Com. v. Felton, S.

• Court: Superior Court of Pennsylvania
• Decided: November 28, 2018
• Docket: 92 EDA 2018
• Status: Unpublished

Opinion

J-S64029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN SHERMAN FELTON : : Appellant : No. 92 EDA 2018

Appeal from the PCRA Order November 16, 2017 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000857-2013

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 28, 2018

Appellant, Steven Sherman Felton, appeals pro se from the November

16, 2017 order dismissing his first petition filed pursuant to the Post-

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

From September to November 2012, Appellant robbed numerous

businesses. On August 7, 2015, Appellant was convicted of ten counts of

robbery1 and two counts of theft by unlawful taking.2 On September 21, 2015,

the trial court sentenced Appellant to an aggregate term of 62 to 124 months’

imprisonment. This Court affirmed and our Supreme Court denied allowance

of appeal. Commonwealth v. Felton, 159 A.3d 51, 2016 WL 6137006 (Pa.

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1 18 Pa.C.S.A. § 3701(a)(1)(ii).

2 18 Pa.C.S.A. § 3921(a). J-S64029-18

Super. 2016) (unpublished memorandum), appeal denied, 166 A.3d 1238 (Pa.

2017).

On June 20, 2017, Appellant filed a pro se PCRA petition. Counsel was

appointed. After reviewing the record, counsel moved to withdraw and filed

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). The PCRA court issued notice of its intent to dismiss Appellant’s petition

without an evidentiary hearing and Appellant filed a response thereto. See

Pa.R.Crim.P. 907. On November 16, 2017, the PCRA court granted counsel’s

motion to withdraw and dismissed Appellant’s PCRA petition. This timely

appeal followed.3

Appellant presents two issues for our review:

1. Is the submission of [n]ewly[-d]iscovered [e]vidence a [c]onstitutionally protected right as it pertains to proving actual innocence?

2. Whether or not the [PCRA c]ourt has abused its discretion or deviated from [c]onstitutional safeguards by enforcing repealed and/or abolished statutes?

Appellant’s Brief at 7.

“When reviewing the denial of a PCRA petition, our standard of review

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

by evidence of record and whether it is free of legal error.” Commonwealth

3The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).

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v. Jordan, 182 A.3d 1046, 1049 (Pa. Super. 2018) (citation omitted). In his

first issue, Appellant argues that he was entitled to PCRA relief because of

newly-discovered evidence.

To establish such a claim, a petitioner must prove that (1) the evidence has been discovered after trial and it could not have been obtained at or prior to trial through reasonable diligence; (2) the evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a different verdict.

Commonwealth v. Cox, 146 A.3d 221, 228 (Pa. 2016) (cleaned up). In this

case, Appellant failed to plead the first element required for relief. Specifically,

Appellant failed to plead that the newly-discovered evidence was discovered

after trial and could not have been obtained at or prior to trial through

reasonable diligence. In his PCRA petition Appellant acknowledged that he

possessed this “newly-discovered” evidence prior to trial. See Appellant’s

PCRA Petition, 6/20/17 (relying on an accident report from the Bethlehem

Police Department that contained a defense identification sticker dated August

3, 2015, i.e., prior to trial). Accordingly, Appellant failed to plead the

necessary elements for relief under the PCRA’s newly-discovered evidence

provision.

In his second issue, Appellant argues that the trial court lacked subject

matter jurisdiction over his criminal case because it relied on the Pennsylvania

Consolidated Statutes Annotated instead of the Pennsylvania Consolidated

Statutes. This argument is without merit. The Pennsylvania Consolidated

Statutes provide that, “The publication prepared by the bureau pursuant to

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this chapter shall constitute an official publication of the Pennsylvania

Consolidated Statutes and shall be legal evidence of the laws contained

therein[.]” 1 Pa.C.S. § 503; see also Commonwealth v. Stultz, 114 A.3d

865, 880 (Pa. Super. 2015), appeal denied, 125 A.3d 1201 (Pa. 2015)

(citation omitted) (explaining that the Pennsylvania Consolidated Statutes are

positive law).

We have compared the publication prepared by the bureau pursuant to

Title I, Part I, Chapter 5 of the Pennsylvania Consolidated Statutes with the

Pennsylvania Consolidated Statutes Annotated. The portions of the

Pennsylvania Consolidated Statutes Annotated relied on by the trial court and

the PCRA court are accurate reproductions of the Pennsylvania Consolidated

Statutes. Compare 42 Pa.C.S. § 931(a) with 42 Pa.C.S.A. § 931(a).

Appellant presents no proof that this legal evidence is flawed, i.e., that the

Pennsylvania Consolidated Statutes are inconsistent with the Pamphlet Laws.

Cf. City of Philadelphia v. Commonwealth, 838 A.2d 566, 591 (Pa. 2003)

(explaining that the Pamphlet Laws are the official version of statutes).

Under section 931(a), “all courts of common pleas have statewide

subject matter jurisdiction in cases arising under the Crimes Code.”

Commonwealth v. Arcelay, 190 A.3d 609, 614 (Pa. Super. 2018) (cleaned

up). In this case, the Court of Common Pleas of Lehigh County had subject

matter jurisdiction over Appellant’s criminal case because the crimes occurred

in the Commonwealth of Pennsylvania and arose under the Crimes Code.

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Appellant also argues that the laws he was convicted of violating were

passed without constitutional authority. This argument is frivolous as the

Crimes Code was passed in accordance with the provisions of the Pennsylvania

Constitution. Cf. 1972 P.L. 1482 (bill enacting Crimes Code was passed by

the General Assembly and signed by Governor Milton J. Shapp). These

statutes have not been suspended or repealed. Accordingly, Appellant is not

entitled to relief on his second claim of error.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/28/18

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