Com. v. Alderman, R. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT ALDERMAN, :
:
Appellant : No. 2019 EDA 2017
Appeal from the PCRA Order May 31, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1033821-1989
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 31, 2018
Appellant, Robert Alderman, appeals from the Order entered on May 31,
2017, in the Court of Common Pleas of Philadelphia County dismissing his
sixth Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. After careful review, we affirm on the basis that
Appellant’s PCRA Petition is untimely and this Court lacks jurisdiction to review
the Petition.
This Court previously set forth the underlying facts, so we will not repeat
them here. See Commonwealth v. Alderman, No. 255 PHL 1992 (Pa.
Super. filed Mar. 11, 1993) (unpublished memorandum); Commonwealth v.
Alderman, No. 1783 EDA 2000 (Pa. Super. filed Dec. 22, 2000) (unpublished
memorandum). In summary, Appellant is serving a life sentence following his
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bench trial convictions in 1991 for Second-Degree Murder, Burglary, and
Possession of an Instrument of Crime (“PIC”).1
On March 11, 1993, this Court affirmed Appellant’s Judgment of
Sentence. Commonwealth v. Alderman, No. 255 PHL 1992 (Pa. Super.
filed Mar. 11, 1993) (unpublished memorandum). Appellant did not seek
review by the Pennsylvania Supreme Court. Appellant’s Judgment of
Sentence became final on April 10, 1993, when his time for seeking review
with the Pennsylvania Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 1113.
Between 1993 and 1999, Appellant filed five unsuccessful PCRA
Petitions.
On June 11, 2015, Appellant filed a Writ of Habeas Corpus, arguing that
his sentence is “invalid/illegal on its face” because a Department of
Corrections Form from 1991 (“DC-300B Form”) does not specify the degree
of Murder for which he was convicted. Writ of Habeas Corpus, 6/11/15, at 1.
In light of this “newly discovered evidence,” Appellant asserted that he is only
guilty of Third-Degree Murder carrying a sentence of 10 to 20 years’
imprisonment, “which has expired.” Id.
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1 18 Pa.C.S. § 2502(b); 18 Pa.C.S. § 3502; and 18 Pa.C.S. § 907, respectively.
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On July 5, 2016, Appellant filed the instant pro se PCRA Petition, his
sixth, presenting the same illegal sentencing claim about the DC-300B Form
that he presented in his Writ of Habeas Corpus.
The PCRA court filed two Pa.R.Crim.P. 907 Notices,2,3 and on May 31,
2017, the PCRA court dismissed the instant PCRA Petition and Writ of Habeas
Corpus without a hearing.
Appellant filed a timely Notice of Appeal on June 7, 2017. The trial court
complied with Pa.R.A.P. 1925(a).4
Appellant presents the following two issues for our review:
I. Did the [c]ourt err in construing [Appellant’s] Writ of Habeas
Corpus Ad-Subjiciendum as a [PCRA] Petition when [Appellant]
expressly explained that the issue does not fall within the scope
of the [PCRA]?
II. Did the [PCRA court] err in overriding the decision of the
[original PCRA court] to construe the filing of [Appellant] as a Writ
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2 See Rule 907 Notice, dated 4/7/17 and Rule 907 Notice, dated 8/11/16. In
August 2016, a judge issued a Pa.R.Crim.P. 907 Notice of intent to dismiss
without a hearing opining that Appellant’s “claim of an illegal detention is
cognizable as a Petition for Writ of Habeas Corpus, and is not subsumed by
the [PCRA].” Rule 907 Notice, dated 8/11/16, at 1. That court also opined
that (1) both the Writ of Habeas Corpus and the PCRA Petition raised the same
sentencing issue and (2) Appellant “produce[d] no evidence in support of his
claim.” Id. at 1. Prior to the entry of an order dismissing Appellant’s filings,
however, Appellant’s case was reassigned to another judge. That judge
opined that “upon closer review, [Appellant’s] claim of an illegal detention is
cognizable as a [PCRA] Petition.” Rule 907 Notice, dated 4/7/17, at 1.
3 Appellant filed responses to both Rule 907 Notices.
4 The trial court did not order Appellant to file a Rule 1925(b) Statement of
Errors.
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of Habeas Corpus when the [PCRA court] construed said Writ as a
Post Conviction Relief Act Petition?
Appellant’s Brief at 4.
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its Order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). There
is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court
can determine from the record that there are no genuine issues of material
fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
Appellant claims that the PCRA court erred in treating his Writ of Habeas
Corpus as a PCRA Petition. Appellant’s Brief at 8-11. Appellant further alleges
that the PCRA court violated principles of coordinate jurisdiction when it did
not abide by a prior judge’s 907 Notice indicating that his Writ of Habeas
Corpus was not subsumed by the PCRA. Id. at 12-14 (citing general case law
regarding motions to change venue in civil cases and general principles of
coordinate jurisdiction).
It is well settled that the PCRA is intended to be the “sole means of
obtaining collateral relief.” 42 Pa.C.S. § 9542; see also Commonwealth v.
Peterkin, 722 A.2d 638, 640 (Pa. 1998). So long as the PCRA provides a
potential remedy to a given claim, “the PCRA statute subsumes the writ of
habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa.
Super. 2013) (citation omitted).
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A challenge to the legality of sentence is cognizable under the PCRA. 42
Pa.C.S. § 9543(a)(2)(vii); see also Commonwealth v. Beck, 848 A.2d 987,
989 (Pa. Super. 2004). When raising a challenge to the legality of his
sentence, “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, 466 (Pa. Super. 2013).
The PCRA court concluded that Appellant’s Writ of Habeas Corpus
constituted an improper attempt to circumvent the PCRA’s timeliness
requirements. We agree with this assessment. Appellant’s filing
fundamentally challenged the legality of his sentence based on alleged errors
or omissions contained in Department of Corrections paperwork. Tellingly,
these claims were nearly identical to the claims raised in Appellant’s PCRA
Petition. The PCRA court properly deemed Appellant’s Writ as an untimely
PCRA Petition. Appellant’s attempt to obtain relief by titling his filing a Writ of
Habeas Corpus, thus, fails.
Appellant also claims that the PCRA court erred by “overruling” a prior
judge’s 907 Notice indicating that his Writ of Habeas Corpus was not
subsumed by the PCRA.5 Appellant’s Brief at 12-14.
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5 The original 907 Notice identified and addressed Appellant’s Writ of Habeas
Corpus under Pa.R.Crim.P. 907, which applies to PCRA matters and does not
apply to Writs of Habeas Corpus. Further, the original PCRA court did not
credit Appellant’s argument in any way, and did not suggest separate
proceedings for the Writ would be appropriate. Rather, the original 907 Notice
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The law of the case doctrine instructs “that a court involved in the later
phases of a litigated matter should not reopen questions decided by another
judge of that same court . . . in the earlier phases of the matter[.]”
Commonwealth v. McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005)
(en banc) (citation and quotation omitted). Notably, “[u]nder Pennsylvania
law, the doctrine of law of the case does not have an absolute preclusive
effect.” Id. at 1268. The doctrine does not apply under exceptional
circumstances, such as “an intervening change in the law, a substantial
change in the facts, or if the prior ruling was clearly erroneous and would
create a manifest injustice if followed.” Id. (citation and internal quotation
marks omitted).
Appellant’s contention implicating the law of the case doctrine is without
merit. The Rule 907 Notice is not an order or resolution of a legal question;
it is simply a notice of a forthcoming proposed resolution. Appellant cites no
relevant case law to support his proposition that a sentence included in a Rule
907 Notice binds subsequent courts under the law of the case doctrine. In
addition, the original Rule 907 Notice was “clearly erroneous” because
Appellant raised an identical meritless claim regarding his sentence,
____________________________________________
identified the claims presented in the Writ and PCRA as identical and stated
that Appellant “produce[d] no evidence in support of his claim.” Rule 907
Notice, dated 8/11/16, at 1.
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cognizable under the PCRA, in both his PCRA and Writ. See McCandless,
880 A.2d at 1268.
Moreover, we may affirm on any grounds supported by the record.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012) (“This
Court may affirm a PCRA court’s decision on any grounds if the record supports
it.”). We will not fault the PCRA court for identifying an erroneous legal
conclusion after more closely reviewing the pleadings and correcting it
accordingly.6
In sum, the PCRA court properly dismissed Appellant’s sixth PCRA
Petition as untimely. See PCRA Court Opinion at 1. The record supports the
PCRA court’s findings and its Order is otherwise free of legal error.
Accordingly, we affirm.7
Order affirmed.
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6 Notably, this Court’s prior decisions holding that Appellant is serving a life
sentence for Second-Degree Murder constitute binding precedent. See, e.g.,
Commonwealth v. Alderman, No. 255 PHL 1992 (Pa. Super. filed Mar. 11,
1993) (unpublished memorandum); Commonwealth v. Alderman, No.
1783 EDA 2000 (Pa. Super. filed Dec. 22, 2000) (unpublished memorandum).
7 We do not address the substance of Appellant’s untimely PCRA Petition
because we do not have jurisdiction. In addition to the timeliness issues with
this sixth Petition filed decades after Appellant’s original conviction, the DC-
300B Form upon which Appellant relied as “newly discovered evidence”
contains signatures and stamps from June of 1991. Appellant makes no effort
to plead or prove that he was duly diligent or explain how and when he learned
of this “newly discovered evidence.”
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/18
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