J-S64002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JUAN PEREZ

Appellant No. 456 EDA 2016

Appeal from the PCRA Order entered January 14, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-1051451-1991

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 16, 2016

Appellant, Juan Perez, appeals from the January 14, 2016 order of the 

Court of Common Pleas of Philadelphia County denying his petition for 

habeas corpus relief. Upon review, we affirm.

The facts and the procedural background of this matter can be 

summarized as follows. Following a jury trial, Appellant was found guilty of 

second degree murder, robbery, possessing an instrument of crime, and 

criminal conspiracy. The trial court sentenced Appellant to mandatory life 

imprisonment for murder, and an additional concurrent term of six and onehalf to thirteen years for robbery. The court imposed no sentences on the 

remaining convictions. This Court affirmed the judgment of sentence on 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
J-S64002-16

- 2 -

April 17, 1997. See Commonwealth v. Perez, 698 A.2d 670 (Pa. Super. 

1997) (unpublished memorandum). Our Supreme Court denied Appellant’s 

petition for allocatur on October 15, 1997, and denied reconsideration on 

December 5, 1997. See Commonwealth v. Perez, 717 A.2d 1028 (Pa.

1997).

On August 22, 2012, Appellant filed a pro se PCRA petition, 

challenging his conviction in light of Miller v. Alabama, 132 S.Ct. 2455 

(2012). On April 10, 2014, Appellant filed a petition for habeas corpus in 

which he argued that both his confinement and sentence were illegal. On 

January 14, 2016, the trial court denied the PCRA petition as untimely and 

the petition for habeas corpus as meritless. Appellant now appeals the 

denial of his petition for habeas corpus.

1

 

In his petition, Appellant raises two issues: (i) there is insufficient 

authority for his continued detention because his sentencing order is missing 

and (ii) the sentence is illegal because it is based on an unconstitutional 

statute. We will address these issues ad seriatim.

“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. 

Pa. Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super. 2003). As this Court 

noted in Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014):

____________________________________________

1 Appellant did not challenge the denial of his PCRA petition. 
J-S64002-16

- 3 -

[Joseph] [a/k/a Woodens] is not the first individual to assert this 

species of claim. In addition to the aforementioned holding in 

[Brown v. Pa. Dep’t of Corr., 81 A.3d 814 (Pa. 2013) (per 

curiam)], our Commonwealth Court has adjudicated at least one 

similar appeal on the merits, albeit in an unpublished 

memorandum. In Travis v. Giroux, No. 489 C.D. 2013, 2013 

WL 6710773 (Pa. Cmwlth. Dec. 18, 2013), an appellant 

challenged the DOC’s authority to hold him in custody because, 

as in the present situation, the DOC was unable to produce a 

written sentencing order. Relying upon two holdings from the 

United States District Court for the Eastern District of 

Pennsylvania, the Commonwealth Court held that subsection 

9764(a)(8) does not provide a cause of action for prisoners: The 

current version of [42 Pa.C.S.A. § 9764(a)(8)] requires that a 

copy of the sentencing order be provided to the [DOC] upon 

commitment of an inmate to its custody. However, it does not 

create any remedy or cause of action for a prisoner based 

upon the failure to provide a copy to the DOC. The statute 

regulates the exchange of prisoner information between the 

state and county prison system, and does not provide a basis for 

habeas relief. Specifically, the Commonwealth Court 

emphasized that the appellant in Travis did not dispute that he 

had pleaded guilty and that he was sentenced upon that plea. 

Thus, even where there appeared to be no sentencing order in 

the possession of the DOC or the trial court, the Commonwealth 

Court held that subsection 9764(a)(8) furnished no basis for 

relief where the appellant’s sentence was confirmed by the 

certified record. . . . Although the decisions of the 

Commonwealth Court are not binding upon this Court, they may 

serve as persuasive authority. Commonwealth v. Ortega, 995 

A.2d 879, 885 (Pa. Super. 2010); see also Petow v. 

Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010) (“[W]e 

may turn to our colleagues on the Commonwealth Court for 

guidance when appropriate.”). We find the reasoning presented 

in Travis to be probative and instructive. 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 dulysentenced 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 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, 
J-S64002-16

- 4 -

in a prisoner of any remedy for deviation from the procedures 

prescribed within.

Joseph, 96 A.3d at 370-71 (emphasis in original) (footnotes and citations 

omitted).

As in Joseph, Appellant “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.” Id. at 372. Indeed, as noted by the trial court, 

Appellant was found guilty of second degree murder on June 4, 1993; he 

was sentenced to life on April 27, 1994; and this Court affirmed his 

judgment of sentence on April 17, 1997. Appellant did not challenge these 

trial court findings. Additionally, Appellant’s own exhibit (i.e., copy of the 

trial court’s quarter sessions file) not only confirms the dates and events 

above described by the trial court, it also informs us that Appellant 

petitioned the Supreme Court for allowance of appeal and that his petition 

was denied. In light of the foregoing, we conclude there was sufficient 

evidence of his convictions. Id. Accordingly, the trial court did not abuse its 

discretion in denying Appellant’s habeas corpus petition. 

Appellant, however, attempts to distinguish Joseph on the basis that 

his sentence is illegal because it is based on an unconstitutional/repealed 

statute (18 Pa.C.S.A. § 1311(d)) (established sentencing procedures and 

standards regulating jury determinations of whether the death penalty 

should be imposed as punishment for murder). Whatever merit the claim 

might have, it is not properly before us. Indeed, it should have been raised 
J-S64002-16

- 5 -

in a PCRA petition, but Appellant failed to do so. See, e.g., Commonwealth 

v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (legality of sentence claims 

cognizable under PCRA). Additionally, Appellant failed to plead and prove 

the instant claim is timely. See 42 Pa.C.S.A. 9545(b)(1). Because the claim 

is patently untimely2and Appellant failed to plead and prove any of the 

exceptions to the timeliness requirements, we cannot review the merits of 

his claim. See Commonwealth v. Hackett, 956 A.2d 978, 984 (Pa. 2008) 

(petitioner “must demonstrate the substantive requirements for one of the 

exceptions to the time-bar set forth in Section 9545(b)(1)(i)-(iii) in order for 

the court to have jurisdiction over his petition.”); Commonwealth v. 

Callahan, 101 A.3d 118, 123 (Pa. Super. 2014) (A court lacks jurisdiction 

over the merits of an untimely PCRA petition when petitioner has failed to 

plead and prove the applicability of an exception to the timeliness

requirement).

Order affirmed. 

____________________________________________

2 Appellant’s judgment of sentence became final after the Supreme Court

denied allowance of appeal on October 15, 1997, and the time for filing a 

petition for writ of certiorari to the United States Supreme Court expired. 

See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Court Rule 13 (effective 

January 1, 1990) (petition for writ of certiorari is deemed timely when filed 

within 90 days after discretionary review is denied by the Pennsylvania 

Supreme Court). Thus, in order to satisfy the timeliness requirement, 

Appellant was required to file his PCRA petition within one year from January 

13, 1998. Because Appellant filed the instant petition on April 10, 2014, the 

petition is patently untimely. 
J-S64002-16

- 6 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2016