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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY J. ROBINSON, :
:
Appellant : No. 324 WDA 2015
Appeal from the PCRA Order Entered February 4, 2015
in the Court of Common Pleas of Beaver County,
Criminal Division, at No(s): CP-04-CR-0000199-1977
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 09, 2015
Gary J. Robinson (Appellant) appeals from the February 4, 2015 order
which dismissed his petition for writ of habeas corpus as an untimely-filed
petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
In 1977, following a jury trial with co-defendant Bernard Jerry,
Appellant was convicted of, inter alia, second-degree murder for which he
was given a sentence of life imprisonment. His judgment of sentence was
affirmed on direct appeal. Commonwealth v. Jerry, 401 A.2d 310, 311
(Pa. 1979). Appellant’s numerous post-conviction petitions filed between
1979 and 2014 resulted in no relief.
On January 14, 2015, Appellant filed a petition for writ of habeas
corpus. The trial court treated Appellant’s filing as a PCRA petition and
*Retired Senior Judge assigned to the Superior Court.
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determined that it was untimely filed. The trial court thus dismissed the
petition without a hearing, and Appellant timely filed a notice of appeal.
We begin our review by noting the relevant legal principles. “[T]he
PCRA subsumes all forms of collateral relief, including habeas corpus, to the
extent a remedy is available under such enactment.” Commonwealth v.
West, 938 A.2d 1034, 1043 (Pa. 2007). Any PCRA petition, including
second and subsequent petitions, must either (1) be filed within one year of
the judgment of sentence becoming final, or (2) plead and prove a
timeliness exception. 42 Pa.C.S. § 9545(b). “[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).
However, “claims that fall outside the eligibility parameters of the
PCRA may be raised through a writ of habeas corpus.” Commonwealth v.
Masker, 34 A.3d 841, 850 (Pa. Super. 2011) (en banc). Our Supreme
Court has explained that “the boundaries of cognizable claims under the
PCRA can only be extended so far as is consistent with the purposes of the
statute.” Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007)
(holding habeas corpus, not the PCRA, “was available to adjudicate whether
defendant Judge’s deportation from Canada to face the death penalty in
Pennsylvania… violated his rights under the International Covenant for Civil
and Political Rights”).
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Appellant in his petition alleged that the Commonwealth failed to offer
sufficient evidence of Appellant’s guilt. Petition for Writ of Habeas Corpus,
1/14/2015, at 3. He also argued that a miscarriage of justice occurred when
the trial court failed to sever his trial from that of his co-defendant as was
required by a since-repealed statute.1 Appellant argues that because
“miscarriage of justice” is not a cognizable claim under the PCRA, he
properly petitioned for a writ of habeas corpus. Id. at 2.
The trial court determined that because “these claims could have been
raised in a timely PCRA [p]etition, [Appellant] is not entitled to habeas
corpus relief.” Trial Court Opinion, 1/16/2015, at 3. The trial court
proceeded to consider Appellant’s filing as a PCRA petition, and held that it
was untimely filed. Id. Because Appellant failed to plead a timeliness
exception, the trial court dismissed the PCRA petition.
1
That statute, found at 19 P.S. § 785, provided as follows:
In all cases in which two or more persons are jointly indicted for
any offense, it shall be in the discretion of the court to try them
jointly or severally, except that in cases of felonious homicide,
the parties charged shall have the right to demand separate
trials; and in all cases of joint trials, the accused shall have the
right to the same number of peremptory challenges to which
either would be entitled if separately tried, and no more.
Commonwealth v. Suggs, 432 A.2d 1042, 1048 (Pa. Super. 1981)
(quoting 19 P.S. § 785). The statute was repealed in 1978, shortly after
Appellant was sentenced. Id. at 1048 n.2.
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It is not clear whether Appellant’s petition is cognizable under the
PCRA. On the one hand, Appellant raises claims which are consistent with
the PCRA, in that he maintains his innocence and states claims which
challenge the truth-determining process and the underlying adjudication of
guilt. Cf. Judge, 916 A.2d at 520 (applying habeas corpus law instead of
the PCRA where Judge’s claim had “no connection to the truth-determining
process and [did] not render the underlying adjudication of guilt or
innocence… unreliable”); West, 938 A.2d at 1044 (determining that habeas
corpus, rather than the PCRA, is the appropriate vehicle for a claim that
“does not implicate the truth determining process underlying his conviction
and sentence, nor does it implicate the legality of the sentence imposed”).
On the other hand, our Supreme Court has held that claims of due
process violations and other trial court error which could have been raised
on direct appeal but were not were “beyond the power of this Court to
review under the express terms of the PCRA.” Commonwealth v. Abdul-
Salaam, 808 A.2d 558, 560 (Pa. 2001).
What is clear is that Appellant cannot prevail under either the PCRA or
habeas corpus. If the PCRA applies, his petition is untimely-filed with no
timeliness exception alleged. See, e.g., Commonwealth v. Lewis, 63
A.3d 1274, 1281 (Pa. Super. 2013) (quoting Commonwealth v. Chester,
895 A.2d 520, 522 (Pa. 2006) (“[I]f a PCRA petition is untimely, neither this
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Court nor the [PCRA] court has jurisdiction over the petition. Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims.”); Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.
2011) (“[T]he statute confers no authority upon this Court to fashion ad hoc
equitable exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act.”) (internal quotation omitted).
Appellant’s claims also are ineligible for habeas corpus relief. “It is
well settled that the extraordinary remedy of habeas corpus, which can be
successfully invoked only in exceptional cases, is not a substitute for an
appeal or a motion for a new trial, nor is it available for the correction of trial
errors.” Com. ex rel. Williams v. Myers, 162 A.2d 419, 420 (Pa. Super.
1960). See also Com. ex rel. Ashmon v. Banmiller, 137 A.2d 236, 238
(Pa. 1958) (“[A] habeas corpus petition is not available for the correction of
trial errors which could have been reviewed and corrected on appeal; it is
not a substitute for an appeal or for a writ of error or for a motion for a new
trial.”); Com. ex rel. Bey v. Myers, 152 A.2d 921, 922 (Pa. Super. 1959).
(“The sufficiency of the evidence, and any trial errors which could have been
considered and corrected on appeal are not remediable or the subject of
relief by habeas corpus.”). Appellant could have raised his sufficiency and
severance claims on direct appeal, but failed to do so. Accordingly,
Appellant’s claims are not subject to habeas corpus relief.
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Thus, the trial court did not err in dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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Com. v. Robinson, G.
Combined Opinion