Com. v. Rivera, R.

J-S17012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
RAMON RIVERA,
Appellant No. 2648 EDA 2018
Appeal from the Order Entered August 8, 2018
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0000959-2016
BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 3, 2019
Appellant, Ramon Rivera, appeals from the order dismissing his timely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The Commonwealth charged Appellant with robbery, theft, terroristic
threats, recklessly endangering another person, and simple assault, following
the armed robbery of a convenience store that occurred on January 18, 2016,
in the City of Bethlehem. Prior to trial, Appellant filed a motion to proceed pro
se, prompting the trial court to hold a hearing pursuant to Commonwealth
v. Grazier, 713 A.2d 81 (Pa. 1998). The court granted Appellant’s motion on
September 2, 2016. On March 1, 2017, a jury found Appellant guilty on all
charges. The trial court sentenced Appellant on April 28, 2017, to an
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aggregate term of 9½-21 years’ imprisonment. Appellant did not file a direct
appeal from the judgment of sentence.
On April 23, 2018, Appellant filed a timely, pro se PCRA petition (“the
Petition”). The PCRA court appointed counsel, who then filed, on July 6, 2018,
a Turner/Finley1 no-merit letter and a motion to withdraw as Appellant’s
counsel. Pursuant to Pa.R.Crim.P. 907, the PCRA court issued a notice of its
intent to dismiss the Petition without a hearing on July 9, 2018, and granted
counsel’s motion to withdraw that same day. Appellant did not file a response
to the court’s Rule 907 notice, and the court dismissed the Petition on August
8, 2018. The PCRA court appointed current counsel to represent Appellant on
appeal from the dismissal of the Petition. Appellant then filed a timely,
counseled notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b)
statement on December 3, 2018. The trial court issued a statement pursuant
to Rule 1925(a) on December 14, 2018.
Appellant now presents the following question for our review:
Did the trial court commit a clear abuse of discretion, a
fundamental error in applying the correct law, or a violation of
constitutional rights and impose a sentence which is manifestly
excessive; or the result of actions by the sentencing court was
inconsistent with the sentencing code or contrary to the
fundamental norms underlying the sentencing process; or the
judgment is so manifestly unreasonable or the result of
partial[it]y, prejudice, bias or ill will as shown by the evidence of
the record that it cannot stand by virtue of trial and sentencing
error that runs afoul of the discretionary aspects of sentencing[?]
____________________________________________
1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Appellant’s Brief at 6 (unnecessary capitalization omitted).
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted).
Appellant’s claim is unreviewable. First, Appellant did not include this
claim in the Petition and, therefore, it is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Second, even if we were to overlook waiver, Appellant
is not eligible for relief under the PCRA, as “[r]equests for relief with respect
to the discretionary aspects of sentence are not cognizable in PCRA
proceedings.” Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super.
2007). Accordingly, we ascertain no error in the PCRA court’s dismissal of the
Petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/19
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