J-S74026-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DWAYNE BRUNSON, :

:

Appellant : No. 838 EDA 2014

Appeal from the PCRA Order July 1, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0134421-1987

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 24, 2014

Dwayne Brunson (“Brunson”) appeals from the July 1, 2013 order of 

court dismissing his petition for writ of habeas corpus, which the lower court 

treated as a petition filed pursuant to the Post Conviction Relief Act, 

42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Upon review, we affirm. 

The relevant history may be summarized briefly as follows. In 1989, 

Brunson was convicted of first-degree murder, aggravated assault, and 

conspiracy. On direct appeal, this Court arrested judgment with regard to 

the conspiracy conviction but affirmed the murder and aggravated assault 

convictions.1 The Pennsylvania Supreme Court denied Brunson’s petition for 

allowance of appeal. 

 

1 On direct appeal Brunson challenged the sufficiency of the evidence as to 

all three of his convictions. This Court concluded that the evidence was 
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In 1993, Brunson filed his first PCRA petition. Following a hearing, the 

PCRA court dismissed that petition in 1999. This Court affirmed the PCRA 

court’s ruling on appeal, and the Pennsylvania Supreme Court again denied 

Bruson’s petition for allowance of appeal. Brunson then unsuccessfully 

sought relief by means of a federal writ of habeas corpus. On December 18, 

2012, Brunson filed the petition at issue in the present appeal, which he 

styled as a petition for writ of habeas corpus. The lower court elected to 

treat Brunson’s petition as a PCRA petition, determined that it was untimely, 

and issued notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907. 

Brunson filed a response to this notice, objecting to the treatment of his 

petition as a PCRA petition. The lower court dismissed the petition on July 1, 

2013. This timely appeal followed. 

Brunson presents five separate issues on appeal, but they all address 

one concern: whether the trial court erred in treating his writ of habeas 

corpus as an untimely PCRA petition. Brunson’s Brief at 4. As we consider 

the merits of this claim, we note that this Court's standard of review is 

limited to determining whether the PCRA court’s determination is supported 

by the evidence of record and is free of legal error. Commonwealth v. 

Walls, 993 A.2d 289, 294-95 (Pa. Super. 2010) (internal citation omitted). 

 

sufficient to support the murder and aggravated assault convictions, but 

insufficient to support the conspiracy conviction. 
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As noted above, Brunson argues that his claims are properly raised in 

a petition for writ of habeas corpus and consequently that the lower court 

erred by treating it as a PCRA petition and subsequently dismissing it upon 

finding that it was untimely filed. See Brunson’s Brief at 17-28. In his 

petition for writ of habeas corpus, Brunson alleged that his substantive and 

procedural due process rights were violated because the Commonwealth 

failed to establish the mens rea and actus reus required for a first-degree 

murder conviction, and therefore that the trial was “fundamentally unfair 

and amount[ed] to a manifest injustice.” Petition for Writ of Habeas Corpus, 

12/18/12, at 3. He further argued that his due process rights were violated 

when this Court failed to vacate the first-degree murder conviction when we 

found that the conspiracy conviction was improper. Id. 

Brunson is correct in that the writ of habeas corpus continues to exist 

separate and apart from the PCRA; however, “both the PCRA and the state 

habeas corpus statute contemplate that the PCRA subsumes the writ of 

habeas corpus in circumstances where the PCRA provides a remedy for the 

claim.” Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008) 

(citation omitted). Section 9543 of the PCRA addresses eligibility for relief 

under its provisions. It provides, in relevant part, as follows: 

§ 9543. Eligibility for relief

(a) General rule.--To be eligible for relief under this 

subchapter, the petitioner must plead and prove by a 

preponderance of the evidence all of the following:
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***

(2) That the conviction or sentence resulted from 

one or more of the following:

(i) A violation of the Constitution of this 

Commonwealth or the Constitution or laws of the 

United States which, in the circumstances of the 

particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or 

innocence could have taken place.

(ii) Ineffective assistance of counsel which, in 

the circumstances of the particular case, so 

undermined the truth-determining process that no 

reliable adjudication of guilt or innocence could have 

taken place.

(iii) A plea of guilty unlawfully induced where 

the circumstances make it likely that the inducement 

caused the petitioner to plead guilty and the 

petitioner is innocent.

(iv) The improper obstruction by government 

officials of the petitioner's right of appeal where a 

meritorious appealable issue existed and was 

properly preserved in the trial court.

(v) Deleted.

(vi) The unavailability at the time of trial of 

exculpatory evidence that has subsequently become 

available and would have changed the outcome of 

the trial if it had been introduced.

(vii) The imposition of a sentence greater than 

the lawful maximum.

(viii) A proceeding in a tribunal without 

jurisdiction.

42 Pa.C.S.A. § 9543(a)(2). 
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Brunson argues that his claims of due process violations do not 

implicate the truth-determining process underlying his convictions, and 

therefore do not fall under the scope of the PCRA. Brunson’s Brief at 23-24. 

However, our Supreme Court has called for an expansive, not restrictive, 

application of these PCRA’s eligibility requirements, such that there need not 

be a strict adherence to the “truth determining process” language upon 

which Brunson relies: 

[W]e have held that the scope of the PCRA eligibility 

requirements should not be narrowly confined to its 

specifically enumerated areas of review. 

Commonwealth v. Judge, [] 916 A.2d 511, 520 

([Pa.] 2007). Such narrow construction would be 

inconsistent with the legislative intent to channel 

post-conviction claims into the PCRA's framework, 

id., and would instead create a bifurcated system of 

post-conviction review where some post-conviction 

claims are cognizable under the PCRA while others 

are not. Commonwealth v. Lantzy, [] 736 A.2d 

564, 569–70 ([Pa.] 1999). 

Instead, this Court has broadly interpreted the 

PCRA eligibility requirements as including within its 

ambit claims such as this one, regardless of the 

‘truth-determining process’ language ... from Section 

9543(a)(2)(i). See Commonwealth v. Liebel, [] 

825 A.2d 630 ([Pa.] 2003) (holding that claim 

challenging counsel's effectiveness for failing to file a 

petition for allowance of appeal is cognizable under 

PCRA); Commonwealth ex. rel. Dadario v. 

Goldberg, [] 773 A.2d 126 ([Pa.] 2001) (holding 

that claim alleging counsel's ineffectiveness during 

the plea bargaining process is cognizable under the 

PCRA); Commonwealth v. Chester, [] 733 A.2d 

1242 ([Pa.] 1999) (holding that claim alleging 

ineffective assistance of counsel during penalty 

phase of capital case is cognizable under the PCRA); 

Commonwealth v. Lantzy, supra, (holding that 
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claim alleging ineffective assistance of counsel for 

failing to file an appeal is cognizable under the 

PCRA).

Hackett, 956 A.2d at 986. 

In Hackett, our Supreme Court considered whether the constitutional 

violation at issue in a Batson2claim is cognizable under the PCRA. Much 

like Brunson in the present appeal, Hackett argued that a Batson claim is 

not alleging “a constitutional violation that ‘so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could 

have taken place.’” Id. at 985. Hackett maintained “that the injury against 

which Batson protects is the equal protection right of venirepersons not to 

be discriminated against,” which he then argued “is unrelated to the 

reliability of the verdict rendered.” Id. The Supreme Court rejected this 

argument, concluding that a claim that there was a constitutional violation 

with regard to the selection of the jury implicates the validity of the 

conviction: 

We find that [Hackett’s] Batson claim, which 

essentially attacks his underlying murder conviction, 

is akin to the aforementioned claims which have 

been held to be within the ambit of the PCRA and is 

unlike those unique claims which fall outside the 

PCRA's statutory scheme. See Commonwealth v. 

West, [] 938 A.2d 1034 ([Pa.] 2007) (holding that 

substantive due process challenge to continued 

validity of defendant's judgment of sentence after a 

 

2

 A Batson claim alleges that the Commonwealth engaged in purposeful 

discrimination in the selection of jury members, in violation of Batson v. 

Kentucky, 476 U.S. 79 (1986). 
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nine-year delay is not cognizable under the PCRA); 

Commonwealth v. Judge, supra, (holding that 

allegation that Canada violated appellant's rights 

under the International Covenant for Civil and 

Political Rights is not cognizable under the PCRA). As 

the PCRA provides a remedy on a Batson claim, 

Appellee is not entitled to seek habeas corpus relief. 

Id. at 986. 

As the Supreme Court did in Hackett, we conclude that at their heart, 

Brunson’s claims challenge his murder conviction as wrongful, as they are 

premised on his fundamental assertion that the evidence was insufficient to 

support his first-degree murder conviction. Stated another way, Brunson’s 

claims sound in wrongful conviction, which the PCRA is intended to address. 

Commonwealth v. Burkett, 5 A.3d 1260, 1275 (Pa. Super. 2010) (“PCRA 

review is limited to defendants who claim that they were wrongfully 

convicted and/or are serving an illegal sentence.”). Accordingly, because 

Brunson’s claims challenge the validity of his murder conviction, and in light 

of the expansive view we must take with regard to the PCRA’s eligibility 

requirements, see Hackett, 956 A.2d at 986, we conclude that they are 

cognizable under the PCRA. 

In support of his position, Brunson cites to both the Judge and West

decisions referenced by our Supreme Court in Hackett. In both of those 

cases, the claims raised by the petitioners were found to be beyond the 

scope of the PCRA and cognizable as habeas corpus claims. Both of those 
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cases are distinguishable, however, in that the claims raised therein cannot 

be construed as challenges to the underlying convictions or sentences. 

In Judge, the petitioner had been convicted of first-degree murder 

and sentenced to death when he escaped from custody and fled to Canada. 

Commonwealth v. Judge, 916 A.2d 511, 513 (Pa. 2007). While in Canada, 

Judge was convicted of two offenses and sentenced to two concurrent tenyear terms of imprisonment. Despite having Judge in custody, Canada 

refused to extradite him to the United States, citing an extradition treaty 

between the two nations that provides that Canada will not extradite a 

person to the United States to face the death penalty. Id. Instead, Canada 

required Judge to serve his Canadian sentence, and then deported him to 

New York. 

Judge was subsequently extradited to Pennsylvania. Once in custody in 

Pennsylvania, Judge continued to fight his sentence through proceedings 

before the United Nations Human Rights Committee, alleging that Canada 

had violated his rights under the International Covenant for Civil and Political 

Rights (the “ICCPR”). This ultimately resulted in a finding by the Committee 

that Canada had violated Judge’s rights under the ICCPR. Following this 

decision, Judge filed a petition in the trial court “asserting jurisdiction under 

either the PCRA or the statutory and constitutional right to habeas corpus 

relief and arguing that Canada's asserted violation of his human rights under 

the ICCPR requires that his sentence be reduced to life imprisonment or that 
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he be returned to Canada to be deported or extradited in compliance with 

the Committee's ruling.” Id. at 517. The trial court assumed that the 

claims were cognizable under the PCRA and denied Judge relief. 

On review, the Supreme Court considered whether Judge’s claims 

regarding Canada’s alleged violation of his rights were cognizable under the 

PCRA, and concluded that they were not: 

[T]he boundaries of cognizable claims under the 

PCRA can only be extended so far as is consistent 

with the purposes of the statute, and we believe that 

Appellant's claim concerning his deportation from 

Canada to face a death sentence falls outside the 

intended scope of the PCRA. See 42 Pa.C.S. § 9542 

(“This subchapter provides for an action by which 

persons convicted of crimes they did not commit and 

persons serving illegal sentences may obtain 

collateral relief.”); [Commonwealth v.] Peterkin, 

[] 722 A.2d [638,] 643 (“The purpose of the law is 

not to provide convicted criminals with the means to 

escape well-deserved sanctions, but to provide a 

reasonable opportunity for those who have been 

wrongfully convicted to demonstrate the injustice of 

their conviction.”). Appellant is not asserting his 

innocence of the underlying crimes or that his 

sentence was illegal when imposed; his claim is that 

executing him would violate international law 

because the Committee found that Canada violated 

his rights under the ICCPR by deporting him to face 

a sentence of death without obtaining assurances 

that the sentence would not be imposed. 

Id. at 520. 

The basis of Judge’s claim was the Committee’s ruling pursuant to the 

ICCPR. In no way could this claim be interpreted as calling into question the 
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validity of Judge’s conviction.3 This is in contrast to Brunson’s claims, which 

are challenges to the validity of his first-degree murder conviction. 

In Commonwealth v. West, 938 A.2d 1034 (Pa. 2007), the 

petitioner was sentenced in 1991 to twenty-seven to fifty-four months of 

imprisonment but released on bond pending his appeal which was ultimately 

unsuccessful. Id. at 1036-37. However, West was never recalled to serve 

his sentence. He remained at liberty for nine years until this error was 

discovered by the administrative judge of the criminal division of the Court 

of Common Pleas of Allegheny County and a warrant was issued for West’s 

arrest. Id. at 1037. West subsequently filed a petition for writ of habeas 

corpus in the trial court, arguing, of relevance here, “a violation of his 

substantive due process rights because of the government's delay in 

confining him.” Id. The trial court did not consider whether this claim was 

properly brought under the state habeas statute or the PCRA; instead it 

denied the claim on its merits. On appeal to this Court, we concluded that 

his claim did not fit within the parameters of the PCRA, but that it was a 

proper subject for relief under the state habeas corpus statute. The 

Supreme Court agreed, characterizing West’s argument as a claim that 

“incarcerating him ... after the significant delay between the time of 

 

3

Judge did not contest the legality of his sentence. Judge, 916 A.2d at 

520. 
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sentencing and the time he was recalled is fundamentally unfair and 

therefore constitutionally infirm.” Id. at 1044-45. 

In the present appeal, Brunson’s claims are not divorced from the 

manner of his convictions or the legality of his sentence as was the claim at 

issue in West. The issue in West arose out of the irregularities that 

followed West’s conviction and sentencing; specifically, the failure of the 

courts to recall West so that he could begin to serve his sentence. These 

events had no bearing on West’s conviction or his sentence as initially 

imposed. In contrast, the irregularities that Brunson alleges implicate the 

validity of his convictions, thereby bringing them within the purview of the 

PCRA.4 

For these reasons, we conclude that the claims Brunson raised in his 

petition for writ of habeas corpus are cognizable under the PCRA. We 

therefore find no error in the lower court’s decision to treat Brunson’s 

petition for writ of habeas corpus as a petition filed under the PCRA. 

Having decided to treat Brunson’s filing as a PCRA petition, the lower 

court determined that it was untimely and that Brunson failed to establish 

any of the exceptions to the PCRA’s time-bar. PCRA Court Opinion, 7/1/13, 

 

4 We also note the case of Commonwealth v. Maute, 397 A.2d 826 (Pa. 

Super. 1979), in which this Court found that the petitioner’s claim of cruel 

and unusual punishment, based on beatings he was receiving in prison, was 

cognizable as a habeas claim rather than as a claim under the Post 

Conviction Hearing Act, the forerunner to the present-day PCRA. In that 

case, as in West and Judge, it is apparent that the claim was not related to 

the validity of the petitioner’s conviction or legality of his sentence. 
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at 3-4. It is firmly established that “[t]he PCRA’s timeliness requirements 

are jurisdictional in nature, and a court may not address the merits of the 

issues raised if the PCRA petition was not timely filed.” Commonwealth v. 

Copenhefer, 941 A.2d 646, 648-49 (Pa. 2007). The PCRA provides that 

“any petition under this subchapter, including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes 

final” unless one of three exceptions applies. 42 Pa.C.S.A. § 9545(b). The 

relevant PCRA provision provides as follows: 

(1) Any petition under this subchapter, including a 

second or subsequent petition, shall be filed within 

one year of the date the judgment becomes final, 

unless 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.A. § 9545(b)(1)(emphasis added). 

Brunson was convicted and sentenced in 1989. He received partial 

relief on direct appeal to this Court, and the Pennsylvania Supreme Court 
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denied his petition for allowance of appeal on August 7, 1990. Brunson did 

not seek review by the United States Supreme Court, and so his sentence 

became final on November 5, 1990.5 

The petition at issue was filed on December 18, 2012, far more than 

one year after Brunson’s conviction became final. As such, it was incumbent 

on Brunson to establish one of the three exceptions to the timeliness 

requirement contained in § 9545(b)(1). Commonwealth v. Lusch, 759 

A.2d 6, 9 (Pa. Super. 2000) (holding that where habeas corpus petition is 

properly treated as PCRA petition and filed more than one year after 

judgment became final, petitioner must plead and prove exception to 

statutory time-bar to establish timeliness). 

Brunson attempted to establish an exception in his response to the 

PCRA court’s notice of intent to dismiss. Therein, he stated that even if his 

petition were treated as a PCRA petition, his claim of “actual innocence” is 

sufficient to overcome any time-bar, pursuant to the United States Supreme 

Court’s decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (U.S. 2013). 

 

5

“[A] judgment becomes final at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” 42 Pa.C.S.A. § 9545(b)(3). Following the Pennsylvania Supreme 

Court’s denial of his petition for allowance of appeal, Brunson had ninety 

days to seek further review by the United States Supreme Court. See 

U.S.SUP.CT.R. 13. 
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See Objections to Dismissal Notice, 6/20/13, at 26.6 The lower court 

rejected this assertion, and we find no error in that conclusion. In 

McQuiggin, the United States Supreme Court held that a claim of actual 

innocence may, in certain circumstances, overcome the Antiterrorism and 

Effective Death Penalty Act’s one-year statute of limitations for filing a 

habeas petition. Id. at 1931. It is clear that this holding is limited to 

habeas petitions filed in federal court under the Antiterrorism and Effective 

Death Penalty Act; as such, it can afford Brunson no relief. Brunson 

therefore failed to establish an exception to the PCRA’s jurisdictional timebar. 

In sum, we find no error in the lower court’s determination that 

Brunson’s petition is properly viewed as his second PCRA petition; that it 

was untimely filed; and that Brunson failed to establish an exception to the 

PCRA’s time-bar. Accordingly, the lower court correctly concluded that it 

was without jurisdiction to entertain Brunson’s petition. See Copenhefer, 

941 A.2d at 648-49. 

Order affirmed. 

 

6 The vast majority of Brunson’s prolix response to the lower’s court notice 

of intention to dismiss was dedicated to refuting the conclusion that his 

claims fell under the PCRA. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/2014