Com. v. Zellie, E. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELEANOR ZELLIE,
Appellant No. 192 WDA 2014
Appeal from the PCRA Order of January 16, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001932-2008
BEFORE: DONOHUE, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 12, 2014
Appellant, Eleanor Zellie, appeals from the order entered on January
16, 2014, dismissing her second petition filed under the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has provided us with a thorough summary of the
underlying facts and procedural posture. We quote from the PCRA court’s
opinion in part:
[In January 2010, f]ollowing [a jury] trial, [Appellant] was
found guilty of eight counts of possession of a controlled
substance with [the] intent to deliver [(hereinafter “PWID”).
Specifically, Appellant was found guilty of possessing the
following substances with the intent to deliver]: cocaine,
marijuana, oxycodone, buprenorphine, methylphenidate,
dihydrocodeinone, clonazepam, and codeine. The jury also
found that the amount of cocaine [Appellant possessed with
the intent to deliver] was [ten] grams or more but less than
100 grams, and that the amount of oxycodone [Appellant]
possessed with [the] intent to deliver was [ten] grams or
more but less than 100 grams. Additionally, the jury found
*Retired Senior Judge assigned to the Superior Court.
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that a firearm was located in close proximity to the
controlled substances. [See N.T. Trial, 1/7/10, at 226-227
(instructing the jury that it must determine the weight of
certain controlled substances, as well as whether Appellant
possessed a firearm “in close proximity” to the controlled
substances); N.T. Trial, 1/7/10, at 230 (jury determined the
weight of the controlled substances, as well as the fact that
Appellant possessed a firearm “in close proximity” to the
controlled substances she was convicted of possessing with
the intent to deliver)]. [Appellant] was also found guilty of
criminal conspiracy to possess the above substances and
criminal conspiracy to possess the substances with [the]
intent to deliver.
[On February 22, 2010, the trial court sentenced Appellant
to the mandatory minimum term of five to ten years in
prison, in accordance with 42 Pa.C.S.A. § 9712.1, as a
firearm was discovered “in close proximity” to the controlled
substances Appellant was convicted of possessing with the
intent to deliver; the trial court also sentenced Appellant to
serve a consecutive term of one to five years in prison for
possessing oxycodone with the intent to deliver.]
[Appellant] filed an appeal from [the] judgment of sentence
[and raised] two issues: 1) whether the trial court erred in
allowing the Commonwealth to rescind its plea bargain offer
[and 2) whether the trial court erred when it denied
Appellant’s] motion to dismiss pursuant to [Pa.R.Crim.P.
600]. [The Superior Court affirmed Appellant’s judgment of
sentence on May 8, 2012 and Appellant did not thereafter
file a petition for allowance of appeal with the Pennsylvania
Supreme Court. Commonwealth v. Zellie, 50 A.3d 237(Pa. Super. 2012) (unpublished memorandum) at 1-8.
[Appellant filed her first PCRA petition on October 12, 2012]
and attorney Jeremy Davis was appointed to represent
[Appellant]. . . . When it was determined that Attorney
Davis had represented [Appellant] at her preliminary
hearing, [Attorney] Davis was permitted to withdraw his
appearance and attorney Dianne Zerega was appointed [to
represent Appellant].
PCRA Court Opinion, 1/16/14, at 1-3 (some internal capitalization omitted).
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On December 28, 2012, Appellant appeared before the PCRA court for
a hearing. However, during the hearing, Appellant moved to withdraw her
PCRA petition. The PCRA court conducted a colloquy with Appellant and,
following the colloquy, the PCRA court determined that “[Appellant’s]
decision to withdraw the [PCRA petition was] voluntarily and understandingly
[made] of [Appellant’s] own free will.” PCRA Court Order, 12/28/12, at 1.
Therefore, the trial court granted Appellant’s motion to withdraw the PCRA
petition and the PCRA court ordered that Appellant’s first PCRA petition was
dismissed. Id.On February 11, 2013, Appellant filed a self-titled, pro se “Amendment
to Pro Se PCRA Motion,” where Appellant requested that the PCRA court
“rescind” the withdrawal of her initial PCRA petition. The PCRA court did not
grant Appellant any relief and, on March 19, 2013, Appellant filed the
current PCRA petition – which constitutes Appellant’s second petition under
the PCRA. Further, even though the current petition is Appellant’s second
under the PCRA, the PCRA court appointed counsel to represent Appellant
throughout the proceedings.
On May 30, 2013, the PCRA court held a hearing on Appellant’s second
PCRA petition. On January 16, 2014, the PCRA court denied Appellant post-
conviction collateral relief and Appellant filed a timely notice of appeal to this
Court. Appellant raises one claim on appeal:
Whether [the] PCRA court did err in failing to grant relief to
[Appellant?]
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Appellant’s Brief at 5 (some internal capitalization omitted).
Within the argument section of Appellant’s brief, Appellant simply
claims that the evidence was insufficient to support her convictions. See
Appellant’s Brief at 7-9. This claim is not cognizable under our PCRA.
As our Supreme Court has held, we “review an order granting or
denying PCRA relief to determine whether the PCRA court’s decision is
supported by evidence of record and whether its decision is free from legal
error.” Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that her conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). These specifically
enumerated circumstances are:
(i) A violation of the Constitution of this Commonwealth or
the Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the
truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused
the petitioner to plead guilty and the petitioner is innocent.
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(iv) The improper obstruction by government officials of the
petitioner's right of appeal where a meritorious appealable
issue existed and was properly preserved in the trial court.
...
(vi) The unavailability at the time of trial of exculpatory
evidence that has subsequently become available and would
have changed the outcome of the trial if it had been
introduced.
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S.A. § 9543(a)(2).
On appeal, Appellant claims only that she is entitled to post-conviction
collateral relief because “the evidence presented at the trial was insufficient
to enable the jury to find every element of the crimes charged beyond a
reasonable doubt.” Appellant’s Brief at 7-8. This claim is not encompassed
within the seven enumerated circumstances listed in 42 Pa.C.S.A.
§ 9543(a)(2); as such, Appellant’s claim is not cognizable under the PCRA.
The PCRA court thus did not err when it dismissed Appellant’s second PCRA
petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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