J-S53021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ELEANOR ZELLIE,

                        Appellant                   No. 192 WDA 2014


             Appeal from the PCRA Order of January 16, 2014
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0001932-2008


BEFORE: DONOHUE, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 12, 2014

      Appellant, Eleanor Zellie, appeals from the order entered on January

16, 2014, dismissing her second petition filed under the Post-Conviction

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

      The PCRA court has provided us with a thorough summary of the

underlying facts and procedural posture. We quote from the PCRA court’s

opinion in part:

        [In January 2010, f]ollowing [a jury] trial, [Appellant] was
        found guilty of eight counts of possession of a controlled
        substance with [the] intent to deliver [(hereinafter “PWID”).
        Specifically, Appellant was found guilty of possessing the
        following substances with the intent to deliver]: cocaine,
        marijuana, oxycodone, buprenorphine, methylphenidate,
        dihydrocodeinone, clonazepam, and codeine. The jury also
        found that the amount of cocaine [Appellant possessed with
        the intent to deliver] was [ten] grams or more but less than
        100 grams, and that the amount of oxycodone [Appellant]
        possessed with [the] intent to deliver was [ten] grams or
        more but less than 100 grams. Additionally, the jury found

*Retired Senior Judge assigned to the Superior Court.
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        that a firearm was located in close proximity to the
        controlled substances. [See N.T. Trial, 1/7/10, at 226-227
        (instructing the jury that it must determine the weight of
        certain controlled substances, as well as whether Appellant
        possessed a firearm “in close proximity” to the controlled
        substances); N.T. Trial, 1/7/10, at 230 (jury determined the
        weight of the controlled substances, as well as the fact that
        Appellant possessed a firearm “in close proximity” to the
        controlled substances she was convicted of possessing with
        the intent to deliver)]. [Appellant] was also found guilty of
        criminal conspiracy to possess the above substances and
        criminal conspiracy to possess the substances with [the]
        intent to deliver.

        [On February 22, 2010, the trial court sentenced Appellant
        to the mandatory minimum term of five to ten years in
        prison, in accordance with 42 Pa.C.S.A. § 9712.1, as a
        firearm was discovered “in close proximity” to the controlled
        substances Appellant was convicted of possessing with the
        intent to deliver; the trial court also sentenced Appellant to
        serve a consecutive term of one to five years in prison for
        possessing oxycodone with the intent to deliver.]

        [Appellant] filed an appeal from [the] judgment of sentence
        [and raised] two issues: 1) whether the trial court erred in
        allowing the Commonwealth to rescind its plea bargain offer
        [and 2) whether the trial court erred when it denied
        Appellant’s] motion to dismiss pursuant to [Pa.R.Crim.P.
        600]. [The Superior Court affirmed Appellant’s judgment of
        sentence on May 8, 2012 and Appellant did not thereafter
        file a petition for allowance of appeal with the Pennsylvania
        Supreme Court. Commonwealth v. Zellie, 50 A.3d 237
        (Pa. Super. 2012) (unpublished memorandum) at 1-8.

        [Appellant filed her first PCRA petition on October 12, 2012]
        and attorney Jeremy Davis was appointed to represent
        [Appellant]. . . . When it was determined that Attorney
        Davis had represented [Appellant] at her preliminary
        hearing, [Attorney] Davis was permitted to withdraw his
        appearance and attorney Dianne Zerega was appointed [to
        represent Appellant].

PCRA Court Opinion, 1/16/14, at 1-3 (some internal capitalization omitted).



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      On December 28, 2012, Appellant appeared before the PCRA court for

a hearing. However, during the hearing, Appellant moved to withdraw her

PCRA petition.   The PCRA court conducted a colloquy with Appellant and,

following the colloquy, the PCRA court determined that “[Appellant’s]

decision to withdraw the [PCRA petition was] voluntarily and understandingly

[made] of [Appellant’s] own free will.” PCRA Court Order, 12/28/12, at 1.

Therefore, the trial court granted Appellant’s motion to withdraw the PCRA

petition and the PCRA court ordered that Appellant’s first PCRA petition was

dismissed. Id.

      On February 11, 2013, Appellant filed a self-titled, pro se “Amendment

to Pro Se PCRA Motion,” where Appellant requested that the PCRA court

“rescind” the withdrawal of her initial PCRA petition. The PCRA court did not

grant Appellant any relief and, on March 19, 2013, Appellant filed the

current PCRA petition – which constitutes Appellant’s second petition under

the PCRA. Further, even though the current petition is Appellant’s second

under the PCRA, the PCRA court appointed counsel to represent Appellant

throughout the proceedings.

      On May 30, 2013, the PCRA court held a hearing on Appellant’s second

PCRA petition. On January 16, 2014, the PCRA court denied Appellant post-

conviction collateral relief and Appellant filed a timely notice of appeal to this

Court. Appellant raises one claim on appeal:

        Whether [the] PCRA court did err in failing to grant relief to
        [Appellant?]


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Appellant’s Brief at 5 (some internal capitalization omitted).

      Within the argument section of Appellant’s brief, Appellant simply

claims that the evidence was insufficient to support her convictions.      See

Appellant’s Brief at 7-9. This claim is not cognizable under our PCRA.

      As our Supreme Court has held, we “review an order granting or

denying PCRA relief to determine whether the PCRA court’s decision is

supported by evidence of record and whether its decision is free from legal

error.” Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that her conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2).           These specifically

enumerated circumstances are:


        (i) A violation of the Constitution of this Commonwealth or
        the Constitution or laws of the United States which, in the
        circumstances of the particular case, so undermined the
        truth-determining process that no reliable adjudication of
        guilt or innocence could have taken place.

        (ii) Ineffective assistance of counsel which, in the
        circumstances of the particular case, so undermined the
        truth-determining process that no reliable adjudication of
        guilt or innocence could have taken place.

        (iii) A plea of guilty unlawfully induced where the
        circumstances make it likely that the inducement caused
        the petitioner to plead guilty and the petitioner is innocent.




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            (iv) The improper obstruction by government officials of the
            petitioner's right of appeal where a meritorious appealable
            issue existed and was properly preserved in the trial court.

                                          ...

            (vi) The unavailability at the time of trial of exculpatory
            evidence that has subsequently become available and would
            have changed the outcome of the trial if it had been
            introduced.

            (vii) The imposition of a sentence greater than the lawful
            maximum.

            (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S.A. § 9543(a)(2).

      On appeal, Appellant claims only that she is entitled to post-conviction

collateral relief because “the evidence presented at the trial was insufficient

to enable the jury to find every element of the crimes charged beyond a

reasonable doubt.” Appellant’s Brief at 7-8. This claim is not encompassed

within   the     seven    enumerated     circumstances    listed   in   42   Pa.C.S.A.

§ 9543(a)(2); as such, Appellant’s claim is not cognizable under the PCRA.

The PCRA court thus did not err when it dismissed Appellant’s second PCRA

petition.

      Order affirmed.




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J-S53021-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2014




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