IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yusef Whitehead, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 747 M.D. 2018

Respondent : Submitted: December 9, 2022

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: May 23, 2023

Before the Court is “Respondent’s Preliminary Objection to Petition for 

Review” (Preliminary Objection) filed by the Commonwealth of Pennsylvania, 

Department of Corrections (Department) on January 3, 2019, in response to pro se

petitioner Yusef Whitehead’s (Whitehead) “Petition for Review (In the Nature of a 

Complaint in Mandamus)” (Petition). Whitehead challenges the calculated 

maximum dates and credits for time served of his prison sentences. For the reasons 

that follow, we sustain the Preliminary Objection.

Whitehead is an individual incarcerated at the State Correctional 

Institution at Mahanoy. See Preliminary Objection at 1. On May 19 and 20, 1998, 

Whitehead pleaded guilty and was sentenced to an aggregate sentence of 171⁄2 to 35 
2

years of incarceration for aggravated assault1 and rape2(collectively, the Previous 

Sentences). On October 15, 1998, while still a minor, Whitehead was sentenced for 

murder, conspiracy to commit murder, and four related crimes (Docket No. 

CP0501681).

3

 Whitehead received a mandatory life sentence without the possibility 

of parole on the murder conviction (Murder Sentence), as well as 5- to 10-year 

sentences on the conspiracy to commit murder and each of the four related crimes

(Murder-related Sentences). The sentencing court ordered the Murder Sentence and 

the Murder-related Sentences to be served concurrently to one another but 

consecutively to the Previous Sentences, with the exception of Count 12 of the 

Murder-related Sentences, a conspiracy conviction (Conspiracy Conviction), which 

was to be served concurrently with the Previous Sentences. Following a successful 

Post Conviction Relief Act4 petition that resulted in the Murder Sentence being 

vacated,

5 on August 28, 2018, Whitehead was resentenced on the murder conviction 

to a term of incarceration of 50 years to life (New Murder Sentence), again to be 

served concurrently with the Murder-related Sentences, and consecutively to the 

Previous Sentences, again with the exception of the Conspiracy Conviction, which 

was to be served concurrently with the Previous Sentences.

1 Docket No. CP0708691.

2 Docket No. CP 0211571. 

3 Kidnapping, rape, robbery, and robbery of a motor vehicle. See Docket No. CP0501681.

4

42 Pa.C.S. §§ 9541-9546.

5 Whitehead based his Post Conviction Relief Act (PCRA) petition on Miller v. Alabama, 

567 U.S. 460 (2012), in which the United States Supreme Court determined that mandatory life 

without parole sentences for juvenile homicide convictions violated the Eighth Amendment of the 

United States Constitution, U.S. Const. amend. VIII, and Montgomery v. Louisiana, 577 U.S. 190 

(2016), which determined that Miller applies retroactively. See Petition at 2. The Commonwealth 

did not oppose Whitehead’s PCRA petition. See id.
3

On November 21, 2018, Whitehead filed the Petition, in which he

claims that the Department failed to properly calculate and attribute credit for time 

served on his sentences to which he is entitled. See Petition at 3-4. Specifically, 

Whitehead claims that he is entitled to, but did not receive, credit on the New Murder 

Sentence for time served from his March 27, 1997 arrest in that matter through the 

date of his resentencing. See Petition at 3. His prayer for relief asks this Court to 

“[e]nter judgment against the [Department] commanding it to abide by the 

sentencing court’s order on the [Previous S]entences and award proper credit[.]” 

Petition at 5.

The Department filed the Preliminary Objection on January 3, 2019. 

The Preliminary Objection demurs to the claims of the Petition, arguing that the 

Department properly applied applicable credits to Whitehead’s sentences, and 

further arguing that Whitehead has failed to establish a duty of the Department that 

would substantiate Whitehead’s requested mandamus relief. See generally

Preliminary Objection.

Initially, we note that:

[i]n ruling on preliminary objections, we must accept as 

true all well-pleaded material allegations in the petition for 

review, as well as all inferences reasonably deduced 

therefrom. The Court need not accept as true conclusions 

of law, unwarranted inferences from facts, argumentative 

allegations, or expressions of opinion. In order to sustain 

preliminary objections, it must appear with certainty that 

the law will not permit recovery, and any doubt should be 

resolved by a refusal to sustain them.

A preliminary objection in the nature of a demurrer admits 

every well-pleaded fact in the complaint and all inferences 

reasonably deducible therefrom. It tests the legal 

sufficiency of the challenged pleadings and will be 
4

sustained only in cases where the pleader has clearly failed 

to state a claim for which relief can be granted. When 

ruling on a demurrer, a court must confine its analysis to 

the complaint.

Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010).

The petition here is in the nature of mandamus, which seeks to compel 

the performance of a ministerial act or mandatory duty. See Savage v. Storm, 257 

A.3d 187, 191 (Pa. Cmwlth. 2021). As this Court has explained:

To prevail in mandamus, a petitioner must demonstrate (1) 

a clear legal right to relief, (2) a corresponding duty in the 

respondent, and (3) there are no other adequate and 

appropriate remedies at law. A mandatory duty is one 

which a public officer is required to perform upon a given 

state of facts and in a prescribed manner in obedience to 

the mandate of legal authority. Mandamus is an 

extraordinary remedy and may not be used 

to establish legal rights.

Id. (internal quotation marks and citations omitted). “[A] writ of mandamus may be 

used to compel the Department [] to compute a prisoner’s sentence properly.” 

Saunders v. Dep’t of Corr., 749 A.2d 553, 556 (Pa. Cmwlth. 2000). However, “this 

Court[] lacks the authority to compel an illegal act.” Detar v. Beard, 898 A.2d 26, 

29 (Pa. Cmwlth. 2006) (quoting Doxsey v. Commonwealth, 674 A.2d 1173, 1175 

(Pa. Cmwlth. 1996)). Additionally, the Crimes Code6 does not entitle individuals to 

double credit for time served. See 42 Pa.C.S. § 9760.

Under these standards and the facts of this case, Whitehead’s

mandamus request must fail because he has not demonstrated a clear right to relief. 

6

18 Pa.C.S. §§ 101-9546.
5

The Department’s “DC-16E Sentence Status Summary” (Sentence Summary) 

pertaining to Whitehead’s convictions and sentences7reveals that Whitehead was 

already serving an aggregate sentence of 171⁄2 to 35 years’ incarceration on the 

Previous Sentences on October 15, 1998, the date upon which he originally received 

the Murder Sentence of life without the possibility of parole, which was ordered to 

be served consecutively to the Previous Sentences. See Sentence Summary at 1-3. 

As a result of the consecutive nature of the sentences, the Department applied the 

time Whitehead served prior to sentencing for the Murder Sentence toward the 

Previous Sentences.8 See id. Thereafter, on August 28, 2018, Whitehead received 

the New Murder Sentence of 50 years to life, again to be served concurrently with 

the Murder-related Sentences and consecutive to the Previous Sentences.9 See id. 

Based on this sentencing structure, Whitehead was not entitled to receive credit on 

the New Murder Sentence until the expiration of the Previous Sentences, which have 

not yet expired.

10

 See id. at 3. Only once the expiration of the Previous Sentence 

occurs will Whitehead begin serving the 50 years to life Murder Sentence. See id. 

Therefore, Whitehead is not entitled to credit on the New Murder Sentence from 

March 27, 1997, as he suggests. The Department is therefore already abiding by the 

7 Whitehead attached partial copies of the Sentence Summary as Exhibits A and B to the 

Petition. See Petition Exhibits A & B. The Commonwealth attached a complete copy of the 

current Sentence Summary to the Preliminary Objection. See Preliminary Objection Exhibit A.

8 Whitehead also received credit for this time on the Conspiracy Conviction, which the 

sentencing court had ordered to be served concurrently with the Previous Sentences. See Sentence 

Summary at 1-3.

9 At the resentencing, the Conspiracy Conviction was ordered to be served concurrently 

with the Previous Sentences. See Sentence Summary at 2-3. Therefore, this sentence was properly 

identified as an “overlapping concurrent” sentence with the Previous Sentences for aggregation 

purposes. See id.

10 The Previous Sentences are not set to expire until April 24, 2032. See Sentence Summary 

at 3.
6

sentencing court’s ordered sentences and has correctly applied credits for time 

served to the sentences. Accordingly, Whitehead cannot demonstrate a clear legal 

right to the mandamus relief he requests.

For these reasons, we sustain the Preliminary Objection and dismiss the 

Petition with prejudice.

__________________________________

CHRISTINE FIZZANO CANNON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yusef Whitehead, :

Petitioner :

:

v. :

:

Pennsylvania Department :

of Corrections, : No. 747 M.D. 2018

Respondent :

O R D E R

AND NOW, this 23rd day of May, 2023, “Respondent’s Preliminary 

Objection to Petition for Review” filed by the Commonwealth of Pennsylvania, 

Department of Corrections on January 3, 2019, is SUSTAINED, and pro se

Petitioner Yusef Whitehead’s “Petition for Review (In the Nature of a Complaint in 

Mandamus)” is DISMISSED with prejudice. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge