Com. v. Stewart, P.

• Court: Superior Court of Pennsylvania
• Decided: July 22, 2024
• Docket: 1625 EDA 2023
• Status: Unpublished

Opinion

J-S12008-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PHILLIP STEWART : : Appellant : No. 1625 EDA 2023

Appeal from the PCRA Order Entered June 2, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0506891-2002

BEFORE: DUBOW, J., SULLIVAN, J., and BENDER, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JULY 22, 2024

Appellant Phillip Stewart appeals from the June 2, 2023 order of the

Philadelphia County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Without addressing the merits of Appellant’s claims, we conclude that he is

ineligible for relief under the PCRA because he is no longer serving a sentence

at this docket. Accordingly, we affirm the order dismissing Appellant’s PCRA

petition.

On January 12, 2002, Philadelphia police officers arrested Appellant on

drug-related crimes based upon the observations of, and investigation by,

Philadelphia Officer Michael Spicer. On April 12, 2004, a trial court convicted

Appellant, following a wavier trial, of the following crimes: Knowingly

Possessing a Controlled Substance; Possession with Intent to Deliver a J-S12008-24

Controlled Substance; and Fleeing or Attempting to Elude Police. On June 23,

2004, the court sentenced Appellant to an aggregate term of 15-30 months

of incarceration. The docket indicates that Appellant did not file a direct

appeal. Accordingly, his judgment of sentence became final on July 23, 2004,

following the expiration of his time for filing a direct appeal. See Pa.R.A.P.

903(a); 42 Pa.C.S. § 9545(b)(3).

On May 1, 2018, the Defender Association of Philadelphia filed a PCRA

Petition on behalf of numerous defendants, including Appellant, alleging “after

discovered evidence” of police corruption based upon the March 5, 2018

disclosure of the Philadelphia District Attorney’s Office’s “Do Not Call List.”

PCRA Petition, 5/1/18, at ¶ 3-4, 15. The Do Not Call List identified police

officers, including Officer Spicer, whom “a prosecutor cannot call to testify in

any matter without explicit permission from the First Assistant District

Attorney.” Id. at ¶ 4.

On April 28, 2023, the PCRA court issued a Notice of Intent to Dismiss

pursuant to Pa.R.Crim.P. 907, providing Appellant 20 days to respond. The

court formally dismissed the petition on June 2, 2023, after Appellant did not

respond.

On June 20, 2023, Appellant filed a notice of appeal. Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

Appellant raises the following issues before this Court:

A. Did the PCRA court err in dismissing the PCRA petition as being without merit as Officer Michael Spicer was a necessary and critical officer, as he purportedly observed [A]ppellant engaged in

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a narcotics transaction, which resulted in [A]ppellant’s arrest and conviction[?] Officer Spicer was later deemed not credible by the [D]istrict [A]ttorney’s office, and placed on the “do not call list[.”]

B. Does not society ha[ve] an interest in exonerating the wrongfully convicted, therefore, even if no longer cognizable under the PCRA, this was a wrongfully dismissed habeas corpus petition, as Officer Michael Spicer was a necessary and critical officer, as he purportedly observed [A]ppellant engaged in a narcotics transaction, which resulted in [A]ppellant’s arrest and conviction[?] Officer Spicer was later deemed not credible by the [D]istrict [A]ttorney’s office, and placed on the “do not call list[.”]

Appellant’s Br. at 7.

Before addressing the merits, we must determine whether Appellant is

eligible for relief under the PCRA. We conclude he is not. Indeed, Appellant

acknowledges that “there is no jurisdiction under the PCRA” because “he is no

longer serving a sentence on this matter.” Appellant’s Br. at 19. To be eligible

for relief under the PCRA, a “petitioner must plead and prove by a

preponderance of the evidence[,]” inter alia, that he is “currently serving a

sentence of imprisonment, probation or parole for the crime[.]” 42 Pa.C.S.

§ 9543(a)(1)(i); see also Commonwealth v. Plunkett, 151 A.3d 1108,

1109-10 (Pa. Super. 2016). As Appellant’s 2004 sentence of 15-30 months

of incarceration has expired, he is not eligible for PCRA relief. Accordingly, we

affirm the PCRA court’s dismissal of Appellant’s PCRA petition. 1 ____________________________________________

1 We acknowledge that the trial court did not dismiss the petition based on the expiration of Appellant’s sentence. Instead, the trial court dismissed Appellant’s PCRA based on its conclusion that Officer Spicer’s alleged misconduct “did not impact the outcome of [Appellant’s] case” because the misconduct occurred after 2006, three years after Appellant’s arrest and trial. PCRA Ct. Op, 9/1/23, at 3. Nevertheless, we may affirm a court’s decision on (Footnote Continued Next Page)

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Alternatively, Appellant seeks application of the doctrine of habeas

corpus, asserting that “society has an interest in vindicating the wrongfully

convicted[.]” Appellant’s Br. at 22. Appellant, nevertheless, acknowledges

that the “PCRA statute subsumes the writ of habeas corpus[, such that issues]

that are cognizable under the PCRA must be raised in a timely PCRA petition

and cannot be raised in a habeas corpus petition.” Id. at 20 (quoting

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)); see

also 42 Pa.C.S. § 9542. Indeed, Appellant recognizes that his claims “are

likely cognizable under the PCRA” but requests review under the doctrine of

habeas corpus “in the interest of justice . . . as this is [A]ppellant’s only

recourse.” Id. at 20. Appellant claims that “the law must have room to

challenge a wrongful conviction at any time, whether an appellant is still

serving a sentence or not, as it is a question of fundamental fairness, respect

for due process and our society’s norms and customs.” Id. at 24.

We conclude that the writ of habeas corpus provides no relief for

Appellant. As noted by Appellant, the “PCRA statute subsumes the writ of

habeas corpus[.]” Taylor, 65 A.3d at 466. Moreover, even if Appellant could

assert a habeas claim outside the PCRA, that claim would fail for the same

reason that his PCRA claim fails: he is not in custody at this docket.

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any basis. See In re Jacobs, 15 A.3d 509 n.1 (Pa. Super. 2011) (“[This Court is] not bound by the rationale of the trial court[] and may affirm on any basis.”).

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It is well-established that “the essence of the common law writ of habeas

corpus is an attack by a person in custody upon the legality of that custody,

and that the traditional function of the writ is to secure release from illegal

custody.” Commonwealth v. Turner, 80 A.3d 754, 765 (Pa. 2013)

(summarizing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). As the

Supreme Court explained, because Appellant’s “liberty is no longer burdened

by a []sentence, [he] has no due process right to collateral review of that

sentence.” Id. at 766. As Appellant acknowledges that he is no longer in

custody, his habeas claim fails.

Order affirmed.

Date: 7/22/2024

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