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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANDRE M. ADAMS, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

:

STACY PARKS MILLER, CENTRE 

COUNTY DISTRICT ATTORNEY AND 

ROBERT GILMORE

:

:

:

No. 767 MDA 2015

Appeal from the Order Entered April 10, 2015,

in the Court of Common Pleas of Centre County

Civil Division at No. 14-4779

BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2015

Andre M. Adams appeals from the order of April 10, 2015, denying his 

petition for writ of habeas corpus. We affirm.

On January 10, 2013, following a jury trial, appellant was found guilty 

of 38 charges at two separate dockets. At No. CP-14-CR-1228-2012, 

appellant was convicted of 16 counts of possession of a controlled substance 

with intent to deliver (“PWID”), one count of criminal conspiracy, and one 

count of criminal use of a communication facility (“CUCF”). At 

No. CP-14-CR-355-2012, appellant was convicted of 14 counts of PWID, and 

6 counts of CUCF. Commonwealth v. Adams, No. 808 MDA 2014, 

unpublished memorandum at 2 (Pa.Super. filed June 17, 2015). On 

February 12, 2013, appellant received an aggregate sentence of 79 to 
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158 years’ imprisonment on the two dockets. Id. On direct appeal to this 

court, on June 17, 2015, we vacated appellant’s judgment of sentence and 

remanded for re-sentencing, finding that appellant’s sentence was 

unconstitutional, and illegal, pursuant to Alleyne v. United States, 

U.S. , 133 S.Ct. 2151 (2013) (holding that facts that increase mandatory 

minimum sentences must be submitted to the jury and must be found 

beyond a reasonable doubt). Id. at 8, citing Commonwealth v. Cardwell, 

105 A.3d 748, 751 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa. 

2015) (applying Alleyne and recognizing that the mandatory minimum 

sentences associated with the weight of narcotics possessed by a drug 

dealer pursuant to 18 Pa.C.S.A. § 7508 are unconstitutional).1

Meanwhile, during the pendency of his direct appeal, appellant filed 

the instant habeas petition, alleging that the criminal statutes he was found 

guilty of violating are unconstitutional due to the lack of an enacting clause. 

The trial court described the procedural posture of this matter as follows:

While the appeal to the Superior Court was 

pending, [appellant] filed the present motion before 

the Court, which is captioned Petition for Writ of 

Habeas Corpus Sub Jiciendum, which was filed on 

December 24, 2014. Based upon the Court’s review 

of the documentation filed by [appellant] as well as 

his argument in court this morning, it is [appellant]’s 

sole position that because there is no Enacting 

Clause in the Pennsylvania Crimes Code, the 

 

1 According to the Commonwealth, Office of Attorney General, appellant was 

re-sentenced on August 25, 2015, to 45 to 90 years’ imprisonment. 

(Commonwealth’s brief at 4.) An appeal from the August 25, 2015 

judgment of sentence is currently pending at No. 1695 MDA 2015.
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sentencing judge had no jurisdiction to try the 

charges set forth in the two informations filed by the 

District Attorney of Centre County and/or the 

Attorney General of Pennsylvania. This Court does 

not believe that [appellant]’s position has any merit 

and does not believe it appropriate for a county trial 

judge to declare the entire Crimes Code 

unconstitutional.

Order, 4/17/15 at 1 (Docket #29). The trial court denied appellant’s petition 

in open court on April 10, 2015, following a hearing, and also by order filed 

April 17, 2015. (Id.) The trial court also noted that, “if the Petition for Writ 

of Habeas Corpus were to be considered a petition under the Post-Conviction 

Relief Act [(“PCRA”)2], the petition would have been dismissed as premature 

in light of the fact that there is a present appeal before the Superior Court.” 

(Id. at 2.) Appellant filed a timely pro se notice of appeal on April 23, 

2015. Appellant was not ordered to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. 

On May 18, 2015, the trial court issued a Rule 1925 statement, relying on its 

previous order filed April 17, 2015, and directing the clerk to transmit the 

existing record to this court. (Docket #38.)

It is well-settled that the PCRA is intended to 

be the sole means of achieving post-conviction relief. 

42 Pa.C.S. § 9542; Commonwealth v. Haun, 613 

Pa. 97, 32 A.3d 697 (2011). Unless the PCRA could 

not provide for a potential remedy, the PCRA statute 

subsumes the writ of habeas corpus. 

[Commonwealth v. Fahy, 737 A.2d 214, 223-224 

(Pa. 1999)]; Commonwealth v. Chester, 557 Pa. 

358, 733 A.2d 1242 (1999). Issues that are 

 

2 42 Pa.C.S.A. §§ 9541-9546.
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cognizable under the PCRA must be raised in a 

timely PCRA petition and cannot be raised in a 

habeas corpus petition. See Commonwealth v. 

Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); see 

also Commonwealth v. Deaner, 779 A.2d 578 

(Pa.Super. 2001) (a collateral petition that raises an 

issue that the PCRA statute could remedy is to be 

considered a PCRA petition).

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa.Super. 2013).

[T]he PCRA is the exclusive vehicle for obtaining 

post-conviction collateral relief. Commonwealth v. 

Bronshtein, 561 Pa. 611, 614 n. 3, 752 A.2d 868, 

869-70 n. 3 (2000). This is true regardless of the 

manner in which the petition is titled. 

Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1 

(Pa.Super. 2000). Indeed, the PCRA statute 

specifically provides for such treatment:

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, 

including habeas corpus and coram 

nobis.

42 Pa.C.S.A. § 9542. Simply because the merits of 

the PCRA petition cannot be considered due to 

previous litigation, waiver, or an untimely filing, 

there is no alternative basis for relief outside the 

framework of the PCRA. See generally, 

Commonwealth v. Fahy, 558 Pa. 313, 332, 737 

A.2d 214, 223-224 (1999) (citing Commonwealth 

v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999)).

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001). 

In Commonwealth v. Fowler, 930 A.2d 586 

(Pa.Super. 2007), the learned Judge, now Justice, 

McCaffery, collected cases and reiterated that all 

motions filed after a judgment of sentence is final 
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are to be construed as PCRA petitions. Id. at 591 

(citing Commonwealth v. Johnson, 803 A.2d 

1291, 1293 (Pa.Super. 2002)); Commonwealth v. 

Evans, 866 A.2d 442 (Pa.Super. 2005); 

Commonwealth v. Beck, 848 A.2d 987, 989 

(Pa.Super. 2004); Commonwealth v. Guthrie, 749 

A.2d 502, 503 (Pa.Super. 2000). More recently, in 

Commonwealth v. Jackson, 30 A.3d 516 

(Pa.Super. 2011), this Court held that a defendant’s 

motion to correct his illegal sentence was properly 

addressed as a PCRA petition, stating broadly, “any 

petition filed after the judgment of sentence 

becomes final will be treated as a PCRA petition.” 

Id. at 521 (quoting Johnson, supra).

Taylor, 65 A.3d at 466. See also Commonwealth v. Stout, 978 A.2d 

984, 987 (Pa.Super. 2009) (PCRA, not petition for habeas corpus, provided 

prisoner with remedy for allegations that court lacked jurisdiction and 

authority to prosecute him).

Appellant’s allegations, including the enacting clause argument, are 

cognizable under the PCRA. Because appellant’s appeal at No. 808 MDA 

2014 was still pending, however, his judgment had never become final for 

purposes of a PCRA petition. 42 Pa.C.S.A. § 9545(b)(3) (providing “a 

judgment becomes final at the conclusion of direct review . . . or at the 

expiration of time for seeking the review”). Appellant cannot file a PCRA 

petition before his judgment becomes final, so the court lacked authority to 

decide appellant’s PCRA petition. 42 Pa.C.S.A. § 9545(b) (any PCRA petition 

“shall be filed within one year of the date the judgment becomes final” with 

certain exceptions permitting a later filing). In fact, appellant’s judgment of 

sentence is still not final, as he has taken another direct appeal from 
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re-sentencing. As stated above, the trial court recognized that if appellant’s 

habeas petition is considered a PCRA petition, it is premature. While the 

trial court ultimately dismissed appellant’s petition on the merits, “we may 

affirm a PCRA court’s decision on any grounds if the record supports it.” 

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014) (quotation 

marks and citation omitted).3

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2015

 

3 We note that a PCRA petitioner has a rule-based right to counsel for a first 

PCRA. See Stout, 978 A.2d at 988 (“our finding above that appellant’s 

habeas corpus petition is the functional equivalent of a petition under the 

PCRA raises issues regarding the right to legal representation. Generally 

speaking, an indigent petitioner is entitled to the appointment of counsel on 

his first post-conviction attack of his conviction.”) (citations omitted). This is 

true even where the petition is facially untimely. Id. Here, however, 

appellant’s petition is premature, filed during the pendency of his direct 

appeal and before judgment of sentence was final.