Opinion
J-S13012-17 No. 1198 EDA 2016
04-17-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KEVIN JULY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002733-2008 BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Kevin July, appeals pro se from the post-conviction court's March 21, 2016 order denying his first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
Appellant presents the following five issues for our review:
1) Did the trial court err in its instruction to the jury as to the charge of Attempted Murder in the First Degree?
2) Was trial counsel ineffective in failing to obtain the full Discovery or raising a claim in violation of Brady v. Maryland , 373 U.S. 83 (1963)[,] against the Commonwealth?
3) Was appellate counsel ineffective in litigating that the evidence presented at trial was insufficient to support the guilty verdict?
4) Was court[-]appointed PCRA counsel ineffective by failing to adequately communicate with [] Appellant or by failing to amend the PCRA Petition to include additional claims raised by [] Appellant?Appellant's Brief at 4.
5) Did the [PCRA] court err by failing to conduct an evidentiary hearing prior to dismissing the PCRA Petition?
Our standard of review regarding an order denying post-conviction relief under the PCRA is whether the determination of the court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding. Commonwealth v. Touw , 781 A.2d 1250, 1252 (Pa. Super. 2001).
Here, we have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed the thorough and well-crafted opinion of the Honorable Leon W. Tucker of the Court of Common Pleas of Philadelphia County. We conclude that Judge Tucker's extensive, well-reasoned opinion accurately disposes of the issues presented by Appellant. Accordingly, we adopt his opinion as our own and affirm the order denying Appellant's PCRA petition on that basis.
We add one comment regarding the first issue raised by Appellant. Therein, Appellant contends that his trial counsel acted ineffectively by not objecting to a certain jury instruction provided by the trial court. However, in Appellant's PCRA petition, and in his amended petition, Appellant did not frame this issue as an ineffectiveness claim; instead, he simply contended that the trial court erred by providing the at-issue jury instruction. See PCRA Petition, 1/17/13, at 3; Amended PCRA Petition, 9/16/15, at 2-4. The PCRA court concluded, and we agree, that Appellant waived his claim of trial court error by failing to raise it on direct appeal. See PCRA Court Opinion, 7/7/16, at 9-10; see also 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA relief, the petitioner must prove his claim was not waived); 42 Pa.C.S. § 9544(b) (stating that, "[f]or purposes of this subchapter, an issue 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"). To the extent Appellant now attempts to argue, for the first time on appeal, that his challenge to the court's jury instruction is really an attack on the effectiveness of his trial counsel, this argument is also waived, as it was not raised before the PCRA court. Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/17/2017
Image materials not available for display.