Com. v. Mobley, C. ( 2016 )

J-S75043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES MOBLEY, :
:
Appellant : No. 805 EDA 2016
Appeal from the PCRA Order February 11, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0014476-2008
BEFORE: BOWES, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 05, 2016
Charles Mobley (“Mobley”) appeals, pro se, from the Order dismissing
his first Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
The PCRA court set forth the relevant factual and procedural history,
which we adopt for the puropse of this appeal. See PCRA Court Opinion,
2/11/16, at 1-3. On February 11, 2016, the PCRA court entered an Order
dismissing the Petition. This timely appeal followed.
On appeal, Mobley raises the following issue for our review: “[w]hether
the Commonwealth presented insufficient evidence to support the jury’s
conviction of [Mobley] on the charges of third[-]degree murder and
1
See Pa.C.S.A. §§ 9541-9546.
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possession of an instrument of crime, beyond a reasonable doubt?” Brief for
Appellant at 4.2
We first must determine whether Mobley’s claim is cognizable under
the PCRA. The PCRA specifically permits challenges asserting (1)
constitutional violations; (2) ineffective assistance of counsel; (3) an
unlawful inducement of a guilty plea; (4) obstruction of a defendant's right
to an appeal; (5) newly discovered exculpatory evidence that was not
available at the time of the trial; (6) an imposition of a sentence greater
than the lawful maximum; and (7) a lack of jurisdiction. See 42 Pa.C.S.A.
§ 9543(a)(2). Notably, a challenge to the sufficiency of the evidence is not
included in this exhaustive list. Moreover, this Court has consistently held
that challenges to the sufficiency of the evidence are not cognizable under
the PCRA. See Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super.
2005) (rejecting a sufficiency claim that was raised on PCRA appeal without
an ineffective assistance of counsel analysis because it is not cognizable
under the PCRA); see also Commonwealth v. Bell, 706 A.2d 855, 861
(Pa. Super. 1998) (holding that sufficiency claims are not cognizable under
the PCRA). Because Mobley raises only a sufficiency challenge, which is not
cognizable under the PCRA, we cannot grant him relief on this issue.
2
Pursuant to Pa.R.A.P. 2116(a), “[n]o question will be considered unless it is
stated in the statement of questions involved or is fairly suggested thereby.”
Accordingly, to the extent that Mobley has attempted to raise other issues in
the Argument section of his brief, which were not stated in his Statement of
Questions Presented, we are precluded from addressing them.
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Moreover, the sole issue that Mobley presents for our review is the
same issue that he raised on direct appeal. See Commonwealth v.
Mobley, 26 A.3d 1203 (Pa. Super. 2011) (unpublished memorandum). On
direct appeal, this Court held that there was sufficient evidence to support
Mobley’s convictions. See id. (unpublished memorandum at 2). Because
the sole issue raised by Mobley has been previously litigated, it is not
cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(3) (providing that
a petitioner must plead and prove by a preponderance of the evidence that
the allegation of error has not been previously litigated); see also
Commonwealth v. Spotz, 18 A.3d 244, 281 (Pa. 2011) (recognizing that a
claim that has been previously litigated is not cognizable under the PCRA).
Thus, for this additional reason, we cannot grant Mobley relief on this issue.3
For these reasons, we affirm the Order dismissing Mobley’s Petition,
albeit for different reasons. See Commonwealth v. Doty, 48 A.3d 451,
456 (Pa. Super. 2012) (holding that this Court is not bound by the rationale
of the PCRA court and may affirm on any basis).
Order affirmed.
3
We further observe that Mobley’s claim on appeal was not raised in either
his pro se Petition or in the “no merit” letter submitted by his PCRA counsel
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). Mobley failed
to seek the PCRA court’s permission to amend his PCRA Petition to include
the claim he now presents on appeal. Thus, even if this claim had been
cognizable under the PCRA, we would have concluded that it is waived. See
Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (ruling that the
appellant had waived the claim for failure to raise it in his PCRA petition or in
an authorized amended PCRA petition).
-3-
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
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Circulated 10/31/2016 03:14 PM