J-S48033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FREDIL OMAR RODRIGUEZ FUENTES,

                            Appellant                 No. 1858 MDA 2016


                   Appeal from the PCRA Order October 4, 2016
            in the Court of Common Pleas of Northumberland County
                Criminal Division at No.: CP-49-CR-0000657-2005

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 27, 2017

        Appellant, Fredil Omar Rodriguez Fuentes, appeals from the order

denying his first petition filed pursuant to the Post Conviction Relief Act

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

        We take the following background from our independent review of the

certified record and this Court’s decision in Appellant’s direct appeal.

              [Appellant’s] conviction follows a bizarre incident in which
        he stabbed his next door neighbor [thirty-seven] times with her
        own kitchen knives. In his confession, [Appellant] stated that
        the victim . . . stepped out onto her front porch on the morning
        of June 10, 2005, wearing only her undergarments. When she
        saw [Appellant], who was outside smoking, she asked if he was
        locked out of his home or if he needed to use a telephone.
        [Appellant] responded no to both questions and [the victim]
        turned and went into her house. For reasons not established by
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      the record, [Appellant] followed [the victim] into her home and,
      when [she] attempted to ward him off with a knife, [Appellant]
      punched her, disarmed her, and then stabbed her multiple
      times. He first used the knife he had taken from her and then
      others that he took from the kitchen, as some of the knife blades
      bent during the multiple stabbings.        After [Appellant] had
      inflicted [thirty-seven] stab wounds, he took off his bloody
      clothes and placed them inside two plastic garbage bags. He
      then locked the front door of the victim’s house, washed his
      hands in the victim’s sink, and exited through the back door,
      returning to his own home. [The victim died from her injuries.]

(Commonwealth        v.   Fuentes,    No.   1288   MDA     2006,   unpublished

memorandum at *1-2 (Pa. Super. filed Oct. 10, 2007)).

      On March 17, 2006, Appellant entered an open guilty plea, with the

assistance of counsel and an interpreter, to one count each of criminal

homicide and criminal trespass, and two counts of aggravated assault.        At

the April 17, 2006 degree of guilt hearing, the trial court found Appellant

guilty of murder of the first degree. On June 26, 2006, the court sentenced

him to a term of life without the possibility of parole plus not less than three

nor more than seven years’ incarceration. Appellant appealed and this Court

affirmed his judgment of sentence on October 10, 2007. (See id. at *1).

Appellant did not seek review in the Pennsylvania Supreme Court.

      On January 25, 2008, Appellant filed a first PCRA petition pro se. The

court appointed counsel on February 7, 2008, and ordered him to file an

amended petition on Appellant’s behalf. On May 14, 2010, counsel filed an




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amended PCRA petition, and, on May 21, 2010, he filed a Turner/Finley1

“no-merit” letter and a motion to withdraw.       On May 27, 2010, the court

granted counsel’s motion, but did not address Appellant’s petition.        (See

Order, 5/27/10). On July 1, 2016, Appellant filed a second pro se amended

PCRA petition. On September 8, 2016, the PCRA court issued notice of its

intent to dismiss Appellant’s petition without a hearing.     See Pa.R.Crim.P.

907(1). On October 3, 2016, Appellant filed objections to the court’s notice.

The court dismissed Appellant’s petition on October 4, 2016. (See Order,

10/04/16).      Appellant timely appealed pro se2 on October 27, 2016.3

Appellant’s current, privately retained PCRA counsel, entered his appearance

in this Court on November 28, 2016.

       Appellant raises one question for our review: “Whether PCRA counsel

was ineffective for failing to raise claims of ineffectiveness of [direct] appeal

counsel for failure to raise a claim that the guilty plea [was] unlawfully

induced[?]” (Appellant’s Brief, at 3) (most capitalization omitted).
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1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2
   Appellant was pro se and incarcerated at the time he filed his notice of
appeal, which is dated October 27, 2016. Therefore, we deem the notice
filed as of that date, when it likely was delivered to prison authorities for
mailing. See Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.
Super. 2007).
3
  On December 1, 2016, Appellant filed a timely concise statement of errors
complained of on appeal. On February 2, 2017, the court filed a statement
in lieu of opinion. See Pa.R.A.P. 1925.



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        “The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and 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. Weimer, ___ A.3d ___, 2017 WL 2893962, at *2 (Pa.

Super. filed July 7, 2017) (citation omitted).

        Here, Appellant’s claim is waived.4

               “Issues not raised in the lower court are waived and
        cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).
        This requirement bars an appellant from raising “a new and
        different theory of relief” for the first time on appeal.
        Commonwealth v. York, 319 Pa. Super. 13, 465 A.2d 1028,
        1032 (1983).

Commonwealth v. Wanner, 158 A.3d 714, 717 (Pa. Super. 2017); see

also Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006) (“[A]n issue

is waived where it was not presented in the original or amended PCRA

petition below.”) (citations omitted); Commonwealth v. Kenney, 732 A.2d

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4
  We recognize that Appellant was proceeding pro se for a portion of his
post-conviction litigation and retained a private attorney only after
commencing this appeal. However:

               . . . [A]lthough this Court is willing to construe liberally
        materials filed by a pro se litigant, pro se status generally
        confers no special benefit upon an appellant. Accordingly, a pro
        se litigant must comply with the procedural rules set forth in the
        Pennsylvania Rules of the Court. . . .

Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted).



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1161, 1165 (Pa. 1999) (“The Superior Court has no original jurisdiction in

PCRA or other proceedings[.] . . . An appellate court is limited to reviewing

the record of the proceedings below for error.”) (citation omitted).

      In this case, our independent review of the record reveals that

Appellant never raised an issue about the validity of his guilty plea or the

ineffectiveness of counsel regarding same.       (See Pro Se PCRA Petition,

1/25/08, at 3, 6 (challenging trial counsel’s failure to move to suppress

confession to police and direct appeal counsel’s failure to seek permission to

appeal to Pennsylvania Supreme Court); First Amended PCRA Petition,

5/14/10, at unnumbered page 2 (challenging direct appeal counsel’s failure

to seek permission to appeal to Pennsylvania Supreme Court); Pro Se

Second Amended PCRA Petition, 7/01/16, at 7 (challenging: trial counsel’s

failure to advise Appellant of his right to jury determination of degree of

guilt; trial counsel’s failure to provide expert with all exhibits; and direct

appeal counsel’s failure to seek allowance of appeal in Pennsylvania

Supreme Court)).     Therefore, his issue is waived for our review.          See

Wanner, supra at 717; Pa.R.A.P. 302(a).

            In addition, our Supreme Court has made it clear that
      “[a]ny issues not raised in a [Rule] 1925(b) [S]tatement will be
      deemed waived.” Commonwealth v. Castillo, 585 Pa. 395,
      888 A.2d 775, 780 (2005) (citation and quotation omitted). See
      also Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b)] Statement shall
      concisely identify each ruling or error that the appellant intends
      to challenge with sufficient detail to identify all pertinent issues
      for the judge”).

Wanner, supra at 717.

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       Here, Appellant’s Rule 1925(b) statement does not raise the issue

presented here, and instead argues PCRA court error in dismissing his

petition.     (See     Appellant’s    1925(b)    Statement,   12/01/16,   at   1-3).

Therefore, we deem the issue waived for our review on this basis as well. 5

See Wanner, supra at 717.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




____________________________________________


5
  Moreover, although we may not address issues that the PCRA court did not
have an opportunity to consider, we briefly note that our review of the notes
of testimony from the guilty plea hearing reveals that Appellant had the
benefit of an interpreter and counsel at all times, received an extensive
colloquy, and voluntarily entered his guilty plea.



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