J-S43026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

LESLIE MOLLETT

                            Appellant                 No. 1848 WDA 2016


             Appeal from the PCRA Order Dated November 21, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000254-2006

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                           FILED AUGUST 25, 2017

        Appellant, Leslie Mollett, appeals from the order denying his petition

filed under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–

9546. We affirm.

        On October 24, 2007, a jury convicted Appellant of the first-degree

murder of State Trooper Joseph Pokorny, and related charges of carrying a

firearm without a license, disarming a law enforcement officer, fleeing or

attempting to elude a police officer, resisting arrest and unlawful possession

of a firearm.1 On December 20, 2007, the trial court sentenced Appellant to

life in prison.   Appellant filed a direct appeal, and this Court affirmed his

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
 See 18 Pa.C.S. §§ 2502(a), 6106, 5104.1; 75 Pa.C.S. § 3733; 18 Pa.C.S.
§§ 5104, 6105.
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judgment of sentence. Commonwealth v. Mollett, 5 A.3d 291 (Pa. Super.

2010), appeal denied, 14 A.3d 826 (Pa. 2011).

       On March 26, 2012, Appellant filed the underlying PCRA petition pro

se.2   The PCRA court appointed the Office of Conflict Counsel to represent

Appellant. Counsel filed an amended PCRA petition on December 23, 2015.3

The amended petition raised three claims of trial counsel’s ineffectiveness:

1) that counsel interfered with Appellant’s right to testify on his own behalf;

2) that counsel failed to object to the “substantial presence” of state

troopers during Appellant’s trial and in the presence of the jury; and 3) that

counsel failed to make the argument that Appellant could not have shot

Trooper Pokorny because Trooper Pokorny had maced Appellant and

rendered him unable to see well enough to shoot Trooper Pokorny.

       The Commonwealth filed an answer on June 7, 20164 in which it

requested an evidentiary hearing on Appellant’s first claim regarding

counsel’s interference with Appellant’s right to testify. The Commonwealth

____________________________________________
2
  Appellant’s petition was timely because it was filed within a year after his
sentence became final. See 42 Pa.C.S. § 9545(b)(3). Appellant’s sentence
became final on May 3, 2011, when the 90-day period for filing a writ of
certiorari with the United States Supreme Court expired. See U.S. Sup. Ct.
R. 13. Therefore, Appellant had until May 3, 2012 to file a timely PCRA
petition.
3
  The Office of Conflict Counsel requested and was granted 11 extensions of
time to file the amended petition.
4
   The Commonwealth requested and was granted two extensions of time to
file the answer.


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further requested that “the remainder of the petition . . . be dismissed

without a hearing.”       On June 20, 2016, the PCRA court granted the

Commonwealth’s request and ordered that an evidentiary hearing be held

“only” on “ineffectiveness of counsel for interfering with the right to testify.”

The hearing occurred on November 16 and 17, 2016.              The PCRA court

dismissed Appellant’s petition on November 22, 2016.        Appellant filed this

timely appeal.

      Appellant presents a single for our review:

      Did the post-conviction court err by improperly denying
      [Appellant’s] claims for relief based on officer presence in the
      courtroom during trial and trial counsel’s failure to present an
      alternative theory of the case without a reasonable strategic
      basis without a hearing or proper notice that a hearing would not
      be granted?

Appellant’s Brief at 3.

      Our standard of review is as follows:

      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 and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court’s decision on any grounds if
      the record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford
      no such deference to its legal conclusions. Further, where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review is plenary.

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

omitted).   There is no absolute right to an evidentiary hearing on a PCRA


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petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citation

omitted), appeal denied, 956 A.2d 433 (Pa. 2008).

      Appellant seeks post-conviction relief on the basis that trial counsel

was ineffective.   The law presumes that counsel has rendered effective

assistance.   Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super.

2010). The burden of demonstrating ineffectiveness rests on the petitioner.

Id.   To satisfy this burden, the petitioner must plead and prove by a

preponderance of the evidence that: “(1) his underlying claim is of arguable

merit; (2) the particular course of conduct pursued by counsel did not have

some reasonable basis designed to effectuate his interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the challenged proceedings would have been different.” Commonwealth

v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of

this test will result in rejection of the petitioner’s ineffective assistance of

counsel claim. Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      Appellant argues that the “sole issue on appeal relates to [his]

procedural due process rights.”    Appellant’s Brief at 6.   Appellant asserts

that remand is warranted because the PCRA court erred by denying two of

his claims without a hearing and without notice pursuant to Pa.R.Crim.P.

907, which provides:


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     Disposition Without Hearing

     (1)   the judge shall promptly review the petition, any answer
           by the attorney for the Commonwealth, and other matters
           of record relating to the defendant's claim(s). If the judge
           is satisfied from this review that there are no genuine
           issues concerning any material fact and that the defendant
           is not entitled to post-conviction collateral relief, and no
           purpose would be served by any further proceedings, the
           judge shall give notice to the parties of the intention to
           dismiss the petition and shall state in the notice the
           reasons for the dismissal. The defendant may respond to
           the proposed dismissal within 20 days of the date of the
           notice.    The judge thereafter shall order the petition
           dismissed, grant leave to file an amended petition, or
           direct that the proceedings continue.

     (2)   A petition for post-conviction collateral relief may be
           granted without a hearing when the petition and answer
           show that there is no genuine issue concerning any
           material fact and that the defendant is entitled to relief as
           a matter of law.

     (3)   The judge may dispose of only part of a petition without a
           hearing by ordering dismissal of or granting relief on only
           some of the issues raised, while ordering a hearing on
           other issues.

     (4)   When the petition is dismissed without a hearing, the
           judge promptly shall issue an order to that effect and shall
           advise the defendant by certified mail, return receipt
           requested, of the right to appeal from the final order
           disposing of the petition and of the time limits within which
           the appeal must be filed. The order shall be filed and
           served as provided in Rule 114.

     (5)   When the petition is granted without a hearing, the judge
           promptly shall issue an order granting a specific form of
           relief, and issue any supplementary orders appropriate to
           the proper disposition of the case. The order shall be filed
           and served as provided in Rule 114.

           Comment: The judge is permitted, pursuant to paragraph
           (1), to summarily dismiss a petition for post-conviction

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            collateral relief in certain limited cases. To determine
            whether a summary dismissal is appropriate, the judge
            should thoroughly review the petition, the answer, if any,
            and all other relevant information that is included in the
            record. If, after this review, the judge determines that the
            petition is patently frivolous and without support in the
            record, or that the facts alleged would not, even if proven,
            entitle the defendant to relief, or that there are no genuine
            issues of fact, the judge may dismiss the petition as
            provided herein.

Pa.R.Crim.P. 907.

      Appellant maintains that the trial court violated Rule 907 and “failed to

formally provide notice that the second and third claims would be dismissed

without a hearing and the reasons for that dismissal.” Appellant’s Brief at 9

(emphasis in original).   Appellant asserts that, as a result, he “had no

opportunity to argue to the PCRA court why an evidentiary hearing was

warranted for these claims.” Id. at 9-10. Appellant seeks remand because

“these [two] issues were of arguable merit such that he is entitled to at least

present them at an evidentiary hearing.” Id. at 10.

      The Commonwealth counters that Rule 907 notice was not warranted

where the PCRA court held an evidentiary hearing on “one but not all

ineffectiveness claims raised in [A]ppellant’s PCRA petition.” Commonwealth

Brief at 1, 40.     The Commonwealth contends, “Rule 907 contains no

provision requiring the court to issue a notice of its intent to dismiss the

remaining claims.” Id. at 40. The Commonwealth adds that the denial of

Appellant’s petition was proper because Appellant’s remaining claims were

without merit, as Appellant “failed to demonstrate that the troopers’ mere

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presence created an unacceptable risk of the jury considering improper

factors” or prejudiced Appellant, and Appellant “failed to develop any

argument whatsoever as to his self-serving, baseless assertion that counsel

should have developed a defense theory that there was another shooter.”

Id.5

       Our review of the notes of testimony from the PCRA hearing reveals

that at the outset, the court addressed Appellant’s counsel and the following

exchange occurred:

       [THE COURT]: Counsel, we have [Appellant] here. This is a
       PCRA hearing, and it is your current desire, I take it, to
       memorialize part of your case, the testimony of [trial counsel].
       The record will remain open for other matters that you
       may file in your discretion that are appropriate to bring to
       the attention of the Court; is that right?

       [APPELLANT’S COUNSEL]: Good afternoon. May it please the
       Court, Kayleigh Shebs on behalf of [Appellant]. That is
       correct.

       [THE COURT]: Any objection to that, [Commonwealth]?

       [DISTRICT ATTORNEY]:       May it please the Court, Rusheen
       Pettit on behalf of the Commonwealth. And no, we do not
       have an objection.

N.T., 11/16/16, at 3-4 (emphasis added).         Appellant’s trial counsel, John

Elash, took the stand on the first day of the hearing.        The hearing was




____________________________________________
5
  In support of its argument, the Commonwealth has included a lengthy
recitation of the facts of the case, with citations to the notes of testimony
from the jury trial. Commonwealth Brief at 4-39.


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continued for a second day, at which Appellant testified. At the end of the

second day, the notes of testimony read:

      [DISTRICT ATTORNEY]:           That’s all I have.

      THE COURT:                     Anything else for the gentleman?

      [APPELLANT’S COUNSEL]: No, Your Honor.

      THE COURT:                     Thank you, sir.  You may step
                                     down. Any other testimony?

      [APPELLANT’S COUNSEL]: No, Your Honor.

      THE COURT:                     Any testimony on behalf of the
                                     Commonwealth?

      [DISTRICT ATTORNEY]:           No, Your Honor.

      THE COURT:                     So the record is closed in this
                                     matter?

      [APPELLANT’S COUNSEL]: That’s correct, Your Honor.

N.T., 11/17/16, at 20-21 (emphasis added).

      Based on this record, we disagree with Appellant’s assertion that he is

entitled to relief based on the PCRA court’s “formal” violation of Rule 907.

To the contrary, Appellant was informed that the trial court was prepared to

dispose of his second and third claims without a hearing. On June 20, 2016,

in response to the Commonwealth’s June 7, 2016 request, the PCRA court

ordered “an evidentiary hearing as to Claim 1 only (ineffectiveness of

counsel for interfering with the right to testify),” thereby making clear that it

did not plan to hold a hearing on the other two claims. Appellant did not file

anything in the ensuing months that objected to the court’s order or sought

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its reconsideration.     At the November 16 and 17, 2016 hearing, when the

court stated that the record would “remain open for other matters that you

may file in your discretion that are appropriate to bring to the attention of

the Court,” Appellant did not seek to raise his other two issues as such

“other matters,” and at the conclusion of the hearing he agreed that “the

record is closed in this matter.” N.T., 11/16/16, at 3; N.T., 11/17/16, at 20-

21. We thus reject Appellant’s argument that he “had no opportunity to

argue to the PCRA court why an evidentiary hearing was warranted for these

claims.”      Appellant’s Brief at 9-10.   Appellant therefore is not entitled to

relief.

          Further, contrary to Appellant’s argument, the PCRA court did not

“summarily dismiss” Appellant’s claims.        In Commonwealth v. Albrecht,

720 A.2d 693 (Pa. 2008), the Supreme Court addressed the appellant/

petitioner’s argument that a remand was needed “because the PCRA court

failed to provide adequate notice of its intent to dismiss his petition,” and

stated:

          [T]he Pennsylvania Rule[] of Criminal Procedure requires that,
          where upon review of the petition and answer the PCRA court is
          convinced that no meritorious issues are presented and dismissal
          is appropriate without further proceedings, the court shall
          provide the defendant notice of its intention to dismiss and 10
          days to respond with reasons why dismissal is inappropriate.
          Here, the PCRA court did not summarily dismiss the petition
          upon initial review, but rather ordered the appointment of
          counsel, the filing of an amended petition, and the briefing of the
          legal issues presented. Therefore, [the] Rule [], by its own
          terms, is inapplicable . . .


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Albrecht, 720 A.2d at 709–710.6 For similar reasons, the PCRA court in this

case did not “summarily dismiss” Appellant’s PCRA petition.

       In addition to appointing counsel and reviewing the parties’ pleadings,

the PCRA court convened a hearing which – while held for the introduction of

evidence on only one claim – provided Appellant with the opportunity to

respond and otherwise address the court’s preclusion of evidence on his two

other claims.     At the outset, the court stated that “the record will remain

open for other matters that [Appellant] may file in [his] discretion that are

appropriate to bring to the attention of the Court.” N.T., 11/16/16, at 3-4.

And at the end of the hearing, the court “clos[ed] this matter” only after

obtaining the agreement of counsel and after being advised by Appellant’s

counsel that he had no other testimony to present. N.T., 11/17/16, at 20-

21. Thus, Appellant has not demonstrated that the PCRA court violated Rule

907; Appellant “was afforded both further proceedings and [the] opportunity

to present arguments in support of [his] petition, which is all [the] rule

requires.”    Commonwealth v. Weimer, --- A.3d ----, 2017 WL 2893962

(Pa. Super. 2017), citing Albrecht, supra.

       Finally, even if we assume arguendo that the PCRA court violated Rule

907, the procedural error would be harmless.       The PCRA court declined to
____________________________________________
6
  Albrecht references Rule 1507, which was the predecessor to Rule 907.
Rule 1507(a) was nearly identical to Rule 907, but Rule 1507(a) granted a
petitioner only ten days, not 20, to respond to the court’s notice of its intent
to dismiss the petition without holding an evidentiary hearing.             See
Albrecht, 720 A.2d at 709 n. 18 (quoting Pa.R.Crim.P. 1507(a)).


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hold a hearing on Appellant’s two other claims because it determined that no

genuine issues of material fact existed. See PCRA Court Opinion, 3/10/17,

at 3-4; Jones, 942 A.2d at 906. The PCRA court stated the three-prong test

necessary    to   overcome   the   presumption    of   trial   counsel’s   effective

representation. PCRA Court Opinion, 3/10/17, at 2-3; Fulton, 830 A.2d at

572.    With regard to Appellant’s claims that he was prejudiced by the

presence of police officers during his trial and that counsel failed to present a

theory that someone else was the shooter, the PCRA court explained:

              Our constitution provides that all proceedings before the
       Courts are to be open to the public. Thus, this Court does not
       have the authority to prohibit the police officers from attending
       the trial. That being said, the Court did prohibit the officers from
       appearing in their police uniforms, either in the hallway or in the
       courtroom. The mere presence of police officers, which can
       reasonably be anticipated in a trial concerning the shooting
       death of one of their own, without more, does not sufficiently
       demonstrate that [Appellant] was denied a fair trial.

             The third allegation claims that trial counsel rendered
       ineffective assistance in failing to present a theory to the jury
       that a[nother] shooter was involved. In essence, [Appellant]
       claims that because the deceased trooper had sprayed mace in
       his face, he would have been unable to see well enough to shoot
       the trooper and to drive home; therefore, a[nother] person must
       have been the actual shooter. As this theory is completely far-
       fetched and, in fact, pure fantasy, the Court cannot find trial
       counsel ineffective for failing to argue it to the jury. Trial
       counsel is not required to posit non-meritorious arguments or
       theories to the jury. As such, this claim was properly dismissed.

PCRA Court Opinion, 3/10/17, at 3-4.




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      Consistent with the foregoing, we conclude that the PCRA court’s order

dismissing Appellant’s PCRA petition is supported by the evidence of record

and free of error.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2017




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