Com. v. Wilson, J. ( 2014 )

J-S53037-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEROME WILSON,
Appellant No. 576 WDA 2014
Appeal from the PCRA Order February 13, 2014
in the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-CR-0004056-2008
BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 10, 2014
Appellant, Jerome Wilson, appeals pro se from the order of February
13, 2014, which dismissed, without a hearing, his first petition brought
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1
We affirm.
On October 16, 2008, the Commonwealth charged Appellant with one
count of possession with intent to deliver a controlled substance (PWID), one
count of possession of a controlled substance, and three summary traffic
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although dated February 10, 2014, the order was filed on February 13,
2014. We have amended the caption accordingly.
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offenses.2 On September 2, 2009, appointed counsel withdrew and
Appellant retained new counsel, who filed a motion to suppress on
November 20, 2009. The trial court denied the motion on September 15,
2010. On November 22, 2010, a jury found Appellant guilty of PWID and
possession of a controlled substance; the trial court later found Appellant not
guilty of the summary offenses.
On January 26, 2011, Appellant, acting pro se, filed a “Motion
Requesting Grazier[3] Hearing for Ineffectiveness of Counsel.” On February
28, 2011, counsel filed a motion to withdraw. On April 12, 2011, the trial
court permitted counsel to withdraw and appointed new counsel for
sentencing. On July 18, 2011, the court sentenced Appellant to a term of
incarceration of not less than five nor more than ten years.
On August 12, 2011, counsel filed a timely notice of appeal on
Appellant’s behalf. Despite this, on August 17, 2011, Appellant, acting pro
se, filed a notice of appeal. On August 30, 2011, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). On September 29, 2011, counsel acting on Appellant’s
behalf filed a concise statement; on January 25, 2012, the trial court issued
an opinion. See Pa.R.A.P. 1925(a).
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2
35 P.S. §§ 780-113(a)(30) and (16), and 75 Pa.C.S.A. §§ 1543(A), 3333,
and 4303(B), respectively.
3
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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On March 8, 2012, this Court remanded the matter to the trial court to
conduct a Grazier colloquy. Following a June 21, 2012 hearing, on August
17, 2012, the trial court granted Appellant’s request to proceed pro se on
appeal.
On September 28, 2012, this Court granted Appellant’s first request
for an extension of time to file a brief. On October 12, 2012, this Court
granted Appellant’s second extension of time to file a brief. On January 9,
2013, this Court denied Appellant’s request for a third extension of time to
file a brief. Appellant never filed a brief. Accordingly, on February 1, 2013,
this Court dismissed the appeal based upon Appellant’s failure to file a brief.
Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.
On August 26, 2013, Appellant, acting pro se, filed the instant, timely
PCRA petition. The same day, the PCRA court appointed counsel to
represent Appellant. On December 3, 2013, counsel filed a Turner/Finley4
letter. On December 24, 2013, the PCRA court granted counsel’s request to
withdraw and issued notice of its intent to dismiss the petition pursuant to
Pennsylvania Rule of Criminal Procedure 907. On January 15, 2014,
Appellant filed a response to the notice, seeking appointment of new
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4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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counsel. The PCRA court denied Appellant’s petition on February 13, 2014,
the instant, timely pro se appeal followed.5
On appeal, Appellant raises the following questions for our review:
I. Whether the suppression court failed to suppress evidence
where [Appellant] was illegally seized during [the] second
round of questioning according to the Fourth an[d] Fifth
Amendment[s]?
II. Whether the suppression court failed to suppress evidence
where [Appellant] was questioned beyond the original
scope of the stop, according to the Fourth and Fifth
Amendment[s]?
III. Whether the suppression court failed to suppress evidence
of a pretextual arrest where [Appellant] was pulled over
for a traffic violation and no actions of the detectives
[corroborated] said traffic violation?
IV. Whether the suppression court failed to suppress evidence
of consent to search where the Commonwealth [could] not
prove [that] consent was given?
V. Whether the suppression court failed in its due process to
prove their case beyond [a] reasonable doubt, according to
the Fourteenth Amendment?
VI. Whether the suppression court[’]s failure to provide a
statement of finding of fact and conclusion[s] of law should
allow Appellant a new trial or vacating the [judgment] of
sentence, according to the violation of Appellant[’]s due
process rights?
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5
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal and did not issue any additional opinion. See
Pa.R.A.P. 1925.
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(Appellant’s Brief, at 2).
Appellant appeals from the denial of his PCRA petition. Our standard
of review is long settled. “Our standard of review from the grant or denial of
post-conviction relief is limited to examining whether the PCRA court’s
determination is supported by the evidence of record and whether it is free
of legal error. We will not disturb findings that are supported by the record.”
Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011), appeal
denied, 30 A.3d 487 (Pa. 2011) (citations omitted). “The [C]ourt’s scope of
review is limited to the findings of the PCRA court and the evidence on the
record of the PCRA court’s hearing, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005)
(citation omitted).
Further, to be eligible for relief pursuant to the PCRA, Appellant must
establish that his conviction or sentence resulted from one or more of the
enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2). He must
also establish that the issues raised in the PCRA petition have not been
previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An
allegation of error “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 proceeding.” 42 Pa.C.S.A. § 9544(b).
Here, Appellant raises six issues, all challenging the trial court’s denial
of his motion to suppress. As we stated above, in order to be eligible for
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PCRA relief, a petitioner must demonstrate that the issues raised in his PCRA
petition have not been previously litigated or waived. See 42 Pa.C.S.A. §
9543(a)(3). 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.A. § 9544(a)(2); see also
Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009). A claim 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 post-conviction
proceeding.” 42 Pa.C.S. § 9544(b) (emphasis added).
The record in the case sub judice establishes that Appellant chose to
proceed pro se on his direct appeal. Further, despite this Court’s grant of
extensions of time to file a brief, Appellant did not do so and this Court was
constrained to dismiss his direct appeal. Appellant should have raised all of
the issues herein on direct appeal. Thus, Appellant’s suppression hearing
claims are waived and he is ineligible for PCRA relief. See Ligons, supra.
Accordingly, because Appellant waived all of his PCRA claims, the PCRA court
did not err in denying his PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
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