Com. v. Wallace, J.

J-S62045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JIMMIE L. WALLACE
Appellant No. 2274 MDA 2015
Appeal from the PCRA Order December 14, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001076-2011;
CP-22-CR-0001242-2011
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 01, 2016
Appellant, Jimmie L. Wallace, appeals pro se from the order entered in
the Dauphin County Court of Common Pleas, which denied his third petition
brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are summarized
as follows. On February 21, 2011, Appellant sucker-punched the victim
while the victim was sitting and watching television at the bar of S&D’s
Lounge in Harrisburg. Police were called to the scene. When they arrived,
the victim appeared to be conscious, but he was unresponsive. The victim
had suffered a head injury and was bleeding from his mouth and ear. An
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1
42 Pa.C.S.A. §§ 9541-9546.
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ambulance transported the victim to Hershey Medical Center where a CAT
scan revealed a subdural hemorrhage and a fracture through the small bone
behind the right ear and the temporal bone. Upon release from the hospital,
the victim continued to suffer from headaches and hearing loss. Later, when
giving a statement on why he punched the victim, Appellant answered “for
no reason.”
A jury convicted Appellant of aggravated assault on April 5, 2012, and
the court sentenced him to ten to twenty years’ incarceration on April 25,
2012. Appellant filed a pro se direct appeal. On April 9, 2013, this Court
directed the trial court to conduct a Grazier hearing, which the court held
on April 23, 2013. The court determined that Appellant knowingly,
intelligently, and voluntarily waived his right to counsel on appeal. On July
8, 2013, this Court affirmed the judgment of sentence; the Supreme Court
denied allowance of appeal on February 20, 2014. See Commonwealth v.
Wallace, 82 A.3d 1058 (Pa.Super. 2013) (unpublished memorandum),
appeal denied, 624 Pa. 682, 86 A.3d 233 (2014). Appellant sought no
further review.
Instead, on March 5, 2014, Appellant pro se filed his first PCRA
petition. In his first PCRA petition, Appellant argued that the evidence was
insufficient to support his conviction for aggravated assault, as the
Commonwealth failed to prove the essential element of intent. The PCRA
court appointed counsel on March 13, 2014, and counsel filed a no merit
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letter and petition to withdraw on April 9, 2014. Appellant pro se filed an
amended PCRA petition on May 5, 2014, which the court dismissed on May
14, 2014. This petition repeated Appellant’s claim of insufficient evidence,
arguing that there was no proof of intent and that there were conflicting
accounts of the incident. The court granted counsel’s petition to withdraw
and issued notice per Pa.R.Crim.P. 907 on October 3, 2014. On November
13, 2014, the PCRA court dismissed Appellant’s first PCRA petition.
Appellant sought no further review.
Instead, Appellant pro se filed his second PCRA petition on December
4, 2014. In this petition, Appellant claimed prosecutorial misconduct, trial
court abuse of discretion, and imposition of an illegal sentence. On February
2, 2015, Appellant filed a supplemental PCRA petition, in which he expanded
on these claims. Appellant first argued his conviction was based on evidence
that the prosecution knew was false. Appellant then argued the court erred
when it denied his motion to dismiss for insufficient evidence. Finally,
Appellant asserted that his mandatory sentence was illegal under Alleyne.
On March 4, 2015, the PCRA court dismissed Appellant’s second PCRA
petition.2 Appellant sought no further review.
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2
The record indicates the PCRA court did not issue Rule 907 notice before it
dismissed Appellant’s second PCRA petition. Appellant, however, did not
challenge the lack of Rule 907 notice on an appeal, which constitutes waiver
of any rule-related claim. See Commonwealth v. Boyd, 923 A.2d 513,
514 n. 1 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).
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Instead, on April 6, 2015, Appellant pro se filed his current, third PCRA
petition. In this petition, Appellant again argued a claim of manufactured
evidence and, under Alleyne, he was sentenced to an illegal mandatory
minimum sentence because the elements of the offense were not proven
beyond a reasonable doubt. The court issued Rule 907 notice on November
24, 2015, and on December 4, 2015, Appellant filed a pro se response.
Ultimately, the PCRA court dismissed Appellant’s third PCRA petition as
untimely on December 15, 2015.
On December 23, 2015, Appellant filed a timely pro se notice of appeal
and on January 7, 2016, the court ordered him to file a concise statement of
errors complained of on appeal per Pa.R.A.P. 1925(b). Appellant filed his
Rule 1925(b) statement on January 27, 2016, raising issues of timeliness of
his third petition, fraud on the court, prosecutorial misconduct, abuse of
discretion, and illegal sentence.
We take Appellant’s issues directly from his pro se brief:
WHETHER THE PCRA COURT’S DETERMINATION THAT
PETITIONER’S PCRA, FILED 4/6/2015, UPON THE COURT’S
FINAL ORDER OF 11/13/2014, WAS UNTIMELY PURSUANT
TO THE POST-CONVICTION RELIEF ACT, AND WHETHER
THE [PCRA] COURT’S DETERMINATION IS FREE OF
ERROR?
ACCORDING TO THE PENNSYLVANIA CONSTITUTION
ARTICLE 1 §§ 9 AND 26, [APPELLANT’S] RIGHT TO APPEAL
SHALL FOREVER REMAIN INVIOLATE, FURTHER,
[NEITHER] THE COMMONWEALTH NOR ANY SUBDIVISION
THEREOF SHALL ABRIDGE [APPELLANT’S] RIGHT TO
APPEAL HIS WRONGFUL CONVICTION, NOR HIS ILLEGAL
SENTENCE. SHALL IT NOT BE DEEMED
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UNCONSTITUTIONAL, WHEREAS, THE 14TH AMENDMENT
TO OUR UNITED STATES CONSTITUTION REQUIRES THE
COMMONWEALTH TO PROVE EACH ELEMENT OF AN
OFFEN[S]E CHARGED BEYOND A REASONABLE DOUBT,
AND A [COURT] OF OUR COMMONWEALTH CONCLUDES
AN ESSENTIAL ELEMENT OF AN OFFEN[S]E CHARGED
SHALL NOT BE REQUIRED?
(Appellant’s Brief at 2-3).
As a prefatory matter, we observe the timeliness of a PCRA petition is
a jurisdictional requisite. Commonwealth v. Hackett, 598 Pa. 350, 956
A.2d 978 (2008), cert. denied, 556 U.S. 1285, 129 S. Ct. 2772, 174 L. Ed. 2d
277 (2009). A PCRA petition must be filed within one year of the date the
underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A
judgment is deemed final at the conclusion of direct review or at the
expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
To be eligible for relief under the PCRA, the petitioner must plead and
prove his conviction resulted from one or more of the grounds set forth in 42
Pa.C.S.A. § 9543(a)(2)(i-viii). Commonwealth v. Zook, 585 Pa. 11, 887
A.2d 1218 (2005). “Generally, an appellant may not raise allegations of
error in an appeal from the denial of PCRA relief as if he were presenting the
claims on direct appeal.” Commonwealth v. Price, 876 A.2d 988, 995
(Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert.
denied, 549 U.S. 902, 127 S. Ct. 224, 166 L. Ed. 2d 179 (2006) (holding
petitioner’s challenge to sufficiency of evidence is not cognizable under
PCRA); Commonwealth v. Bell, 706 A.2d 855 (Pa.Super. 1998), appeal
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denied, 557 Pa. 624, 732 A.2d 611 (1998) (stating sufficiency of evidence
claims are not cognizable under PCRA). Straightforward challenges to the
sufficiency and weight of the evidence are not enumerated errors listed in
the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(i-viii).
Additionally, the PCRA petitioner must plead and prove his allegation
of error has not been previously litigated or waived, and “the failure to
litigate the issue prior to or during trial or on direct appeal could not have
been the result of any rational, strategic or tactical decision by counsel.” 42
Pa.C.S.A. § 9543(a)(4); Commonwealth v. Jones, 597 Pa. 286, 291, 951
A.2d 294, 298 (2008). “A claim previously litigated in a direct appeal is not
cognizable under the PCRA.” Commonwealth v. Hutchins, 760 A.2d 50,
55 (Pa.Super. 2000). A claim is previously litigated under the PCRA 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); Commonwealth v. Daniels, 600 Pa. 1, 16, 963 A.2d 409, 419
(2009). Further, “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 [post-conviction] proceeding.” 42 Pa.C.S.A. § 9544(b).
Recently in Commonwealth v. Washington, ___ Pa. ___, 142 A.3d
810 (2016), the Pennsylvania Supreme Court addressed whether Alleyne v.
U.S., ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) applied
retroactively on collateral review. The Washington Court stated:
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[A] new rule of law does not automatically render final,
pre-existing sentences illegal. A finding of illegality
concerning such sentences may be premised on such a
rule only to the degree that the new rule applies
retrospectively. In other words, if the rule simply does not
pertain to a particular conviction or sentence, it cannot
operate to render that conviction or sentence illegal. …
* * *
[N]ew constitutional procedural rules generally pertain to
future cases and matters that are pending on direct review
at the time of the rule’s announcement.
Id. at 814-15. Applying the retroactivity analysis of Teague v. Lane, 489
U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), the Washington Court
held the Alleyne rule is not a substantive or watershed procedural rule that
would warrant retroactive application on collateral review. Washington,
supra (holding Alleyne does not apply retroactively on collateral review to
challenge to mandatory minimum sentence as “illegal”). Finally, an
appellate court may affirm the order of the trial court on any basis as long as
the ultimate decision is correct. Commonwealth v. Reese, 31 A.3d 708,
727 (Pa.Super. 2011) (en banc).
Instantly, contrary to the PCRA court’s conclusion, Appellant timely
filed his third and current PCRA petition. The Supreme Court denied
allowance of appeal on February, 20, 2014, giving Appellant 90 days, or until
May 21, 2014, to file a petition for a writ of certiorari with the United States
Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3) Appellant’s judgment of
sentence therefore became final on May 21, 2014. Based on that date,
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Appellant had until May 21, 2015, to file any PCRA petitions (not March 20,
2015, as the PCRA court calculated). See Hackett, supra; 42 Pa.C.S.A §
9545(b)(1). Appellant filed his first PCRA petition on March 5, 2014. After
the PCRA court dismissed this petition on November 13, 2014, Appellant
filed his second PCRA petition on December 4, 2014. Appellant’s second
PCRA petition was dismissed on March 4, 2015. Appellant filed his current,
third PCRA petition on April 6, 2015, which the court later dismissed on
December 15, 2015, as untimely. All of Appellant’s PCRA petitions were filed
by May 21, 2015, within the one year time limit. Thus, the court erred in
dismissing Appellant’s third PCRA petition as untimely.
Nevertheless, Appellant again challenges the sufficiency of the
evidence and other evidentiary issues, as if on direct appeal, so Appellant’s
issues are not cognizable under the PCRA. See Price, supra; Bell, supra.
Moreover, Appellant raised similar or identical issues related to the
sufficiency of the evidence and other evidentiary matters in prior PCRA
petitions, and the various courts ruled against Appellant. Therefore,
Appellant’s current sufficiency of the evidence challenge can be deemed
previously litigated. See Daniels, supra. Likewise, to the extent Appellant
reinterprets his prior claims, he could have raised them on direct appeal or
in his prior PCRA petitions, so they are waived. See 42 Pa.C.S.A. § 9544(b).
Finally, Alleyne provides Appellant with no relief for two reasons.
First, Alleyne does not apply retroactively on collateral review to Appellant’s
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claim that his sentence is “illegal,” as this claim is entangled with his
sufficiency of the evidence challenge. See Washington, supra; Zook,
supra; Price, supra. Second, Appellant received no mandatory minimum
sentence in any event. Accordingly, we affirm, albeit on other grounds. 3
See Reese, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2016
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3
Due to our disposition, we deny all six of Appellant’s open motions for
review, relief or remand.
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