J-S17008-18

2018 PA Super 159

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

DEVIN ROUSE,

Appellant No. 653 EDA 2017

Appeal from the PCRA Court Order Entered January 13, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0713202-2002

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY BENDER, P.J.E.: FILED JUNE 08, 2018

Appellant, Devin Rouse, appeals from the order denying his petition for 

a writ of habeas corpus (“Habeas Petition”), which the lower court treated as 

an untimely petition filed pursuant the Post-Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-9546. After careful review, we affirm. 

The facts underlying Appellant’s 2005 conviction for second-degree 

murder, robbery, carrying a firearm without a license, and possessing an 

instrument of crime are not germane to this appeal. After Appellant filed a 

direct appeal, this Court affirmed his judgment of sentence on April 13, 2006, 

and our Supreme Court subsequently denied his petition for allowance of 

appeal from our decision. Commonwealth v. Rouse, 902 A.2d 981 (Pa.

Super. 2006) (unpublished memorandum), appeal denied, 909 A.2d 304 (Pa. 

2006). 
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Appellant filed his first PCRA petition on October 10, 2007, and 

appointed counsel filed an amended petition on his behalf on September 26, 

2008. The PCRA court dismissed that petition without a hearing on March 5,

2009. This Court vacated that order, and remanded for an evidentiary 

hearing. Commonwealth v. Rouse, 38 A.3d 925 (Pa. Super. 2011) 

(unpublished memorandum). That hearing occurred on January 27, 2014. 

Subsequently, the PCRA court granted Appellant’s PCRA petition, ordering a 

new trial. The Commonwealth appealed. On January 12, 2016, this Court 

reversed the PCRA court’s order, and our Supreme Court denied Appellant’s 

petition for allowance of appeal from that decision. Commonwealth v. 

Rouse, 136 A.3d 1029 (Pa. Super. 2016) (unpublished memorandum), appeal

denied, 169 A.3d 30 (Pa. 2017). 

The instant matter began when Appellant filed his pro se Habeas Petition 

on September 13, 2016. Therein, he claimed that the sentencing statute for 

second-degree murder, 18 Pa.C.S. § 1102(b), is void for vagueness, in 

violation of his due process rights under the Constitution of the United States 

and/or of this Commonwealth.

1

 Appellant also specifically averred in his 

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1 Section 1102(b) mandates that “a person who has been convicted of murder 

of the second degree ... shall be sentenced to a term of life imprisonment.” 

Appellant claims that Section 1102(b) is void for vagueness because it fails to 

give adequate notice that a sentence of life imprisonment is, in fact, life 

imprisonment without the possibility of parole. See Appellant’s Habeas

Petition, 9/13/16, at 3 (unnumbered pages); but see Castle v. 

Commonwealth, Pennsylvania Bd. of Probation and Parole, 554 A.2d 

625, 628 (Pa. Cmwlth. 1989) (holding that Section 1102(b) imposes a 
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Habeas Petition that his claim was not cognizable under the PCRA. Habeas

Petition at 1-2.

The trial court, concluding that Appellant’s claim asserted the illegality 

of his sentence, treated his Habeas Petition as a PCRA petition subject to the 

PCRA’s timeliness provisions. Trial Court Opinion (“TCO”), 5/5/17, at 3-4. On 

that basis, the PCRA court determined that Appellant’s petition was untimely, 

and that none of the PCRA’s timeliness exceptions applied. As such, on 

November 10, 2016, the court issued notice, pursuant to Pa.R.Crim.P. 907, 

that it intended to dismiss Appellant’s Habeas Petition without a hearing. 

Appellant did not file a response. On January 13, 2017, the trial court entered 

an order dismissing Appellant’s Habeas Petition. 

Appellant filed a timely notice of appeal. Appellant did not file, and the 

PCRA court did not order him to file, a Pa.R.A.P. 1925(b) statement. The trial 

court issued its Rule 1925(a) opinion on May 5, 2017. 

Appellant now presents the following question for our review:

Did the lower court err in construing Appellant's state habeas 

corpus petition as a 2nd PCRA petition (and thereby time-barring 

it), when the PCRA statutes do not clearly state whether the issue 

presented is cognizable under the PCRA; whereas the writ of state 

habeas corpus may be sought to inquire into the cause of 

detention "under any pretense whatsoever[?"]

Appellant’s Brief at 5. 

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minimum term of incarceration of life imprisonment, thereby prohibiting the 

Board of Probation and Parole from considering parole for individuals convicted 

of second-degree murder). Appellant acknowledges the Castle decision, but 

claims it was wrongfully decided. 
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This Court’s standard of review regarding an order denying a petition 

under the PCRA is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the 

timeliness of Appellant’s Habeas Petition, which was construed by the lower 

court as a PCRA petition, because the PCRA time limitations implicate our 

jurisdiction and may not be altered or disregarded in order to address the 

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 

2007). Under the PCRA, any petition for post-conviction relief, including a 

second or subsequent one, must be filed within one year of the date the 

judgment of sentence becomes final, unless one of the following exceptions 

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

(b) Time for filing petition.--

(1) Any petition under this subchapter, including a second 

or subsequent petition, shall be filed within one year of the 

date the judgment becomes final, unless the petition alleges 

and the petitioner proves that:

(i) the failure to raise the claim previously was the 

result of interference by government officials with the 

presentation of the claim in violation of the 

Constitution or laws of this Commonwealth or the 

Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was 

recognized by the Supreme Court of the United States 

or the Supreme Court of Pennsylvania after the time 
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period provided in this section and has been held by 

that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of 

these exceptions “shall be filed within 60 days of the date the claim could have 

been presented.” 42 Pa.C.S. § 9545(b)(2).

Instantly, Appellant makes no argument that his Habeas Petition is 

timely under Section 9545(b)(1). Instead, he claims that the PCRA court erred 

by construing his Habeas Petition as a PCRA petition. Specifically, he asserts 

that his void-for-vagueness claim, directed at the sentencing provision for 

second-degree murder applied in his case, is not cognizable under the PCRA 

statute and, therefore, that the statute’s timeliness provisions do not apply to 

his Habeas Petition. For the following reasons, we agree. 

Section 9542 provides, in pertinent part, that:

This subchapter provides for an action by which persons convicted 

of crimes they did not commit and persons serving illegal 

sentences may obtain collateral relief. The action established in 

this subchapter shall be the sole means of obtaining 

collateral relief and encompasses all other common law and 

statutory remedies for the same purpose that exist when this 

subchapter takes effect, including habeas corpus....

42 Pa.C.S. § 9542 (emphasis added). Appellant correctly notes that this 

provision exists in tension with the eligibility-for-relief provisions of the PCRA 

statute. Section 9543 provides, in pertinent part, as follows:

(a) General rule.--To be eligible for relief under this subchapter, 

the petitioner must plead and prove by a preponderance of the 

evidence all of the following:

(1) That the petitioner has been convicted of a crime under 

the laws of this Commonwealth and is at the time relief is 

granted:
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(i) currently serving a sentence of imprisonment, 

probation or parole for the crime;

(ii) awaiting execution of a sentence of death for the 

crime; or

(iii) serving a sentence which must expire before the 

person may commence serving the disputed sentence.

(2) That the conviction or sentence resulted from one or 

more of the following:

(i) A violation of the Constitution of this 

Commonwealth or the Constitution or laws of the 

United States which, in the circumstances of the 

particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or 

innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined 

the truth-determining process that no reliable 

adjudication of guilt or innocence could have taken 

place.

(iii) A plea of guilty unlawfully induced where the 

circumstances make it likely that the inducement 

caused the petitioner to plead guilty and the petitioner 

is innocent.

(iv) The improper obstruction by government officials 

of the petitioner's right of appeal where a meritorious 

appealable issue existed and was properly preserved 

in the trial court.

...

(vi) The unavailability at the time of trial of 

exculpatory evidence that has subsequently become 

available and would have changed the outcome of the 

trial if it had been introduced.

(vii) The imposition of a sentence greater than 

the lawful maximum.

(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a) (emphasis added). 
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There is no dispute that the Appellant’s Habeas Petition satisfies Section 

9543(a)(1), as Appellant is currently serving a sentence of imprisonment. 

However, the only provisions of Section 9543(a)(2) that might arguably 

pertain to sentencing claims which, like the one presented by Appellant in his 

Habeas Petition, do not also pertain to matters of underlying guilt or 

innocence, are Sections 9543(a)(2)(vii) and (viii). As the jurisdiction of 

trial/sentencing court is not in question, that leaves only Section 

9543(a)(2)(vii), which permits relief under the PCRA statute for claims 

involving the “imposition of a sentence greater than the lawful maximum.” 42 

Pa.C.S. § 9543(a)(2)(vii). Appellant asserts that the void-for-vagueness claim 

set forth in the Habeas Petition (essentially a due process claim), does not 

posit that his sentence exceeds the lawful maximum for second-degree 

murder and, therefore, is not a claim that is eligible for relief under the PCRA 

statute. 

The trial court does not indicate in its opinion why it construed 

Appellant’s void-for-vagueness argument as an illegal-sentencing claim that 

is cognizable under the PCRA. Instead, the court baldly states, without citing 

any pertinent authority and without offering any analysis, that “Appellant’s 

issue is cognizable under the PCRA.” TCO at 3-4. Likewise, the 

Commonwealth argues that: “Essentially, [Appellant] claims that he received 

a sentence greater than the lawful maximum; an issue which is squarely 

cognizable under the PCRA.” Commonwealth’s Brief at 5. However, the 

Commonwealth also provides no support for this assertion in its brief. 
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Appellant does not explicitly claim that his sentence exceeds the lawful 

maximum, nor is his claim easily construed as such. Instead, he contends

that—in crafting the sentencing statute for second-degree murder—the 

legislature failed to give adequate or reasonable notice of the penalty for that 

offense, especially in light of other sentencing provisions, such as the 

minimum/maximum rule.2 If anything, Appellant is challenging the minimum 

sentence imposed (that is, that no minimum sentence was imposed); he does 

not claim that his sentence exceeded the lawful maximum. 

Nor does Appellant’s claim fall within the well-recognized categories of 

illegal sentencing issues that are cognizable under the PCRA under applicable 

case law. 

The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts 

that is applied to three narrow categories of cases. Those 

categories are: “(1) claims that the sentence fell ‘outside of the 

legal parameters prescribed by the applicable statute’; (2) claims 

involving merger/double jeopardy; and (3) claims implicating the 

rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 

147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (citations 

omitted). The latter category includes claims that arise under the progeny of 

Apprendi, including Alleyne v. United States, 570 U.S. 99 (2013). 

Additionally, “[t]his Court has also held that claims pertaining to the Eighth 

Amendment's Cruel and Unusual Punishment Clause also pertain to the 

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2 When imposing a sentence of “total confinement,” 42 Pa.C.S. § 9756(a), 

“[t]he court shall impose a minimum sentence of confinement which shall not 

exceed one-half of the maximum sentence imposed[,]” 42 Pa.C.S. § 

9756(b)(1) (emphasis added). 
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legality of the sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 122 

(Pa. Super. 2014). None of these categories apply to Appellant’s issue, which 

is grounded in due process concerns. 

Lawrence is instructive here. In that case, the appellant challenged

the constitutionality of the sentencing provision for juveniles convicted of 

murder, 18 Pa.C.S. § 1102.1, arguing, inter alia, that the statute violated 

equal protection and ex post facto principles. Lawrence, 99 A.3d at 118. In 

order to escape waiver concerns, the appellant argued that his claims 

implicated the legality of his sentence. However, the Lawrence Court 

determined those issues were not illegal-sentencing claims, despite the fact 

that they targeted a sentencing statute. The Court reasoned that:

In our view, there is a meaningful difference between the 

remaining two arguments [the a]ppellant raises in this case and 

issues pertaining to the Eighth Amendment, merger, Apprendi

and Alleyne. The Eighth Amendment, merger, Apprendi, and 

even Alleyne all directly circumscribe the trial court's sentencing 

process and sentencing authority. Stated another way, the goal 

of the Cruel and Unusual Punishment Clause, the merger doctrine, 

Apprendi and Alleyne is to protect defendants from the 

imposition of punishments by trial judges that are 

unconstitutional, imposed through unconstitutional processes, or 

are a “greater punishment than the legislature intended.” 

[Commonwealth v.] Andrews, [768 A.2d 309, 313 (Pa. 2001)]. 

However, as is relevant in this case, the Equal Protection Clause 

and the Ex Post Facto Clauses serve to restrict legislative power. 

[The a]ppellant does not argue that the trial court did not follow 

Section 1102.1's mandate or text in carrying out its traditional 

sentencing function. Nor does Appellant argue that any part of 

the sentencing process was unconstitutional. Rather, [the 

a]ppellant argues that the General Assembly passed a statute 

that, in his view, unconstitutionally treats some juveniles 

differently than others, and retroactively changes the punishment 

for the crime after it was committed. These arguments do not 
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address the same concerns as the Eighth Amendment, the merger 

doctrine, Apprendi and Alleyne. Because [the a]ppellant's Equal 

Protection and Ex Post Facto Clause arguments directly seek 

protection from legislatures, not judges, we hold that these 

arguments fall into the category of “a sentencing issue that 

presents a legal question [rather than a claim that the] sentence

[is] illegal.” Commonwealth v. Cartrette, 83 A.3d 1030, 1036 

n.5 (Pa. Super. 2013) (en banc) (citation omitted).

Lawrence, 99 A.3d at 123–24 (some internal citations omitted, emphasis in 

original). 

Likewise, here, Appellant’s void-for-vagueness claim is a sentencing 

issue that presents a legal question that is qualitatively distinct from the 

categories of illegal sentences recognized by our courts. It does not challenge 

the sentencing court’s authority or actions insomuch as it challenges the 

legislature’s ostensible failure to provide adequate notice of the penalty for 

second-degree murder. 

However, Appellant’s void-for-vagueness claim, just like all claims (but 

for the three categories of illegal-sentencing claims, see Munday, supra), is

subject to waiver. “Habeas corpus is an extraordinary remedy and is available 

after other remedies have been exhausted or ineffectual or nonexistent. It 

will not issue if another remedy exists and is available.” Commonwealth ex 

rel. Johnson v. Bookbinder, 247 A.2d 644, 646 (Pa. Super. 1968). As 

Appellant’s claim could have been raised at his sentencing hearing, or in a 

post-sentence motion, he failed to exhaust all available remedies before 

resorting to habeas corpus. Accordingly, we deem his claim waived and, 

therefore, affirm the trial court’s order dismissing his petition on that basis. 
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“To the extent our legal reasoning differs from the trial court’s, we note that 

as an appellate court, we may affirm on any legal basis supported by the 

certified record.” Commonwealth v. Williams, 125 A.3d 425, 433 n.8 (Pa. 

Super. 2015). 

Thus, in sum, because Appellant’s claim does not challenge the 

imposition of a sentence in excess of the lawful maximum, it does not fall 

under the purview of Section 9543(a)(2)(vii). And, to the extent that Section

9543(a)(2)(vii) encompasses all illegal-sentencing issues, Appellant’s claim 

does not implicate any category of illegal sentences previously recognized by 

Pennsylvania Courts. Moreover, because Appellant’s constitutional challenge 

to Section 1102(b) does not implicate his guilt or innocence for the underlying 

offense, his void-for-vagueness claim cannot arise under the typical provision 

used to address constitutional errors, Section 9543(a)(2)(i). Nevertheless, 

because Appellant could have challenged the constitutionality of Section 

1102(b) at sentencing or in a post-sentence motion, he has failed to exhaust 

all available remedies before seeking relief under habeas corpus. Thus, 

Appellant effectively waived the issue raised in the Habeas petition. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/8/18