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[U] Commonwealth v. Cruz-Rivera

Superior Court of Pennsylvania

February 18, 2014



Appeal from the PCRA Order April 16, 2013 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000909-2010




Appellant, Francis Alexcis Cruz-Rivera, appeals from the April 16, 2013 order denying his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Contemporaneously with this appeal, counsel has requested leave to withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), and their progeny.[1] After careful review, we grant counsel leave to withdraw and affirm the order of the PCRA court.

The PCRA court summarized the underlying facts and procedural history of this case as follows.

On December 31, 2009, [Appellant] was arrested for firing a handgun at two former co-workers as they were standing outside their place of employment locking up. [Appellant] and his accomplice returned to the location minutes later and did a second drive-by shooting at one of the men. [Appellant] was subsequently tried and convicted on December 2, 2010, of aggravated assault, criminal conspiracy, and recklessly endangering another person.2
On March 25, 2011, [Appellant received an aggregate sentence of five to ten years' incarceration in a state correctional institution. [Appellant] filed a timely post-sentence motion challenging the verdict as against the weight of the evidence. By Opinion and Order dated April 15, 2011, th[e trial c]ourt denied [Appellant's] post-sentence motion.
2 18 Pa.C.S.A. § 2702(a)(1), 18 Pa.C.S.A. § 903, [and] 18 Pa.C.S.A. § 2705[], respectively.

PCRA Court Opinion, 4/16/13, at 1-2 (footnote in original).

On April 26, 2011, Appellant filed a timely notice of appeal, challenging the weight of the evidence. This Court affirmed Appellant's judgment of sentence on November 17, 2011. See Commonwealth v. Cruz-Rivera, 38 A.3d 923 (Pa.Super. 2011) (unpublished memorandum), appeal denied, 49 A.3d 442 (Pa. 2012). Thereafter, Appellant filed a petition for allowance of appeal with our Supreme Court, which was denied on July 23, 2012. Id. Appellant was represented during trial and on direct appeal by Christopher Lyden, Esquire (hereinafter, trial counsel).

On October 22, 2012, Appellant filed a timely pro se PCRA petition arguing, inter alia, that the evidence was insufficient to support the charges, that he was denied a fair jury pool, and that his trial counsel was ineffective. See Pro Se PCRA Petition, 10/22/12 (docketed 10/25/12), at ¶¶ 5A(1)-(3). On November 1, 2012, the PCRA court appointed Appellant's instant counsel, Andrew S. Cooper, Esquire (Attorney Cooper), to represent him. Attorney Cooper filed an amended PCRA petition on Appellant's behalf on January 4, 2013. The sole issue raised in Appellant's amended petition was the ineffectiveness of trial counsel for failing to raise a Batson[2] challenge during voir dire. See Amended Petition, 1/4/13, at ¶¶ 12-15.

On January 10, 2013, the PCRA court entered an order directing Appellant to provide a full and complete record demonstrating the alleged Batson violation within 30 days. Attorney Cooper requested and was granted an additional 21 days to submit the necessary record. On March 4, 2013, in lieu of a full and complete Batson record, Attorney Cooper provided the PCRA court with a copy of correspondence he received from Appellant with regards to the alleged Batson violation. Upon review, the PCRA court concluded that Appellant was not entitled to an evidentiary hearing on the Batson challenge, and, on March 11, 2013, provided Appellant with notice of its intent to dismiss his petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant did not file a response to the PCRA court's Rule 907 notice. On April 16, 2013, the PCRA court dismissed Appellant's petition without a hearing.

This timely appeal followed on May 15, 2013. On May 16, 2013, the PCRA court directed Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b), within 21 days. Attorney Cooper filed a timely Rule 1925(b) statement on Appellant's behalf on June 4, 2013. In lieu of a formal Rule 1925(a) opinion, the PCRA court filed a one-paragraph ...

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