IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth Ex Rel. : Troy Connelly, :

Appellant :

: No. 1919 C.D. 2016
v. : : Submitted: May 12, 2017 Robert Gilmore, et al. :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE McCULLOUGH FILED: August 25, 2017

Troy Connelly (Connelly) appeals, pro se , from the October 25, 2016

o rder of the Court of Common Pleas of Greene County (t rial c ourt) granting the
motion of Robert Gilmore and associated defendants (Gilmore ) to dismiss Connelly’s Petition for Writ of Habeas Corpus (Petition). We affirm.

Background On December 17, 2003, the Philadelphia County Court of Common
Pleas sentenced Connelly to an aggregate term of 85 to 170 years’ imprisonment for convictions stemming from a series of criminal episodes that included kidnappings,
rapes, and a robbery

. He is presently incarcerat ed at the State Correction al Institution

at Greene (SCI

- Greene)

.2

In 2013, Connelly submitted a request to the D epartment of Corrections (DOC) for his sentencing order pursuant to the Right

- to

- Know Law , 1 and the DOC denied the request on the ground that the sentencing order did not exist within its possession, c ustody, or control. B y adjudication dated October 16, 2013, the Office of Open Records affirmed the denial, relying on the attestation of the Records Supervisor at SCI

- Green e who stated that , afte r conducting a search, she could not locate Connelly’s sentencing order.

On March 12, 2015, Connelly filed the Petition with the trial court , alleging that he is being confined without lawful justification because the DOC is not in possession of his se ntencing order. On this theory , Connelly asserts that his continued confinement constitutes involuntary servitude in violation of Section 1 of
the Thirteenth Amendment t o the United States Constitution, U.S. C ONST

. amend. XIII, §1, and an unlawful restrai nt in violation of section 2902 of the Pennsylvania Crimes Code, 18 Pa.C.S. §2902.

On April 27, 2015, after his Petition went unanswered by Gilmore, the Superintendent of SCI

- Green, Connelly forwar ded the Petition to the sheriff to
effectuate service on Gilmore and the associated defendants

.

On July 31, 2015, Connelly filed a motion requesting that the trial court grant the Petition because Gilmore did not file an answer to the Petition. The t rial

c ourt held an informal conference on February 4, 2016 , with Connelly and the attorney for Gilmore. The t rial c ourt thereafter ordered a s tay in the proceeding on February 8, 2016 , pending the outcome of Connelly’s class

- action lawsuit against the DOC, which asserted legal issues that were substantially similar to those raised in the
Petition

.

1 Act of Februa ry 14, 2008, P.L. 6, 65 P.S. §§ 67.101

– 67.3104.3

On February 12, 2016, Gilmore filed a motion to dismiss Connelly’s
Petition , contending that the averred facts were insufficient to warrant relief

. On October 25, 2016, the t rial c ourt entered an o rder granting Gilmore’s motion from which Connelly now appeals. 2

Discussion

Connelly argues that the t rial c ourt abused its discretion in refusing to grant his Petition on the following grounds: (1) the trial court dismissed his Petition
without a hear ing; (2) Gilmore failed to timely respond to the Petition in violation of section 6504 of the Judicial Code, 42 Pa.C.S. §6504 , and thereby agreed by silence
that Con nelly is unlawfully detained; and (3 ) the t rial c ourt’s dismissal of the Petition
constituted interference with a writ of habeas corpus in violation of section 6505 of the Judicial Code, 42 Pa.C.S. §6505

.

Initially, we note that “a claim that a defendant’ s sentence is illegal due to the inability of the DOC to produce a writt en sentencing order relate d to [his] judgment of sentence constitutes a claim legitimately sounding in habeas corpus

. ” Joseph v. Glunt , 96 A.3d 365, 368 (Pa. Super. 2014) ( citation and internal quotation marks omitted). A writ of habeas corpus “ is an ext raordinary remedy that is available after other remedies have been exhausted or are ineffectual or nonexistent . . . [and] is

not a s ubstitute for appellate review.” Department of Corrections v. Reese , 774 A. 2d 1255, 1260 (Pa. Super. 2001). Primarily, “ t he writ of habeas corpus has functioned

. . . to test the legality of the petiti oner’ s commitment and detention, ” Commonwealth

2 “ Our stan dard of review of a trial court’ s order denying a petition for [a] writ of habeas corpus is limit ed to [an] abuse of discretion.” Rivera v. Department of Corrections , 837 A. 2d 525, 528 (Pa. Super. 2003).4

ex rel. Bryant v. Hendrick , 280 A.2d 110 (Pa. 1971), and “ lies to correct void or illegal se ntences or an illegal detention.” Co mmonwealth ex rel. Butler v. Rundle , 180 A.2d 923, 924 (Pa. 1962).

Connelly first asserts that his confinement is illegal because the DOC is not in possession of his sentencing order and the trial court therefore erred in dismissing the Petition without convening a hearing

. T his argument , however, has been considered and rejected by both this Court and the Superior Court.

In Travis v. Giroux , (Pa. Cmwlth., No. 489 C.D. 2013, filed December 18, 2013) (unreporte d) , a prisoner argued in his petiti on for a writ of habeas corpus
that “ the DOC’ s regulations and the Judicial Code require a sentencing order and other documentation before the DOC may confine an individual ” and “ because no sentencing order exists for his conviction, the DOC was without authority to confine
him. ” Slip op. at 7. On appeal, this Court affirmed the dismissal of the prisoner’s petition, concluding that “ the absence of a sentencing order does not make his confinement illegal .” Id. Likewise, where a prisoner was unable to secure a copy of his sentencing order through the RTKL and thereafter filed a petition for habeas
corpus, the Superior Court held that the prisoner “ has no basis on which to argue that the DOC does not have the authority to incarcerate him merely because it does not possess a copy of his sentencing order. ” O’Hara v. Giroux , (Pa. Super., No. 15 WDA 2015, filed August 11, 2015) (unreported), slip o p. at 6. The rationale supporting
these decisions is that , even though the DOC d oes not possess a prisoner’s sentencing order, this fact fails to demonstrate that the prisoner was not convicted of or sentenced for a crime , and there is no legal authority, statutory or otherwise, that provides a prisoner with grounds for discharge in such a scenario

. S ee Joseph , 96 A.3d at 372 (stating that “the trial court correctly concluded that, even in the absence5

of a written sentencing order, the [DOC] had continuing authority to detain [the prisoner].”).
C onverse ly , both this Court and our Superior Court have held that w here
the criminal docket sheet , or other comparable evidence , reflects that t he prisoner was convicted and sentence d , there is “ sufficient a uthority to maintain a prisoner’ s detention notwithstanding the absence of a writ ten sentencing order [.]” Joseph , 96
A.3d at 372 ; see Travis , slip op. at 6.

This Court may take judicial notice of official court records and public
documents in a connected case. See , e.g. , Pa.R.E. 201(b)(2); Germantown Cab Company v. Philadelphia Park ing Authority , 27 A.3d 280, 283 n.8 (Pa. Cmwlth. 2011); Doxsey v. Commonwealth , 674 A.2d 1173, 1174 (Pa. Cmwlth. 2004). Upon

o u r review, we note that the entries for criminal d ocket number s CP

- 51

- CR

- 0203521

- 2002 , CP

- 51

- CR

- 0203531

- 2002 , and CP

- 51

- CR

- 0304071

- 2002 clearly evidence that Connelly was convicted of multiple criminal offenses and the trial court imposed various sentences consecutively totaling a final aggregate sentence of 85 to 170 years’ imprisonment. (Docket Sheets, CR

- 0203521 , at 4

- 5; CR

- 0203531 , at 4; CR

0304071 , at 4.) In adjudicating Connelly’s federal habeas action, the United States District Court for the Eastern District of Pennsylvania cited notes of testimony from the sentencing hearing, observing: “ On December 17, 200 3, the trial judge sentenced Connelly to 85

- 170 years incarceration

. Sentencing Transcript, December 17, 2003
at 49

- 51. ” Connelly v. Beard , (E.D. Pa., No. 09

- 4711, filed August 9, 2010), slip op.
at 3. Moreover, Connelly previously filed an identical lawsuit, making the same claims and arguments that he currently advances, in the form of a civil rights
action which the defendants removed to the United States District Court for the6

Western District of Pennsylvania

. In affirming the district court’s dis missal of Connelly’s complaint, the United States Court of Appeals for the Third Circuit
recounted and determined :

On October 16, 2013, presumably in response to an inquiry, a records super visor at SCI

- Greene created an “ Agency Attesta tion of Nonexistence of Records” form indicating that she was not in possession of the sentencing orders from Connelly’ s state court cases. Thereafter, Connelly filed a complaint in the Greene County Court of Common Pleas against the Secretary of the DOC, allegin g that, because the trial court never completed a written sentencing order, he was being illegally [confined]

. . . . Connelly does not contend that he was not convicted or sentenced by the Court of Common Pleas. Instead, he asserts that his confinement is illegal because there is no written sentencing order. Connelly argues that th is omission invalidates the DOC’ s authority to hold him in custody and that he thus is entitled to damages. However, the exhibits attached to the motion to dismiss demonstrat e that the trial judge signed written senten cing orders in each of Connelly’ s cases

. In addition, the Clerk of Court drafted and signed multiple commitment sheets. Under these circumstances, we conclude that Connelly has not stated a claim to relief that is plausible on its face. Connelly v. Secretary of the Pennsylvania Department of Corrections , (3d Cir., No.
17

- 1444, filed April 27, 2017) (“ Connelly I ”) , slip op. at 1

- 2

. 3 In his appellate brief, Connelly asserts that he has “not been duly
convicted or sentenced. A sentence is not imposed until it is reduced to a written Judgment signed by the sentencing Judge

. . . . ” (Connelly’s reply brief at 4.) However, t his issue was also disp osed of by the Third Circuit:

3 Available at 2017 U.S. App. LEXIS 7419 , at * 2

- 3

.7

The sentencing order for count three of CP

- 51

- CR

0304071

- 2002, which sentenced Connelly to ten to twenty years for kidnapping, is not signed. The sentencing order for the other count in CP

- 51

- CR

- 0304071

- 2002, as well as the sentencing orders in all of the other cases, were signed by the judge. The omission does not deprive the document of legal effect

. Connelly I , slip op. at 2 n.1; see also Boyd v. Department of Corrections , 831 A.2d 779, 783 n.6 (Pa. Cmwlth. 2003)

.

U nder the case law of the Third Circuit and Pennsylvania , the d ismissal of an action for failure to state a claim is a final judgment on the merits for purposes of res judicata and collateral estoppel, Post v. Hartford Insurance Co. , 5 01 F.3d 154, 169 (3d C ir. 2007) ; Brown v. Cooney , 442 A.2d 324, 326 (Pa. Super. 1982 ), and Pennsylvania state courts accord preclusive effect to federal court judgments

. Bardo v. Department of Public Welfare , 397 A.2d 1305, 1307 n.2 ( Pa. Cmwlth. 1979).
B ecause Connelly had a full and fair opportunity to litigate the above issue s in his federal civil rights action, the Third Circuit’s determination that valid sentencing
orders exist in all of his cases are factual and legal issue s that have been firmly

res olved . As such, this Court will afford the Third Circuit’s resolution of these issues preclusive effect , s ee Day v. Volkswagenwerk Aktiengesellschfat , 464 A. 2d 1313,
1318

- 19 (Pa. Super. 1983) ; Greenleaf v. Garlock , Inc. , 174 F.3d 352, 357

- 61 (3d Cir.
1999 ), or, in the alternative, will view the Third Circuit’s decision as probative evidence indicating that the sentencing orders do in fact exist.

A hearing is not required where, as here, the petitioner’s allegations are refuted by the record and/or t he law , or where the petition does not make out a prima facie case for allowing the writ. See Balsamo v. Mazurkiewicz , 611 A.2d 1250, 1253 (Pa. Super. 1992); Commonwealth ex rel. Rogers v. Claudy , 90 A.2d 382, 383 (Pa.8

Super. 1952)

. In light of the above , we conclude that the trial court did not abuse its discretion in denying Connelly’s Petition without holding a hearing.

Next , Connelly argues that the t rial c ourt was obligated to grant his
Petition and release him from confinement because Gilmore failed to file a timely
response under section 6504 of the Judicial Code, 42 Pa.C.S. §6504 . Relatedly, Connelly contends that the t rial c ourt’s failure to do so constituted interference with a
writ of habeas corpus in violation of section 6505 of the Judicial Code, 42 Pa.C.S. §650 5

. Sec tion 6504 of the Judicial Code provides:

The writ, or the order to show cause why the writ should not issue, shall be directed to the person having custody of the person detained. It shall be returned within thre e days unless for good cause additional time, not exceeding 20 days, is allowed. The person to whom the writ or the order is directed shall make a return certifying the true cause of the detention and, except as otherwise prescribed by general rules or by rule or order of court, shall produce at the hearing the body of the person detained. 42 Pa.C.S. §6504.

Sec tion 6505 of the Judicial Code provides, in relevant part:
Any person who shall fail or refuse to respond to a writ or to an order under this chap ter, or who shall change the place of detention of any person for the purpose of defeating the writ . . . or shall do any act for the purpose of defeating the writ or the order, commits a misdemeanor of the second degree. 42 Pa.C.S. §6505

.

In the Petition , Connelly does not aver that the trial court issued a writ or
an order to show cause to Gilmore and that Gilmore failed to respond to the writ or
order . Rather, Connelly contends that Gilmore did not respond or file an answer to9

the Petition. However, s ection 6504 of the Judicial Code does not direct “the person having custody of the person detained , ” i.e. , Gilmore, to respond to the petition for
habeas itself. Id. To the contrary, u nder section 6502 of the Judicial Code, “any judge of a court of record may issue the writ of habeas corpus to inquire into the cause of detention for any person or for any other lawful purpose.” 42 Pa.C.S. §6502. Thereafter, “[t]he writ, if issued, dire cts the restraining authority to produce the person and state th e ‘true cause of the detention.’ ” Chadwick v. Caulfield , 834 A.2d 562, 566 (Pa. Super. 2003) (quoting section 6504 of the Judicial Code, 42 Pa.C.S. §6504 )

. According to the plain language of section 6504 of the Judicial Code, it is only after the trial court issues a writ , or ostensibly a n order to show cause , that a defendant has to file a response justifying the detention

.

In its statutory form , habeas corpus is a “civil remedy,” Commonwealth
v. McNeil , 665 A.2d 1247, 1249

- 50 (Pa. Super. 1995), and section 6504 of the Judicial Code is a statutory rule that is further supplemented by the rules of civil procedure. See Pa.R.C.P. No. 133 (suspending statutes that are inconsistent with the civil rules). Pursuant to the civil rules, a bsent a rule to show cause, Gilmore was not legally required to respond to the Petition. See Pa.R.C.P. No . 206.6 (a) (stating that a rule to show cause “shall direct that an answer be filed to the petition

. ”)

. Further,

e ven if the trial court issued Gilmore with a rule to show cause, any failure on his part

to file a timely answer would not automatically mandate that the trial court accept the
facts in the Petition as admitted and grant the Petition. See Pa.R.C.P. No. 206.7 (a) &
Note (s tating that where there is a “ failure to file or to timely file an answer,” the court may enter an “appropriate order
, ” but that order need not be “adverse” to the defendant).10

Indeed, the trial court “may disregard any er ror or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. No. 126. Following this rule, Pennsylvania courts have adopted a permissive view regarding the filing of untimely responsive pleadings, and the courts will disregard the untimeliness where the delay in filing does not prejudice the opposing party and especially when justice so requires it. See Peters Creek Sanitary Authority v. Welch , 681 A.2d 167, 170 (Pa. 1996); Gale v. Mercy Catholic Medical Center , 698 A.2 d 647, 650 (Pa. Super. 1997). Here, Connelly does not allege any prejudice as a result of Gilmore’s delay in filing an answer or response to the Petition . Given that Connelly’s related class

- action lawsuit was pending prior to filing the Petition, see Parnell v. Wetzel , (Pa. Cmwlth., No. 1737 C.D. 2014, fi led July 24, 2015) (unreported) , the instant action was stayed by the trial court pending resolution of that
lawsuit , and Gilmore filed his motion to dismiss in the interim , we can discern no

concrete prejudice inuring to Connelly . Neither can we discern any err or in the trial court’s procedural treatment and disposition of the Petition.

Finally, s ection 6505 of the Judicial Code is a criminal statute that makes
it a m isdemeanor of the second degree to interfere with a writ. 42 Pa.C.S. §6505.
Even if this Court accepts , for the sake of the argument, Connelly’s rather dubious proposition that the trial court violated section 6505 in either failing to grant the
Petition or issue a writ/rule to show ca use, this statutory section does not create a civil cause of action, much less provide a textual basis upon which to grant the Petition and order Connelly’s release. Cf. Lindsay v. Thomas , 465 A.2d 122 , 124

- 25 ( Pa. Cmwlth. 1983) (declining to imply a reme dy or cause of action in to a statute where there was no p rovision evidencing the General Assembly’s intent to create a remedy or cause of action). Moreover, it is beyond cavil that Connelly lacks standing to11

institute criminal proceedings against the tria l court . Despite the fact that an individual is a victim of a crime, the victim only acts as a prosecuting witness, and

“ the state, represented by the District Attorney, is the party plaintiff in a criminal prosecution .” Commonwealth v. Malloy , 450 A.2d 689 , 693 ( Pa. Super. 1982). As
such , Connelly cannot cr iminally prosecute a trial court in these habeas corpus proceedings, and we conclude that his arguments are baseless

.

Conclusion Having determined that Connelly’s assertion s of error are meritless, we affirm the trial court’s order dismissing his Petition.

________________________________ PATRICIA A. McCULLOUGH, Judge

Judge Cosgrove concurs in result only.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth Ex Rel. : Troy Connelly, :

Appellant :

: No. 1919 C.D. 2016
v. : : Robert Gilmore, et al. :

ORDER

AND NOW, this 25 th day of August , 2017, the October 25, 2016 order of the Court of Common Pleas of Greene County is affirmed.

________________________________ PATRICIA A. McCULLOUGH, Judge