J-S58027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

TERRENCE BRADLY, 

 Appellant No. 285 WDA 2014 

Appeal from the PCRA Order Entered February 13, 2014 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): 

CP-02-CR-0006702-1989 

CP-02-CR-0006884-1989 

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.* 

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 05, 2014

 Appellant, Terrence Bradly, appeals pro se from the order dismissing 

his petition for a writ of habeas corpus ad subjiciendum. After careful 

review, we affirm. 

 Appellant was charged at the above-listed criminal informations in 

1989. Appellant proceeded to a jury trial on February 13, 1990. On 

February 15, 1990, the jury found Appellant guilty of first degree murder 

and robbery.1

 On February 5, 1991, Appellant was sentenced to a 

mandatory term of life imprisonment without the possibility of parole. After 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.

1 The facts underlying Appellant’s conviction are not relevant to this appeal.
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Appellant filed a direct appeal, this Court affirmed his judgment of sentence 

on March 3, 1992. Commonwealth v. Bradly, 610 A.2d 62 (Pa. Super. 

1992) (unpublished memorandum). 

 Appellant filed his first Post Conviction Relief Act2

 (PCRA) petition on 

August 23, 2012. Counsel was appointed; however, appointed counsel 

ultimately filed a no-merit letter and a motion to withdraw pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). By 

order dated May 13, 2013, the PCRA court granted counsel’s motion to 

withdraw and issued notice of its intent to dismiss Appellant’s PCRA petition 

pursuant to Pa.R.Crim.P. 907. Appellant filed objections to that order on 

May 29, 2013. The court dismissed his PCRA petition on June 17, 2013. 

Although Appellant appealed the dismissal of his PCRA petition, this Court 

ultimately dismissed his appeal after he failed to file a brief. See Superior 

Court Order, 11/12/13, at 1. 

 The instant matter arose when Appellant filed a petition for a writ of 

habeas corpus ad subjiciendum (Habeas Petition) with the Court of Common 

Pleas of Allegheny County3

 on November 26, 2013. Therein, Appellant 

claimed that his sentence was invalid because it was imposed pursuant to a 

____________________________________________ 

2

 42 Pa.C.S. § 9541 et seq. 

3 Because this was the same court in which Appellant’s first PCRA petition 

was filed, we refer to it hereinafter as the “PCRA court.” 
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subsequently repealed statute. The PCRA court dismissed the Habeas 

Petition on January 24, 2014, and Appellant filed a timely appeal from that 

order. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. The PCRA court issued a Rule 

1925(a) opinion on May 16, 2014. 

 Appellant now presents the following question for our review: 

Did the trial court abuse its discretion in denying Appellant’s 

[Petition for a] Writ of Habeas Corpus Ad Subjiciendum [in] 

violat[ion of] his substantive due process rights[,] where 

Appellant has been unlawfully committed to serve life

imprisonment on a mandated repealed statute? 

Appellant’s Brief at 3 (unnecessary capitalization omitted, italics added). 

 The PCRA court denied Appellant’s Habeas Petition “because the Post

Conviction Relief Act is the sole means by which a criminal defendant may 

raise a collateral challenge to his conviction.” PCRA Court Opinion, 5/16/14, 

at 2 (citing Commonwealth v. Mercado, 826 A.2d 897 (Pa. Super. 2003)). 

The PCRA court did not offer any additional explanation for its ruling. In his 

brief, Appellant asserts that his claim is properly raised in a petition for a 

writ of habeas corpus ad subjiciendum. Appellant’s Brief at 9 (citing 

Commonwealth v. Bangs, 393 A.2d 720 (Pa. Super. 1978)). Both 

Appellant and the PCRA court have failed to address this claim in the 

appropriate fashion. 

As the Commonwealth properly notes, “[A]ppellant’s instant [Habeas 

Petition] ... must be treated as a PCRA petition[.]” Commonwealth’s Brief at 

12. The claim raised in Appellant’s Habeas Petition was either cognizable 
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under the PCRA or it was not. If it was, then the PCRA court should have 

treated the Habeas Petition as a PCRA petition. See Commonwealth v. 

Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (“It is well settled that any 

collateral petition raising issues with respect to remedies offered under the 

PCRA will be considered a PCRA petition.”). If Appellant’s claim was not 

cognizable under the PCRA, then the trial court should have addressed the 

petition as properly raised under our habeas corpus jurisprudence. In both 

Commonwealth v. West, 938 A.2d 1034 (Pa. 2007), and Commonwealth 

v. Judge, 916 A.2d 511 (Pa. 2007), our Supreme Court held that claims 

that fall outside the sphere of the PCRA can be advanced via a petition for a 

writ of habeas corpus. 

 Appellant essentially argued in his Habeas Petition that his sentence of 

life imprisonment lacked a valid statutory basis at the time it was imposed, a 

claim that he continues to make in this appeal. Section 1102 of Title 18 

currently provides, in pertinent part, as follows: 

Except as provided under section 1102.1 (relating to sentence of 

persons under the age of 18 for murder, murder of an unborn 

child and murder of a law enforcement officer), a person who 

has been convicted of a murder of the first degree or of murder 

of a law enforcement officer of the first degree shall be 

sentenced to death or to a term of life imprisonment in 

accordance with 42 Pa.C.S. § 9711 (relating to sentencing 

procedure for murder of the first degree).

18 Pa.C.S. § 1102(a)(1). 

 Thus, when a defendant is convicted of first degree murder, section 

1102 establishes two possible sentences: life imprisonment or death. The 
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statute also dictates that the procedure for deciding between those penalties 

is governed 42 Pa.C.S. § 9711, as denoted by the italicized portion of 

section 1102(a) above. Prior to its amendment in 1995, section 1102(a) 

referenced a prior version of 18 Pa.C.S. § 1311(d) rather than section 9711 

of Title 42. However, that prior version of section 1311(d) was declared 

unconstitutional by our Supreme Court in 1977. Commonwealth v. 

Moody, 382 A.2d 442, 443 (Pa. 1977). As we noted in Commonwealth v. 

Hardcastle, 546 A.2d 1101 (Pa. 1988), Moody was superseded by statute 

when 42 Pa.C.S. § 9711 was amended to replace 18 Pa.C.S. § 1311(d) as 

the applicable procedure for determining the appropriate sentence for first 

degree murder in 1980. 

 Appellant was sentenced in 1991 pursuant to the then in-effect version 

of 18 Pa.C.S. § 1102. At that time, although section 9711’s governance of 

sentencing procedure for first degree murder had been in effect for more 

than a decade, section 1102(a)(1) still referenced the version of section 

1311(d) which had been deemed unconstitutional in Moody in 1977. Thus, 

Appellant claims, his substantive rights were violated when he was 

sentenced under section 1102, when the sentencing procedure set forth in 

that statute at the time of sentencing “no longer existed under the laws of 

this Commonwealth.” Appellant’s Brief at 7. 

This claim likely implicates the legality of Appellant’s sentence. See 

In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that, when a sentencing 

issue “centers upon a court's statutory authority” to impose a sentence, 
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rather than the “court's exercise of discretion in fashioning” the sentence, 

the issue raised implicates the legality of the sentence imposed). The PCRA 

specifically includes challenges to an illegal sentence within its stated scope. 

42 Pa.C.S. § 9542 (“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.”). Alternatively (or additionally), 

Appellant’s claim could be said to implicate the jurisdiction of the trial court 

to sentence Appellant under the version of 18 Pa.C.S. § 1102(a)(1) in effect 

in 1991. See 42 Pa.C.S. § 9543(a)(2)(viii) (stating that one is eligible for 

relief under the PCRA where the sentence resulted from “[a] proceeding in a 

tribunal without jurisdiction”). 

Because Appellant’s claim implicates the legality of his sentence, or the

jurisdiction of the court that imposed it, it is cognizable under the PCRA. 

Accordingly, the PCRA court should have treated Appellant’s Habeas Petition 

as a PCRA petition. Deaner, supra. Because the PCRA court did not treat 

the Habeas Petition as a PCRA petition, it did not give Appellant notice of 

intent to dismiss or afford him the opportunity to amend the petition. See

Pa.R.Crim.P. 907(1); Pa.R.Crim.P. 905(B). In this regard, the PCRA court 

clearly erred. 

Nevertheless, Appellant has not challenged the PCRA court’s dismissal 

of his petition on these grounds. The failure to challenge the absence of a 

Rule 907 notice results in waiver of that issue. Commonwealth v. Taylor, 

65 A.3d 462, 468 (Pa. Super. 2013) (citing Commonwealth v. Boyd, 923 
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A.2d 513, 514 n.1 (Pa. Super. 2007)). Furthermore, “even if the issue is 

raised, where the petition is untimely, it does not automatically warrant 

reversal.” Id. (citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 

(Pa. 2000)). 

Having established that the PCRA court should have treated 

Appellant’s Habeas Petition as a PCRA petition, we must address the 

petition’s timeliness, 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) (stating PCRA time limitations implicate our jurisdiction and may 

not be altered or disregarded to address the merits of the petition); 

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) 

(holding the Superior Court lacks jurisdiction to reach merits of an appeal 

from an untimely PCRA petition). 

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 exceptions set forth 

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant 

part: 

(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: 
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(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 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).

None of these exceptions to the PCRA’s time limitations could possibly 

apply to Appellant’s claim. Sections 9545(b)(1)(i) and (iii) clearly have no 

application given the nature of Appellant’s argument. Section 9545(b)(1)(ii) 

also cannot be applied, because even if the defect that existed in the 1991 

version of 18 Pa.C.S. § 1102 called into question the legality of Appellant’s 

sentence or the jurisdiction of the sentencing court, that defect was 

apparent in the text of the statute at the time of Appellant’s sentencing. 

There is no plausible argument why Appellant could not have discovered that 

defect through the exercise of due diligence in the year after his sentence 

became final. There is certainly no plausible reason why it would take more 

than 20 years to discover that defect. 
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 We conclude, therefore, that even if the PCRA court had not erred by 

failing to treat Appellant’s Habeas Petition as a PCRA petition, Appellant 

would have been unable to satisfy the PCRA’s timeliness requirements. 

Accordingly, the PCRA court lacked jurisdiction to entertain his claim, as do 

we. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/5/2014