J-S85029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
EDWARD T. GOODMAN
Appellant No. 387 EDA 2016
Appeal from the Order January 13, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0901011-1978
BEFORE: OLSON, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY RANSOM, J.: FILED JANUARY 31, 2017
Appellant, Edward T. Goodman, pro se appeals from the January 13,
2016 order denying his petition for a writ of habeas corpus filed under 42
Pa.C.S. § 6503(a). We affirm.
Appellant and eight other MOVE members were tried by the trial court,
sitting without a jury, from December 1979 to May 1980. Appellant was
found guilty of third degree murder, voluntary manslaughter, seven counts
of attempted murder, seven counts of aggravated assault, seven counts of
simple assault and one count of criminal conspiracy.1 See Notes of
Testimony (N.T.), 8/4/81, at 15. In August 1981, Appellant was sentenced
to ten to twenty years of incarceration on the murder charge plus eight
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1
18 Pa.C.S. § 2502(c), 2503, 2502, 2702, 2701 and 903, respectively.
*
Retired Senior Judge assigned to the Superior Court.
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consecutive terms of two and one-half to ten years of incarceration for the
attempted murders and conspiracy charge resulting in an aggregate term of
thirty to one hundred years of imprisonment. Id. at 17-18. No further
penalty was imposed on the aggravated assault. Id. Appellant appealed,
and this Court affirmed his sentence in June 1985. Commonwealth v.
Africa, 499 A.2d 397 (Pa. Super. 1985) (unpublished memorandum), appeal
denied, 544 A.2d 959 (Pa. 1988).
Appellant filed two petitions under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, both of which were dismissed.
Commonwealth v. Africa, 790 A.2d 355 (Pa. Super. 2001), appeal denied,
816 A.2d 1101 (Pa. 2003) (unpublished memorandum); Commonwealth v.
Goodman, 87 A. 3d 390 (Pa. Super. 2013), appeal denied, 87 A.3d 318 (Pa.
2014).
In April 2014, Appellant pro se filed the instant habeas corpus petition
seeking relief from his sentence, as the Department of Corrections (DOC) did
not possess his sentencing order containing statutory authorization for his
continued detention. In June 2015, treating Appellant’s petition under the
PCRA, the lower court issued a notice of intent to dismiss pursuant to
Pa.R.Crim.P. 907, and Appellant filed a timely response. On January 13,
2016, by memorandum order and opinion, the court denied Appellant’s
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petition.2 Appellant timely appealed. The lower court did not direct
Appellant to file a court-ordered PA.R.A.P. 1925(b) statement.
Appellant raises the following issues for our review:
[1.] Whether the [lower court] abused its discretion in dismissing
Appellant’s [p]etition for [w]rit of [h]abeas [c]orpus [a]d
[s]ubjiciendum as an untimely petition pursuant to the Post
Conviction Relief Act (PCRA)?
[2.] Whether the [lower court] abused its discretion in dismissing
Appellant’s [p]etition for [w]rit of [h]abeas [c]orpus [a]d
[s]ubjiciendum since he is confined absent a [s]entencing
[o]rder required by 42 Pa.C.S.A. § 9764(a)(8)?
Appellant’s Brief at 3.
As an initial matter, we note Appellant’s first issue is raised for the first
time on appeal and, as such, is waived. See Pa.R.A.P. 302 (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
Appellant’s second claim, alleging that the DOC had no authority to
confine him absent a written sentencing order, is identical to the challenge
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2
In its combined opinion and order, the lower court conceded that
Appellant’s petition should be considered a petition for writ for habeas
corpus and accordingly concluded that the petition was meritless.
Memorandum Opinion and Order, 1/13/16, at 2 (citing Joseph v. Glunt, 96
A.3d 365 (Pa. Super. 2014) [hereinafter cited as Joseph] (holding claim
that defendant's confinement is illegal “due to the inability of the DOC to
‘produce a written sentencing order related to [his] judgment of sentence’
constitutes claim legitimately sounding in habeas corpus”) (citations
omitted)), appeal denied, 101 A.3d 787 (Pa. 2014).
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raised in Joseph.3 The trial court correctly concluded that this Court's
holding in Joseph is controlling precedent. Thus, we will treat Appellant's
petition as a petition for writ of habeas corpus instead of a petition pursuant
to the PCRA, which only encompasses claims challenging 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”).
In reviewing a petition for writ of habeas corpus, our standard of
review is as follows:
Our standard of review of a trial court's order denying a petition
for writ of habeas corpus is limited to abuse of discretion. Thus,
we may reverse the court's order where the court has misapplied
the law or exercised its discretion in a manner lacking reason. As
in all matters on appeal, the appellant bears the burden of
persuasion to demonstrate his entitlement to the relief he
requests.
Rivera v. Pa. Dep't of Corr., 837 A.2d 525, 528 (Pa. Super. 2003)
(citations omitted).
The statute cited by Appellant in support of his argument provides, in
pertinent part:
§ 9764. Information required upon commitment and subsequent
disposition
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3
Here, as in Joseph, Appellant filed a request with the DOC for a copy of
his sentencing order pursuant to the Right-to-Know Law, 65 Pa.C.S. §§
67.101-.3104. Petition for Writ of Habeas Corpus, 4/8/14, at 2, Exhibit A.
This request was denied as the Records Supervisor of the State Correctional
Institution at Mahanoy sent Appellant an Attestation that the order did not
exist. Writ of Habeas Corpus, 4/8/14, at 2, Exhibit B.
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(a) General rule. -- Upon commitment of an inmate to the
custody of the Department of Corrections, the sheriff or
transporting official shall provide to the institution's records
officer or duty officer, in addition to a copy of the court
commitment form DC–300B generated from the Common Pleas
Criminal Court Case Management System of the unified judicial
system, the following information:
***
(8) A copy of the sentencing order and any detainers filed
against the inmate which the county has notice.
42 Pa.C.S. § 9764(a)(8).
Appellant also cites 37 Pa. Code § 91.3 (“Reception of inmates”) in
support of his claims, which provides as follows:
[The DOC] will accept and confine those persons committed to it
under lawful court orders ... when information has been provided
to [the DOC] as required by 42 Pa.C.S. § 9764 (relating to
information required upon commitment and subsequent
disposition).
37 Pa. Code § 91.3; see Appellant’s Brief at 10.
Though Appellant attempts to construe Section 9764 to provide the
remedy of a prisoner's release for the DOC's failure to comply with this
statute, we observed in Joseph:
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.
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Joseph, 96 A.3d at 371 (emphasis supplied) (footnote omitted).
The lower court reviewed the record and confirmed that the Honorable
Edwin Malmed entered sentencing orders in this matter on August 4, 1981.
Memorandum Opinion and Order, 1/13/16, at 2. Appellant’s sentences were
outlined in the notes of testimony of the sentencing hearing and accurately
docketed by the clerk of courts. N.T., 8/4/81, at 17-78. Thus, the DOC has
the continuing authority to detain a prisoner even without the possession of
the written sentencing order if the record of his judgment of sentence is
maintained by the sentencing court. Id. at 365.
Accordingly, we discern no abuse of discretion and conclude that the
trial court correctly denied Appellant's petition for habeas relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2017
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