Com. v. Kane, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TODD ANGEL KANE :
:
Appellant : No. 741 MDA 2016
Appeal from the PCRA Order April 14, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002727-2011
BEFORE: OTT, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2017
Todd Angel Kane appeals, pro se, from the order entered April 14, 2016,
in the Luzerne County Court of Common Pleas, denying his first petition for
collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
Kane seeks relief from the judgment of sentence of an aggregate term of 29
to 72 months’ imprisonment, imposed on January 17, 2013, following his jury
conviction of burglary, criminal trespass and criminal mischief.2 On appeal,
Kane raises a myriad of claims challenging, inter alia, the sufficiency of the
evidence, the trial court’s denial of his pretrial motion to suppress a statement,
and the ineffective assistance of trial counsel. Because we conclude all of
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 3502(a), 3503(a)(1)(ii), ad 3304(a)(5), respectively.
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Kane’s issues have been either previously litigated or waived, we affirm the
order denying PCRA relief.
The facts underlying Kane’s conviction are well-known to the parties and
recounted in the memorandum decision affirming Kane’s conviction on direct
appeal. See Commonwealth v. Kane, 102 A.3d 538 (Pa. Super. 2014)
(unpublished memorandum at 2-3). Therefore, we need not reiterate them
in detail herein. To summarize, Kane broke into his ex-girlfriend’s house, and
caused nearly $3,000.00 in damage to her property. See id. On November
29, 2012, he was convicted by a jury of burglary, criminal trespass and
criminal mischief. Thereafter, on January 17, 2013, the trial court sentenced
him to a term of 29 to 72 months’ imprisonment for burglary, and a concurrent
term of 15 to 60 months’ imprisonment for criminal trespass.3 The court also
ordered Kane to pay $2,840.00 in restitution. Kane filed timely post-trial
motions, which the court promptly denied.
Thereafter, Kane filed a direct appeal, challenging the sufficiency and
weight of the evidence supporting his convictions and both the legality and
amount of restitution. See id. at 3-4. On April 22, 2014, a panel of this Court
affirmed the judgment of sentence, concluding all of Kane’s claims were
meritless. See id. Kane filed a petition for allowance of appeal in the
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3The court determined the criminal mischief conviction merged for sentencing
purposes.
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Pennsylvania Supreme Court, which was denied on September 30, 2014. See
Commonwealth v. Kane, 101 A.3d 102 (Pa. 2014).
On October 15, 2015, Kane filed the instant PCRA petition, pro se.
Counsel was appointed, but later filed a motion to withdraw as counsel and
Turner/Finley4 “no merit” letter. Following a hearing on April 14, 2016, the
trial court entered an order denying Kane’s PCRA petition and granting
counsel’s motion to withdraw. This timely pro se appeal followed.5
Our review of an order denying PCRA relief is well-established: “[W]e
examine whether the PCRA court’s determination is supported by the
record and free of legal error.” Commonwealth v. Mitchell, 141 A.3d 1277,
1283–1284 (Pa. 2016). In order to be eligible for PCRA relief, a petitioner
must plead and prove, inter alia, “[t]hat the allegation of error has not been
previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). Pursuant to Section
9544, an issue has been “previously litigated if … the highest appellate court
in which the petitioner could have had review as a matter of right has ruled
on the merits of the issue.” 42 Pa.C.S. § 9544(a)(2). Furthermore, an issue
is waived “if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state postconviction
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4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5 On May 10, 2016, the PCRA court ordered Kane to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After
receiving an extension of time, Kane filed a concise statement on August 26,
2016.
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proceeding.” 42 Pa.C.S. § 9544(b). Moreover, in order to preserve an issue
for appellate review, a petitioner must also include the claim in his PCRA
petition. See Commonwealth v. Baumhammers, 92 A.3d 708, 731 (Pa.
2014) (explaining, “waiver cannot be avoided solely by reference to
[petitioner’s] Concise Statement of Matters Complained of on Appeal, as such
a statement, which is provided after the notice of appeal has already been
filed, cannot operate to add new substantive claims that were not included in
the PCRA petition itself.”).
Our review of the briefs, the relevant statutory and caselaw, and the
certified record reveals all of the issues Kane raises on appeal are either
previously litigated or waived. First, Kane argues the trial court erred in
denying his post-trial motion challenging the weight and sufficiency of the
evidence and the amount of restitution. See Kane’s Brief at 6-14. These
issues were rejected by this Court in Kane’s direct appeal, and are, therefore,
previously litigated for purposes of PCRA review. See Kane, supra, 102 A.3d
538 (unpublished memorandum at 3-10); 42 Pa.C.S. § 9544(a)(2).
Next, Kane contends the trial court erred in denying his pretrial
suppression motion and post-trial motion to modify his sentence, and that the
Commonwealth’s information was not specific enough to allege the crime he
purportedly intended to commit during the burglary. See Kane’s Brief at 15-
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16. These claims are waived because Kane could have raised them on direct
appeal, but failed to do so.6 See 42 Pa.C.S. § 9544(b).
Kane’s remaining claims assert trial counsel’s ineffectiveness, a
purported Miranda7 violation, and an allegation the Commonwealth
fabricated evidence of a telephone call.8 See Kane’s Brief at 17-25. None of
these issues were included in Kane’s PCRA petition. Accordingly, they are
waived on appeal.9 See Baumhammers, supra.
Because we have concluded that all of the issues raised in Kane’s
appellate brief were either previously litigated or waived, we conclude the
PCRA court did not err in dismissing Kane’s petition.
Order affirmed.
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6 Kane does not raise these issues in the context of the ineffective assistance
of counsel.
7 Miranda v. Arizona, 384 U.S. 436 (1966).
8It merits mention that Kane presents these claims in an outline format, with
minimal, if any, discussion and no citation to the record. See Kane’s Brief at
17-25. For that reason alone, we could find these claims waived. See
Pa.R.A.P. 2119(a), (c).
9 We note the PCRA court addressed some of Kane’s ineffectiveness claims in
its Pa.R.A.P. 1925(a) opinion. See PCRA Court Opinion, 7/7/2016, at 6-7.
However, it is well-settled that we may affirm the decision of the PCRA court
on any basis. Commonwealth v. Grove, 170 A.3d 1127, 1139 (Pa. Super.
2017). Moreover, had Kane included his Miranda, and fabricated evidence
challenges in his petition, those issues would still be waived because they
could have been raised on direct appeal. See 42 Pa.C.S. § 9544(b).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2017
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