J-S29015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SIDNEY P. JONES

                            Appellant                 No. 1948 EDA 2016


                   Appeal from the PCRA Order May 27, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002714-2012


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, J.:                         FILED APRIL 19, 2017

        Sidney Jones appeals from the order, entered in the Court of Common

Pleas of Delaware County, that dismissed his petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 (“PCRA”). After review,

we affirm.

        On September 11, 2012, Jones was convicted of burglary, 18

Pa.C.S.A. § 3502(a)(1), graded as a felony of the first degree.           On

November 21, 2012, the trial court sentenced Jones to an aggregate

sentence of nine to eighteen years’ imprisonment followed by eight years’

probation. Jones filed an appeal to this court on December 18, 2012, which

affirmed his judgment of sentence on August 14, 2013. Commonwealth v.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Jones, 83 A.3d 1064 (Pa. Super. 2013) (table). On October 4, 2013, Jones

filed, pro se, a petition for credit for time served while in custody prior to

sentence, which the trial court denied on October 8, 2013.

      Jones filed a timely PCRA petition on October 11, 2013. On May 27,

2016, the PCRA court granted Jones relief on his claim that the trial court

failed to award him credit for time served for the eight-month period

preceding trial, but dismissed the PCRA petition as to all other claims.

      Jones filed a timely notice of appeal on July 11, 2016, and in response

to the PCRA court’s order, he filed a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.      On October 20, 2016, the PCRA court

issued its Rule 1925(a) opinion.    On appeal, Jones raises the following

issue for our review:

      Was the trial court in error for denying the petition for post
      conviction relief alleging ineffectiveness of trial counsel as to
      sufficiently establishing that the residence in question was not
      inhabited at the time of the incident which would have changed
      the grading of the burglary and as a result the sentencing
      guidelines for said charge?

Brief of Appellant, at 4.

      Jones claims that because the residence he burglarized was in violation

of numerous building ordinances and “was not adapted for overnight

accommodation of persons,” the trial court should not have graded his

offense a first-degree felony. Brief of Appellant, at 9. This Court rejected

that argument on appeal. Jones, 83 A.3d 1064. Here, Jones attempts to




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relitigate this specific issue by embedding it in an ineffective assistance of

counsel claim.

     A claim previously litigated on direct appeal is not cognizable under

the PCRA.   See Commonwealth v. Spotz, 47 A.3d 63, 101 (Pa. 2012).

This Court has already determined “there was sufficient evidence for the trial

court to conclude that the victim's residence was adapted for overnight

accommodation.”     Commonwealth v. Jones, 2013 WL 11255511, at *3

(Pa. Super. Ct. Aug. 14, 2013) (citing Commonwealth v. Graham, 9 A.3d

196, 202 (Pa. 2010)) (structure must already be adapted for accommodation

for first-degree felony grading to apply to burglary).    We agree with the

PCRA court that Jones has already litigated the issue before us, and cannot

revive it by simply couching it in terms of counsel’s ineffectiveness.

Therefore, we are constrained to dismiss his claim.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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