 2006, Appellant filed a petition for allowance of appeal in the

Pennsylvania Supreme Court.      On August 29, 2006, the Supreme Court

denied the petition.   See Commonwealth v. Polite, 906 A.2d 541 (Pa.

2006).

      On June 5, 2008, Appellant filed his fourth PCRA petition and amended

PCRA petition on December 4, 2008.       On September 28, 2009, he filed a

petition for writ of habeas corpus.     On July 26, 2011, the PCRA court

dismissed his fourth PCRA petition. The court also dismissed his petition for

writ of habeas corpus without prejudice to file a PCRA petition.




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      On February 5, 2013, Appellant filed the instant motion for writ of

habeas corpus ad subjiciendum. On May 19, 2014, Appellant filed a motion

for leave to supplement his motion. On May 13, 2016, the court denied the

petition and all supplemental petitions.      This timely appeal followed.

Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.    On December 7, 2016, Appellant filed a pro se

“Motion for Leave to Supplement Petitioner’s Brief.”       On December 19,

2016, this Court entered an order granting Appellant’s application to file a

supplemental brief.      This Court stated: “[u]pon consideration of the

Appellant’s pro se ‘Motion for Leave to Supplement     Petitioner’s Brief,’ the

motion shall be treated as Appellant’s supplemental appellate brief.”

      Appellant raises the following issue in his brief on appeal from the

denial of the writ of habeas corpus ad subjiciendum:     “Did the Trial Court

Judge abuse his discretion by refusing to issue a genuine sentencing order,

by denying access to Appellant to challenge the statute of murder as it

applies to Appellant’s case. Per order of the Supreme Court of Pennsylvania,

to issue the Writ of Habeas Corpus Ad Subjiciendum?” Appellant’s Brief at

vi.

      Appellant avers:

            On May 13, 2016, Judge Tucker, issued an order and
         opinion, dismissing Appellant’s Writ of Habeas Corpus Ad
         Subjiciendum, as a PCRA Petition pursuant to Joseph v.
         Glunt, 96 A.3d 365, 368-69 (Pa. Super. 2014), claiming
         that it does not matter whether the Department of



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           Corrections, possess a copy of a written sentencing order
           for Appellant.

Id. at 4. He avers that the trial court “abuses his position by implying that

authority found in [42] Pa.C.S. § 9764(c.1)(3),[3] through [Joseph], is

retroactive to this matter.” Id. at 8.

        In Joseph, this Court opined:

               Initially, we note that the Pennsylvania Supreme Court,
           albeit in a per curiam opinion, has held that a claim that a
           defendant’s sentence is illegal due to the inability of the
           DOC to “produce a written sentencing order related to [his]
           judgment of sentence” constitutes a claim legitimately
           sounding in habeas corpus. Brown v. Penna. Dept. of
           Corr., [ ] 81 A.3d 814, 815 ([Pa.] 2013) (per curiam )
           (citing Commonwealth ex rel. Bryant v. Hendrick, [ ]
           280 A.2d 110, 112 ([Pa.] 1971); Warren v. DOC, [ ] 616
           A.2d 140, 142 (Pa. Commw. 1992) (“An application for a
           writ of habeas corpus requests the applicant’s release from
           prison.”)).      Accordingly, we will treat [petitioner’s]
           submission as a petition for a writ of habeas corpus
           instead of a petition under the PCRA, which typically
           governs collateral claims implicating the legality of
           sentence. See 42 Pa.C.S. 9542 (“This subchapter provides
           for an action by which persons . . . serving illegal
           sentences may obtain collateral relief.”).

           Our standard of review in this context is axiomatic:

3
    Section 9764(c.1)(3) provides:

           The Department of Corrections, board and a county
           correctional facility shall not be liable for compensatory,
           punitive or other damages for relying in good faith on any
           sentencing order or court commitment form DC-300B
           generated from the Common Pleas Criminal Court Case
           Management System of the unified judicial system or
           otherwise transmitted to them.

42 Pa.C.S. § 9764(c.1)(3).



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          The ancient writ of habeas corpus is inherited from
          the common law, referred to by Sir William
          Blackstone as the most celebrated writ in the English
          law. The writ lies to secure the immediate release of
          one who has been detained unlawfully, in violation of
          due process. [T]raditionally, the writ has functioned
          only to test the legality of the petitioner’s detention.

        Commonwealth v. Wolfe, [ ] 605 A.2d 1271, 1272–73
        ([Pa. Super.] 1992) (internal citations omitted). “Under
        Pennsylvania statute, habeas corpus is a civil remedy
        [that] lies solely for commitments under criminal process.”
        Commonwealth v. McNeil, [ ] 665 A.2d 1247, 1249–50
        ([Pa. Super.] 1995) (citing Wolfe, 605 A.2d at 1273).
        “Habeas 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. (citing
        Commonwealth ex rel. Kennedy v. Myers, [ ] 143 A.2d
        660, 661 ([Pa.] 1958)). “Our standard of review of a trial
        court’s order denying a petition for [a] writ of habeas
        corpus is limited to [an] abuse of discretion.” Rivera v.
        Penna. Dep't of Corrs., 837 A.2d 525, 528 (Pa. Super.
        2003).

Joseph, 96 A.3d at 368–69. Furthermore,

        We note the following with regard to relief under habeas
        corpus:

          When a petitioner is in custody by virtue of a
          judgment of sentence of a court of competent
          jurisdiction, the writ generally will not lie.  The
          rationale for this limitation is the presumption of
          regularity which follows the judgment. The writ, as
          stated above, is an extraordinary remedy and,
          therefore, a judgment rendered in the ordinary
          course is beyond the reach of habeas corpus. That
          conviction cannot be put aside lightly, and it
          becomes stronger the longer the judgment stands.
          Consequently, habeas corpus generally is not
          available to review a conviction which has been
          affirmed on appeal.



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        Wolfe, 605 A.2d at 1273.

Id. at 372 (some citations omitted and emphasis added).

     The Joseph Court addressed the impact of Section 9764 on prisoners.

        [O]ur Commonwealth Court has adjudicated at least one
        similar appeal on the merits, albeit in an unpublished
        memorandum. In Travis v. Giroux, No. 489 C.D.2013,
        2013 WL 6710773 (Pa. Cmwlth. Dec. 18, 2013), an
        appellant challenged the DOC’s authority to hold him in
        custody because . . . the DOC was unable to produce a
        written sentencing order. Relying upon two holdings from
        the United States District Court for the Eastern District of
        Pennsylvania, the Commonwealth Court held that
        subsection 9764(a)(8) does not provide a cause of action
        for prisoners:[4]

           The current version of [42 Pa.C.S. § 9764(a)(8) ]
           requires that a copy of the sentencing order be
           provided to the [DOC] upon commitment of an
           inmate to its custody.     However, it does not
           create any remedy or cause of action for a
           prisoner based upon the failure to provide a
           copy to the DOC.         The statute regulates the
           exchange of prisoner information between the state
           and county prison system, and does not provide a
           basis for habeas relief.

        Travis, 2013 WL 6710773, at *3.           Specifically, the
        Commonwealth Court emphasized that the appellant in
        Travis did not dispute that he had pleaded guilty and that
        he was sentenced upon that plea. Thus, even where there
        appeared to be no sentencing order in the possession of
        the DOC or the trial court, the Commonwealth Court held
        that subsection 9764(a)(8) furnished no basis for relief
        where the appellant’s sentence was confirmed by the
        certified record. Id. at *3–4 (holding that the appellant’s
        claim pursuant to subsection 9764(a)(8) was “without
        merit” where the criminal docket confirmed that the

4
 We note that the appellant in Travis was sentenced prior to the effective
date of the statute.



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          appellant had    pleaded   guilty   and   had   been   duly
          sentenced).

             Although the decisions of the Commonwealth Court are
          not binding upon this Court, they may serve as persuasive
          authority. Commonwealth v. Ortega, 995 A.2d 879,
          885 (Pa. Super. 2010) . . . . We find the reasoning
          presented in Travis to be probative and instructive. The
          language and structure of section 9764, viewed in
          context, make clear that the statute pertains not to
          the DOC’s authority to detain a duly-sentenced
          prisoner, but, rather, sets forth the procedures and
          prerogatives associated with the transfer of an
          inmate from county to state detention. None of the
          provisions of section 9764 indicate an affirmative
          obligation on the part of the DOC to maintain and produce
          the documents enumerated in subsection 9764(a) upon
          the request of the incarcerated person. Moreover, section
          9764 neither expressly vests, nor implies the vestiture, in
          a prisoner of any remedy for deviation from the procedures
          prescribed within.

Joseph, 96 A.3d at 370–71 (some citations omitted and some emphasis

added).

     In Commonwealth v. Dozier, 99 A.3d 106, 115 (Pa. Super. 2014),

citing Joseph with approval, this Court opined:

          Regardless of whether [the appellant] was unable to
          procure a copy of his sentencing order from various
          individuals and agencies, our review confirms that the
          certified record contains a sentencing order reflecting
          precisely the judgment of sentence recited at the outset of
          this opinion. Because the categorical nonexistence of such
          an order appears to be the linchpin of [his] argument, it
          necessarily fails. Moreover, this Court recently has held
          that it matters not whether the sentencing order is in the
          possession of any administrative or judicial body other
          than the certified record retained by the court of common
          pleas. See [Joseph, 96 A.3d at 371]. As in Joseph, the
          certified record in this case confirms and documents [the



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           appellant’s] judgment of sentence. Thus, this argument
           can provide no relief from [his] judgment of sentence.

Dozier, 99 A.3d at 115.

       In the case sub judice, citing Joseph, the trial court found no merit to

Appellant’s claim that he is entitled to habeas corpus relief based upon “the

missing documentation establish[ing] that he is being held under an illegal

sentence.” Trial Ct. Op., 5/13/16, at 2. We agree no relief is due.

       Instantly, the certified record confirms and documents Appellant’s

judgment of sentence.      See Dozier, 99 A.3d at 115; Joseph, 96 A.2d at

371.      Furthermore, Appellant’s judgment of sentence was affirmed on

appeal.    See Joseph, 96 A.3d at 372.       Therefore, we find no basis for

habeas corpus relief from his judgment of sentence. See id. We discern no

abuse of discretion by the trial court. See id. at 368-69.

       In his motion for leave to supplement petitioner’s brief, Appellant

seeks relief pursuant to the PCRA. He avers:

           Petitioner, Polite, Pro SE, (hereinafter known as Polite),
           hereby moves for relief under Pennsylvania’s Post
           Conviction Relief Act, 42 Pa.C.S. § 9542 and 42 Pa.C.S. Pt.
           VIII, ch. 95, subchapter. B, seeking to vacate his illegal
           sentence, based on the Pennsylvania Superior Court’s
           recent decision in Commonwealth v. Ciccone, 2016 Pa.
           Super. 149; 2016 Pa. Super. Lexis 377 (decided July 12,
           2016), which holds that where appellant received a
           mandatory minimum sentence under a statute that was
           rendered unconstitutional by Alleyne v. United States,
           which was decided after he filed his timely Post Conviction
           Relief Act Petition and his conviction became final, he was
           serving an illegal sentence and appellate court therefore
           had jurisdiction under 42 Pa.C.S. § 9542 of the PCRA to
           correct it, as did the PCRA court below.


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                                 *     *      *

        Pennsylvania case law emphatically supports the
        proposition that illegal sentences must be corrected by
        Pennsylvania Court’s when jurisdiction is not in doubt, and
        the PCRA statute explicitly states that it exists to provide a
        remedy for illegal sentences, without any retroactivity
        qualifications in the context of timely PCRA petitions.

Mot. for Leave to Supplement Pet’r’s Br., 12/7/16, at 1-2, 14.

     In the case sub judice, Appellant did not file a PCRA petition.

However, even assuming arguendo that Appellant had a filed a PCRA

petition, it would not be timely. Appellant’s judgment of sentence became

final on January 5, 1995, which marked the expiration of the ninety day time

period for seeking certiorari in the United States Supreme court after the

Pennsylvania Supreme Court declined to hear Appellant’s petition for

allowance of appeal on October 6, 1994.           See 42 Pa.C.S. § 9545(b)(3)

(stating “a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review”). Appellant then had generally one year within which to file his

PCRA petition.5



5
  As this Court previously noted, Appellant “does not benefit from the grace
period provided in the statute for those petitioners whose judgment of
sentence became final before the effective date of the amendments to the
PCRA as that grace period only applies to first PCRA petitions that were filed
by January 16, 1997.”       Commonwealth v. Polite, 2919 EDA 2004



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      In Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013), this

court held that “[l]egality of sentence questions are not waivable and may

be raised sua sponte by this court.”       Id. at 118.    In Commonwealth v.

Washington, 142 A.3d 810 (Pa. 2016), the Pennsylvania Supreme Court

addressed the issue of “whether the Supreme Court of the United States'

decision in Alleyne [ ] applies retroactively to attacks upon mandatory

minimum sentences advanced on collateral review.”            Id. at 811.     The

Washington Court held that “Alleyne does not apply retroactively to cases

pending on collateral review . . . .”       Id. at 820.    Instantly, Appellant’s

judgment of sentence became final before Alleyne was decided. Therefore,

he is not entitled to any relief based upon Alleyne.       Id.   Accordingly, we

affirm the order of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2017




(unpublished memorandum at 6 n.1) (Pa. Super. Nov. 30, 2005) (citation
omitted).



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