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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
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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 Super. 2012) (unpublished memorandum),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
3
the claims are not cognizable under the PCRA. See 42 Pa.C.S.A.
§ 9543(a)(2).
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