Com. v. Witucki, D.

• Court: Superior Court of Pennsylvania
• Decided: December 15, 2023
• Docket: 608 MDA 2023
• Status: Unpublished

Opinion

J-S39030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL R. WITUCKI : : Appellant : No. 608 MDA 2023

Appeal from the PCRA Order Entered February 24, 2023 In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000033-1998

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 15, 2023

Daniel R. Witucki appeals pro se from the order dismissing his Petition

for Habeas Corpus Relief Pursuant to Article I, § 14 of the Pennsylvania

Constitution (“Petition for Habeas Corpus Relief”). He argues the court erred

in treating the petition as a Post Conviction Relief Act (“PCRA”)1 petition and

dismissing it. We affirm.

In 1998, a jury convicted Witucki of first-degree murder for fatally

shooting the victim three times with a rifle. The court sentenced him to a

mandatory term of life imprisonment. We affirmed the judgment of sentence,

and the Supreme Court denied his petition for allowance of appeal on

November 24, 1999.

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1 See 42 Pa.C.S.A. §§ 9541-9546. J-S39030-23

Witucki thereafter filed several unsuccessful PCRA petitions. He also filed

multiple petitions for a writ of habeas corpus and a petition to file post-

sentence motions nunc pro tunc. The court treated these additional filings as

PCRA petitions, and denied relief. See Commonwealth v. Witucki, 285 A.3d

930, 2022 WL 4231245, unpublished memorandum at *1, *3 (Pa.Super.

2022).

Witucki filed the instant Petition for Habeas Corpus Relief on February

10, 2023. He argued his sentence was illegal and a violation of due process

because the Commonwealth failed to prove he had the requisite intent to

commit first-degree murder. He also argued his claim should not be time-

barred by the PCRA because it is a claim of actual innocence.

The court construed the petition as a PCRA petition. It found Witucki’s

claim was “based upon a factual determination in the trial testimony,” and

concluded that it was frivolous because it has been either previously litigated

or waived. Order, 2/24/23, at 1. The court dismissed the petition.2

Witucki appealed. He raises the following issue:

Whether the Trial Court abused its discretion in dismissing [Witucki]’s Petition for Habeas Corpus Relief alleging he is confined on the basis of a first[-]degree murder conviction that violates due process of law in that there was insufficient evidence of guilt rendering him actually innocent and the Supremacy Clause of the U.S. Constitution does not permit barring.

2 The court did not issue notice of its intent to dismiss the petition, in contravention of Pa.R.Crim.P. 907(1). However, Witucki does not raise this issue. See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).

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Witucki’s Br. at 3.

“In reviewing the grant or denial of PCRA relief, we examine whether

the PCRA court’s determination is supported by the record and free of legal

error.” Commonwealth v. Burton, 158 A.3d 618, 627 n.13 (Pa. 2017). “The

PCRA court’s credibility determinations, when supported by the record, are

binding on this Court; however, we apply a de novo standard of review to the

PCRA court’s legal conclusions.” Id.

Witucki contends his conviction violates due process and his sentence is

illegal because the evidence supporting his first-degree murder conviction was

allegedly insufficient. Witucki also argues the court erred in treating his

petition as a PCRA petition and asserts that it is not untimely under the PCRA.

He contends that the Supremacy Clause of the United States Constitution does

not permit a claim of actual innocence to be time-barred, and if the PCRA

renders his claim untimely, it violates “both the United States and

Pennsylvania Constitution[s] and operates as an unconstitutional suspension

of the Writ.” Witucki’s Br. at 11. He cites McQuiggin v. Perkins, 133 S.Ct.

1924 (2013), in support.3

“[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). Where the PCRA provides for potential

relief, the common-law remedy of habeas corpus is unavailable. Id.; see also ____________________________________________

3 Witucki additionally cites non-controlling federal cases that we will not discuss.

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42 Pa.C.S.A. § 9542. Here, Witucki’s challenge was cognizable under the

PCRA. See Commonwealth v. Abu-Jamal, 833 A.2d 719, 728 (Pa. 2003).

Therefore, the court did not err in treating his Petition for Habeas Corpus Relief

as a PCRA petition.

The petition was thus subject to the PCRA’s time limits. Before

considering the merits of a PCRA petition, the PCRA court, and this Court,

must determine the threshold jurisdictional issue of whether the petition is

timely. Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014). A

petition must be filed within one year of the date a petitioner’s judgment of

sentence became final or plead and prove one of the statutory exceptions to

this deadline. See 42 Pa.C.S.A. § 9543(b). Here, Witucki’s instant petition is

untimely, as he filed it after the deadline imposed by the PCRA and without

invoking a statutory exception thereto. See Witucki, 2022 WL 4231245 at *2

n.6, *3 (explaining Witucki’s judgment of sentence became final on February

22, 2000, and he had one year from that date to file a timely PCRA petition or

plead and prove a statutory exception).

McQuiggin does not alter the foregoing analysis. McQuiggin held that

the one-year statute of limitations imposed by 28 U.S.C. § 2244(d) will not

bar a federal habeas corpus proceeding where the petitioner advances a claim

of actual innocence. See McQuiggin, 133 S.Ct. at 1928. McQuiggin

therefore applies in the context of federal habeas corpus review, not a petition

for collateral relief filed in state court. Accordingly, this Court has previously

determined that McQuiggin’s holding “is irrelevant to our construction of the

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timeliness provisions set forth in the PCRA.” Commonwealth v. Brown, 143

A.3d 418, 420 (Pa.Super. 2016).

Although the PCRA court dismissed the petition on other grounds, we

may affirm the court’s order on any legal basis. Commonwealth v. Howard,

285 A.3d 652, 657 (Pa.Super. 2022). We therefore affirm the order dismissing

the petition, on the basis that it was untimely.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/15/2023

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