J-S47003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

ANDREW SISSON

Appellant No. 179 MDA 2020

Appeal from the Order Entered January 10, 2020

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0003138-1998

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 09, 2021

Appellant, Andrew Sisson, appeals pro se from the order entered on 

January 10, 2020 in the Court of Common Pleas of Dauphin County, denying 

his “Petition for Writ of Habeas Corpus.” Appellant contends he was 

improperly detained in violation of the Interstate Agreement on Detainers 

(“IAD”)1 when he was transported in October 1998 from the federal 

penitentiary in Lewisburg, Pennsylvania, to Dauphin County and was returned 

without trial or final disposition of the charges against him. For the reasons 

explained below, we conclude that Appellant’s petition must be treated as a 

first petition for collateral relief pursuant to the Post Conviction Relief Act 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S.A. § 9101 et seq.
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(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As such, Appellant is entitled to 

counsel. Therefore, we are constrained to vacate the January 10, 2020 order 

and remand for appointment of counsel. 

Our review reveals that Appellant was transported from the federal 

penitentiary in Lewisburg to Dauphin County in 1998. On the “State 

Agreement Certificate,” the reference to the IAD was x-ed out. The certificate 

clearly reflects that the release of temporary custody was “under the 

conditions of the STATE WRIT OF HABEAS CORPUS,” rather than the IAD. 

State Agreement Certificate, 10/21/98, at 1. In Commonwealth v. Diggs, 

416 A.2d 1119 (Pa. Super. 1979), this Court explained that a writ of habeas 

corpus and a detainer lodged pursuant to the IAD 

are two different methods by which one jurisdiction may obtain 

custody of a person in another jurisdiction. The Interstate 

Agreement on Detainers does not apply when custody was 

obtained by means of writ of habeas corpus ad 

prosequendum. This specific issue has been decided in United 

States v. Mauro, 436 U.S. 340, 56 L.Ed.2d 329, 98 S.Ct. 1834 

(1978).

Id. at 1120 (emphasis added). 

As the trial court explained, on April 14, 1999, Appellant pled guilty in 

Dauphin County “to two counts of aggravated assault and was sentenced to 

25 to 50 years in a state correctional institution, to be served concurrently 

with his then federal sentence of 223 months.” Memorandum Opinion, 

3/11/20, at 1. On November 1, 2019, Appellant filed his petition, styled 

“Petition for Habeas Corpus,” contending Dauphin County obtained custody 
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over him in 1998 pursuant to the IAD. Petition, 11/1/19, at ¶ 3. The 

Commonwealth filed an answer to the petition and attached a copy of the 

October 21, 1998 State Agreement Certificate as an exhibit. Commonwealth’s 

Answer, 12/27/19, Exhibit 1. By order entered on January 10, 2020, the court 

denied the petition. Appellant filed a timely notice of appeal and the trial court 

issued a Rule 1925(b) order. In response to that order, Appellant 

sent a “letter” indicating that he was confused by our order and 

that if we would like him to respond to our 1925(b) order to let 

him know. However, later in his “letter” he states his reasons for 

appealing. We now state that issue as follows: 

“Needless to say, is that no matter what Dauphin Co. 

says about the type of writ used to retrieve 

[Appellant], once a notice of temporary custody is 

asked for and given between a giving and receiving 

state/Fed jurisdiction the protection long established 

in the I.A.D. law is guaranteed.[”]

Trial Court Memorandum, 3/11/20, at 1-2 (quoting Appellant’s Letter sent in 

response to Rule 1925(b) order) (footnote omitted). 

Rejecting Appellant’s contention, the trial court noted that the “State 

Agreement Certificate” allowed for Appellant’s release to the temporary 

custody of Dauphin County. Id. at 2. The court explained:

[The certificate] was signed by a warden and it indicated that 

[Appellant] was to be returned to the United States Penitentiary, 

Lewisburg, Pennsylvania. We fail to see how this violated 

[Appellant’s] rights. Quite simply, a writ was used to transport 

[Appellant] to Dauphin County to answer for the crimes charged. 

On April 14, 1999, [Appellant] entered a guilty plea and was 

returned to federal custody. We fail to see how [Appellant’s] 

constitutional rights were violated.
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Additionally, we note, that were [Appellant’s] petition to be 

treated as a PCRA petition, it would be blatantly untimely.[fn]

[fn] Out of caution, we note the untimeliness exception and the 

possibility of treating [Appellant’s] petition as a PCRA petition. 

However, [Appellant] failed to raise any claims that would 

warrant relief.

Id. 

As explained above, the October 1998 transfer was effected in response 

to a writ of habeas corpus. The IAD was not implicated. Therefore, the trial 

court correctly determined that Appellant’s petition failed to establish any 

basis for habeas corpus relief. However, the court also entertained the 

possibility that the petition should be treated as a PCRA petition. As reflected 

in Section 9542 of the PCRA,

[the PCRA] provides for an action by which persons convicted of 

crimes they did not commit and persons serving illegal sentences 

may obtain collateral relief. The action established in this 

subchapter shall be the sole means of obtaining collateral relief 

and encompasses all other common law and statutory remedies 

for the same purpose that exist when this subchapter takes 

effect[2], including habeas corpus and coram nobis. 

42 Pa.C.S.A. § 9542. 

In Commonwealth v. Thompson, 199 A.3d 889 (Pa. Super. 2018), 

this Court recognized that “the focus of a court considering a [post-conviction] 

petition is on the remedy being sought by the petitioner. See 42 Pa.C.S. 

§ 6503(b) (“The writ of habeas corpus shall not be available if a remedy may 

be had by post-conviction hearing proceedings authorized by law.”). Id. at 

____________________________________________

2 The “subchapter” known as the PCRA took effect on May 13, 1982. 
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892 (emphasis in original). In Thompson, the appellant was seeking a 

hearing to determine whether his sentence should be reduced or he should be 

discharged. “Such relief is clearly contemplated by the PCRA. See 42 Pa.C.S. 

§ 9546(a) (‘If the court rules in favor of the petitioner, it shall order

appropriate relief and issue supplementary orders as to . . . custody, bail, 

discharge, correction of sentence or other matters that are necessary and 

proper.’).” Id. 

In his petition, Appellant asked the court to vacate his sentence, dismiss 

the charges against him with prejudice, and discharge him from custody in 

Pennsylvania. Therefore, as in Thompson, the PCRA was the proper vehicle 

under which Appellant’s petition should be considered.

The trial court suggested that Appellant’s petition, if treated as a PCRA 

petition, “would be blatantly untimely.” Trial Court Memorandum, 3/11/20, 

at 2. The petition, filed decades after Appellant’s judgment of sentence 

became final, obviously falls outside the PCRA’s one-year time limitation. See 

42 Pa.C.S.A. § 9545(b). Therefore, unless Appellant pleaded and proved an 

exception to the time bar, both the PCRA court and this Court would lack 

jurisdiction to entertain the merits of his untimely-filed petition. Thompson, 

199 A.3d at 892. 

A review of Appellant’s petition confirms he did not plead or prove an 

exception to the time bar. If, as was the case in Thompson, this were not 

his first PCRA petition, dismissal of the petition would clearly be warranted. 
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However, this is Appellant’s first petition. Our Supreme Court has held that 

“an indigent petitioner, who files his first PCRA petition, is entitled to have 

counsel appointed to represent him during the determination of whether any 

of the exceptions to the one-year time limitation apply.” Commonwealth v. 

Smith, 818 A.2d 494, 499 (Pa. 2003). The Smith Court noted its agreement 

with this Court’s holding in Commonwealth v. Ferguson, 772 A.2d 177, 178 

(Pa. Super. 1998), which recognized that Section 9545’s time bar “must yield” 

to the rule-based right to counsel for first-time PCRA petitioners under 

Pa.R.Crim.P. 904.3 Smith, 818 A.2d at 500 (citing Ferguson, 722 A.2d at 

178).

Because Appellant is entitled to representation on his first PCRA petition, 

we vacate the trial court’s January 10, 2020 order and remand for 

appointment of counsel. 

Order vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/09/2021

____________________________________________

3 Pa.R.Crim.P. 904(c) provides that “when an unrepresented defendant 

satisfies the judge that the defendant is unable to afford or otherwise procure 

counsel, the judge shall appoint counsel to represent the defendant on the 

defendant’s first petition for post-conviction collateral relief.”