IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald Franklin Dowd, Jr., : : No. 2113 C.D. 2016 Petitioner : Submitted: July 14, 2017

:

v. :

: Dominic J. Rossi, Esquire, :

: Respondent :

OPINION NOT REPORTED

MEMORANDUM OPINION PER CURIAM FILED: September 1, 2017

Donald Franklin Dowd, Jr. petitions pro se for review of the order of

an Administrative Law Judge (ALJ) with the Office of Attorney General (OAG)

denying his appeal of the decision of Domini c J. Rossi, Esquire, Deputy Court

Administrator of the Philadelphia County Court of Common Pleas (trial court) that

had denied Dowd’s challenge to the accuracy of his criminal history record under

the Criminal History Record Information Act (CHRIA). 1 We a ffirm.

On July 1, 2015, Dowd filed a challeng e to the accuracy of his

criminal history record information under Section s 9151 (a) and 9152(c) of

CHRIA, 2 alleging : a violation of the Supremacy Clause of the United States

1 18 Pa. C.S. § §9101

- 9183.

2 18 Pa. C.S. § § 9151 (a)

, 9152(c) . Section 9151(a) states, in relevant part, that “[a ] ny individual . . . has the right to review, challenge, correct and appeal the accuracy and completeness of his criminal history record information.” In turn, Section 9152(c) states: (Footnote continued on next page...)2

Constitution depriving the trial co urt of jurisdiction based on the omission of the

statutory authority by the General Assembly to extradite and prosecute him for the

crimes of first degree murder and criminal conspiracy; 3 fraud by the Clerk of

(continued...)

The indivi dual may challenge the accuracy of his or her criminal history record information by specifying which portion of the
record is incorrect and what the correct version should be. Failure to challenge any portion of the record in existence at that time will place the burden of proving the inaccuracy of any part subsequently challenged upon the individual. Information subsequently added to such record shall also be subject to review, challenge, correction or appeal

.

3 The circumstances underlying Dowd’s conv ictions in the trial court and his direct appeals of the judgment of sentence have been summarized by the Superior Court as follows:

The Commonwealth charged [Dowd] with the execution

style killing of R.M. The homicide transpired on November 22, 1970, a nd the underlying convictions in this case, murder and criminal conspiracy to commit murder, occurred in September 1973. [Dowd] and R.M. had been members of the People’s Liberation Army (“PLA”), a radical revolutionary group. R.M., along with another mem ber of the group, Philip Wormley, allegedly perpetrated a robbery to benefit the PLA. Both R.M. and [] Wormley purportedly retained some proceeds from that robbery
and the PLA considered them a security risk. A member of the PLA testified that the group, including [Dowd], agreed to execute
both R.M. and [] Wormley. R.M. suffered twelve gunshot wounds, which eventually resulted in his death. R.M.’s attackers shot him with a .38 caliber weapon and a .44 caliber firearm. In addition, a .9 mm casing was lo cated at the scene. Prior to his death, R.M. identified four men, including [Dowd], as his assailants. Although the Commonwealth did not charge [Dowd] with the crime, [] Wormley was murdered contemporaneously in the same area and with the exact weapons u tilized on R.M.

(Footnote continued on next page...)3

(continued...)

[Dowd] fled the Commonwealth after the shooting only to

be apprehended in Georgia in December 1970, for carrying a .9 mm firearm without a permit. A grand jury in Pennsylvania indicted [Dowd] in abstentia on December 16, 1970. In Februa ry 1971, [Dowd] was extradited to Philadelphia, where trial was delayed for thirty

- one months.

During [Dowd]’s trial, the Commonwealth introduced two separate dying declarations by the victim that identified [Dowd] as one of his attackers. In addition, the Commonwealth introduced evidence that Philip Wormley was murdered in order to demonstrate a common scheme between the two killings. Evidence of the robbery that R.M. and [] Wormley committed was offered to prove motive for the crime. The jury convict ed [Dowd] of both first degree murder and criminal conspiracy to commit murder and the trial court sentenced [Dowd] to life imprisonment. [Dowd]’s trial counse l neglected to file a direct appeal and [Dowd]
filed a pro se motion to reinstate his appellate rights nunc pro tunc

, which the Pennsylvania Supreme Court granted.

Thereafter, our Supreme Court affirmed [Dowd]’s conviction, holding that the delay in [Dowd]’s case did not deny him his speedy trial rights, that the victim’s second dying declaration was admissible, and evidence that [Dowd] belonged to a revolutionary gr oup that took part in a robbery was admissible.
Commonwealth v. Dowd , 372 A.2d 705 (Pa. 1977). The Pennsylvania Supreme Court denied [Dowd]’s petition for a rehearing and he petitioned for a writ of certiorari to the United States Supreme Court. That pe tition was denied.

Commonwealth v. Dowd , (Pa. Super., No. 2261 EDA 2005, filed October 27, 2010), slip op. at 1

- 3 (citations to trial transcript omitted). See also Commonwealth v. Riggins , 386 A.2d 520, 523 (Pa. 1978) (“ To accept appellant ’ s present cont ention that where the link establishing the identity of the perpetrator of the crime [s of first degree murder and criminal conspiracy] is supplied by an uncorroborated dying declaration the evidence must be deemed insufficient as a matter of law, requires a determination that dying declarations must be accorded less weight than other types of
admissible evidence. This we decline to do. The jury was properly instructed that [it] could consider these statements of the deceased in determining whether the app ellant was one of the (Footnote continued on next page...)4

Courts in the trial court for changing the docket to read that he was arrested,

charged, indicted, tried, convicted and sentenced pursuant to Section 2502 of the

Crimes Code 4 because that statute did not exist at the time that he was charged with

and convicted of first degree murder ; and that the n ew docket in his case is

fraudulently altered, incomplete

, and inaccurate so that there is no valid judgment

of sentence supporting his incarceration that comport s with the Full Faith and

Credit Clause of the United States Constitution. Certified Record ( C.R.) Appendix

(continued...)

killers. This evidence alone, if believed (and it apparently was believed by the jury) was
sufficient in law to sustain the verd ict.”) (footnote omitted).

4 18 Pa. C.S. §2502. As the Pennsylvania Supreme Court has explained:

The Crimes Code in Chapter 25, for the first time in Pennsylvania, establishes an offense known as “criminal
homicide”. A person is guilty of this crime “if he intentionally, knowingly, recklessly or negligently causes the death of another human being.” 18 P a. C.S. § 2501(a). The Code then states that

“ [ c ] riminal homicide [ is ] classified as murder, voluntary manslaughter, or involuntary manslaughter.” Ibid. § 2501(b). (Emphasis supplied.) Murder is in turn divided into three categories: murder of the first degree, murder of the second degree, and murder of the third degree. Ibid. §2502. Murder of the first degree and of the second degree under the Crimes Code together correspond to murder in the first degree under prior law [, the former Penal Code, Act of June 24, 1939, P.L. 872, as amended

, 18 P.S. § 4701 repealed by the Act of December 6, 1972,

P.L. 1482 ] ; the new murder of the first degree is an intentional killing, while the new murder of the second degree is felony

murder. Murder of the third degree is comprised of “all other

kinds of murder

, ” 18 Pa. C.S. § 2502(c) (Supp. 1977

- 1978), thus taking the place of the former murder in the second degree, which
the Penal Code described in the same words.

Commonwealth v. Polimeni , 378 A.2d 1189, 1194 (Pa. 1977 ) (footnotes omitted).5

(Appx.) 15 at Exhibit (Ex.) 1. As a result, Dowd directed the Clerk of Courts to :
correct his criminal history record information to reflect the enumerated omissions,

deficiencies, and alterations and find that the trial court never had su bject matter

jurisdiction over his criminal case ; notify all other criminal justice agencies of the

correct, accurate, and complete records; issue an affidavit that there is no valid

judgment of sentence supporting his incarceration; and conduct a hearing to review

his challenge. The Clerk of Courts forwarded Dowd’s challenge to Rossi.

On August 12, 2015, Rossi sent Dowd a letter stating “that upon

review of the dockets we have determined that they are correct.” C.R. Appx. 15 at

Ex. 2. As a result, on S eptember 7, 2015, Dowd appealed Rossi’s decision to the

OAG pursuant to Section 9152(e) (1) of CHRIA. 5 C.R. Appx. 1.

On June 23, 2016, the ALJ conducted a hearing 6 at which Dowd

appeared and presented evidence in support of his claims; Rossi did not appea r at

the hearing

. 7 On December 7, 2016, the ALJ issued the instant disposition and

order denying Dowd’s appeal of Rossi’s decision stating, in relevant part:

[Dowd] does not appear to dispute that he was convicted of murder and conspiracy to commit murder.

5 18 Pa. C.S. §9152(e) (1) . Section 9152(e) (1) states that “[i] f the challenge is ruled invalid, an individual has the right to appeal the decision to the [OAG] within 30 days of notification of the decision by the criminal justice a gency .”

6 Section 9152(e)(2) of CHRIA states that OAG “shall conduct a hearing de novo in accordance with the Administrative Agency Law[, 2 Pa. C.S. §§501

- 508]. The burden of proof shall be upon the party bearing the burden of proof on the challenge.” 1 8 Pa. C.S. §9152(e)(2).

7 In November 2015, Dowd filed an Affidavit of Truth with the Pennsylvania State Police (PSP) and OAG and a Notice of Intent to file a Praecipe for Entry of Default against PSP due to the delay in responding to his appeal. C.R. Ap px. 6, 8, 10. In December 2015, PSP’s request to be removed from the caption of the OAG appeal was granted because PSP wa s not a party to the action. C.R. Appx. 9, 16 at 2.6 [Dowd] alleges that the initial charging decision and his extradition from the State of Georgia were defective. An appeal pursuant to Section 9152 of [CHRI A], 18 Pa. C.S. §9152, is limited to the accuracy of one’s criminal history record as it exists within the criminal justice system. Dunbar v. Pennsylvania , 902 A.2d 1002 (Pa. Cmwlth. 2006) [, appeal denied , 916 A.2d 635 (Pa. 2007)] . Based upon the records provided by [Dowd], including the sentencing sheet and other court documents, [and] his testimony, the records as maintained by the Court Administrator of Philadelphia accurately reflect the conviction for murder and conspiracy. Those records, as reported to [PSP] for inclusion in [Dowd]’s criminal history, are accurately reflected in Docket number CP

- 51

- CR

- 1205511

- 1970 as maintained by the Administrative Office of Pennsylvania Courts.

C.R. Appx. 16 at 4

- 5. Dowd then filed this a ppeal of the ALJ’s order. 8

On appeal, 9 Dowd argues that the ALJ’s disposition and order are

arbitrary and capricious because he disregarded the evidence that Dowd presented

and did not fully address the alteration and tampering with Dowd’s criminal

histor y record information; Rossi did not meet his burden of proving the accuracy

of Dowd’s criminal history record information in violation of Dowd’s due process

and equal protection rights; and Rossi ’s failure to maintain an accurate criminal

history record in formation violated his duty under the United States and

Pennsylvania Constitutions, international law, his fiduciary responsibility and oath

of office and as an attorney

, and the Code of Professional Responsibility.

8 Section 9152(e)(3) of CHRIA states that “[t]he decision of [OAG] may be appeale d to
the Commonwealth Court by an aggrieved individual.” 18 Pa. C.S. § 9152(e)(3).

9 This Court’s review of the ALJ’s order is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Dunbar , 902 A.2d at 1004 n.2

.7 However, to the extent that Dowd raises issues on appeal that were

not raised in his challenge to the accuracy of his criminal history record

information under CHRIA, such claims are waived for purposes of appeal.

Pa. R.A.P. 1551 (a) (“No question shall be heard or considered by the court which

was not raised before the government unit . . . .”); Laundry Owners Mutual

Liability Insurance Association v. Insurance Commissioner of Pennsylvania , 91

A.3d 747, 753 (Pa. Cmwlth. 2014) ( holding that an issue is waived where the party

fails to raise it be fore the governmental unit)

.

With respect to his remaining claims, seeking a determination that the

trial court was without jurisdiction in the underlying criminal proceeding and

associated ancillary relief, it is well settled that a request to correct a record under

CHRIA cannot be used to attack the underlying criminal proceedings. 10 As this

Court has explained:

To the extent that Lindsey seeks to challenge the authority of the charges originally brought against him, and/or seeks to challenge the legal sufficiency and/or constitutionality of the judicial proceedings that flowed from those charges, the criminal proceedings in the Court of Common Pleas on those charges is and was the sole avenue for the address of, and appeal from, such challenges. The un derlying charges and judicial

10 Contrary to Dowd’s assertions, the ALJ did not act arbitrarily or capriciously disregard evidence in denying the requested relief. Rather, the evidence that Dowd presented at the ALJ’s hearing demonstrates that there are both a written judgment of sente nce signed by the trial court judge and a written order of commitment signed by the clerk of the trial court support ing his
incarceration . C.R. Appx. 15 at Ex. B, Ex. J

- 7. Moreover, the Department of Corrections retains detention authority even in the ab sence of a written sentencing order. See, e.g., Joseph v. Glunt

, 96 A.3d 365, 372 (Pa. Super.)

, appeal denied

, 101 A.3d 787 (Pa. 2014) (“[C]ourts confronting this issue in the past have deemed a record of the valid imposition of a sentence as sufficient

a uthority to maintain a prisoner’s detention notwithstanding the absence of a written sentencing order under [Section 9764(a)(8) of the Sentencing Code,] 42 Pa. C.S. §9764(a)(8).”).8 proceedings that form the foundation of Lindsey’s criminal history record contained within the PSP Central Repository are beyond the scope of the CHRIA’s provisions. Clark [ v. Pennsylvania State Police , 760 A.2d 1202, 1205 (P a. Cmwlth. 2000)].

Lindsey v. Pennsylvania State Police , (Pa. Cmwlth., No. 495 C.D. 2011, filed

November 14, 2011), slip op. at 7. 11 See also Clark , 760 A.2d at 1205 (“ We would

first observe, however, that we are in agreement with the ALJ that, even if his birth

date as maintained by the central repository is inaccurate, Clark would not be

entitled to expungement of the record. First, there is no dispute that the record

accurately reflects Clark ’ s 1973 arrest and subsequent conviction. To order

expungemen t of this conviction would only thwart the purpose of the criminal

history record information and mislead law enforcement officials as to Clark ’ s

criminal activities. Clark cannot utilize the Act as a means to attack collaterally his

valid 1973 arrest and subsequent conviction .”) ; Neal v. Pennsylvania State Police

, (Pa. Cmwlth., No. 513 C.D. 2012, filed March 5, 2013), slip op. at 5 n.7 (“Neal

misunderstands the purpose of the CHRIA, which is t o ensure the accuracy of an

individual’s criminal history recor d information, not to ensure the validity of the

underlying criminal proceedings from which an individual’s criminal history

record information is derived. See Clark , 760 A.2d at 1205. Thus, Neal cannot

bring his challenge to the underlying prohibited of fensive weapons and burglary

charges under the CHRIA, as the ALJ and this Court have jurisdiction only over a

challenge to the accuracy of Neal’s criminal history record information.”).

11 This Court’s unreported memorandum opinions may be cited “for [their] per suasive value, but not as a binding precedent.” Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a)

.9 As noted above, the Pennsylvania Supreme Court affirmed on direct

app eal the judgment of sentence imposed on Dowd ’s first degree murder

conviction. 12 Se e Commonwealth v. Dowd , 372 A.2d 705 (Pa. 1977). His attempt

to invalidate either the judgment of sentence or his criminal conviction under

CHRIA in the instant proceeding is unavailing.

Finally, Dowd’s assertion that the computerized docket entries in the

Common Pleas Case Management System (CPCMS) regarding his criminal

conviction for first degree murder listing a new docket number and the current

section of the Crimes Code within its database somehow invalidates his conviction

or the judgement of sentence is likewise unavailing. It is undisputed that he was

convicted of first degree murder and sentenced therefor . As explained above,

“[m] urder of the first degree and o f the second degree under the Crimes Code

together correspond to murder in the first degree under prior law [, the former Penal

Code, Act of June 24, 1939, P.L. 872, as amended , 18 P.S. §4701 (repealed)] . . . .”

Commonwealth v. Polimeni , 378 A.2d 1189, 11 94 (Pa. 1977). The computerized

docket entries accurately reflect the crime for which he was convicted and upon

which the judgment of sentence was imposed. As a result, the listing of a new

docket number and the current section of the statute for that cr ime within the

computer’s database does not provide a basis upon which to attack his underlying

criminal conviction or judgment of sentence

. See 204 Pa. Code §213.81, Section

1 1 .0 Commentary (“ Case records are as susceptible to clerical errors and omissio ns
as any other public record. The power of the court to correct errors in its own

12 Dowd did not contest the accuracy of the criminal conspiracy charge in the challenge to the accuracy of hi s criminal history record information under Sections 9151(a) and 9152(c) of

CHRIA. See C.R. Appx. 15 at Ex. 1.10

records is inherent. E.g.

, Jackson v. Hendrick , 746 A.2d 574 (Pa. 2000). It is

important to emphasize that this section does not provide a party who is

dissatisfied with a court’s decision, ruling or judgment a new avenue to appeal the

same by merely alleging there is an error in the court’s decision, ruling or

judgment. Rather, this section permits a party to ‘ fix ’ information that appears in a

case record which is not, for one reason or another, correct .”). 13

Accordingly, the ALJ’s order is affirmed.

Judge Cosgrove concurs in result only.

13 Moreover, review of the custodian’s response to a request to correct a CPCMS record

is vested in the trial court judge and not the OAG under CHRIA

. See 204 Pa. Code §213.81, Section 10.0(F) (“ A requestor may seek review of the custodian’s response under Subsections E(1)

- (4) within 10 business days of the mailing date of the response. 1. The request for review
shall be submitted on a fo rm that is designed and published by the Administrative Office of Pennsylvania Courts . 2. The request shall be reviewed by the judge(s) who presided over the

case .”).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donald Franklin Dowd, Jr., : : No. 2113 C.D. 2016 Petitioner :

:

v. :

: Dominic J. Rossi, Esquire, :

: Respondent :

PER CURIAM

O R D E R

AND NOW, this 1 st day of September , 201 7

, the order of the

Administrative Law Judge with the Office of Attorney General dated December 7,

2016, is AFFIRMED.