J-S21008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL LAMONT ELLIS

                            Appellant                 No. 726 WDA 2016


                   Appeal from the PCRA Order April 29, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003801-2012


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 04, 2017

        Michael Lamont Ellis appeals from the order, entered in the Court of

Common Pleas of Allegheny County, dismissing, without a hearing, his

petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

9546 (“PCRA”). After our review, we affirm.

        The facts of this case are set forth in this Court’s unpublished

memorandum decision in Commonwealth v. Ellis, 116 A.3d 692 (Pa.

Super. 2014):

        Officers Jeffrey Labella and Elizabeth Vitalbo of the Pittsburgh
        Police Department were on patrol duty in the early morning
        hours of December 31, 2011, in the Point Breeze/Squirrel Hill
        area of [Pittsburgh]. At approximately 3:40 a.m., the officers
        observed [a] black Jeep on Penn Avenue swerving on the
        roadway. Appellant’s vehicle made a right-hand turn against a
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*
    Retired Senior Judge assigned to the Superior Court.
J-S21008-17


      red light on South Dallas Avenue without stopping or signaling.
      On Dallas, the officers observed the Jeep continue to swerve and
      cross the centerline and travel off the roadway to the right-hand
      side. After observing these traffic violations, the officers
      activated their lights and sirens and attempted a traffic stop. The
      Jeep did not come to a complete stop, but the engine remained
      on and the officers testified that the Jeep appeared to inch
      forward as they approached. Using the police vehicle’s P.A.
      system, the officers got [Ellis] to finally put his vehicle in park.
      However, [Ellis] did not pull over to the curb, but stopped the
      car in the middle of the road. When the officers approached,
      they suspected that he might be intoxicated upon observing his
      glassy and bloodshot eyes and hearing his slurred speech. [Ellis]
      failed to comply with the officers’ verbal instructions to put the
      car in park. Instead, he turned the steering wheel in the
      direction of Officer Labella and drove away at a rapid speed.
      Officer Labella had to jump backwards into the opposing lane of
      traffic to avoid being struck by appellant’s car. The officers
      immediately pursued appellant’s vehicle. [Ellis] drove erratically
      through     a   residential    neighborhood;    he    was    driving
      approximately 60 miles per hour in a 25-miles-per-hour zone. He
      went through two red lights without pausing or stopping, [one]
      at the corner of Wilkins and Beechwood and one at Wilkins and
      Shady. Near the intersection of Wilkins and Wightman, [Ellis’]
      vehicle crossed the opposite lane of traffic and went up on the
      sidewalk. The vehicle then hit several parked vehicles and two
      telephone poles. The vehicle finally came to rest head-on with a
      tree. The officers approached with guns drawn and instructed
      [Ellis] to show his hands; [Ellis] did not comply. To remove
      appellant from the vehicle, Officer Labella had to smash the
      passenger side window, as the doors would not open. [Ellis] was
      pulled through the window and placed under arrest. [Ellis] was
      transported to Mercy Hospital where Officer Kevin Walters, an
      impaired driving specialist, obtained his consent to a blood draw
      for chemical testing. As he consented, refusal warnings were not
      read to [Ellis]. [Ellis’] blood alcohol content was .242. [Ellis]
      filed a motion to suppress. Following a hearing, the Honorable
      Jill E. Rangos denied [Ellis’] motion.

Ellis, supra at *1-3 (citations omitted).




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        Following a two-day trial, a jury convicted Ellis of driving under the

influence (“DUI”) .16 or higher,1 DUI-causing accident,2 DUI-general

impairment,3 recklessly endangering another person (“REAP”),4 driving while

operator’s license is under suspension or revoked,5 fleeing or attempting to

elude police,6 and numerous summary offenses. The court sentenced Ellis to

an aggregate term of 12 to 72 months’ incarceration and a consecutive

period of three years’ probation. Ellis filed a post-sentence motion, which

was denied, and on direct appeal, this Court affirmed.         Ellis, supra. The

Pennsylvania Supreme Court denied allowance of appeal on April 28, 2015.

Commonwealth v. Ellis, 114 A.3d 1038 (Pa. 2015) (Table).

        On June 8, 2015, Ellis filed a pro se PCRA petition.7           The court

appointed counsel, who filed an amended petition on March 21, 2016. The

Commonwealth filed an answer on April 7, 2016 and the PCRA court filed a

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1
    18 Pa.C.S.A. § 3802(c).
2
    18 Pa.C.S.A. § 3803(b)(1).
3
    18 Pa.C.S.A. § 3802(a)(1).
4
    18 Pa.C.S.A. § 2705.
5
    18 Pa.C.S.A. § 1543(b).
6
    75 Pa.C.S.A. § 3733.
7
   The trial court’s opinion states that Ellis’ pro se petition was filed on July 1,
2015. The trial court’s docket, however, indicates the petition was in fact
filed on June 8, 2015.



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notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 on April 8, 2016.

Ellis filed his response to the notice on April 28, 2016, and the PCRA court

entered its order dismissing Ellis’ petition on April 29, 2016. Ellis appealed,

and he raises the following issues for our review:

          1. Was trial counsel ineffective for failing to produce
             [arresting] Officer Jeffrey Labella and EMT Jill Fox as
             witnesses at [Ellis’] suppression hearing?

          2. Was trial counsel ineffective in failing to object to a gross
             exaggeration made by the ADA during his opening
             statement to the effect that police were forced to chase
             [Ellis] for nearly three miles through the streets of
             Pittsburgh?

          3. Did the Commonwealth commit a Brady[8] violation in
             failing to provide a copy of a transcript of the questioning
             of Officer Jeffrey Labella taken as part of an internal
             investigation of Ellis’ arrest?

          4. Did the transcript of a statement made by Officer Jeffrey
             Labella and the testimony of Officer Labella and EMT Jill
             Fox offered in a federal civil rights suit constitute
             exculpatory evidence not available at the time of trial
             under the PCRA which compels the granting of a new trial?

Appellant’s Brief, at 3.



____________________________________________


8
   Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”). To establish
a Brady violation, a defendant must demonstrate the evidence at issue was
favorable to him, either exculpatory or used as impeachment; prosecution
either willfully or inadvertently suppressed the evidence; and defendant was
prejudiced.



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      Our standard of review of the denial of a PCRA petition is limited to

examining    whether   the   evidence     of   record    supports    the      court’s

determination   and    whether    its    decision   is   free   of   legal     error.

Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011).                     This

Court grants great deference to the PCRA court’s findings if supported by the

record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007).

However, we are not bound by the PCRA court’s legal conclusions.

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

there is no right to a PCRA hearing; a hearing is unnecessary where the

PCRA court can determine from the record that there are no genuine issues

of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008).

      After our review of the record, the briefs of the parties, the applicable

law, and the opinion of the Honorable Jill E. Rangos, we conclude Ellis’

claims on appeal merit no relief. Judge Rangos’ opinion properly disposes of

the questions presented.      See PCRA Court Opinion, 11/2116, at 4-6

(finding: counsel not ineffective for failing to call witnesses not present at

hospital during disputed blood draw; although both witnesses may have

corroborated some of Ellis’ testimony as to what occurred during ambulance

ride, neither was present during blood draw that Ellis claims was made




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without consent;9 counsel was not ineffective for failing to object to Ellis’

allegation that prosecutor exaggerated distance Ellis attempted to elude

police, claiming it was one mile, not three miles as referenced by

prosecutor; no Brady violation where Ellis failed to establish reasonable

basis the evidence at issue was material to his defense; and civil trial

transcript not relevant as Officer Labella and EMT Fox were present in

ambulance, not at hospital, where disputed consent occurred).

       We agree with the reasoning of the PCRA court, which is supported by

the record and free of legal error, and we affirm on the basis of Judge

Rangos’ opinion. We direct the parties to attach that opinion in the event of

further proceedings.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2017


____________________________________________


9
  Ellis acknowledges in his brief that the testimony to which he points, that
of Officer Labella and EMT Fox, refers to the exchange that occurred in the
ambulance, not at the hospital. Appellant’s Brief, at 6.



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