Com. v. Lewis, K.

Superior Court of Pennsylvania·Decided October 23, 2019·No. 1976 EDA 2017·Unpublished

Opinion

J-S39004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KENNETH A. LEWIS : : Appellant : No. 1976 EDA 2017

Appeal from the PCRA Order May 30, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002049-2011, CP-51-CR-0005295-2011

BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 23, 2019

Appellant, Kenneth A. Lewis, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his first petition

brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. We affirm in part, vacate in part, and remand with

instructions.

The relevant facts and procedural history of this case are as follows. In

November 2010, Appellant harassed victim, J.R., with numerous threatening

phone calls and text messages. On December 17, 2010, Appellant physically

assaulted and raped another victim, A.S. The resulting charges were

consolidated for trial. On March 14, 2013, a jury convicted Appellant of rape,

involuntary deviate sexual intercourse, sexual assault, indecent assault,

unlawful restraint, possessing an instrument of crime, intimidation of a ____________________________________ * Former Justice specially assigned to the Superior Court. J-S39004-19

witness, aggravated assault, stalking, terroristic threats, and harassment. On

August 9, 2013, the court sentenced Appellant to an aggregate term of 55 to

110 years’ imprisonment. The court also required Appellant to register for life

as a Tier III offender under the Sexual Offender Registration and Notification

Act (“SORNA”), and designated Appellant as a sexually violent predator

(“SVP”). This Court affirmed the judgment of sentence on February 3, 2015;

our Supreme Court denied a petition for allowance of appeal on July 23, 2015.

See Commonwealth v. Lewis, 120 A.3d 366 (Pa.Super. 2015) (unpublished

memorandum), appeal denied, 632 Pa. 680, 118 A.3d 1108 (2015).

On February 2, 2016, Appellant timely filed a pro se PCRA petition at

both docket numbers. The PCRA court appointed counsel on May 16, 2016.

Counsel filed a petition to withdraw and a no-merit letter pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

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

January 31, 2017. That same day, the PCRA court issued notice of its intent

to dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed three pro se

responses to the Rule 907 notice, on February 15, 2017, March 2, 2017, and

May 4, 2017. On May 30, 2017, the PCRA court denied relief and granted

counsel’s petition to withdraw.

Appellant timely filed a pro se notice of appeal on June 8, 2017. On

November 8, 2017, the PCRA court ordered Appellant to file a concise

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

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Appellant complied pro se on December 1, 2017.1

Appellant raises the following issues for our review:

IS [APPELLANT] ENTITLED TO A NEW TRIAL ON CASES CP- -51-CR-0005295-2011 AND CP-51-CR-0002049-2011 WHERE [APPELLANT] WAS NOT PRESENT NOR HAD AGREED OR HAD KNOWLEDGE OF PLEADING GUILTY ON 3-5-2013 FOR CASE CP-51-CR-0005295-2011 NEVER GIVEN COUNSEL…PERMISSION TO NEGOTIATE A GUILTY PLEA— ONLY TO WITHDRAW THE GUILTY PLEA ON 3-6-2013[,] NONE OF THIS WITH THE KNOWLEDGE OR AGREEMENT OF [APPELLANT?] THIS IN FACT WAS A TACTIC TO DISMISS A QUALIFIED JURY THAT HAD BEEN QUALIFIED ALREADY IN ORDER TO START ANEW WITH A NEW VOIR DIRE AND PICKING NEW JURY.

IS [APPELLANT] ENTITLED TO A NEW TRIAL WHERE INADMISSIBLE EVIDENCE WAS ADMITTED, THUS THE JURIST ABUSING HIS DICRETION TO WHERE THE [COURT] MERGED TWO SEPARATE CASES, THAT OCCURRED ON TWO SEPARATE DATES, WHICH DID NOT HOLD TAINT TOWARDS SUBJECT MATTER[?] [APPELLANT] WAS SUBJECT TO A DOUBLE JEOPARDY STANDARD IN VIOLATION OF THE UNITED STATES CONSTITUTION. A PRIOR OR PREVIOUS DOMESTIC CASE BETWEEN [APPELLANT] AND HIS COMPANION CP-51-CR-0005295-2011, SHOULD NOT HAVE BEEN PRESENTED BEFORE THE JURY IT’S A MISDEMEANOR. THIS MISHAP PREJUDICES [APPELLANT] AND ABRIDGED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.

(Appellant’s Brief at 3).

Initially, to be eligible for relief under the PCRA, the petitioner must

plead and prove his conviction resulted from one or more of the grounds set

forth in 42 Pa.C.S.A. § 9543(a)(2)(i-viii). Commonwealth v. Zook, 585 Pa.

____________________________________________

1Appellant filed his single notice of appeal prior to June 1, 2018. Thus, this case does not present a jurisdictional issue under Commonwealth v. Walker, ___ Pa. ___, 185 A.3d 969 (2018).

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11, 887 A.2d 1218 (2005). “Generally, an appellant may not raise allegations

of error in an appeal from the denial of PCRA relief as if he were presenting

the claims on direct appeal.” Commonwealth v. Price, 876 A.2d 988, 995

(Pa.Super. 2005), appeal denied, 587 Pa. 706, 897 A.2d 1184 (2006), cert.

denied, 549 U.S. 902, 127 S.Ct. 224, 166 L.Ed.2d 179 (2006). Further, a

petitioner must plead and prove his allegation of error has not been previously

litigated or waived. Commonwealth v. Bridges, 584 Pa. 589, 594, 886 A.2d

1127, 1130 (2005) (citing 42 Pa.C.S.A. § 9543(a)(3)). “A claim previously

litigated in a direct appeal is not cognizable under the PCRA.”

Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.Super. 2000).

Instantly, Appellant argues that he is entitled to a new trial because the

evidence was insufficient to sustain the verdict or in the alternative, that the

verdict was against the weight of the evidence. Appellant also challenges the

discretionary aspects of his sentence. All three of these arguments are raised

in terms of trial court error, which is impermissible in the PCRA context. See

42 Pa.C.S.A. § 9543(a)(2); Zook, supra; Price, supra. Further, on direct

appeal, Appellant litigated both the sufficiency and weight issues, which he

now raises in this appeal. See Hutchins, supra. Therefore, Appellant’s

issues are not cognizable under the PCRA; and the PCRA court properly denied

relief on these grounds.

Nevertheless, we are mindful of recent case law calling into question the

retroactive application of sex offender registration under SORNA to offenses

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committed before the effective date of SORNA. Given the timeliness of

Appellant’s PCRA petition, we elect to review the legality of Appellant’s

sentence on this basis sua sponte. See Commonwealth v. DiMatteo, 644

Pa. 463, 177 A.3d 182 (2018) (reiterating general rule that legality of

sentence can be reviewed in context of timely PCRA petition);

Commonwealth v. Randal, 837 A.2d 1211 (Pa.Super. 2003) (en banc)

(explaining challenges to illegal sentence cannot be waived and may be raised

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