J-S12041-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA 

EX REL. THEODORE W. SCHELL SR.,

 v.

MICHAEL WENEROWICZ, 

SUPERINTENDENT, SCI GRATERFORD, 

ET AL., JACK J. WHELAN, ESQUIRE, 

DELAWARE COUNTY DISTRICT 

ATTORNEY,

APPEAL OF: THEODORE W. SCHELL, 

SR.

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

No. 1272 EDA 2015

Appeal from the Order Dated March 31, 2015,

in the Court of Common Pleas of Delaware County,

Civil Division, at No(s): 2013-0004380

BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 18, 2016

Theodore W. Schell, Sr. (Schell) appeals pro se from an order denying 

his petition for writ of habeas corpus ad subjiciendum. We affirm. 

The trial court summarized the background underlying this matter as 

follows.

[Schell] was convicted by a jury of two counts each of 

murder in the first degree, aggravated assault, recklessly 

endangering another person, as well as one count of possessing 

an instrument of crime on January 30, 1976. A jury found 

[Schell] guilty of the shooting deaths of his ex-wife’s parents. 

Following the trial, [Schell] was sentenced to [consecutive] 

terms of life imprisonment for the first[-]degree murder 

convictions [] on September 14, 1977. A direct appeal was filed 

to the Superior Court on October 6, 1977 and on June 1, 1979, 

the Superior Court affirmed the judgment of sentence after 

finding that [Schell] had failed to preserve any of the issues for 

appellate review. Commonwealth v. Schell, [] 405 A.2d 330 
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([Pa. Super.] 1979). Thereafter, Schell filed a petition under the 

Post-Conviction Hearing Act (hereinafter referred to as “PCHA”) 

on March 27, 1981. On April 18, 1983, the PCHA Court denied 

relief, but granted [Schell] the right to file an appeal nunc pro 

tunc. [Schell] filed his appeal, and the Superior Court affirmed 

his judgment of sentence. Commonwealth v. S[c]hell, 503 

A.2d 51 (Pa. Super. 1985) (unpublished memorandum). The 

Pennsylvania Supreme Court denied allowance of appeal on 

December 2, 1986.

Several petitions under the Post-Conviction Relief Act 

(hereinafter referred to as “PCRA”) followed[, .... which were, 

a]ccording to this court’s calculations, his fourth and fifth overall. 

After a review of the case, this court denied these petitions. The 

Superior Court affirmed both of these denials. [Schell] then filed 

a [p]etition for [w]rit of [h]abeas [c]orpus ad subjiciendum on 

May 3, 2013. On April 14, 2014, he filed an amended petition. 

Following another thorough review of the record in this case, the 

court dismissed [Schell’s] petition on March 31, 2015. A motion 

for reconsideration was denied on April 15, 2015. This [timelyfiled] appeal followed.

Trial Court Opinion, 10/15/2015, at 1-2 (footnotes and some citations 

omitted).1

We now try to discern Schell’s arguments on appeal. As is common 

with pro se prisoner litigation of this type, the arguments presented to us 

are confusing and inartfully-stated. Schell co-mingles numerous legal 

principles in a lengthy dialogue about his conviction and sentence. 

We first consider Schell’s claims regarding his sentencing order. 

Schell’s Brief at 1-9. “Schell does not deny that he was found guilty by the 

 

1 The trial court did not order Schell to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b); however, Schell did 

file a statement, which was essentially a copy of his writ of habeas corpus ad 

subjiciendum.
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jury of murder in the first degree ... [and] the Commonwealth was not 

seeking the death sentence in this case, but [was] rather seeking 

consecutive life sentences.” Schell’s Brief at 2. However, Schell contends 

that during a closing argument, the Commonwealth stated that a life 

sentence was only 71⁄2 to 15 years’ incarceration, and that he would be 

eligible for parole. Id. Schell argues that because he has served that time, 

he is entitled to be released from prison. Moreover, Schell claims that the 

document relied upon by the trial court, a court commitment document 

stating that Schell was sentenced to life in prison, is invalid as a sentencing 

order. 

Initially, we note that the Pennsylvania Supreme Court, 

albeit in a per curiam opinion, has held that a claim that a 

defendant’s sentence is illegal due to the inability of the DOC to 

“produce a written sentencing order related to [his] judgment of 

sentence” constitutes a claim legitimately sounding in habeas 

corpus. Brown v. Penna. Dept. of Corr., [] 81 A.3d 814, 815 

([Pa.] 2013) (per curiam) (citing Commonwealth ex rel. 

Bryant v. Hendrick, [] 280 A.2d 110, 112 ([Pa.] 1971); 

Warren v. DOC, [] 616 A.2d 140, 142 ([Pa. Cmwlth.] 1992) 

(“An application for a writ of habeas corpus requests the 

applicant’s release from prison.”)).

Our standard of review in this context is axiomatic: 

The ancient writ of habeas corpus is inherited 

from the common law, referred to by Sir William 

Blackstone as the most celebrated writ in the English 

law. The writ lies to secure the immediate release of 

one who has been detained unlawfully, in violation of 

due process. [T]raditionally, the writ has functioned 

only to test the legality of the petitioner’s detention.
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Commonwealth v. Wolfe, [] 605 A.2d 1271, 1272–73 ([Pa. 

Super.] 1992) (internal citations omitted). “Under Pennsylvania 

statute, habeas corpus is a civil remedy [that] lies solely for 

commitments under criminal process.” Commonwealth v. 

McNeil, [] 665 A.2d 1247, 1249–50 ([Pa. Super.] 1995) (citing 

Wolfe, 605 A.2d at 1273). “Habeas corpus is an extraordinary 

remedy and may only be invoked when other remedies in the 

ordinary course have been exhausted or are not available.” Id. 

(citing Commonwealth ex rel. Kennedy v. Myers, [] 143 A.2d 

660, 661 ([Pa.] 1958)). “Our standard of review of a trial court’s 

order denying a petition for [a] writ of habeas corpus is limited 

to [an] abuse of discretion.” Rivera v. Penna. Dep’t of Corrs., 

837 A.2d 525, 528 (Pa. Super. 2003).

Joseph v. Glunt, 96 A.3d 365, 368-69 (Pa. Super. 2014).

In response to Schell’s arguments, the trial court offered the following:

This court has reviewed [Schell’s] record including the 

notes of testimony from [Schell’s] sentencing hearing on 

September 14, 1977, the previous opinions authored by the 

sentencing judge and those of the Superior Court, and the court 

commitment order dated September 14, 1977. They all reveal 

that [Schell] was sentenced to two consecutive life sentences by 

the Honorable Robert A. Wright. While [Schell] maintains that a 

sentencing order has not been provided to the DOC to reflect 

this sentence, the record clearly reflects his sentence, and he is 

not entitled to relief on this claim.

Trial Court Opinion, 10/15/2015, at 4.

The trial court’s conclusion is consistent with the holding in Joseph, 

wherein Joseph set forth similar arguments.

[Joseph] has cited no apposite legal authorities 

demonstrating that the undisputed record of his judgment of 

sentence maintained by the sentencing court constitutes 

insufficient authority for his continuing detention. See T.C.O. at 

2 (“Through use of the Common Pleas Case Management 

System, the [thirteen] page criminal docket of [Joseph] ... was 

obtained. This docket shows that [Joseph] was found guilty of 

First Degree Murder.... He was sentenced to life without parole 
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by ... Judge John F. Cherry.”); see also Dauphin County 

Criminal Docket CP–22–CR–0001269–2009 at 6. ... [C]ourts 

confronting this issue in the past have deemed a record of the 

valid imposition of a sentence as sufficient authority to maintain 

a prisoner’s detention notwithstanding the absence of a written 

sentencing order[.] Both the criminal docket provided by the 

trial court and the transcript of the sentencing hearing confirm 

the imposition, and legitimacy, of [Joseph’s] sentence.

Based upon the foregoing, we discern no merit in 

[Joseph’s] arguments. The trial court properly reviewed the 

record and discovered a valid sentencing order contained 

therein. Moreover, the trial court correctly concluded that, 

even in the absence of a written sentencing order, the 

DOC had continuing authority to detain [Joseph]. 

Joseph, 96 A.3d at 372 (emphasis added). Thus, we conclude the trial 

court did not abuse its discretion in denying Schell’s petition for writ of 

habeas corpus as the DOC has continuing authority to detain him because he 

was sentenced to life in prison.

Schell next sets forth a series of arguments about the evidence 

presented against him at trial. Schell’s Brief at 14-24. For example, he 

argues that the Commonwealth questioned a witness improperly; that the 

Commonwealth presented “false” testimony; and, that the Commonwealth 

suppressed forensic evidence. 

It is well-settled that the PCRA is intended to be the sole 

means of achieving post-conviction relief. Unless the PCRA could 

not provide for a potential remedy, the PCRA statute subsumes

the writ of habeas corpus. Issues that are cognizable under the 

PCRA must be raised in a timely PCRA petition and cannot be 

raised in a habeas corpus petition.
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Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) 

(citations omitted).

Schell’s aforementioned contentions had remedies available from PCRA 

proceedings. Accordingly, those claims are subject to the jurisdictional timebar of the PCRA. 

Generally, a PCRA petition must be filed within one year from the 

date a judgment becomes final.[2] There are three exceptions to 

this time requirement: (1) interference by government officials 

in the presentation of the claim; (2) newly discovered facts; and 

(3) an after-recognized constitutional right. When a petitioner 

alleges and proves that one of these exceptions is met, the 

petition will be considered timely. A PCRA petition invoking one 

of these exceptions must be filed within 60 days of the date the 

claims could have been presented. The timeliness requirements 

of the PCRA are jurisdictional in nature and, accordingly, a PCRA 

court cannot hear untimely petitions. 

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012) 

(footnote added; citations and quotation marks omitted).

On December 2, 1986, our Supreme Court denied Schell’s petition for 

allowance of appeal, and Schell did not file a writ of certiorari to the United 

 

2

“PCRA petitioners whose judgment of sentence became final prior to the 

effective date of the amendments to the PCRA ha[d] until January 17, 1997 

to file a timely [petition].” Commonwealth v. Baldwin, 789 A.2d 728, 730 

(Pa. Super. 2001). As discussed infra, Appellant’s judgment of sentence 

became final prior to 1997; thus, Appellant had the benefit of this additional 

time to file timely his first PCRA petition.
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States Supreme Court. Accordingly, Appellant had until January 17, 1997 to 

file timely a PCRA petition.3 

The instant petition, filed on May 3, 2013, is patently untimely. The 

PCRA court had no jurisdiction to entertain Appellant’s petition unless he 

pled and offered proof of one or more of the three statutory exceptions to 

the time bar. See 42 Pa.C.S. § 9545(b)(1). Appellant failed to do so. 

Accordingly, the PCRA court properly dismissed his petition to the extent he 

was raising claims with remedies available under the PCRA.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/18/2016

 

3

 Appellant did file timely his first PCRA petition, and was denied relief. 

Subsequently, Appellant filed several untimely petitions prior to filing the 

instant petition for writ of habeas corpus.