J-S20023-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

ANTHONY RUBY, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellant 

v. 

NANCY A. GIROUX, 

 Appellee No. 1308 WDA 2014 

Appeal from the Order July 22, 2014 

In the Court of Common Pleas of Erie County 

Civil Division at No(s): No. 11956-2014 

MEMORANDUM PER CURIAM: FILED JULY 21, 2015 

 Appellant, Anthony Ruby, appeals from the July 22, 2014 order 

entered in the Erie County Court of Common Pleas denying his petition for 

writ of habeas corpus. We affirm. 

 Appellant pled guilty on October 4, 2012, at Erie County docket 

number 2321 of 2012 to two counts of sale or transfer of firearms (counts 

two and three), and one count each of forgery (count five) and tampering 

with records (count seven). He pled guilty to the same counts at docket 

number 2323 of 2012. 

 The trial court sentenced Appellant on December 5, 2012. At docket 

number 2321 of 2012, Appellant was sentenced to twenty-seven to fifty-four 

months of imprisonment for count two, with count three merging for 

purposes of sentencing, and two concurrent terms of imprisonment of 

sixteen to thirty-two months each for forgery and tampering with records. 
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At docket number 2323 of 2012, the trial court sentenced Appellant to 

twenty-seven to fifty-four months of imprisonment for count two, 

consecutive to count two at docket number 2321 of 2012, with count three 

merging for purposes of sentencing, and two concurrent terms of 

imprisonment of sixteen to thirty-two months each for forgery and 

tampering with records. Appellant filed a motion to reconsider sentence at 

both docket numbers, which the trial court denied on December 11, 2012. 

Appellant did not file a direct appeal. 

 On September 16, 2013, Appellant filed a pro se petition for writ of 

habeas corpus,

1

 which the lower court treated as a petition filed pursuant to 

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. The 

PCRA court appointed counsel, who filed a Turner/Finley2 letter on 

November 20, 2013. On December 3, 2013, the PCRA court issued a notice 

of intent to dismiss the petition without a hearing. Appellant subsequently 

filed objections to the notice of intent. The PCRA court dismissed the 

petition on February 19, 2014. 

 Appellant did not appeal the February 19, 2014 dismissal but instead 

filed an amended PCRA petition on February 20, 2014, and a motion for 

____________________________________________ 

1

 While the Erie County Prothonotary assigned the document a civil docket 

number, it properly cross-filed it with the underlying criminal docket 

numbers of 2321 and 2323 of 2012. 

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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reconsideration on March 4, 2014. On March 4, 2014, the PCRA court 

vacated its order dismissing Appellant’s PCRA petition and ultimately entered 

a new final order denying the petition on March 12, 2014. Appellant filed a 

notice of appeal to this Court on April 9, 2014.3

 After the notice of appeal was filed and while the appeal was pending 

in this Court, Appellant, pro se, filed a second petition for writ of habeas 

corpus, which is the subject of this appeal and which duplicated claims made 

in the prior petition. That second petition was improperly docketed4 in the 

lower court on July 15, 2014. Despite that improper docketing, the common 

pleas court treated the petition for writ of habeas corpus as another PCRA 

petition. Noting that Appellant’s prior PCRA petition was still pending on 

appeal, the PCRA court denied the second petition on July 22, 2014. 

Appellant filed the instant notice of appeal on July 30, 2014. 

 Initially, we agree that the present petition for writ of habeas corpus

properly was treated as a PCRA petition. See, e.g., Commonwealth v. 

____________________________________________ 

3

 Months after the events in question leading to this appeal, Appellant 

discontinued that appeal from the March 12, 2014 denial of his PCRA petition 

on September 11, 2014. 

4

 Upon appeal to this Court of the second petition for writ of habeas corpus, 

we directed our Prothonotary on June 16, 2015, to remand to the Erie 

County Clerk of Courts and Prothonotary the partial record previously 

certified to this Court in this case for its proper compilation with the record 

at Erie County docket numbers 2321 and 2323 of 2012. As the complete 

certified record has now been returned, we may proceed to address the 

appeal. 
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Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (instructing that writ of habeas 

corpus should have been treated as PCRA petition). If the PCRA offers a 

remedy for a petitioner’s claim, it is the sole avenue of relief. 

Commonwealth v. Wyatt, ___ A.3d ___, 2015 PA Super 96 (Pa. Super. 

filed April 24, 2015). In construing the language of 42 P.C.S. § 9542, 

“Pennsylvania Courts have repeatedly held that the PCRA contemplates 

challenges to the propriety of a conviction or a sentence. Commonwealth 

v. Masker, 34 A.3d 841, 843 (Pa. Super. 2011) (en banc).” 

Commonwealth v. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014), appeal 

denied, 104 A.3d 524 (Pa. 2014). In the present petition, Appellant 

asserted violations of the Pennsylvania and United States Constitutions, 

claiming the Crimes Code was enacted without constitutional authorization. 

Thus, he suggests he was charged and convicted of violating an invalid law. 

Petition for Writ of Habeas Corpus, 7/15/14, at 8. Appellant’s challenges are 

to the propriety of his convictions, and therefore, his claims are cognizable 

under the PCRA. See, e.g., Commonwealth v. Peterkin, 722 A.2d 638, 

640–641 (Pa. 1998) (“Because Peterkin alleges violations of the constitution 

and of law . . . his claims were cognizable under the PCRA.”). 

 We further conclude that the PCRA court correctly dismissed the 

instant petition. Pursuant to Commonwealth v. Lark, 746 A.2d 585 (Pa. 

2000), Appellant was precluded from filing a PCRA petition on July 15, 2014, 

because his appeal of his first PCRA petition was still pending. As our 
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Supreme Court explained: “[W]hen an appellant’s PCRA appeal is pending 

before a court, a subsequent PCRA petition cannot be filed until the 

resolution of review of the pending PCRA petition by the highest state court 

in which review is sought, or upon the expiration of the time for seeking 

such review.” Id. at 588 (footnote omitted). Lark precluded Appellant from 

filing a subsequent PCRA petition until the appeal of his first PCRA petition 

became final. Commonwealth v. Callahan, 101 A.3d 118, 122–123 (Pa. 

Super. 2014). Thus, the PCRA court correctly dismissed the petition. See 

Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012) (stating, a “PCRA trial 

court cannot entertain a new PCRA petition when a prior petition is still 

under review on appeal”); Commonwealth v. Abu-Jamal, 941 A.2d 1263, 

1268–1269 (Pa. 2008) (“[W]hen a PCRA appeal is pending, a subsequent 

PCRA petition cannot be filed until the appeal of the first petition is 

resolved.”). 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/21/2015 
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