J-S33006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUAN M. VILLANUEVA,

                            Appellant                 No. 205 MDA 2017


             Appeal from the PCRA Order Entered January 11, 2017
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005179-2013


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 05, 2017

        Appellant, Juan M. Villanueva, appeals pro se from the PCRA court’s

January 11, 2017 order dismissing his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        Briefly, in February of 2014, Appellant was found guilty, following a

non-jury trial, of attempted burglary and criminal mischief.     On April 3,

2014, he was sentenced to a mandatory term of 10 to 20 years’

imprisonment for his attempted burglary offense, as it constituted his second

‘crime of violence’ under 42 Pa.C.S. § 9714. Appellant filed a timely notice

of appeal with this Court, challenging the weight and sufficiency of the

evidence, and also arguing that the trial court erred by denying his pretrial

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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motion to proceed pro se. On April 10, 2015, this Court affirmed Appellant’s

judgment of sentence, and our Supreme Court denied his subsequent

petition for allowance of appeal. Commonwealth v. Villanueva, 121 A.3d

1127 (Pa. Super. 2015) (unpublished memorandum), appeal denied, 128

A.3d 1206 (Pa. 2015).

      On July 19, 2016, Appellant filed a timely, pro se PCRA petition, and

counsel was appointed. However, rather than filing an amended petition on

Appellant’s behalf, PCRA counsel filed a petition to withdraw and ‘no merit’

letter in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc).     Therein, counsel identified the issues Appellant wanted to raise as

follows:

             [Appellant], in his pro se PCRA application for relief, claims
      ineffective assistance of counsel and avers that his trial attorney
      … was ineffective for failing to file pre-trial motions upon request
      by [Appellant] and for failing to object when the complaining
      witness testified that his identification of [Appellant] was based
      on [Appellant’s] garments and not a visual recognition of …
      [Appellant’s] face. Furthermore, [Appellant] challenges the
      sufficiency and weight of the evidence used to convict him and
      avers that although these allegations of error are previously
      litigated and waived, the alleged errors have resulted in the
      conviction or affirmation of sentence of an innocent individual.

No Merit Letter, 10/19/16, at 4. Counsel concluded that these claims were

either previously litigated or meritless, and therefore, he asked for

permission to withdraw from representing Appellant.




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      On December 5, 2016, Appellant filed a pro se “Amended PCRA

Petition,” in which he raised several new claims. For instance, he challenged

the legality of his sentence, and he also argued that trial counsel was

ineffective for stipulating to Appellant’s prior criminal history, and for not

filing a pretrial motion to suppress a witness’ out-of-court identification of

Appellant.

      On December 8, 2016, the PCRA court issued a Pa.R.Crim.P. notice of

its intent to dismiss Appellant’s petition.   In that same order, the court

granted PCRA counsel’s petition to withdraw.        Appellant did not file a

response to the court’s Rule 907 notice. Instead, on December 23, 2016,

Appellant filed a second PCRA petition, in which he reiterated several of the

claims that he had presented in his first PCRA petition, and also asserted a

new claim that counsel was ineffective for not conveying to him a plea offer

from the Commonwealth.

      On January 11, 2017, the PCRA court issued an order dismissing

Appellant’s first PCRA petition. That same day, the PCRA court also issued

an order - which was not docketed until January 12, 2017 - that dismissed

Appellant’s second petition, concluding that Appellant had raised “the exact

same issues [as he presented] in his initial PCRA Petition.”     PCRA Court

Order, 1/12/17.




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       On January 26, 2017, Appellant filed a timely, pro se notice of appeal

from the court’s January 11, 2017 order denying his first PCRA petition.1 He

also timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.         Herein, Appellant

states the following three issues for our review, which we reproduce

verbatim:

       I. Did the Commonwealth meet its burden either by offering
       evidence to disapprove an element of the states case or by
       demonstrating an absence of evidence to support this case.

       II. Did exhibit I confuse the evidence against the appellant.

       III. Was the Constitution violated when the trial court gave
       appellant a ten to twenty sentence.

Appellant’s Brief at 6.

       We begin by noting that our standard of review regarding an order

denying post-conviction relief under the PCRA is whether the determination

of the court is supported by the evidence of record and is free of legal error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court


____________________________________________


1
  On March 7, 2017, the PCRA court filed a statement in accordance with
Pa.R.A.P. 1925(a), in which it declares that Appellant is appealing from the
denial of his second PCRA petition. We disagree. It is apparent from our
review of Appellant’s notice of appeal that he is appealing from the order
dismissing his first petition. Notably, he attached the court’s January 11,
2017 order dismissing his first petition to his notice of appeal. Additionally,
in the notice of appeal, he refers to the fact that the PCRA court allowed his
PCRA counsel to withdraw, which occurred during the litigation of his first
petition. Therefore, we consider this appeal as stemming from the order
denying Appellant’s first petition, not his second.



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grants great deference to the findings of the PCRA court, and we will not

disturb those findings merely because the record could support a contrary

holding.   Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super.

2001).

      Having reviewed Appellant’s pro se brief, we conclude that he is not

entitled to post-conviction relief.   First, his entire argument is just slightly

over one page, and it is not divided into any sections corresponding with the

above-stated issues.     More problematic, Appellant does not sufficiently

develop any of his issues to enable this Court to meaningfully review them.

For instance, he makes bald assertions that suggest he is challenging the

effectiveness of his trial counsel’s representation, yet he provides no

discussion of these claims.      See Appellant’s Brief at 9 (stating, without

elaboration, that “Appellant made a timely request through his counsel to

have a motion to dismiss, because the victim could not ID.[] him[;] “[t]rial

counsel failed to act on my wishes when I requested a jury trial[;]” and

“Appellant [was] denied [his] Constitutional rights to have             effective

representation during trial”).    Additionally, to the extent that Appellant

seemingly challenges the sufficiency and weight of the evidence, such claims

were raised on direct appeal; therefore, they were previously litigated and

do not entitle Appellant to post-conviction relief.         See 42 Pa.C.S. §

9543(a)(3) (stating that to be eligible for relief, a PCRA petitioner must

plead and prove “[t]hat the allegation of error has not been previously

litigated or waived”); 42 Pa.C.S. § 9544(a)(2) (“For purposes of this

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subchapter, an issue has been previously litigated if: … (2) 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”).

      In sum, Appellant’s undeveloped argument does not convince us that

the PCRA court erred in denying his petition for post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2017




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