J-S20019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RONALD TERRELL STOCKTON                    :
                                               :
                       Appellant               :   No. 1421 MDA 2017

                  Appeal from the PCRA Order August 15, 2017
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000254-2014


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 06, 2018

        Richard Stockton appeals pro se from the order entered August 15,

2017, in the Court of Common Pleas of Huntingdon County, that dismissed

without a hearing his first petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.1         Stockton seeks

relief from the judgment of sentence of 27-100 months’ imprisonment,

imposed after he was convicted by a jury of aggravated assault. 2 Stockton

contends the PCRA court erred (1) in failing to analyze his PCRA petition when


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1 On July 10, 2017, the PCRA court conducted a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), and thereafter
permitted Stockton to represent himself and dismissed appointed PCRA
counsel.

2   18 Pa.C.S. § 2702(a)(3).
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a miscarriage of justice has occurred, (2) in failing to consider the facts which

establish a miscarriage of justice, (3) in failing to consider that a Brady3

violation occurred, was intentional, and deprived him of a fair trial, and (4) in

failing to consider that the prosecutor committed prosecutorial misconduct by

intentionally withholding evidence, deceiving the court to withhold evidence,

and failing to correct known false statements made by officers at trial in order

to establish corpus deliciti.        See Stockton’s Brief at 4.   Based upon the

following, we affirm.

        The facts underlying Stockton’s convictions are fully set forth in this

Court’s decision in Stockton’s pro se direct appeal.         Commonwealth v.

Stockton, 135 A.3d 650 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 138 A.3d 4 (Pa. 2016). Therefore, we need not repeat them

here.    We simply state that Stockton’s aggravated assault conviction and

resultant sentence stemmed from his confrontation with a number of

correctional officers at SCI-Smithfield where he was an inmate. This Court

affirmed the judgment of sentence on December 4, 2015, and the

Pennsylvania Supreme Court denied allowance of appeal on April 20, 2016.

See Stockton, supra.

        On April 19, 2017, Stockton filed the instant PCRA petition pro se, and

also filed a pro se amended PCRA petition on May 17, 2017. In the meantime,



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3   Brady v. Maryland, 373 US 83 (1963).

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counsel was appointed and Stockton filed praecipe to waive assistance of

counsel. As already noted, by order dated July 6, 2017, and entered on July

10, 2017, the PCRA court, following a Grazier hearing, granted Stockton’s

request to represent himself and appointed counsel was dismissed.            On

August 10, 2017, the Commonwealth filed a motion to dismiss the amended

PCRA petition. Thereafter, on August 15, 2017, the PCRA court dismissed

Stockton’s petition.4 In its Pa.R.A.P. 1925(a) opinion, the PCRA court opined

that Stockton’s miscarriage of justice claim failed in light of the overwhelming

evidence presented against him, and his claims regarding a Brady violation

and prosecutorial misconduct had been previously litigated, having been

addressed by this Court in his direct appeal.       See PCRA Court Opinion,

11/13/2017.      This timely appeal followed.5

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4 Stockton does not challenge the lack of Rule 907 notice, which constitutes
waiver of that claim on appeal. Commonwealth v. Taylor, 65 A.3d 462, 468
(Pa. Super. 2013).

5 By order dated October 16, 2017, and entered that same day, the PCRA
court directed Stockton to file a Pa.R.A.P. 1925(b) statement within 21 days
from the date of the order. Stockton filed his Rule 1925(b) statement 22 days
later, on Tuesday, November 7, 2017. While it appears the concise statement
is untimely by one day, Stockton is entitled to the benefit of the prisoner
mailbox rule. See Pa.R.A.P. 121(a) (providing that “[a] pro se filing submitted
by a prisoner incarcerated in a correctional facility is deemed filed as of the
date it is delivered to the prison authorities for purposes of mailing or placed
in the institutional mailbox, as evidenced by a properly executed prisoner cash
slip or other reasonably verifiable evidence of the date that the prisoner
deposited the pro se filing with the prison authorities.”). Here, there is no
evidence in the record indicating when Stockton delivered his concise
statement to prison authorities. However, it is obvious that, having been



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       The principles that guide our review are as follows:
       When reviewing the denial of a PCRA petition, our standard of
       review is limited to examining whether the PCRA court’s
       determination is supported by evidence of record and whether it
       is free of legal error. Commonwealth v. Smallwood, 2017 PA
       Super 25, 155 A.3d 1054, 1059 (Pa.Super. 2017) (citations
       omitted).
                                          ****
       PCRA relief is not available for alleged errors raised in a PCRA
       petition that have been previously litigated or waived. 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). In addition, a PCRA 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.”    Id.   §     9544(b);     see    also
       Commonwealth v. Hanible, 612 Pa. 183, 205, 30 A.3d 426,
       438-39 (2011).
Commonwealth v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018).

       Based on our review, we conclude that the PCRA court properly

dismissed the petition. In his PCRA petition, Stockton raises Brady violation

and prosecutorial misconduct claims that appear to mirror claims he presented

in his direct appeal. On direct appeal, this Court found the claims were waived

for failure to present any legal argument in support of those claims.            See

Stockton,      supra,     135    A.3d    650     (Pa.   Super.   2015)   (unpublished

memorandum, at 6). Because the trial court did not rule on the merits of

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docketed one day after the 21-day filing period ended, the concise statement
must have been submitted to the prison authority for mailing by the 21st day,
November 6, 2017, at the latest. Accordingly, we regard Stockton’s November
7, 2017 concise statement as timely.

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these claims, these claims cannot be considered as previously litigated for

purposes of the PCRA. See 42 Pa.C.S. § 9544(a) (“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[.]”)

However, because these claims were available to Stockton and not argued on

direct appeal, these claims are waived for purposes of the PCRA.

      Under section 9544(b) of the PCRA, “an issue is waived if the petitioner

could have raised it but failed to do so before trial, at trial, … on appeal or in

a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). We have held

that the waiver provision of the PCRA applies to claims that are not raised, as

well as improperly raised claims:

      We note that the PCRA’s definition of waiver speaks only of claims
      that could have been raised, but were not. See 42 Pa.C.S.[] §
      9544(b). It does not specifically address claims that were raised,
      but raised improperly. Nonetheless, we see no reason the
      definition would not apply to both types of waiver; thus, we
      assume it applies to all claims not preserved, whether by omission
      or imprecision . . . .

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (emphasis

in original) (holding that waiver provision of PCRA statute will apply “to those

claims that are required to be preserved”; waiver provision did not apply to

legality of sentence claim). Therefore, because Stockton had the opportunity

to have his Brady violation and prosecutorial misconduct claims reviewed by

this Court on direct appeal, we will not permit him to now argue these same




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issues. Accordingly, we conclude Stockton has waived these claims. 6               See

42 Pa.C.S. § 9544(b).

       Furthermore, although Stockton relies on Commonwealth v. Lawson,

549 A.2d 107 (Pa. 1988), for the proposition that a showing of a miscarriage

of justice overcomes a claim being waived or finally litigated, his reliance is

misplaced. Lawson involved the former Post Conviction Hearing Act (PCHA),

the predecessor to the PCRA, and, as this Court has explained, “addressed the

issue of an exception to the PCRA statute that allows the court to review a

second     or   subsequent      post-conviction     petition    when   the    appellant

demonstrates       that   a   miscarriage      of   justice    may   have    occurred.”

Commonwealth v. Thomas, 908 A.2d 351, 355 (Pa. Super. 2006) (citation

omitted). Simply put, Lawson dealt with the issue of serial petitions under

the PCHA; it has no application to this first petition filed under the current

version of the PCRA. Accordingly, we affirm.7




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6 Because Stockton proceeded pro se in his direct appeal, he does not and
cannot raise these issues in the context of an ineffective assistance of counsel
claim.
7 To the extent that our rationale differs from that of the PCRA court, we note

that we are not bound by that rationale, but may affirm on any basis.
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012).


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2018




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