J-A07040-18


                                   2018 PA Super 74

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DAVID VASQUEZ JORDAN                       :
                                               :   No. 611 MDA 2017
                       Appellant               :

                   Appeal from the PCRA Order March 9, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0001618-2010


BEFORE:      PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                              FILED MARCH 27, 2018

       Appellant David Vasquez Jordan appeals pro se from the Order entered

in the Court of Common Pleas of Lancaster County on March 9, 2017, denying

his petition filed pursuant to the Post Conviction Relief Act (PCRA).1 We affirm.

       Following a jury trial on March 18, 2011, Appellant was convicted of one

count of second-degree murder as a result of a shooting that occurred during

an attempted robbery on October 24, 2004. Prior to trial and after conducting

a Grazier2 hearing and referring Appellant for a mental health evaluation to

determine his competency to represent himself at trial, the trial court had

permitted Appellant to proceed pro se and appointed stand-by counsel. On




____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
2   Commonwealth v. Grazier, 522 Pa. 9, 713 A.2d 81 (1988).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07040-18



March 21, 2011, the trial court sentenced Appellant to a term of life in prison

without the possibility of parole.

      On March 30, 2011, Appellant filed pro se a purported motion pursuant

to the PCRA, and the trial court treated the filing as a direct appeal. Counsel

was appointed and filed a statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) on June 9, 2011. The trial court filed its Rule

1925(a) Opinion on July 1, 2011.

      On August 29, 2011, Appellant filed with this Court an application to

proceed pro se, and on September 6, 2011, he filed an application for remand.

In response to those motions, this Court remanded the matter to the trial

court on October 4, 2011, to enable it to conduct an on-the-record inquiry

pursuant to Grazier and to determine whether Appellant’s waiver of counsel

was knowing, intelligent and voluntary.    Following the Grazier hearing on

October 31, 2011, the trial court permitted Appellant to proceed pro se. The

trial court denied Appellant’s appeal, and Appellant filed a timely appeal with

this Court. Finding no merit to any of the issues Appellant had raised, this

Court affirmed his judgment of sentence on September 3, 2014.

      Appellant filed a petition for allowance of appeal with the Pennsylvania

Supreme Court which denied the same on March 17, 2015. Appellant did not

seek review in the Supreme Court of the United States; therefore, his

judgment of sentence became final on June 17, 2015, after the expiration of

the ninety-day period in which he was allowed to seek review in the United

States Supreme Court. See U.S.Sup.Ct.R. 13(1) (stating “a petition for a writ

                                     -2-
J-A07040-18



of certiorari to review a judgment in any case ... is timely when it is filed with

the Clerk of this Court within 90 days after entry of the judgment”); 42

Pa.C.S.A. § 9543(b)(3) (providing that a judgment of sentence becomes final

at the conclusion of direct review or the expiration of the time for seeking the

review).

       Appellant timely filed the instant PCRA petition on March 16, 2016.3

Counsel was appointed and after a Grazier hearing held on June 28, 2016,

the PCRA court granted Appellant’s request to represent himself and provided

him with additional time in which to amend his PCRA petition on or before

September 15, 2016. Appellant filed an amended petition on September 12,

2016, which spans sixty-five handwritten pages and essentially raises

numerous challenges to the sufficiency of the evidence presented at trial and

an allegation that his Sixth Amendment right to counsel had been violated due

to a conflict with trial counsel. After providing Appellant with its notice of

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907,



____________________________________________


3 Although the petition was filed in the Court of Common Pleas on March 21,
2016, it is dated March 16, 2016; therefore, pursuant to the Prisoner Mailbox
Rule, we will deem it timely filed on the latter date. See Commonwealth v.
Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46
A.3d 715 (2012) (explaining prisoner mailbox rule provides that pro se
prisoner's document is deemed filed on date he delivers it to prison authorities
for mailing); 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) (PCRA petition generally must
be filed within one year of the date the judgment of sentence becomes final
unless the petitioner meets his burden to plead and prove one of the
enumerated exceptions).


                                           -3-
J-A07040-18



and considering Appellant’s response thereto, the PCRA court dismissed the

petition on March 9, 2017.

     Appellant filed a timely appeal and after seeking an extension of time in

which to do so, he filed a concise statement of matters complained of on

appeal on April 24, 2017, wherein he raised eleven issues. In his brief,

Appellant presents the following Statement of Questions Involved:


     1.    Whether the PCRA court erred by not finding a legality claim
     existed as to [Appellant’s] conviction and sentence, and by
     concluding the issue previously litigated, and by not concluding
     that [Appellant’s] conduct did not violate the statute of 18 Pa.C.S.
     § 2502(b), because there is insufficient evidence where the
     prosecution failed to prove that [Appellant] “shared criminal
     intent” of the Co-Defendant, Edward Major, in a robbery-murder
     to find Mr. Jordan guilty of second-degree murder beyond a
     reasonable doubt and because the direct appeal did not turn on
     the merits of the shared criminal intent element including the
     instant non-waivable claim?

     2.      Whether the PCRA court erred by not finding a legality claim
     existed as to [Appellant’s] conviction and sentence, and by
     concluding the issue previously litigated, and by no concluding
     that [Appellant’s] conduct did not violate the statute of 18 Pa.C.S.
     § 2502(b), because there is insufficient evidence where the
     prosecution failed to prove [Appellant] “intended to promote or
     facilitate the commission of the attempted robbery during which
     the Decedent was killed” in finding [Appellant] liable for the
     conduct of the Co-Defendant, Edward Major, to convict
     [Appellant] of second-degree murder, and because the direct
     appeal did not turn on this specific element including the instant
     non-waivable legality claim?




                                    -4-
J-A07040-18


Appellant’s Brief at 6.4

       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, 155 A.3d 1054, 1059 (Pa.Super. 2017) (citations omitted).

       Herein, the PCRA court held the issues Appellant presented in his PCRA

petition had been addressed previously and disposed of by this Court on direct

appeal. In support of this determination, the PCRA court opined:

              In his concise statement of errors complained of on appeal,
       [Appellant] reiterates essentially the same arguments raised in his
       direct appeal, his petition for post conviction collateral relief and
       his amended petition for post conviction collateral relief.
       [Appellant] continues to assert that the evidence against him was
       insufficient in several respects and that his public defender
       breached his duty of loyalty due to his prior representation of one
       of the Commonwealth’s witnesses, Penny Dotson.
              These issues were previously addressed and disposed of by
       the Superior Court on [Appellant’s] direct appeal. Based on the
       decision of the Superior Court, this [c]ourt in its Rule 907 notice
       and Rule 907 dismissal and order concluded that [Appellant’s]
____________________________________________


4 In a per curiam order entered on January 12, 2018, this Court granted
Appellant’s application for relief filed on January 2, 2018, directed the
Prothonotary to provide Appellant with a copy of the Commonwealth’s brief
and permitted Appellant to file a reply brief on or before February 2, 2018,
Although Appellant did not do so, he did file a supplemental brief on December
12, 2017, wherein he raised the following issue:

              3.     Should the Order dismissing the Amended Petition for
       post conviction relief be vacated and remanded because the PCRA
       court erred in refusing to find a violation of the Sixth Amendment
       right to effective assistance of counsel based on breach of the duty
       of loyalty, or conflict of interest, on the part of the trial attorney
       for failing to motion to withdrawal [sic] his representation, due to
       prior representation of Penny Dotson a Commonwealth witness,
       and, by concluding the issue previously litigated.

                                           -5-
J-A07040-18


      claims had been previously litigated. [Appellant’s] claims of actual
      innocence, that he is the victim of a miscarriage of justice, that he
      was wrongfully convicted and that he was denied his right to due
      process under the Fourteenth Amendment are all based on his
      fundamental assertion that the evidence was insufficient to
      sustain his conviction, an issue considered and rejected by the
      Superior Court. The same is true with regard to his Sixth
      Amendment claim which the Superior Court also concluded lacked
      merit. Merely changing the wording of his claims or pursuing them
      under an alternate theory does not create a discrete legal ground
      which would entitle [Appellant] to relief. Commonwealth v.
      Small, 602 Pa. 425, 458, 980 A.2d 549, 569 (2009).

Trial Court Opinion, filed 7/17/17, at 2-3.

      Upon our review of the record, we agree. 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).

      As the PCRA court found, on direct appeal, this Court concluded the

evidence was sufficient to support the verdict. Commonwealth v. Johnson,

655 MDA 2011, unpublished memorandum at 7-13 (Pa.Super filed September

3, 2014). Moreover, to the extent Appellant attempts to assert a claim of

ineffective assistance of counsel in his supplemental brief by alleging that

                                      -6-
J-A07040-18


stand-by counsel breached his duty of loyalty and had a conflict of interest,

see Supplemental Appellant’s Brief at 6, we note that this Court considered

and dismissed this issue on direct appeal as well. Johnson, supra at 20-23.

Moreover, the Pennsylvania Supreme Court also has held that when an

appellant knowingly, voluntarily, and intelligently chooses to exercise his right

to self-representation, an appellate court will not consider any ineffective

assistance claims    that arose from the period of self-representation.

Commonwealth v. Bryant, 579 Pa. 119, 138, 855 A.2d 726, 736-38 (2004);

see also Commonwealth. v. Fletcher, 586 Pa. 527, 551 n. 13, 896 A.2d

508, 522 n. 13 (2006) (Fletcher II) (explaining that the Court was applying

the categorical approach of the Bryant majority “in refusing to consider any

claims of ineffectiveness arising from a period of self-representation”);

Commonwealth v. Fletcher, 604 Pa. 493, 517, 524-25, 986 A.2d 759, 774,

78 (2009) (Fletcher III) (refusing to revisit the holding of Fletcher II, and

reiterating that a defendant who chooses to represent himself cannot obtain

relief by raising his own ineffectiveness or that of standby counsel).

Accordingly, no relief is due.

      Order affirmed.

      Judge Panella joins the Opinion.

      Judge Olson concurs in the result.




                                      -7-
J-A07040-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




                          -8-
