J-S56024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANCISCO CARTAGENA

                            Appellant                No. 2145 MDA 2013


              Appeal from the PCRA Order of November 13, 2013
                In the Court of Common Pleas of Berks County
               Criminal Division at No: CP-06-CR-0001133-2011


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                        FILED SEPTEMBER 12, 2014

                                                    pro se, the November 13,

2013 order dismissing his petition for relief pursuant to the Post-Conviction

                        42 Pa.C.S. §§ 9541-46. We affirm.

       A previous panel of this Court summarized the factual history of this

case on direct appeal as follows:


       apartment when he looked out of his window and observed
       Cartagena force open the front door of a neighboring apartment.
       George informed the apartment complex office of the break-in
       and the manager called the police. George, a retired United
       States Navy combat photographer, then took pictures of
       Cartagena as he exited the apartment. The police arrived at the
       apartment complex, but were unable to locate Cartagena. The
       residents of the apartment reported various items missing from
       the house, including an iPod Touch with white headphones and
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       several pieces of costume jewelry. George gave his photographs
       to the police. The police provided the photographs to the local

       subsequently identified by people who knew him. Cartagena
       was arrested in New Jersey in March 2010, and extradited to
       Pennsylvania. Prior to trial, a mental health evaluation was
       conducted and it was determined that Cartagena was competent
       to stand trial.

Commonwealth v. Cartagena, No. 687 MDA 2012, slip op. at 1-2 (Pa.

Super. Nov. 27, 2012).           Additionally, the PCRA court summarized the

procedural history of this case as follows:

       Following a bench trial, [Cartagena] was found guilty but
       mentally ill of burglary1 and related offenses.           He was
       subsequently sentenced to serve a term of forty-two months to
       twenty years of incarceration in a state correctional facility. On
       April 4, 2012, [Cartagena, through counsel,] filed a post-
       sentence motion challenging the weight of the evidence. That
       motion was denied by [the trial court] on April 5, 2012.
       [Cartagena] then filed a direct appeal to this Court, which
       affirmed his judgment of sentence on November 27, 2012.
          1
              18 Pa.C.S. § 3502(a).

       On January 13, 2013, [Cartagena] timely filed a pro se petition
       for post-conviction collateral relief. [Counsel] was appointed on
       January 22, 2013 to represent [Cartagena] regarding the
       disposition of the PCRA petition. After his careful review of the
       record, counsel was directed to file either an amended petition

       for relief, or a [Turner/Finley] petition detailing the reasons
       why the [PCRA court] should allow counsel to withdraw.[1]

       PCRA counsel reviewed the entire official file and corresponded

       PCRA counsel filed a petition for leave of court to withdraw as
____________________________________________


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



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      counsel and filed a brief in support of said petition. Within the
      [Turner/Finley] petition, counsel expressed that after a careful
      review of the record, in his professional judgment, there were no
      meritorious issues that could be
      petition based on all relevant excerpts from the record.

PCRA Court Order, 10/4/2013, at 1-2 (footnote omitted).

      On October 4, 2013, the PCRA court entered an order notifying

Cartagena that the court intended to dismiss his PCRA petition without a



PCRA counsel to withdraw his appearance. The

PCRA petition on November 13, 2013. On November 26, 2013, Cartagena

filed a notice of appeal.

      In response, the PCRA court ordered Cartagena to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Cartagena filed his concise statement on December 23, 2013, in compliance

                               -one day deadline.     The PCRA court issued a

Pa.R.A.P. 1925(a) opinion on January 7, 2014, in which the court

incorporated the rationale that it set forth for denying the petition in its

October 4, 2013 order and notice of intent to dismiss.

      Cartagena raises the following issue on appeal:

      Whether the lower court abused its power on not handing down
      a not guilty [verdict] once the eyewitness[es] stated that they
      never [saw Cartagena] commit any crime.

Brief for Cartagena at 5 (capitalization modified).

      Our standard of review for PCRA claims is well-settled:




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      Our standard of review of the denial of a PCRA petition is limited
      to examining whether the
      the evidence of record and free of legal error. This Court grants
      great deference to the findings of the PCRA court if the record
      contains any support for those findings. Further, the PCRA
                                 nations are binding on this Court,
      where there is record support for those determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)

(citations omitted).

      Based upon our review of his principal brief and reply brief, the latter

of which is nearly incomprehensible, we discern that Cartagena is raising a



was [no] evidence no photos no fingerprints no eyewitnesses that [saw

                                       Cartegena] is saying that [it] is not a




PCRA. For the reasons that follow, we conclude that it is not.

      The PCRA specifically permits challenges asserting: (1) constitutional

violations, (2) ineffective assistance of counsel, (3) an unlawful inducement

of a guilty plea, (4) obstruction of a def

newly discovered exculpatory evidence that was not available at the time of

the trial, (6) an imposition of a sentence greater than the lawful maximum,

and (7) a lack of jurisdiction. 42 Pa.C.S. § 9543(a)(2). Notably, a challenge

to the sufficiency of the evidence is not included in this exhaustive list.

Moreover, this Court has consistently held that challenges to the sufficiency

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of the evidence 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, 732 A.2d 611 (Pa. Super. 1998) (holding that

sufficiency claims not cognizable under the PCRA).        Because Cartagena

raises only a sufficiency challenge, this issue is not cognizable under the

PCRA.2

       Moreover, even if a challenge to the sufficiency of the evidence was a

cognizable claim under the PCRA, Cartagena has failed to prove by a

preponderance of the evidence that his claims were not previously litigated

or waived as required by the PCRA. 42 Pa.C.S. § 9543(a)(3). An issue is

considered waived under the PCRA if a petitioner could have raised the issue

either before, during, or after trial, during a unitary review, appeal, or a

prior post-conviction proceeding. 42 Pa.C.S. § 9544(b).




____________________________________________


2
      In his reply brief, Cartagena makes a reference to ineffective
assistance of counsel. Even if we ignore the fact that it is procedurally
impermissible to raise a new issue in a reply brief, see Commonwealth v.
Basemore, 744 A.2d 717, 726 (Pa. 2000) (stati
inappropriate means for presenting a new and substantively different issue

only to the issues that he raised in his concise statement. In his statement,
Cartagena did not raise any issues relating to ineffective assistance of
counsel.



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     At no point prior to this appeal did Cartagena raise any issues relating

to the sufficiency of the evidence presented at trial, even though he could

have done so on direct appeal. Therefore, the issue is waived pursuant to

42 Pa.C.S. § 9544(b).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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