J-S56028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN LEWIS BELLOWS
Appellant No. 1378 MDA 2014
Appeal from the PCRA Order July 21, 2014
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000159-2010
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 05, 2015
Appellant John Lewis Bellows appeals from the order of the Bradford
County Court of Common Pleas denying his petition filed pursuant to the
Post Conviction Relief Act , 42 Pa.C.S. § 9541 et seq. We affirm.
On October 27, 2010, a jury found Appellant guilty of indecent assault
(complainant less than 13 years of age).1 On January 17, 2011, the trial
court sentenced Appellant to 15 months to 5 years’ imprisonment.
Sentencing Order, 1/17, 2011. Appellant received credit for the 219 days he
previously served. Id. The sentence imposed by the trial court did not
include probation. Id.
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3126(a)(7).
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On January 26, 2011, Appellant filed a post-sentence motion for
judgment of acquittal, which the trial court denied on March 31, 2011. On
April 25, 2012, this Court affirmed. Appellant filed a petition for allowance
of appeal, which the Supreme Court of Pennsylvania denied on December
27, 2012.
On September 6, 2013, Appellant filed a pro se PCRA petition, which
he subsequently amended.2 The court held an evidentiary hearing and, on
July 21, 2014, it denied the PCRA petition. On August 14, 2014, Appellant
timely filed a notice of appeal. The trial court did not request, and Appellant
did not file, a concise statement of matters complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On March
18, 2015, the trial court issued a statement in lieu of a Rule 1925(a) opinion
adopting its July 21, 2014 order denying the PCRA petition.
Appellant completed serving his sentence on June 12, 2015.3
Appellant raises the following issues for our review:
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2
On December 23, 2013, the trial court issued an order noting it held a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa.1998),
and finding Appellant knowingly and voluntarily waived his right to counsel
during the PCRA proceedings.
3
On January 17, 2011, the trial court sentenced Appellant to a maximum of
five years’ imprisonment and ordered that Appellant receive credit for 219
days previously served. Because of the credit for time-served, Appellant
began serving his sentence on June 12, 2010 and he completed serving his
five-year sentence on June 12, 2015.
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1. Whether direct appeal counsel was ineffective for not
properly arguing that the finality of a pretrial motion order
by the court can not be changed mid-trial. The child was
reuled “unavailable” as a witness according to the TYHA
(Tender Years Hearsay Act), 42 Pa.C.S. § 5985.1.
2. Whether direct appeal counsel failed and was ineffective
for not bringing the claim of a confrontation rights
violation, Commpnwealth called the child’s preliminary
transcript into testimony. They Commonwealth also
violated the TYHA statute by not giving notice, by the
statute.
3. Whether direct appeal counsel in effectiveness of not
raising the claim on direct appeal of the hearsay testimony
of Tricia Tietjen proven to be sufficient indicia of reliability
for the hearsay exception according to the TYHA statute.
4. Whether the petition has been prejudiced by trial
counsels ineffectiveness by the Commonwealth “not”
turning over the actual forensic interview of the child
instead of a summary interview. Trial counsel failed to
request the whole C.Y.S. file of the child. Direct appeal
ounsel is ineffective for not claiming these issues on direct
appeal.
5. Whether direct appeal counsel has been ineffective for
not bringing up trial counsels ineffectiveness on direct
appeal, due to the defendants short sentense.
Appellant’s Brief at 7-8 (verbatim).
To be eligible for PCRA relief:
[T]he petitioner must plead and prove by a preponderance
of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under
the laws of this Commonwealth and is at the time relief is
granted:
(i) currently serving a sentence of imprisonment,
probation or parole for the crime;
(ii) awaiting execution of a sentence of death for the
crime; or
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(iii) serving a sentence which must expire before the
person may commence serving the disputed
sentence.
42 Pa.C.S. § 9543(a)(1); accord Commonwealth v. Turner, 80 A.3d 754
(Pa.2013) (finding § 9543(a)(1) was constitutional and barred review of
PCRA petition where petitioner was no longer serving sentence).
Accordingly, to be eligible for PCRA relief, the petitioner must be “serving a
sentence of imprisonment, probation or parole for the crime.’”
Commonwealth v. Williams, 977 A.2d 1174, 1176 (Pa.Super.2009)
(quoting Commonwealth v. Hart, 911 A.2d 939, 941-42 (Pa.Super.2006)).
A petitioner becomes ineligible for relief upon completion of his sentence,
“regardless of whether he was serving his sentence when he filed the
petition.” Id. (quoting Hart, 911 A.2d at 941-42).
Appellant completed serving his sentence for the indecent assault
conviction on June 12, 2015, while his appeal of the order denying his PCRA
petition was pending. Because Appellant completed serving his sentence, he
is ineligible for PCRA relief and we will affirm the denial of his PCRA petition. 4
Order affirmed.
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4
This Court may affirm a PCRA court’s decision on any grounds.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.2012) (citing
Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super.2010)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2015
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