J-S32021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LARRY STURGIS

Appellant No. 2779 EDA 2015

Appeal from the Order Dated September 1, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0903671-1986

BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED JUNE 21, 2016

Appellant, Larry Sturgis, appeals pro se from the September 1, 2015 

order denying his petition for writ of habeas corpus ad subjiciendum. After 

careful review, we affirm. 

The pertinent procedural history of this case is as follows. Appellant 

was convicted of first-degree murder and possession of an instrument of 

crime following a bench trial. The trial court sentenced Appellant on October 

8, 1987 to a term of life imprisonment without possibility of parole. On 

direct appeal, this Court affirmed the judgment of sentence. 

Commonwealth v. Sturgis, 545 A.2d 389 (Pa. Super. 1988) (unpublished 

memorandum). Subsequently, Appellant filed five petitions pursuant to the 

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* Retired Senior Judge assigned to the Superior Court.
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Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. All of 

Appellant’s petitions were denied by the PCRA court, and each was affirmed 

on appeal.1 

Meanwhile, Appellant made a request to the Department of Corrections 

(DOC) through the Right to Know Law, 65 Pa.C.S. §§ 67.101-67.3104, for a 

copy of his sentencing order. When the DOC declined on the basis that it 

possessed no copy of the sentencing order, Appellant appealed to the 

Commonwealth Court. The Commonwealth Court affirmed, noting the DOC 

could not turn over what it did not have. Sturgis v. Dep’t of Corr., 96 

A.3d 445, 448 (Pa. Cmwlth. 2014), appeal denied, 104 A.3d 6 (Pa. 2014). 

Subsequently, on May 18, 2015, Appellant filed a petition for writ of habeas 

corpus ad subjiciendum, contending, inter alia, that his confinement was 

illegal because the DOC did not have a copy of his sentencing order as 

required by 42 Pa.C.S.A. § 9764(a)(8). Appellant filed his petition in the 

civil division of the Court of Common Pleas of Philadelphia County. On June 

3, 2015, the matter was re-assigned and transferred to the criminal division. 

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1 See Commonwealth v. Sturgis, 626 A.2d 650 (Pa. Super. 1993) 

(unpublished memorandum), appeal denied, 634 A.2d 220 (Pa. 1993);

Commonwealth v. Sturgis, 737 A.2d 1279 (Pa. Super. 1999) (unpublished 

memorandum); Commonwealth v. Sturgis, 778 A.2d 1248 (Pa. Super. 

2001) (unpublished memorandum), appeal denied, 796 A.2d 982 (Pa. 

2001); Commonwealth v. Sturgis, 911 A.2d 187 (Pa. Super. 2006) 

(unpublished memorandum), appeal denied, 921 A.2d 496 (Pa. 2007);

Commonwealth v. Sturgis, 105 A.3d 795 (Pa. Super. 2014) (unpublished 

memorandum).
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On September 1, 2015, the trial court denied Appellant’s petition. Appellant 

filed a timely notice of appeal on September 10, 2015.2

On appeal, Appellant raises the following issues for our consideration.

i. Whether the transferring of [Appellant’s] 

petition for writ of habeas corpus subjiciendum from 

the civil court of record to the criminal court of 

record was improper as the writ of habeas corpus 

subjiciendum is a civil remedy?

ii. Whether the substance of the trial court’s 

refusal to furnish habeas corpus relief due to the 

[DOC’s] and the clerk of court of Philadelphia 

County’s inability to produce a written copy of 

Appellant’s judgment of sentence is in erro [sic] 

based upon statutory subsection 42 Pa.C.S.A. 

§ 9764(a)(8)?

Appellant’s Brief at 4.

We address Appellant’s second issue first, because it is dispositive of 

this appeal. Our standard of review is well settled. “[H]abeas corpus is a 

civil remedy which lies solely for commitments under criminal process.” 

Commonwealth v. McNeil, 665 A.2d 1247, 1249 (Pa. Super. 1995)

(citation omitted). “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. (citation omitted).

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2 The trial court did not order Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b). The trial court issued a Rule 1925(a) memorandum 

opinion on October 16, 2015.
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Our standard of review of a trial court’s order 

denying a petition for writ of habeas corpus is limited 

to abuse of discretion. Thus, we may reverse the 

court’s order where the court has misapplied the law 

or exercised its discretion in a manner lacking 

reason. As in all matters on appeal, the appellant 

bears the burden of persuasion to demonstrate his 

entitlement to the relief he requests. 

Rivera v. Pennsylvania Dept. of Corr., 837 A.2d 525, 528 (Pa. Super. 

2003) (citations omitted), appeal denied, 857 A.2d 680 (Pa. 2004).

Initially, we note the trial court determined that Appellant’s claim was 

properly advanced as a petition for writ of habeas corpus ad subjiciendum

rather than as a collateral claim under the PCRA. Trial Court Opinion, 

10/16/15, at 2. The claim raised in Appellant’s petition for writ of habeas 

corpus ad subjiciendum is that his detention by the DOC is illegal based on 

the DOC’s purported lack of authority in the absence of required 

documentation. Petition for Writ of Habeas Corpus ad Subjiciendum, 6/3/15, 

at 7. As such, Appellant does not challenge the legality of his sentence as 

entered by the trial court, which would be cognizable under the PCRA. See

42 Pa.C.S.A. § 9543; see also Commonwealth v. Hockenberry, 689 A.2d 

283, 288 (Pa. Super. 1997) (holding, “[i]ssues relating to the legality of 

sentence cannot be waived and are cognizable under the PCRA”), appeal 

denied, 695 A.2d 784 (Pa. 1997). Our Supreme Court “has never held that 

habeas corpus cannot provide a separate remedy, in appropriate 

circumstances. Indeed, the boundaries of cognizable claims under the PCRA 

can only be extended so far as is consistent with the purposes of the 
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statute....” Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007), cert. 

denied, Judge v. Pennsylvania, 552 U.S. 1011 (2007); See also Joseph 

v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014) (holding that a claim a 

defendant’s confinement 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”), appeal denied, 101 A.3d 

787 (Pa. 2014).

Appellant asserts his “most substantial argument is based upon 

statutory subsection 9764(a)(8) of the Sentencing Code.” Appellant’s Brief 

at 15. That provision provides as follows.

§ 9764. Information required upon 

commitment and subsequent disposition

(a) General rule.—Upon commitment of an inmate 

to the custody of the [DOC], the sheriff or 

transporting official shall provide to the institution’s 

records officer or duty officer, in addition to a copy of 

the court commitment form DC–300B generated 

from the Common Pleas Criminal Court Case 

Management System of the unified judicial system, 

the following information:

...

(8) A copy of the sentencing order and any detainers 

filed against the inmate which the county has notice.

42 Pa.C.S. § 9764(a)(8). Appellant argues “that the word ‘shall’, as used in 

subsection 9764, is mandatory and provides the only means to establish 

DOC’s jurisdiction to detain a prisoner.” Appellant’s Brief at 16.
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The trial court, noting the trial court record evidenced Appellant’s 

sentence, determined that “[t]he fact that there is no commitment form 

does not entitle [Appellant] to any relief when the [DOC] had continuous 

authority to detain Petitioner.” Trial Court Opinion, 10/16/15, at 2, citing

Joseph, supra. We agree that Joseph controls the outcome of this appeal. 

In Joseph, this Court confronted an identical issue challenging the authority 

of the DOC to detain the petitioner when it had no copy of his sentencing 

order pursuant to Section 9764(a)(8). In Joseph, this Court held as 

follows. 

The language and structure of section 9764, viewed 

in context, make clear that the statute pertains not 

to the DOC’s authority to detain a duly-sentenced 

prisoner, but, rather, sets forth the procedures and 

prerogatives associated with the transfer of an 

inmate from county to state detention. None of the 

provisions of section 9764 indicate[s] an affirmative 

obligation on the part of the DOC to maintain and 

produce the documents enumerated in subsection 

9764(a) upon the request of the incarcerated person. 

Moreover, section 9764 neither expressly vests, nor 

implies the vestiture, in a prisoner of any remedy for 

deviation from the procedures prescribed within.

Joseph, supra at 371 (footnote omitted). Accordingly, the Joseph Court 

affirmed the trial court’s denial of habeas corpus relief.

The same result is dictated here. Therefore, we conclude the trial 

court committed no error of law or abuse of discretion in denying Appellant’s 
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petition for writ of habeas corpus ad subjiciendum.

3

 See Id. Accordingly, 

we affirm the trial court’s September 1, 2015 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2016

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3

In his first issue, Appellant asserts it was error for the trial court to transfer 

the case from the civil division to the criminal division under a new caption. 

Given our disposition of the merits of Appellant’s habeas corpus claim, we 

deem this procedural issue to be moot. We therefore do not need to 

address Appellant’s first allegation of error. We note however, that the trial 

court did not alter the nature of Appellant’s action by virtue of the transfer, 

and disposed of the matter as a habeas corpus proceeding.