J-S53037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEROME WILSON,

                            Appellant                 No. 576 WDA 2014


                 Appeal from the PCRA Order February 13, 2014
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0004056-2008


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 10, 2014

        Appellant, Jerome Wilson, appeals pro se from the order of February

13, 2014, which dismissed, without a hearing, his first petition brought

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1

We affirm.

        On October 16, 2008, the Commonwealth charged Appellant with one

count of possession with intent to deliver a controlled substance (PWID), one

count of possession of a controlled substance, and three summary traffic



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*
    Retired Senior Judge assigned to the Superior Court.
1
  Although dated February 10, 2014, the order was filed on February 13,
2014. We have amended the caption accordingly.
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offenses.2     On September 2, 2009, appointed counsel withdrew and

Appellant retained new counsel, who filed a motion to suppress on

November 20, 2009.         The trial court denied the motion on September 15,

2010. On November 22, 2010, a jury found Appellant guilty of PWID and

possession of a controlled substance; the trial court later found Appellant not

guilty of the summary offenses.

       On January 26, 2011, Appellant, acting pro se, filed a “Motion

Requesting Grazier[3] Hearing for Ineffectiveness of Counsel.” On February

28, 2011, counsel filed a motion to withdraw. On April 12, 2011, the trial

court permitted counsel to withdraw and appointed new counsel for

sentencing. On July 18, 2011, the court sentenced Appellant to a term of

incarceration of not less than five nor more than ten years.

       On August 12, 2011, counsel filed a timely notice of appeal on

Appellant’s behalf. Despite this, on August 17, 2011, Appellant, acting pro

se, filed a notice of appeal.       On August 30, 2011, the trial court ordered

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). On September 29, 2011, counsel acting on Appellant’s

behalf filed a concise statement; on January 25, 2012, the trial court issued

an opinion. See Pa.R.A.P. 1925(a).

____________________________________________


2
  35 P.S. §§ 780-113(a)(30) and (16), and 75 Pa.C.S.A. §§ 1543(A), 3333,
and 4303(B), respectively.
3
  Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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       On March 8, 2012, this Court remanded the matter to the trial court to

conduct a Grazier colloquy. Following a June 21, 2012 hearing, on August

17, 2012, the trial court granted Appellant’s request to proceed pro se on

appeal.

       On September 28, 2012, this Court granted Appellant’s first request

for an extension of time to file a brief.        On October 12, 2012, this Court

granted Appellant’s second extension of time to file a brief. On January 9,

2013, this Court denied Appellant’s request for a third extension of time to

file a brief. Appellant never filed a brief. Accordingly, on February 1, 2013,

this Court dismissed the appeal based upon Appellant’s failure to file a brief.

Appellant did not seek leave to appeal to the Pennsylvania Supreme Court.

       On August 26, 2013, Appellant, acting pro se, filed the instant, timely

PCRA petition.       The same day, the PCRA court appointed counsel to

represent Appellant. On December 3, 2013, counsel filed a Turner/Finley4

letter. On December 24, 2013, the PCRA court granted counsel’s request to

withdraw and issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907.             On January 15, 2014,

Appellant filed a response to the notice, seeking appointment of new



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4
  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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counsel. The PCRA court denied Appellant’s petition on February 13, 2014,

the instant, timely pro se appeal followed.5

       On appeal, Appellant raises the following questions for our review:

       I.     Whether the suppression court failed to suppress evidence
              where [Appellant] was illegally seized during [the] second
              round of questioning according to the Fourth an[d] Fifth
              Amendment[s]?

       II.    Whether the suppression court failed to suppress evidence
              where [Appellant] was questioned beyond the original
              scope of the stop, according to the Fourth and Fifth
              Amendment[s]?


       III.   Whether the suppression court failed to suppress evidence
              of a pretextual arrest where [Appellant] was pulled over
              for a traffic violation and no actions of the detectives
              [corroborated] said traffic violation?


       IV.    Whether the suppression court failed to suppress evidence
              of consent to search where the Commonwealth [could] not
              prove [that] consent was given?


       V.     Whether the suppression court failed in its due process to
              prove their case beyond [a] reasonable doubt, according to
              the Fourteenth Amendment?


       VI.    Whether the suppression court[’]s failure to provide a
              statement of finding of fact and conclusion[s] of law should
              allow Appellant a new trial or vacating the [judgment] of
              sentence, according to the violation of Appellant[’]s due
              process rights?

____________________________________________


5
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal and did not issue any additional opinion. See
Pa.R.A.P. 1925.



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(Appellant’s Brief, at 2).

      Appellant appeals from the denial of his PCRA petition. Our standard

of review is long settled. “Our standard of review from the grant or denial of

post-conviction relief is limited to examining whether the PCRA court’s

determination is supported by the evidence of record and whether it is free

of legal error. We will not disturb findings that are supported by the record.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011), appeal

denied, 30 A.3d 487 (Pa. 2011) (citations omitted). “The [C]ourt’s scope of

review is limited to the findings of the PCRA court and the evidence on the

record of the PCRA court’s hearing, viewed in the light most favorable to the

prevailing party.” Commonwealth v. Duffey, 889 A.2d 56, 61 (Pa. 2005)

(citation omitted).

      Further, to be eligible for relief pursuant to the PCRA, Appellant must

establish that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S.A. § 9543(a)(2). He must

also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.      See 42 Pa.C.S.A. § 9543(a)(3).           An

allegation of error “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 postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).

      Here, Appellant raises six issues, all challenging the trial court’s denial

of his motion to suppress. As we stated above, in order to be eligible for


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PCRA relief, a petitioner must demonstrate that the issues raised in his PCRA

petition have not been previously litigated or waived. See 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); see also

Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa. 2009).              A 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.” 42 Pa.C.S. § 9544(b) (emphasis added).

      The record in the case sub judice establishes that Appellant chose to

proceed pro se on his direct appeal. Further, despite this Court’s grant of

extensions of time to file a brief, Appellant did not do so and this Court was

constrained to dismiss his direct appeal. Appellant should have raised all of

the issues herein on direct appeal.    Thus, Appellant’s suppression hearing

claims are waived and he is ineligible for PCRA relief. See Ligons, supra.

Accordingly, because Appellant waived all of his PCRA claims, the PCRA court

did not err in denying his PCRA petition.

      Order affirmed.




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J-S53037-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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