J-S69039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GABRIEL PITTMAN                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

PA DOC

                            Appellee                 No. 833 EDA 2014


                  Appeal from the Order dated January 7, 2014
                 In the Court of Common Pleas of Lehigh County
                Criminal Division at No: CP-39-CR-0000304-1998


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.

JUDGMENT ORDER BY STABILE, J.:                   FILED JANUARY 12, 2015

       Appellant Gabriel Pittman pro se appeals from the January 7, 2014

order of the Court of Common Pleas of Lehigh County (PCRA court),

dismissing his motion for writ of habeas corpus, which the court treated as a

petition for collateral relief under the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-46.1 Upon review, we affirm.

       The facts and procedural history in the instant case are undisputed.

On November 18, 2013, Appellant filed in the PCRA court a motion titled

____________________________________________


1
  Appellant designates the Department of Corrections (DOC), instead of the
Commonwealth of Pennsylvania, as Appellee. Based on our review of the
claims giving rise to this action, we conclude Appellant improperly listed the
DOC as Appellee. His claims largely challenge his conviction and the
resulting sentence. As a result, the Commonwealth Court transferred this
appeal to this Court after Appellant incorrectly filed the notice of appeal in
that court.
J-S69039-14



“Motion for State Writ of Habeas Corpus Relief.”       On January 7, 2014,

treating Appellant’s habeas motion as a PCRA petition, the PCRA court

dismissed the motion on the ground that a petition for allowance of appeal in

connection with Appellant’s previous PCRA petition was pending before our

Supreme Court.

       On appeal,2 Appellant essentially asks this Court to determine whether

the PCRA court erred in treating his habeas motion as a PCRA petition. We,

however, discern no basis upon which to reverse the PCRA court’s ruling in

this regard.    It is settled that the PCRA subsumes common law remedies

where the relief sought is available under the PCRA: “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[.]”     42 Pa.C.S.A. § 9542 (emphasis added).    If relief is available

under the PCRA, the PCRA is the exclusive means of obtaining the relief

sought.    See Commonwealth v. Eller, 807 A.2d 838, 842 (Pa. 2002).

Accordingly, the PCRA court did not err in treating Appellant’s habeas motion

as a PCRA petition.


____________________________________________


2
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).



                                           -2-
J-S69039-14



       Having determined that the court properly treated Appellant’s habeas

motion as PCRA petition, the PCRA court did not err in dismissing the habeas

motion on the basis that a petition for allowance of appeal was pending

before the Supreme Court with respect to Appellant’s previous PCRA

petition. Our review of the record indicates that Appellant filed his habeas

motion on November 18, 2013, and the Supreme Court did not dispose of

his petition for allowance of appeal in connection with a previous PCRA

petition until February 10, 2014.              See Commonwealth v. Pittman, 82

A.3d 1085 (Pa. 2013). Our Supreme Court has held that a subsequent PCRA

petition cannot be filed until “the resolution of review of the pending [prior]

PCRA petition by the highest state court in which review is sought, or upon

the expiration of the time for seeking such review.”          Commonwealth v.

Lark, 746 A.2d 585, 588 (Pa. 2000). Accordingly, the PCRA court did not

err in dismissing Appellant’s habeas motion (treating it as a PCRA petition)

on the basis of the pending appeal in a prior PCRA petition.3

       Order affirmed.




____________________________________________


3
 Our review of the record reveals the PCRA court did not provide Appellant
notice of intent to dismiss the habeas motion (treated as a PCRA petition)
under Pa.R.Crim.P. 907. Appellant, however, has not raised this issue on
appeal. The failure to challenge the absence of a Rule 907 notice constitutes
waiver. See Commonwealth v. Boyd, 923 A.2d 513, 514 n. 1 (Pa. Super.
2007).



                                           -3-
J-S69039-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2015




                          -4-
