Com. v. Cruz, L. ( 2021 )

J-S47041-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LUIS ANGEL CRUZ, :
:
Appellant : No. 1581 MDA 2019
Appeal from the PCRA Order Entered August 26, 2019
in the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003831-2014
BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 25, 2021
Luis Angel Cruz (Appellant) appeals pro se from the August 26, 2019
order dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
The PCRA court provided the following procedural history.1
Following a jury trial held on June 6, 2017, Appellant was found
guilty of rape of a child, involuntary deviate sexual intercourse
[(IDSI)] with a child, aggravated indecent assault of a child,
unlawful contact with a minor – sexual offense, indecent assault,
and corruption of minors. [] Appellant was sentenced to an
aggregate sentence of 35 to 70 years of incarceration.
Notice of Intent to Dismiss, 8/15/2019, at 1 (footnotes omitted). Appellant
filed a post-sentence motion challenging the weight of the evidence, which
the trial court denied. On appeal to this Court, Appellant challenged the
1 Based on our disposition, we need not recount the underlying facts.
*Retired Senior Judge assigned to the Superior Court.
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admission of prior bad act evidence pursuant to Pa.R.E. 404(b). Upon
review, we affirmed Appellant’s judgment of sentence. Commonwealth v.
Cruz, 194 A.3d 682 (Pa. Super. 2018) (unpublished memorandum).
Appellant filed a petition for allowance of appeal, which our Supreme Court
denied.
On February 25, 2019, Appellant pro se timely filed the instant PCRA
petition. Therein, Appellant claimed ineffective assistance of trial counsel for
failing to object to (1) the imposition of a mandatory minimum sentence on
Alleyne2 grounds; (2) the trial court’s failure to merge rape of a child and
IDSI for sentencing purposes; and (3) the Commonwealth’s failure to
disclose a complete discovery package. Pro se PCRA Petition, 2/25/2019, at
2. Counsel was appointed, and on August 5, 2019, counsel filed a motion to
withdraw and Turner/Finley3 “no-merit” letter. On August 15, 2019, the
PCRA court granted counsel’s motion to withdraw and issued notice of its
intent to dismiss Appellant’s PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. On August 22, 2019, Appellant filed a response,
2 Alleyne v. United States, 570 U.S. 99 (2013) (holding that any fact
which increases the mandatory minimum sentence for a crime is an element
of that crime, and therefore must be submitted to a jury and proven beyond
a reasonable doubt). By way of background, Appellant was subject to a
mandatory minimum sentence of 25 years of incarceration as a result of a
prior sexual offense conviction, pursuant to 42 Pa.C.S. § 9718.2.
3 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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reasserting his original PCRA claims. On August 26, 2019, the PCRA court
dismissed Appellant’s PCRA petition.
Appellant timely filed a notice of appeal. 4, 5 On appeal, Appellant
abandons the claims he raised in his PCRA petition and instead raises new
claims (1) arguing that appellate counsel was ineffective for failing to raise
weight and sufficiency claims, and (2) challenging the constitutionality of 18
Pa.C.S. § 3106 (testimony of complainants). Appellant’s Brief at 9-12
(unnecessary capitalization omitted). “Any claim not raised in the PCRA
petition is waived and not cognizable on appeal.” Commonwealth v.
Washington, 927 A.2d 586, 601 (Pa. 2007) (citations omitted); see also
Pa.R.A.P. 302(a); Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa.
Super. 2014) (noting challenges to the constitutionality of a statute
generally can be waived). However, Alleyne claims that “directly implicate
the legality of the sentence [] may be entertained as long as the reviewing
court has jurisdiction.” Commonwealth v. Kline, 166 A.3d 337, 340 (Pa.
Super. 2017) (citations omitted). Although Appellant cites Alleyne in his
brief, he abandons any challenge to the PCRA court’s denial of his PCRA
Alleyne claim or the legality of his sentence. Instead, Appellant challenges
4 Appellant complied with Pa.R.A.P. 1925(b). In lieu of a Rule 1925(a)
opinion, the PCRA court referred us to its August 15, 2019 notice of intent to
dismiss.
5 This Court initially dismissed Appellant’s appeal for failure to file a brief,
but subsequently granted Appellant’s request to reinstate the instant appeal.
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direct appeal counsel’s failure to raise sufficiency and weight claims on
appeal and the constitutionality of 18 Pa.C.S. § 3106, and merely cites to
Alleyne for support that is unrelated to his new claims. Appellant has
waived these new claims by failing to raise them before the PCRA court.
Accordingly, we affirm the order of the PCRA court dismissing his PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2021
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