J-S72031-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                    Appellee               :
                                           :
            v.                             :
                                           :
JERRY DONALDSON,                           :
                                           :
                    Appellant              :    No. 723 WDA 2014


                  Appeal from the PCRA Order Entered April 8, 2014,
                  in the Court of Common Pleas of Allegheny County
                 Criminal Division at No(s): CP-02-CR-0010775-2009

BEFORE: BENDER, P.J.E., SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED JANUARY 12, 2015

        Jerry Donaldson (Appellant) appeals from the order entered on April 8,

2014, dismissing his “Writ of Habeas Corpus,” which was treated as a

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Upon review, we affirm.

        On February 2, 2012, following a non-jury trial, Appellant was

convicted of one count of persons not to possess a firearm and one count of

carrying a firearm without a license, based on his involvement in the

shooting death of Christian Edwards outside a gas station in Wilkinsburg,

Pennsylvania.1       Appellant was sentenced to an aggregate term of four to

eight years’ imprisonment.         Appellant timely appealed, and this Court

affirmed his judgment of sentence on April 16, 2013. Commonwealth v.

1
    Appellant was acquitted of criminal homicide.


* Retired Senior Judge assigned to the Superior Court.
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Donaldson, 75 A.3d 556 (Pa. Super. 2013) (unpublished memorandum).

Appellant subsequently filed a petition for allowance of appeal, which our

Supreme Court denied on October 10, 2013.                      Commonwealth v.

Donaldson, 77 A.3d 635 (Pa. 2013).         On November 15, 2013, Appellant

filed his “Writ of Habeas Corpus,” which the lower court treated as a petition

filed under the PCRA.    Accordingly, the PCRA court appointed counsel to

represent defendant.

      On March 7, 2014, after investigating Appellant’s claims, Appellant’s

counsel filed a motion to withdraw and a no-merit letter pursuant to

Commonwealth        v.   Turner,     544       A.2d     927    (Pa.   1988),    and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

March 12, 2014, the PCRA court granted PCRA counsel’s motion to withdraw.

Additionally, pursuant to Pa.R.Crim.P. 907, the PCRA court provided

Appellant with notice of its intent to dismiss his petition without a hearing

and advised Appellant that he had 20 days within which to respond.

Appellant did not file a response to the PCRA court’s 907 notice and, on April

8, 2014, the PCRA court dismissed the petition. Appellant timely filed the

instant appeal.

      Appellant   presents   the   following    issue    for   our    consideration:

“Whether[] the sentencing court erred and/or abused its discretion for

sentencing Appellant for a crime that did not statutor[il]y exist under [18

Pa.C.S. §§ 6105(a)(1) and 6106(a)]?” Appellant’s Brief at 4.



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      “Our ‘standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.’” Commonwealth v.

Sampson, 900 A.2d 887, 890 (Pa. Super. 2006) (quoting Commonwealth

v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003)).

      Appellant argues, in relevant part, that

      [he] was improperly indicted by information for the one count of
      possession of a firearm and the one count of carrying a firearm
      without a license which both lack the necessary statutory
      elements under … 18 P[a].C.S. §[]6102 [(defining, inter alia,
      “firearm”)].

      … [T]he court proceeded to sentence [A]ppellant based upon a
      firearm that does not exist under the provisions of … 18
      P[a].C.S. §§ 6105(a)(1) and 6106(a) which [A]ppellant received
      a 4 to 8 year sentence of imprisonment based upon fraudulent
      information of a crime that did not exist statutorily[;] thus[,]
      [A]ppellant’s sentence was procured as a result of a fraud upon
      the court[.]”

Appellant’s Brief at 7.

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

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

question arose from one or more of the errors enunciated in section

9543(a)(2), and that the issues raised have not been previously litigated or

waived. 42 Pa.C.S. § 9543(a)(2)-(3).       “[A]n 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; or … it

has been raised and decided in a proceeding collaterally attacking the

conviction or sentence.” 42 Pa.C.S. § 9544(a)(2), (3).


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      We are unable to discern from Appellant’s brief the precise reason why

he believes he is entitled to relief. To the extent that he is claiming that the

evidence was insufficient to sustain his convictions, as the Commonwealth

failed to prove that he possessed or carried a firearm, this claim was

previously litigated and rejected by this Court on direct appeal.          See

Commonwealth        v.   Donaldson,    75   A.3d   556    (Pa.   Super.   2013)

(unpublished memorandum at 6-10).        Specifically, this Court reasoned, in

part, that

      the Commonwealth proffered eyewitness testimony proving that
      Appellant was seen alone with Edwards moments before
      gunshots rang out.       Immediately following those shots,
      witnesses saw Appellant, who appeared to be injured, walking
      towards his car and then leaving the scene. Shell casings
      discovered near Edwards’ body confirmed that two firearms were
      discharged, one of which was found in Edwards’ hand and
      another that was never recovered. Based on this evidence, we
      conclude that the inferred fact that Appellant possessed a gun
      flowed, beyond a reasonable doubt, from the facts proven by the
      Commonwealth at Appellant’s trial.

Id. at 9-10.      Thus, Appellant is not entitled to PCRA relief.          See

Commonwealth v. Eaddy, 614 A.2d 1203, 1206 (Pa. Super. 1992)

(holding that the appellant was not eligible for relief under the PCRA on the

issue of the sufficiency of the evidence because that issue was previously

litigated under section 9544).2


2
 Appellant has not raised any issues on appeal regarding whether the trial
court properly treated Appellant’s “Writ of Habeas Corpus” as a PCRA
petition. “[I]t is well established that pursuant to Pennsylvania law, the
PCRA subsumes the writ of habeas corpus unless the claim does not fall
within the ambit of the PCRA statute.” Commonwealth v. Burkett, 5 A.3d


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      To the extent that Appellant is attempting to raise some challenge

other than sufficiency of the evidence, Appellant’s claims are waived for

failure to develop them.     See Commonwealth v. Rush, 959 A.2d 945,

950-51 (Pa. Super. 2008) (“It [is] not for this Court to develop an

appellant’s arguments.     Rather, it is the appellant’s obligation to present

developed arguments and, in so doing, apply the relevant law to the facts of

the case, persuade us there were errors, and convince us relief is due

because of those errors. If an appellant fails to do so, we may find the

argument waived.”) (internal citations omitted).     We therefore affirm the

order dismissing Appellant’s petition.

      Order affirmed.




1260, 1274 (Pa. Super. 2010). This Court has held that sufficiency-of-the-
evidence claims are not cognizable under the PCRA.           See generally
Commonwealth v. Price, 876 A.2d 988, 995 (Pa. Super. 2005) (rejecting
sufficiency claim that was raised on PCRA appeal without an ineffective
assistance of counsel analysis because it is not cognizable under the PCRA);
Commonwealth v. Bell, 706 A.2d 855, 861 (Pa. Super. 1998) (Pa. Super.
1998) (explaining that sufficiency-of-the-evidence claims are not cognizable
in the context of a PCRA petition). Nevertheless, we note that Appellant
would not be entitled to habeas corpus relief either, as a writ of habeas
corpus cannot “be used to question the sufficiency or insufficiency of the
evidence to sustain a conviction.” Commonwealth v. Smythe, 195 A.2d
187, 189 (Pa. Super. 1963).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2015




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