J-S52002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
              v.                            :
                                            :
RONDELLE CHRISTAIN MIDDLETON,               :
                                            :
                    Appellant               :           No. 1997 MDA 2016

                 Appeal from the PCRA Order November 23, 2016
                in the Court of Common Pleas of Dauphin County,
               Criminal Division, No(s): CP-22-CR-0000012-2014

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED AUGUST 30, 2017

        Rondelle Christain Middleton (“Middleton”) appeals from the Order

denying his first Petition filed pursuant to the Post Conviction Relief Act.1

We affirm.

        In its Opinion, the PCRA court set forth the relevant factual and

procedural background, which we adopt for the purpose of this appeal. See

PCRA Court Opinion, 11/23/16, at 1-2 (unnumbered).

        The PCRA court denied Middleton’s Petition. Middleton thereafter filed

a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

        On appeal, Middleton raises the following issues for our review:

        1. Did the trial court err in denying [Middleton’s] PCRA [Petition]
           when:



1
    See Pa.C.S.A. §§ 9541-9546.
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              a. Appellate counsel did not specifically challenge the
                 Terry[2] frisk in the court[-]ordered Pa.R.A.P. 1925(b)
                 Concise Statement[,] and only raised a general
                 challenge to the trial court’s denial of his suppression
                 Motion; and

              b. Appellate counsel failed to       raise   []   Middleton’s
                 sentencing issues on appeal[?]

Brief for Appellant at 4 (some capitalization omitted, issues renumbered,

footnote added).3

        In reviewing the denial of a PCRA Petition, we examine whether the

PCRA court’s determination “is supported by the record and free of legal

error.”     Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)

(citations omitted).

        In his first issue, Middleton contends that “trial and appellate counsel

were ineffective in failing to present testimony to preserve the issue of

challenging the Terry frisk on appeal.” Brief for Appellant at 10. Middleton

concedes that, although Attorney Muller raised the issue on direct appeal,

the issue was deemed waived because he had failed to raise the issue before




2
    Terry v. Ohio, 88 S. Ct. 1868 (1968)

3
 As noted by the PCRA court, Paul Muller, Esquire (“Attorney Muller”), of the
Dauphin County Public Defender’s Office, represented Middleton at the non-
jury criminal trial, and filed a Pa.R.A.P. 1925(b) Concise Statement on his
behalf. A different public defender was thereafter appointed to represent
Middleton for the remainder of his direct appeal. However, based on our
review, it appears that each of Middleton’s ineffectiveness claims pertains to
Attorney Muller only.


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J-S52002-17


the trial court. Id. Middleton points out that the issue was further waived

because Attorney Muller had failed to specifically raise the issue in

Middleton’s Pa.R.A.P. 1925(b) Concise Statement of errors complained of on

appeal. Id. at 11; see also id. (wherein Middleton explains that Attorney

Muller merely raised a general challenge to the trial court’s denial of his

suppression Motion).

      In its Opinion, the PCRA court addressed Middleton’s first issue, set

forth the relevant law, and determined that the issue lacks merit. See PCRA

Court Opinion, 11/23/16, at 2-5 (unnumbered).                We agree with the

reasoning of the PCRA court, which is supported by the record and free of

legal error, and affirm on this basis as to Middleton’s first issue. See id.

      In his second issue, Middleton contends that Attorney Muller was

further ineffective because he “failed to appeal the initial granting and the

subsequent denial of [Middleton’s] Motion to modify sentence.”             Brief for

Appellant at 12. Middleton explains that the trial court initially granted his

Motion, and permitted the sentences for counts one and two to run

concurrently,    but   then   reinstated   the   original    sentence     after   the

Commonwealth filed a Motion for reconsideration.            Id.    Middleton claims

that, “[a]lthough the mandatory sentence was not imposed in this case,

[Middleton]     was    sentenced   above   the    standard        range   upon    the

Commonwealth’s erroneous assertion that this was [Middleton’s] fifth (5 th)

drug trafficking conviction.” Id. Middleton maintains that he had only two



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J-S52002-17


prior drug trafficking convictions, and contends that Attorney Muller was

ineffective for failing to preserve and raise this issue on appeal. Id.

      In its Opinion, the PCRA court addressed Middleton’s second issue, and

determined that the issue lacks merit. See PCRA Court Opinion, 11/23/16,

at 5-6 (unnumbered).      We agree with the reasoning of the PCRA court,

which is supported by the record and free of legal error, and affirm on this

basis as to Middleton’s second issue. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/2017




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