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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
                  v.                       :
                                           :
LESLIE R. MITCHELL,                        :
                                           :
                        Appellant          :    No. 2988 EDA 2015

              Appeal from the PCRA Order September 18, 2015
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0500051-2005

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 06, 2017

      Appellant, Leslie R. Mitchell, appeals pro se from the September 18,

2015 Order entered in the Court of Common Pleas of Philadelphia County

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      On October 12, 2004, Appellant shot and killed Michael Lambert

outside a pool hall in Philadelphia. On November 6, 2006, a jury convicted

Appellant of First-Degree Murder and related firearms offenses.            On

December 18, 2006, the trial court sentenced him to life imprisonment

without the possibility of parole. This Court affirmed Appellant’s Judgment

of Sentence. Commonwealth v. Mitchell, 954 A.2d 39 (Pa. Super. 2008)

(unpublished memorandum).           Our Supreme Court denied allowance of
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appeal on November 19, 2008. Commonwealth v. Mitchell, 960 A.2d 838

(Pa. 2008).

      On August 24, 2009, Appellant filed the instant timely pro se PCRA

Petition, his first.   Appellant filed a pro se Amended PCRA Petition on July

19, 2011. The PCRA court appointed counsel on October 25, 2010, who filed

an Amended PCRA Petition on October 26, 2012.

      On May 12, 2014, the PCRA court conducted a hearing pursuant to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), permitted Appellant

to represent himself pro se, and removed Appellant’s court-appointed

attorney. Appellant filed an “Amended Memorandum of Law” in support of

his PCRA Petition on August 18, 2014.

      After providing Notice to Appellant pursuant to Pa.R.Crim.P. 907, the

PCRA court dismissed Appellant’s Petition without a hearing on September

18, 2015.

      Appellant filed a pro se timely Notice of Appeal. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Did the court of common pleas trial court commit [an] error of law,
         by not proving adequate notice of intent to seek imposition from
         prosecution, of the mandatory sentence of life without parole in the
         indictment of information under the applicable statutes, § 2501(a),
         § 9711, and § 9715[?]

      2. Did the courts show error by            not   addressing   Petitioner’s
         confrontation clause violation[?]




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      3. Did the courts show error by not addressing, the Philadelphia
         District Attorney’s Office supporting a pattern of erroneous
         testimony by expert Medical Examiner Ian C. Hood[?]

      4. Did the courts show error by not addressing trial/appellant counsel
         failure to “object”/”preserve” Petitioner’s confrontation violation
         claim[?]

      5. Did the courts show error by not questioning the foremen juror/or
         entire jury, about possible prejudice arising from ex-parte
         communication with the Sheriff[?]

      6. Did the courts of common pleas commit [an] error of law by
         applying an inapplicable statutes under § 2501(a)(d), § 2502(a)(d),
         § 9711(a), and § 9715(a), where it violated [] Defendant’s 5th, 6th,
         and 14th Amendment[?]

Appellant’s Brief at II-III (capitalization omitted).1

      On February 3, 2017, Appellant filed a document entitled “Re:

Untimely 1925(b); 1925(c)(3) Statement of Errors Complained of on Appeal:

Motion of Leave Nunc Pro Tunc[.]”        The contents of this filing attempt to

raise numerous additional claims as an untimely supplement to Appellant’s

Pa.R.A.P. 1925(b) Statement of Errors. We deny Appellant’s Motion.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its order is otherwise

free of legal error.    Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). This Court grants great deference to the findings of the PCRA court if

1
   Appellant presents numerous sub-issues via rambling arguments and
claims that are waived for lack of development.               Pa.R.A.P. 2119;
Commonwealth v. Steele, 961 A.2d 786, 797 (Pa. 2008) (finding claims
waived for lack of development where petitioner failed to meaningfully
discuss them, failed to set forth all prongs of ineffectiveness test, and relied
on rambling arguments and boilerplate allegations).



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they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,

515 (Pa. Super. 2007). We give no such deference, however, to the court’s

legal conclusions.   Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.

Super. 2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2). Appellant

must also establish that the issues raised in the PCRA petition have not been

previously litigated or waived.   42 Pa.C.S. § 9543(a)(3).    An allegation of

error “is waived if the petitioner could have raised it but failed to do so

before trial, at trial, during unitary review, on appeal[,] or in a prior state

postconviction proceeding.” 42 Pa.C.S. § 9544(b).

      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).

      Appellant first claims that he received inadequate notice of the

Commonwealth’s intent to seek a mandatory life sentence for his First-

Degree Murder conviction.      Appellant’s Brief at 1-4.    Appellant did not

present this issue in his direct appeal or to the lower court.        Instead,

Appellant raises this issue for the first time on PCRA appeal. Accordingly,




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Appellant has waived this issue. See 42 Pa.C.S. § 9544(b); Pa.R.A.P. 302;

Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007).2

      In his second issue, Appellant avers that the trial court erred in

refusing to grant him relief on his confrontation challenges regarding the

testimony of Medical Examiner Ian Hood.3           Appellant’s Brief at 5-6.

Appellant did not present this issue in his direct appeal or to the lower court

during trial by objecting to Dr. Hood’s testimony.        As the PCRA court

correctly concluded, Appellant, thus, waived this substantive claim.      See

PCRA Court Opinion, 5/24/16, at 4; 42 Pa.C.S. § 9544(b); Washington,

supra.

      Appellant’s third and fourth issues present trial counsel ineffectiveness

claims.   The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).              The

burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy

this burden, Appellant 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

2
  In any event, the mandatory sentence for first-degree murder is life
imprisonment and the Commonwealth need not provide “notice of its intent
to seek” a mandatory term. See 42 Pa.C.S. § 9711.
3
  Appellant argued that Dr. Gupta, not Dr. Hood, should have testified
regarding the contents of the forensic report because he actually examined
the victim and prepared the report.



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

of the challenged proceeding would have been different.” Commonwealth

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

test will result in rejection of the appellant’s ineffective assistance of counsel

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

      Appellant avers that Dr. Gupta should have testified rather than Dr.

Hood, and this error violated his right to confront Dr. Gupta on cross-

examination about the contents of the forensic report and the examination.

Appellant now claims ineffective assistance of counsel for failing to object to

Dr. Hood’s testimony on this basis.     Appellant also claims that his counsel

was ineffective for failing to uncover evidence that Dr. Hood provided

medical testimony in 1993 without a license to practice medicine.

      The PCRA court rejected Appellant’s third and fourth claims, concluding

that they were both undeveloped because Appellant failed to provide any

evidentiary or legal support for his contentions. PCRA Court Opinion at 8.

We agree with the PCRA court’s assessment and conclude that Appellant has

not developed his conclusory statements to demonstrate that the issues

underlying his ineffectiveness claims have merit. See Commonwealth v.

Cook, 952 A.2d 594, 616 (Pa. 2008) (rejecting similar claim regarding trial

counsel’s purported failure to effectively cross-examine a medical expert).

Accordingly, the PCRA court properly rejected these claims.




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      In his fifth claim, Appellant avers that trial counsel was ineffective for

failing to seek any remedy after a juror reported to the sheriff that she

observed a spectator making eye contact with her and shaking his head at

her during Appellant’s testimony.       Appellant’s Brief at 14-16.   Appellant

argues that his trial counsel should have questioned the juror about her

ability to be fair and impartial. Id.

      The PCRA court addressed Appellant’s fifth issue as follows:

      Appellant alleges trial counsel was ineffective for not seeking any
      remedy following a juror’s comment to a sheriff. Specifically,
      during Appellant’s testimony one of the jurors noticed a
      spectator making eye contact with her and shaking his head to
      Appellant’s answers. She reported it to a sheriff and said she
      was “creeped out.” N.T. 11/3/06, 140-142. After being advised
      of the incident, Appellant’s experienced counsel expressed at
      length his reasoning for not seeking to further question the juror
      or ask for any other type of relief. N.T. 11/3/06, 143-144.[4]
      Counsel clearly expressed a reasonable basis for acting as he did
      and therefore Appellant has no basis to complain under the
      PCRA.

PCRA Court Opinion at 5. We agree with the PCRA court’s assessment and

conclude that Appellant failed to demonstrate that the particular course of

conduct pursued by counsel did not have some reasonable basis designed to



4
  Appellant’s counsel believed it was a natural reaction when someone is
testifying, did not believe “it was any effort on the part of anyone in the
audience to influence the jury[]” since it occurred while the prosecutor
cross-examined Appellant about the gun and how to shoot it, stated that the
juror was seated at least 50 feet away from the spectator, and did not want
to overreact, particularly when the trial court directed the sheriff to remove
the spectator not only from the courtroom but also from the entire building.
N.T. Trial, 11/3/06, at 138-146.



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effectuate his interests as required.    Accordingly, the PCRA court properly

rejected Appellant’s fifth claim.

      In his sixth and final claim, Appellant challenges the legality of his

sentence for the first time. Appellant argues that: (1) the trial court lacked

statutory authorization to sentence him to life imprisonment without parole;

(2) his sentence constitutes cruel and unusual punishment; and (3) he is

entitled to relief pursuant to Montgomery v. Louisiana, 136 S.Ct. 718,

193 L.Ed.2d 599 (2016).        Appellant’s Brief at 16-21.    We address these

claims seriatim.

      First, our statutes provide that “a person who has been convicted of a

murder of the first degree … shall be sentenced to death or to a term of life

imprisonment[.]” 18 Pa.C.S. § 1102.

      Second, this Court has previously held that, “[a] mandatory life

sentence, as established by the legislature, is clearly not cruel and unusual

punishment for the crime of first-degree murder.”            Commonwealth v.

Waters, 483 A.2d 855, 861 (Pa. Super. 1984).

      Third, Montgomery does not entitle Appellant to any relief.         The

United States Supreme Court held in Montgomery that its decision in Miller

v. Alabama, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012), applies

retroactively.     Miller held that it is unconstitutional for state courts to

impose an automatic life sentence without possibility of parole upon a

homicide defendant for a murder committed while the defendant was a



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juvenile. Appellant was not a juvenile when he murdered Michael Lambert

on October 12, 2004.       Thus, Montgomery is inapplicable to Appellant.

Appellant’s sixth claim is meritless.

      The record supports the PCRA court’s findings and its Order is

otherwise free of legal error. Accordingly, we affirm.

      Order affirmed. Motion denied.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/6/2017




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