J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM MOISES TORRES

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 541 EDA 2020

Appeal from the Order Entered January 7 , 2020

In the Court of Common Pleas of Lehigh County Criminal Division at

No(s): CP

- 39

- CR

- 0003055

- 2008

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 24, 2020

Appellant, William Moises Torres, appeals pro se from the January 7

,

2020 order denying his petition for writ of habeas corpus , in which he

challenged the constitutionality of the statute defining third

- degree murder,

18 Pa.C .S. § 2502(a), and the statute setting forth the sentence for that

offense, 18 Pa.C.S. § 1102(d). After careful review, w e affirm.

The facts of Appellant’s convictions are not necessary to our disposition

of his appeal. We only note that on February 8, 2009, Appellant pled guilty

to two counts of third

- degree murder. On March 26, 2009, he was sentenced

to an aggregate term of 40 to 80 years’ imprisonment. Appellant did not file

a direct appeal.

O ver the ensuing 10 years, Appellant filed several petitions under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9451

- 9546, all of which were

either withdrawn or denied. On December 16, 2019, Appellant filed the proJ

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se petition for writ of habeas corpus underlying the present appeal. After the

t rial court denied that petition on January 7, 2020

, Appellant filed a timely,

pro se notice of appeal. The court thereafter ordered him to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal within 21 days,

informing Appellant that “[a]ny issue not properly included in the concise

statement

... timely filed and served shall be deemed waived.” Order,

2/12/20, at 1 (single pa ge). However, it does not appear from t he certified

record that Appellant filed a Rul e 1925(b) st atement

. Nevertheless, the court

issued a Rule 1925(a) opinion on March 10, 2020. Therein, the court

addressed the merits of Appellant’s claims, considering them as amounting to

a challenge to the discretionary aspects of his sentence, and concluding tha t

it did not abuse its discretion in fashioning Appellant’s term of incarceration.

See Trial Court Opinion, 3/10/20, at 1

- 4.

Herein, Appellant sets forth one issue for our review:

A. The [t]rial [c]ourt abused its discretion in dismissing Appellant’s

[p]e tition for [h]abeas [c]orpus [r]elief alleging he is illegally

confined on the basis of a [t]hird[

- d]egree [m]urder [c]onviction

[under] 18 Pa.C.S. § 2502(c) and [s]entence [under] 18 Pa.C.S.

§ 1102(d) that violates [d]ue [p]rocess, [and] is unconstitution al

and void under the vagueness [d]octrine [,] because the statute

fails to give fair notice of what actions constitute[] the offense and

the sentence statute does not authorize a mandatory term.

Appellant’s Brief at 3.

Initially, Appellant’s failure to fil e a Rule 1925(b) statement waives his

claim for our review. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included inJ

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-

the Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).

Nevertheless , Appellant has also waived his constitutional challenges to

S ection s 2502(c) and 1102(d) based on this Court’s decision in

Commonwealth v. Rouse , 191 A.3d 1 (Pa. Super. 2018). Th ere , the

petitioner submitted a pro se petition for writ of habeas corpus

, contending

that S ecti on 1102(b), which mandates a life sentence for second

- degree

murder

, was void for vagueness

. Id. at 2. The trial court construed the

petitioner’ s argument as a challenge to the legality of his sentence and treated

his filing as a PCRA petition. Id. at 3

. On appeal, this Court determined that

the petitioner’ s void

- for

- vagueness argument was not cognizable under the

PCRA

, explaining :

[B]ecause [the petitioner’ s] claim does not challenge the

imposition of a sentence in excess of the lawful maximum, it does

n ot fall under the purview of S ection 9543(a)(2)(vii). And, to the

extent that S ection 9543(a)(2)(vii) encompasses all illegal

sen tencing issues, [the petitioner’ s] claim does not implicate any

category of illegal sentences previously recognized by

Pennsylvania Courts. Mo reover, because [the petitioner’s]

constitutional challenge to S ection 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

ad dress constitutional errors, S ection 9543(a)(2)(i).

Id. at 7. Ultimately, the Rouse panel treated the filing as a petition for habeas

corpus relief, but held that the petitioner had waived his claim:

[The petitioner’ s] void

- for

- vagueness claim, just like all claims

(but for the three categories of illegal

- sentencing claims), is

subject to waiver. Habeas corpus is an extraordinary remedy and

is available after other remedies have been exhausted orJ

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ineffectual or nonexistent. It will not issue if another remedy

exists and is available. As [the petitioner’ 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, t herefore,

affirm the trial cour t ’ s order dismissing his petition on that basis.

Id. at 6

- 7 (citations and quotation marks omitted). See also

Commonwealth v. McNeil

, 665 A.2d 1247, 1250 (Pa. Super. 1995)

(explaining that issues are not cognizable under the remedy of habeas corpus

if they could have been considered and corrected in the regular course of

appellate review).

Instantly, we conclude that under Rouse

, the trial court in this case

properly treated Appellant’s filing as a petition for writ of habeas corpus

,

rather than a PCRA petition. However, the court erred by addressing the

merits of Appellant’s claims, as they are waived based on his failure to rais e

them at sentencing or in a post

- sentence motion. In other words, Appellant

“failed to exhaust all available remedies before seeking relief under habeas

corpus ” and, consequently, he has waived his claim s for our review. See

Rouse

, 191 A.3d at 6

- 7. 1

Order affirmed.

_________________ __________ ______ ____ _______

1 We note that

, although the trial court denied Appellant’s petition for different

reasons, “as an appellate court, we may affirm on any legal basis supported

by the certified record.” See id. at 7 (citation omitted).J

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2020