Com. v. Vazquez, J.

Opinion

J-S51040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JUAN PABLO VAZQUEZ, : : Appellee : No. 678 MDA 2014

Appeal from the PCRA Order entered on March 4, 2014 in the Court of Common Pleas of Susquehanna County, Criminal Division, No. CP-58-CR-0000323-2010

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014

pro se, from the Order

dismissing his Petition for relief pursuant to the Post Conviction Relief Act

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Following a traffic stop, Vazquez consented to the search of his

vehicle, whereupon police discovered drugs and drug paraphernalia. After a

bench trial in 2011, Vazquez was convicted of possession with intent to

deliver, possession of a controlled substance, and possession of drug

paraphernalia.1 He was sentenced to 7 to 10 years in prison. This Court

Pennsylvania denied allowance of appeal. See Commonwealth v.

1 35 P.S. §§ 780-113(a)(30), (a)(16) and (a)(32). J-S51040-14

Vazquez, 47 A.3d 1259 (Pa. Super. 2012) (unpublished memorandum),

appeal denied, 56 A.3d 397 (Pa. 2012).

On March 6, 2013, Vazquez filed the instant PCRA Petition, claiming

violations of the Pennsylvania and United States Constitutions, ineffective

assistance of counsel, and improper obstruction by government officials of

his right to appeal. The PCRA court appointed Vazquez counsel. Counsel

subsequently filed a Petition to Withdraw pursuant to Turner/Finley.2 The

Opinion, 1/27/14, at 17. The PCRA court issued a Notice of Intent to

Dismiss

without holding a hearing. Vazquez filed a timely Notice of Appeal.

On appeal, Vazquez raises the following questions for our review:

le in derogation of law?

II. Under the circumstances of this case, did the police follow

evidence of crime) by conflicting dictum?

III. [Did] the police seize evidence (cocaine) in search of

exchange between [Vazquez] and officers, arise legerdemain that violate(s) [Article One, Section Eight] of the [Pennsylvania] th ) Amendment right under the United States Constitution?

Brief for Appellant at 3.

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court

ruling if it is supported by the evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

We will address Va

argues that the arresting officers lacked the reasonable suspicion necessary

to conduct a traffic stop. Brief for Appellant at 7-8. In his second claim,

Vazquez argues that the subsequent search of his vehicle was illegal. Id. at

9-10. In his third claim, Vazquez argues that his consent to a vehicle search

was invalid because he felt that he was not free to leave. Id. at 12-13.

preponderance o

see also

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001)

(stating that a petitioner must show that the issues he raises have not been

highest appellate court in which the petitioner could have had review as a

§ 9544(a)(2).

The

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In his direct appeal to the Superior Court of Pennsylvania, [Vazquez] raised issues concerning illegal search and seizure[,] and whether [the trial court] erred and/or committed an abuse of discretion when [it] allegedly failed to suppress all evidence

Court affirmed the judgment of sentence. After stating that the ul, the [Superior] Court determined that the investigative detention of [Vazquez] ceased when [the Trooper] advised him he was free to leave, making any subsequent interaction between the two [] individuals a mere encounter or request for information, which need not be supported by any level of suspicion. The [Superior] Court ultimately concluded that, based on the totality of the

seizure at the time he gave his consent to search the vehicle, and rather, a reasonable person in his position would have felt free to leave. As such the [Superior] Court found that the trial

Suppress.

In the instant matter, [Vazquez] timely filed a direct appeal with [the] Superior Court on May 16, 2011. The issues

adverse ruling was filed on March 29, 2012[,] by [the] Superior Court and a subsequent, timely filed Petition for Allowance of Appeal was denied by [the] Supreme Court [of Pennsylvania] on November 8, 2012.

It is abundantly clear that the highest appellate court in which [Vazquez] could have had review as a matter of right has already ruled on the merits of these particular issues. Based on this, these particular issues are statutorily precluded and [Vazquez] is not entitled to relief concerning said issues.

PCRA Court Opinion, 1/27/14, at 6-8 (citations, footnotes, and quotation

marks omitted).

allegations of error have been previously litigated, we cannot address the

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merits of his claims.3 Accordingly, the PCRA court did not err in dismissing

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/28/2014

the claims are not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2).

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