J-S10002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL R. WITUCKI : : Appellant : No. 1498 MDA 2019
Appeal from the PCRA Order Entered August 28, 2019 In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000568-1998
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 09, 2020
Daniel R. Witucki appeals, pro se, from the order dismissing his petition
for writ of habeas corpus pursuant to the Post Conviction Relief Act (PCRA),
see 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
In June of 1998, a jury convicted Witucki of first-degree murder for
fatally shooting the victim three times with a rifle. He was sentenced the same
day to a mandatory term of life imprisonment. This Court affirmed his
judgment of sentence, and our Supreme Court subsequently denied his
petition for allowance of appeal.
In November of 2000, Witucki filed his first PCRA petition, pro se.
Counsel was appointed who filed an amended petition. After a hearing, the
PCRA court denied the petition. We affirmed the denial and our Supreme Court J-S10002-20
denied allowance of appeal. Witucki subsequently filed serial unsuccessful
petitions for collateral relief in 2012, 2014, and 2016.
On February 15, 2018, Witucki filed a petition for writ of habeas corpus.
In the petition he alleged he is illegally confined because the sentencing
statute for first-degree murder, 18 Pa.C.S. § 1102(a), is void for vagueness
and unconstitutional because it only applies to capital cases. He also
specifically averred that his claim was not cognizable under the PCRA.
The PCRA court, concluding that Witucki’s claim asserted the illegality
of his sentence, treated his habeas petition as a PCRA petition subject to the
PCRA’s timeliness provisions. On that basis, the PCRA court determined that
Witucki’s petition was untimely, and that he had not pled an exception to the
time bar. As such, the court issued notice, pursuant to Pa.R.Crim.P. 907, of
its intent to dismiss his petition. After receiving a response from Witucki, the
court dismissed the petition on June 1, 2018. We affirmed the dismissal.
On March 7, 2019, Witucki filed his most recent petition for writ of
habeas corpus. This time, he again argued that he is illegally confined based
on Section 1102(a) being void for vagueness, but this time contending that
the statute does not give fair notice that life imprisonment means life
imprisonment without parole.
The PCRA court dismissed the petition, which it labeled as “essentially a
PCRA petition”, finding Witucki is not entitled to relief because there are no
-2- J-S10002-20
genuine issues of material fact. See PCRA Court Order, 8/28/2019. The court
further found the petition to be entirely frivolous. See id. This appeal followed.
Preliminarily, we must determine whether the remedy Moore is seeking
on appeal may be addressed under habeas corpus review or if a remedy exists
under the PCRA. If “a defendant's post-conviction claims are cognizable under
the PCRA, the common law and statutory remedies now subsumed by the
PCRA are not separately available to the defendant.” Commonwealth v.
Hall, 771 A.2d 1232, 1235 (Pa. 2001) (citations omitted). The PCRA
incorporates the remedy of habeas corpus if it offers the petitioner a remedy
pursuant to that Act. See Commonwealth v. West, 938 A.2d 1034, 1043
(Pa. 2007). Similarly, the writ of habeas corpus is not an available remedy if
relief could be obtained via a post-conviction hearing proceeding. See 42
Pa.C.S.A. § 6503. Therefore, regardless of how the petition is styled, “a
defendant cannot escape the PCRA time-bar by titling his motion as a writ of
habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
2013) (footnote omitted).
A filing pursuant to the PCRA “provides for an action by which … persons
serving illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542.
The PCRA is the sole pathway to obtain collateral relief, which therefore
subsumes common law and statutory remedies including the right to habeas
corpus relief. See id.; see also Commonwealth v. Deaner, 779 A.2d 578,
580 (Pa. Super. 2001) (“It is well settled that any collateral petition raising
-3- J-S10002-20
issues with respect to remedies offered under the PCRA will be considered a
PCRA petition.”).
This Court has addressed a similar challenge previously in
Commonwealth v. Rouse, 191 A.3d 1 (Pa. Super. 2018). Specifically, in
Rouse, the appellant submitted a pro se habeas corpus petition, asserting
that the sentencing statute for second-degree murder was “void for
vagueness, in violation of his due process rights.” Id. at 2. The PCRA court
treated his petition as a PCRA petition after concluding that the appellant’s
claim “asserted the illegality of his sentence.” Id. at 3. On appeal, this Court
disagreed, and held that the appellant’s assertion that the statute was void
for vagueness did not qualify as a challenge under the PCRA statute. See id.
at 7. Instead, this Court treated the appellant’s submission as a petition for
habeas corpus relief, but ultimately held that that his claim was waived
because he failed to “exhaust all available remedies before resorting to habeas
corpus.” Id.
We find this case to be very similar to Rouse. Witucki’s petition likewise
asserted that the first-degree murder sentencing statutes are unconstitutional
and void under the vagueness doctrine because they fail to give notice that
the true punishment is life imprisonment without parole. Pursuant to Rouse,
this claim qualifies as a petition for habeas corpus relief, not a PCRA petition.
-4- J-S10002-20
See Rouse, 191 A.3d at 7. Nonetheless, we conclude that Witucki has waived
his claim, although for a different rationale than in Rouse.1
Our review of the record indicates that Witucki’s Pa.R.A.P. 1925(b)
statement and subsequently filed brief do not correspond to the same issue
raised. In fact, his brief appears to raise arguments related to his appeal from
the denial of his previous petition for writ of habeas corpus in 2018.
Specifically, his current appellate brief filed on December 10, 2019,
states that it is an appeal from the PCRA court’s June 1, 2018 order and sets
out an argument based on the issues raised in his February 15, 2018 petition
for habeas corpus, namely that he is illegally confined because the first-degree
murder statute is void for vagueness in that first-degree murder can only be
entered in a capital case. See Appellant’s Brief, at 8. His Rule 1925(b)
statement similarly claims that the statute is unconstitutionally vague since
he believes it can only be applied in a capital case. See Statement of Matters
Complained of on Appeal, 10/28/2019, at ¶ 1.
Free access — add to your briefcase to read the full text and ask questions with AI
J-S10002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL R. WITUCKI : : Appellant : No. 1498 MDA 2019
Appeal from the PCRA Order Entered August 28, 2019 In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000568-1998
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 09, 2020
Daniel R. Witucki appeals, pro se, from the order dismissing his petition
for writ of habeas corpus pursuant to the Post Conviction Relief Act (PCRA),
see 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
In June of 1998, a jury convicted Witucki of first-degree murder for
fatally shooting the victim three times with a rifle. He was sentenced the same
day to a mandatory term of life imprisonment. This Court affirmed his
judgment of sentence, and our Supreme Court subsequently denied his
petition for allowance of appeal.
In November of 2000, Witucki filed his first PCRA petition, pro se.
Counsel was appointed who filed an amended petition. After a hearing, the
PCRA court denied the petition. We affirmed the denial and our Supreme Court J-S10002-20
denied allowance of appeal. Witucki subsequently filed serial unsuccessful
petitions for collateral relief in 2012, 2014, and 2016.
On February 15, 2018, Witucki filed a petition for writ of habeas corpus.
In the petition he alleged he is illegally confined because the sentencing
statute for first-degree murder, 18 Pa.C.S. § 1102(a), is void for vagueness
and unconstitutional because it only applies to capital cases. He also
specifically averred that his claim was not cognizable under the PCRA.
The PCRA court, concluding that Witucki’s claim asserted the illegality
of his sentence, treated his habeas petition as a PCRA petition subject to the
PCRA’s timeliness provisions. On that basis, the PCRA court determined that
Witucki’s petition was untimely, and that he had not pled an exception to the
time bar. As such, the court issued notice, pursuant to Pa.R.Crim.P. 907, of
its intent to dismiss his petition. After receiving a response from Witucki, the
court dismissed the petition on June 1, 2018. We affirmed the dismissal.
On March 7, 2019, Witucki filed his most recent petition for writ of
habeas corpus. This time, he again argued that he is illegally confined based
on Section 1102(a) being void for vagueness, but this time contending that
the statute does not give fair notice that life imprisonment means life
imprisonment without parole.
The PCRA court dismissed the petition, which it labeled as “essentially a
PCRA petition”, finding Witucki is not entitled to relief because there are no
-2- J-S10002-20
genuine issues of material fact. See PCRA Court Order, 8/28/2019. The court
further found the petition to be entirely frivolous. See id. This appeal followed.
Preliminarily, we must determine whether the remedy Moore is seeking
on appeal may be addressed under habeas corpus review or if a remedy exists
under the PCRA. If “a defendant's post-conviction claims are cognizable under
the PCRA, the common law and statutory remedies now subsumed by the
PCRA are not separately available to the defendant.” Commonwealth v.
Hall, 771 A.2d 1232, 1235 (Pa. 2001) (citations omitted). The PCRA
incorporates the remedy of habeas corpus if it offers the petitioner a remedy
pursuant to that Act. See Commonwealth v. West, 938 A.2d 1034, 1043
(Pa. 2007). Similarly, the writ of habeas corpus is not an available remedy if
relief could be obtained via a post-conviction hearing proceeding. See 42
Pa.C.S.A. § 6503. Therefore, regardless of how the petition is styled, “a
defendant cannot escape the PCRA time-bar by titling his motion as a writ of
habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
2013) (footnote omitted).
A filing pursuant to the PCRA “provides for an action by which … persons
serving illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542.
The PCRA is the sole pathway to obtain collateral relief, which therefore
subsumes common law and statutory remedies including the right to habeas
corpus relief. See id.; see also Commonwealth v. Deaner, 779 A.2d 578,
580 (Pa. Super. 2001) (“It is well settled that any collateral petition raising
-3- J-S10002-20
issues with respect to remedies offered under the PCRA will be considered a
PCRA petition.”).
This Court has addressed a similar challenge previously in
Commonwealth v. Rouse, 191 A.3d 1 (Pa. Super. 2018). Specifically, in
Rouse, the appellant submitted a pro se habeas corpus petition, asserting
that the sentencing statute for second-degree murder was “void for
vagueness, in violation of his due process rights.” Id. at 2. The PCRA court
treated his petition as a PCRA petition after concluding that the appellant’s
claim “asserted the illegality of his sentence.” Id. at 3. On appeal, this Court
disagreed, and held that the appellant’s assertion that the statute was void
for vagueness did not qualify as a challenge under the PCRA statute. See id.
at 7. Instead, this Court treated the appellant’s submission as a petition for
habeas corpus relief, but ultimately held that that his claim was waived
because he failed to “exhaust all available remedies before resorting to habeas
corpus.” Id.
We find this case to be very similar to Rouse. Witucki’s petition likewise
asserted that the first-degree murder sentencing statutes are unconstitutional
and void under the vagueness doctrine because they fail to give notice that
the true punishment is life imprisonment without parole. Pursuant to Rouse,
this claim qualifies as a petition for habeas corpus relief, not a PCRA petition.
-4- J-S10002-20
See Rouse, 191 A.3d at 7. Nonetheless, we conclude that Witucki has waived
his claim, although for a different rationale than in Rouse.1
Our review of the record indicates that Witucki’s Pa.R.A.P. 1925(b)
statement and subsequently filed brief do not correspond to the same issue
raised. In fact, his brief appears to raise arguments related to his appeal from
the denial of his previous petition for writ of habeas corpus in 2018.
Specifically, his current appellate brief filed on December 10, 2019,
states that it is an appeal from the PCRA court’s June 1, 2018 order and sets
out an argument based on the issues raised in his February 15, 2018 petition
for habeas corpus, namely that he is illegally confined because the first-degree
murder statute is void for vagueness in that first-degree murder can only be
entered in a capital case. See Appellant’s Brief, at 8. His Rule 1925(b)
statement similarly claims that the statute is unconstitutionally vague since
he believes it can only be applied in a capital case. See Statement of Matters
Complained of on Appeal, 10/28/2019, at ¶ 1.
However, the current appeal was taken from the most recent petition
for habeas corpus which was filed on March 7, 2019, and dismissed on August
____________________________________________
1 Witucki acknowledges that he did not raise this issue before the sentencing court or in a post-sentence motion. See id. (finding waiver based on failure to preserve habeas issue at an earlier stage). However, he argues he is exempt from waiver because he was not explicitly told that he had to raise such claims in a post-sentence motion to preserve them. We find that we need not address this issue, as we ultimately find waiver based on a different rationale.
-5- J-S10002-20
28, 2019. In his most recent petition, he bases his argument on the fact that
the statute does not give adequate notice that life imprisonment means life
without parole. See Petition for Habeas Corpus Relief, 3/7/2019, at 2. As the
issue he develops in his brief is distinct from the issue raised in his petition,
we conclude both issues are waived. The issue raised in his petition has been
waived for failure to adequately develop it on appeal.2 He has waived the issue
presented in his brief by failing to preserve in the court below. See Pa.R.A.P.
302(a).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 03/09/2020
2 A pro se litigant is entitled to no special benefit and must comply with all applicable requirements. See Commonwealth v. Lyons, 833 A.2d 245, 251– 52 (Pa. Super. 2003). “When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review[,] a Court will not consider the merits thereof.” Branch Banking and Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006).
-6-