IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nelson Birdwell,

Petitioner :

:

v. :

:

Pennsylvania Board of Probation :

and Parole, : No. 80 M.D. 2023

Respondent : Submitted: July 5, 2024

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: September 5, 2024

Presently before this Court are the “Preliminary Objections to 

Amended Petition” (Preliminary Objections) filed by the Pennsylvania Parole Board 

(Board)1in response to pro se petitioner Nelson Birdwell’s (Petitioner) “Amended 

Petition for Review Pursuant to Pa.R.A.P. 1501, et[] seq.” (Amended Petition). In 

the Amended Petition, Petitioner alleges that the Board erred by denying him 

consideration for parole. See Amended Petition at 1-6. Petitioner asks this Court to 

order the Board to consider his parole application or, in the alternative, hold an 

evidentiary hearing on the Amended Petition. See Amended Petition at 6. Petitioner 

further appears to seek a declaration from this Court that the Board’s refusal to 

1 The Pennsylvania Board of Probation and Parole was renamed the Pennsylvania Parole 

Board. See Sections 15, 16, and 16.1 of the Act of December 18, 2019, P.L. 776, No. 115 (effective 

February 18, 2020); see also Sections 6101 and 6111(a) of the Prisons and Parole Code, as 

amended, 61 Pa. C.S. §§ 6101, 6111(a).
2

consider parole for persons aged 18 to 20 who are serving life imprisonment violates 

Pennsylvania’s constitution. See Amended Petition at 2-6. For the reasons that 

follow, we sustain the Preliminary Objections and transfer the Amended Petition to 

the Court of Common Pleas of Lehigh County.

Petitioner is currently incarcerated, serving a life sentence for a murder

and associated crimes that he committed 13 days after his 18th birthday. See

Amended Petition at 1; see also Court of Common Pleas of Lehigh County Docket 

No. CP-39-CR-0002580-1995 (Murder Case Docket).2 Petitioner filed a parole 

application (Parole Application) that the Board denied by letter dated January 12, 

2023, because Petitioner is serving a life sentence and thus ineligible for parole 

consideration pursuant to Section 6137(a) of the Prisons and Parole Code,

3 61 

Pa.C.S. § 6137(a). See Amended Petition at 1-2 & Exhibits A & B. Following the 

Board’s denial of the Parole Application, in February 2023, Petitioner filed a Petition 

for Review with this Court, in response to which the Board filed preliminary 

objections. Petitioner later filed the Amended Petition and the Board filed the instant 

Preliminary Objections. The Court thereafter filed an order directing the Preliminary 

2 For the purpose of determining the Preliminary Objections, this Court takes judicial notice 

of the Murder Case Docket. See Elkington v. Dep’t of Corr., 256 A.3d 511 n.4 (Pa. Cmwlth. 2021) 

(observing that “this Court may take judicial notice of the dockets of other courts of the 

Commonwealth”); Miller v. Unemployment Comp. Bd. of Rev., 131 A.3d 110, 115 (Pa. Cmwlth. 

2015) (taking judicial notice of claimant’s criminal docket) (citing Lycoming Cnty. v. Pa. Lab. 

Rels. Bd., 943 A.2d 333, 335 n.8 (Pa. Cmwlth. 2007)). The Murder Case Docket lists Petitioner’s 

birthdate as February 13, 1977, and indicates that the murder for which Petitioner was convicted 

occurred on February 26, 1995. See Murder Case Docket at 1.

3

61 Pa.C.S. §§ 101-7301.
3

Objections to be decided on briefs. The parties have submitted briefs,4and the 

matter is now ripe for determination.

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 [petition for review] and all 

inferences reasonably deducible therefrom. It tests the 

legal sufficiency of the challenged pleadings and will be 

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 [petition for review].

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

In the Preliminary Objections, the Board argues that the Amended 

Petition should be dismissed because Petitioner’s request that this Court direct the 

4 We acknowledge the filing of the document titled “Amicus Curiae Brief” (Amicus Brief) 

by Hear Me Out Publishing, LLC (HMO Publishing), in which HMO Publishing argues that 

Petitioner should be considered a “juvenile offender” not subject to a sentence of life without the 

possibility of parole under Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017), and therefore eligible 

for parole consideration by the Board. See Amicus Brief at 6-10.
4

Board to consider the Parole Application fails to state a claim upon which relief may 

be granted.5 See Board’s Brief at 5-8. We agree.

By requesting that this Court require the Board to consider the Parole 

Application, the Amended Petition presents a mandamus request. As this Court has 

explained:

Mandamus is an extraordinary remedy that compels the 

official performance of a ministerial act or a mandatory 

duty. A writ of mandamus may only be issued where there 

is a clear legal right in petitioner, a corresponding duty in 

respondent, and a lack of any other appropriate remedy.

Nickson v. Bd. of Prob. & Parole, 880 A.2d 21, 23 (Pa. Cmwlth. 2005) (internal 

citations omitted). “[M]andamus will not be used to direct the Board to exercise its 

judgment or discretion in a particular way or direct the retraction or reversal of an 

action already taken.” Id. Further, “[t]he purpose of mandamus is not to establish 

legal rights, but to enforce those rights already established beyond peradventure.” 

Lawrence v. Pa. Dep’t of Corr., 941 A.2d 70, 72 (Pa. Cmwlth. 2007) (quoting Detar 

v. Beard, 898 A.2d 26, 29 (Pa. Cmwlth. 2006)).

Section 6137(a) of the Prisons and Parole Code states, in pertinent part:

(a) General criteria for parole.--

(1) The [B]oard may parole subject to 

consideration of guidelines established under 42 

Pa.C.S. § 2154.5 (relating to adoption of 

guidelines for parole) or subject to section 6137.1 

5 We observe that the Board also raised a preliminary objection based on improper service. 

See Preliminary Objections at 1-2. In response, this Court ordered Petitioner to serve the Petition 

for Review on the Board and Petitioner complied. See Order exited April 14, 2023; Compliance 

with Order dated April 24, 2023.
5

(relating to short sentence parole) and such 

information developed by or furnished to the 

[B]oard under section 6174 (relating to right of 

access to offenders), or both, and may release on 

parole any offender to whom the power to parole 

is granted to the [B]oard by this chapter, except an 

offender condemned to death or serving life 

imprisonment[.]

61 Pa.C.S. § 6137(a) (emphasis provided).

Here, Petitioner acknowledges that he is serving a sentence of life 

imprisonment. See Amended Petition at 2. Section 6137(a) of the Prisons and Parole 

Code expressly prohibits the Board from paroling offenders who are either 

condemned to death or serving life sentences. See 61 Pa.C.S. § 6137(a). Thus, by 

requesting that we require the Board to consider the Parole Application, Petitioner 

asks this Court to direct the Board to conduct an act that it lacks authority to perform. 

Mandamus is inappropriate and unavailable in such situations. See Nickson; 

Lawrence. Petitioner seeks not to enforce an established legal right, but to create 

one based on an argument that he was a “juvenile” at the time he committed murder. 

Again, mandamus is not available for such a request. See Lawrence. For these 

reasons, the Amended Petition fails to state a claim upon which this Court may grant 

relief.

To the extent Petitioner asks this Court for a declaration that 18- to 20-

year-olds should be considered as juveniles not subject to a sentence to life without 

parole,6such a request effectively claims that Petitioner’s criminal sentence is illegal 

and seeks collateral relief therefrom. See Amended Petition at 2-4; see also Amicus 

Brief at 6-10; see also Scott v. Pa. Bd. of Prob. & Parole, 284 A.3d 178, 192 (Pa. 

6

See Amended Petition at 2-4; see also Amicus Brief at 6-10.
6

2022) (“the legislative intent to forever bar parole eligibility for all individuals 

convicted of second-degree murder is best described as part of the judgment of 

sentence”). Such a challenge must be brought under the Post Conviction Relief Act7

(PCRA), which the General Assembly created as “the sole means of obtaining 

collateral relief” from criminal convictions. 42 Pa.C.S. § 9542; see also Guarrasi v. 

Scott, 25 A.3d 394, 402 (Pa. Cmwlth. 2011) (citing 42 Pa.C.S. § 9542 and noting 

that the PCRA is the sole means by which persons convicted of crimes they did not 

commit and persons serving illegal sentences may obtain collateral relief); Scott, 

284 A.3d at 186-87. This Court lacks jurisdiction to entertain claims under the 

PCRA. See Section 761(a)(1)(i) of the Judicial Code, 42 Pa.C.S. § 761(a)(1)(i)

(providing the Commonwealth Court with jurisdiction over all civil actions or 

proceedings against the Commonwealth and officers thereof, except applications for 

a writ of habeas corpus or post-conviction relief);

8

see also 42 Pa.C.S. § 9545(a) 

(“Original jurisdiction over a proceeding under [the PCRA] shall be in the court of 

common pleas.”).

7

42 Pa.C.S. §§ 9541-46.

8 Section 761(a)(1)(i) of the Judicial Code provides:

The Commonwealth Court shall have original jurisdiction of all civil 

actions or proceedings:

(1) Against the Commonwealth government, including any 

officer thereof, acting in his official capacity, except:

(i) actions or proceedings in the nature of applications for 

a writ of habeas corpus or post-conviction relief not 

ancillary to proceedings within the appellate jurisdiction of 

the court[.]

42 Pa.C.S. § 761(a)(1)(i) (emphasis added). 
7

Lacking jurisdiction over such a PCRA claim, this Court may transfer 

the claim to the appropriate court. See Dockery v. Wolf, 259 A.3d 566, 572 (Pa. 

Cmwlth. 2021). However, where a PCRA petition would be late-filed and would 

lack an applicable timeliness exception under the PCRA,9transfer to the court of 

common pleas for the purpose of litigating the petition is not warranted, as the 

petition would be properly dismissed as untimely. See Scott, 284 A.3d at 198 n.17 

(noting that transfer of a PCRA case to the trial/PCRA court is not warranted where 

the PCRA petition would be dismissed as untimely).

The recent case of Boyd v. Pennsylvania’s Sentencing Scheme for 

Sentencing 18 Year Old’s [sic] to Mandatory Life without Parole, 311 A.3d 63 (Pa. 

Cmwlth. 2024), is instructive. In Boyd, this Court sustained preliminary objections 

9 Section 9545(b)(1) of the PCRA provides exceptions to the PCRA’s one-year filing 

deadline only when

the petition alleges and the petitioner proves that:

(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). 
8

in a matter where a pair of prisoner petitioners brought effectively the same claim 

that underlies the instant matter – that Pennsylvania’s sentencing scheme permitting

life imprisonment without parole for 18-year-old offenders violates Pennsylvania’s 

constitution because 18-year olds should be considered “juveniles.” See Boyd, 311 

A.3d at 67. The Attorney General filed preliminary objections arguing, inter alia, 

that this Court lacked jurisdiction to hear collateral challenges to the petitioners’ 

criminal sentences. See id. at 67-68. This Court agreed that such claim was a 

collateral attack on the petitioners’ sentences. See id. at 68. The Court noted that 

the General Assembly had created the PCRA as the sole means by which prisoners 

may prosecute such collateral challenges to their sentences, that such challenges 

were properly brought before the trial court, and that Section 761(a) of the Judicial 

Code expressly excluded actions for collateral relief from this Court’s original 

jurisdiction. See id. at 68-69. The Court further noted that multiple years had passed 

between the time when the petitioners’ judgments of sentence became final and the 

filing of their petition, as well as between the filing of the legal cases on which they 

based their petition10 and the filing of the petition itself. See id. at 69-72. Further, 

the Court noted that the Superior Court of Pennsylvania had already deemed the 

claim asserted in Miller v. Alabama, 567 U.S. 460 (2012) – that life without parole 

was cruel and unusual punishment as applied to minors under the age of 18 – did not 

apply to the petitioners, who were 18 at the time of the commission of their crimes. 

See id. at 70. Because the petition was late-filed and the petitioners conceded that 

no exception under Section 9545(b)(1) of the PCRA was applicable, the Court 

dismissed the petition without transferring to the trial court as a PCRA petition since, 

because the PCRA court would not be able to exercise jurisdiction over an untimely 

10 Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 577 U.S. 190 (2016); 

Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019).
9

PCRA petition, there was no possibility that the result would be other than a 

dismissal in this Court. See id. at 72.

The facts of the instant matter are very similar to those in Boyd. 

Petitioner raises a collateral challenge to his conviction, but his judgment of sentence 

has long since become final, and the case upon which Petitioner bases his argument 

– Commonwealth v. Batts, 163 A.3d 210 (Pa. 2017) – was decided years before 

Petitioner filed the original petition in this matter in February of 2023. However,

here, the Superior Court has not already determined that Petitioner’s PCRA petition, 

if filed, would be untimely and not subject to any exception, and Petitioner has not 

conceded as much. Therefore, in an abundance of caution, we conclude that

Petitioner should be allowed to argue the application of a PCRA timeliness 

exception, however unlikely, before the trial court that conducted the criminal case

acting as a PCRA court. Accordingly, we transfer the matter to the Court of 

Common Pleas of Lehigh County to litigate the collateral claims herein, provided 

Petitioner can satisfy one of the timeliness exceptions provided in Section 

9545(b)(1) of the PCRA, 42 Pa.C.S. § 9545(b)(1), before that court.11

For the above reasons, we sustain the Preliminary Objections and 

transfer the Amended Petition to the Court of Common Pleas of Lehigh County for 

further proceedings consistent with this opinion.

___________________________________

CHRISTINE FIZZANO CANNON, Judge

11 We note that by transferring this matter because we lack jurisdiction to entertain cases 

under the PCRA, we take no position on the merits or timeliness of Petitioner’s claims against the 

Board before the Court of Common Pleas of Lehigh County.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Nelson Birdwell,

Petitioner :

:

v. :

:

Pennsylvania Board of Probation :

and Parole, : No. 80 M.D. 2023

Respondent :

O R D E R

AND NOW, this 5

th day of September, 2024, the “Preliminary 

Objections to Amended Petition” filed by the Pennsylvania Parole Board are 

SUSTAINED, and Petitioner Nelson Birdwell’s “Amended Petition for Review 

Pursuant to Pa.R.A.P. 1501, et[] seq.” is TRANSFERRED to the Court of Common 

Pleas of Lehigh County for further proceedings. 

___________________________________

CHRISTINE FIZZANO CANNON, Judge