J-S64027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MIGUEL FIGUEROA-NOVOA,

                            Appellant                 No. 430 MDA 2017


                 Appeal from the PCRA Order February 6, 2017
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000931-2011


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 20, 2017

       Appellant, Miguel Figueroa-Novoa, appeals pro se from the order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the procedural history of this case as

follows:

             A jury trial was held from April 22, 2013 through April 30,
       2013. [Appellant] was convicted and found guilty of first degree
       murder3, attempted murder4, and carrying a firearm without a
       license5.    On May 1, 2013, he was sentenced to life
       imprisonment, a consecutive term of 20 to 40 years’
       incarceration for attempted murder, and a concurrent term of 3
       ½ to 7 years’ incarceration on the unlawful firearm charge.
       [Appellant] filed a post-sentence motion, which was denied on
       July 17, 2013. A notice of appeal was timely filed on August 16,
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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        2013. On August 13, 2014, the Pennsylvania Superior Court
        affirmed the judgment of sentence. The Pennsylvania Supreme
        Court denied the Petition for Allowance of Appeal on February 4,
        2015. On June 8, 2015, [Appellant] filed a pro se Petition under
        the Post-Conviction Relief Act.      On July 6, 2015, Attorney
        Christopher Dreisbach was appointed as PCRA counsel. Attorney
        Dreisbach was allowed to withdraw on April 12, 2016 and
        Attorney Jennifer E. Tobias was appointed as new PCRA counsel.
        Thereafter, Attorney Tobias filed a Motion to Withdraw Under the
        Post Conviction Relief Act on October 24, 2016 with an attached
        Turner/Finley letter.[1]

              3   18 Pa.C.S.A. § 2502.

              4   18 Pa.C.S.A. §§ 901(a), §2502.

              5   18 Pa.C.S.A. § 6106(a)(1).

PCRA Court Opinion, 1/6/17, at 1-2.

        Attorney Tobias was granted permission to withdraw on January 6,

2017.    Appellant’s PCRA petition was denied by order entered February 6,

2017. Appellant filed a timely notice of appeal on March 1, 2017. Appellant

and the trial court complied with Pa.R.A.P. 1925.

        Appellant presents the following issues for our review, which we

reproduce verbatim:

        1)   Is the trial court in error for accepting and then impossing
        a Mandatory Minimum Sentence upon the Appellant/Defendant
        Mr. M. Figueroa-Novoa?

        2).   Is the trial court in error for not “instructing the jury” to
        the legality of imposing a Mandatory Minimum sentence of Life
        Imprisonment without Parole, upon the Appellant/Defendant?
____________________________________________


1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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      3).   Is the trial court in error in allowing the tainted “blood and
      urine” to have been admitted as evidence, and not have have
      been tested properly and presented to the Jury as should
      untainted evidence?

      4).  Is the trial court in error in not allowing the cross-
      examination of the Commonwealth “expert witness” in violating
      the appeallants rights to confrontation of his accusers in his
      defense?

      5).   Is the Trial Court in error for the reassignment of a court
      appointed attorney whom filed a Letter of no merit, in conflicting
      interest of the client Mr. M. Figueroa-Novoa after withdrawing
      from his representation?

Appellant’s Brief at 5.

      Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination and
      whether the PCRA court’s decision is free of legal error. The
      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal

citations omitted).

      We first note that Appellant has failed to preserve issues two, four,

and five because he did not include them in his Pa.R.A.P. 1925(b)

statement.    “Any issues not raised in a Pa.R.A.P. 1925(b) statement will be

deemed waived.”       Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011)

(quoting Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)). Thus,

these issues are waived.




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       Moreover, issue three, with regard to the blood evidence, was

arguably preserved as raised in his Pa.R.A.P. 1925(b) statement. 2        That

issue, however, is waived because it was not raised in Appellant’s PCRA

petition or in his supplemental PCRA petition. PCRA Petition, 6/8/15, at 1-

12; Supplemental PCRA petition, 6/8/15, at 1-4. See Commonwealth v.

Santiago, 855 A.2d 682, 691 (Pa. 2004) (“a claim not raised in a PCRA

petition cannot be raised for the first time on appeal.”).

       Finally, although Appellant’s first issue regarding his sentence was not

raised in his PCRA petition, it implicates the legality of his sentence and

therefore cannot be waived.          Commonwealth v. Foster, 960 A.2d 160,

168 (Pa. Super. 2008) (“application of a mandatory minimum sentence is a

non-waivable challenge to the legality of a sentence.”) (internal citations

omitted). Accordingly, we shall review this single issue.

       Although most of Appellant’s brief consists of rambling statements and

patch-worked citations, it appears that Appellant is asserting that his

mandatory life sentence for his conviction of first degree murder is

unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151

(2013), and Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).



____________________________________________


2 Appellant made no reference to the urine evidence in his Pa.R.A.P. 1925(b)
statement, and to the extent this claim is made based on urine evidence, the
claim is waived. Hill, 16 A.3d at 494.



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Appellant’s Brief at 8-19. As summarized in his conclusion, which we have

reproduced verbatim, Appellant asserts:

      Based upon the June 15th,2015, Pennsylvania Supreme Court
      decision in Commonwealth v. Hopkins, and the imposition of a
      Mandatory Minimum sentence upon the appellant Mr. firgueroa-
      Novoa, that violates his Sixth Amendment, Eighth and
      Fourteenth Amendment rights of the United States Constitution,
      and of the Pennsylvania Constitutional Articles I, §9 and §13. In
      light of the clear legislative intent, severance of violative
      provision from the statute that are not permissible by law. All
      the provisions for procedures executing the statues for the
      mandatory minimum are unconstitutional, and thus the
      substantial new rule does apply here the provisions and
      incomplete and incapable of being executed in accordance with
      the legislatures intent.

            Under the foregoing arguments and related cases laws,
      must be held retroactive. Also this Court has jurisdiction to
      correct such patent and obvious errors of the lower courts errors
      in applying it as such in sentencing.        The Appellant, Mr.
      Figueroa-Novoa request that the mandatory minimum to be
      vacated and of life imprisonment, and that he be taken for re-
      sentencing as set forth within he brief.

Id. at 19.

      In Alleyne, the Supreme Court held that any fact, other than a prior

conviction, that results in the application of a mandatory minimum sentence

must be submitted to the jury and found beyond a reasonable doubt.

Alleyne, 133 S.Ct. at 2155. In Hopkins, the Pennsylvania Supreme Court

held that 18 Pa.C.S. § 6317, which required a mandatory minimum sentence

if certain controlled-substances crimes occurred within 1,000 feet of a

school, was unconstitutional under Alleyne. Hopkins, 117 A.3d at 249.




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      Here, Appellant was convicted of first-degree murder.         The statutory

requirements for sentencing on a conviction for first-degree murder are as

follows:

      (1)   Except as provided under section 1102.1 (relating to
            sentence of persons under the age of 18 for murder,
            murder of an unborn child and murder of a law
            enforcement officer), a person who has been convicted of
            a murder of the first degree or of murder of a law
            enforcement officer of the first degree shall be sentenced
            to death or to a term of life imprisonment in accordance
            with 42 Pa.C.S. § 9711 (relating to sentencing procedure
            for murder of the first degree).

18 Pa.C.S. § 1102(a)(1).

      Notably, Section 1102 does not impose a mandatory minimum

sentence    triggered   by   a   “sentencing   factor”   of   the   type   deemed

unconstitutional in Alleyne and Hopkins.         Rather, where a defendant is

convicted of first-degree murder, no finding other than the verdict itself,

which is the product of a finding beyond a reasonable doubt, is necessary to

impose the sentence Appellant received. Accordingly, Alleyne and Hopkins

are inapplicable to Appellant’s claim, and he is entitled to no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017

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