Com. v. Milas, J.

J-S49037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES MILAS

Appellant No. 10 EDA 2014

Appeal from the PCRA Order entered November 26, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0000942-2009

BEFORE: OLSON, OTT, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED OCTOBER 14, 2014

Appellant James Milas pro se appeals from an order of the Court of Common Pleas of Philadelphia County (PCRA court), which dismissed without a hearing his request for collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. For the reasons set forth below, we affirm.

The facts and procedural history underlying this appeal are

undisputed. As we recounted on direct appeal: This case stems from an incident on June 10, 2008. Appellant’s sister, as well as his eventual victim, were engaged in an argument. Appellant’s sister left angrily and informed the victim that she would be going to get Appellant, her 25-year-old brother. Shortly thereafter, Appellant appeared with a firearm. The victim suggested that Appellant put down his gun and engage him in fisticuffs. Instead, Appellant fired his weapon several times, shot the victim in the back, and left. Several eyewitnesses observed the shooting. When police arrived at Appellant’s girlfriend’s residence later that evening[,] Appellant fled, running up the stairs of the home and descending from a second-story window. He then fled to his mother’s house, where he was apprehended while attempting to gain admittance. A jury trial was held on April 13, 2010, and Appellant was

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convicted of first-degree murder and related crimes. Appellant was sentenced on April 16, 2010.[1]

Commonwealth v. Milas, 32 A.3d 266, 2454 EDA 2010 (Pa. Super. filed July 12, 2011) (unpublished memorandum). Appellant then appealed to this Court. We ultimately affirmed the trial court’s judgment of sentence. Id. Following our affirmance, Appellant petitioned our Supreme Court for allowance of appeal, which the court denied. Commonwealth v. Milas, 37

A.3d 1195 (Pa. 2012). On July 6, 2012, [Appellant] filed a timely pro se petition pursuant to the [PCRA.] Counsel was appointed to represent him and counsel eventually filed a no-merit letter and a motion to withdraw. [The trial court] sent [Appellant] a Pa.R.[Crim.P.] 907 notice of its intent to dismiss [Appellant’s] petition without a hearing. Following receipt of [Appellant’s] responses to the 907 notice as well as several supplemental pro se PCRA petition, [the trial court] denied [Appellant] PCRA relief on November [2]6, 2013 and granted counsel’s petition to withdraw.

PCRA Court Opinion, 1/27/14, at 2.

On appeal,2 Appellant raises six arguments for our review:3 ____________________________________________

1 “Appellant was sentenced to life imprisonment for the first-degree murder charge and two and one-half to five years respectively on the two weapons offenses.” Trial Court Opinion, 9/28/10, at 1. 2 “In PCRA proceedings, an appellate court’s scope of review is limited by the PCRA’s parameters; since most PCRA appeals involve mixed questions of fact and law, the standard of review is whether the PCRA court’s findings are supported by the record and free of legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009) (citations omitted). 3 To the extent Appellant argues that his PCRA counsel rendered ineffective assistance or the PCRA court erred in dismissing his petition under Rule 907, we reject as waived such arguments. Appellant failed to raise these arguments in his Pa.R.A.P. 1925(b) statement or in the question presented section of his brief as required under Pa.R.A.P. 2116(a). See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (“Our jurisprudence (Footnote Continued Next Page)

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[1.] Whether [Appellant] was entitled to post conviction collateral relief in the form of a new trial as an [sic] result of being denied an [sic] fair and impartial trial when the prosecutor impermissibly urged the jury to find guilt during closing arguments based upon his silence at arrest in violation of the Fifth Amendment right privilege [sic] guaranteed by the U.S. Constitution. [2.] Whether [Appellant] was entitled to post conviction collateral relief in the form of a new trial as an [sic] result of the trial court judicial abused [sic] of its discretion when it overruled trial counsel’s objection to the prosecutor improperly [sic] reference to [Appellant] pre-arrest silence during closing argument. [3.] Whether [Appellant] was entitled to post conviction collateral relief in the form of a new trial as an [sic] result of post trial and direct appellate counsel’s ineffectiveness for not raising the claim of prosecutorial misconduct when prosecutor urged jury to find guilt based on [Appellant’s] pre-arrest silence. [4.] Whether [Appellant] was entitled to post conviction collateral relief in the form of a new trial as an [sic] result of being denied effective assistance of counsel when he failed to request [sic] jury be instructed that other crime evidence were inadmissible evidence of proof that [Appellant] committed the offenses he was on trial for.[4] [5.] Whether [Appellant] was entitled to post conviction collateral relief in the form of a new trial as an [sic] result of the trial court judicial abused [sic] its discretion when it denied [Appellant] his right to an [sic] lawyer of his choice in violation of the Sixth Amendment [to] the U.S. Constitution. [6.] Whether [Appellant] was entitled to post conviction collateral relief in the form of a new trial as an [sic] result of being denied a fair trial when the prosecutor failed to disclose

_______________________ (Footnote Continued)

is clear and well-settled, and firmly establishes that . . . any issues not raised in a Rule 1925(b) statement will be deemed waived[.]”); Commonwealth v. Jannett, 58 A.3d 818, 821 (Pa. Super. 2012) (“‘No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.’”) (citation omitted). 4 Appellant essentially argues that his trial counsel rendered ineffective assistance to the extent counsel failed to request a cautionary jury instruction relating to Appellant’s past drug dealings. Appellant’s Brief at 20. Interestingly, Appellant concedes in this brief that he was the one who, on direct examination, first referred to his “participation in the selling [sic] of drugs.” Id.

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prior to and/or during trial that [C]ommonwealth police witness was under federal investigation or indictment for corruption.

Appellant’s Brief at 5-6.

After careful review of the parties’ briefs, the record on appeal, and the relevant case law, we conclude that the PCRA court’s 1925(a) opinion authored by the Honorable Jeffrey P. Minehart, thoroughly and adequately disposes of Appellant’s issues on appeal. See PCRA Court 1925(a) Opinion, 1/27/14, at 5-11. Briefly, Judge Minehart dismissed Appellant’s first two claims on the basis that they were addressed previously by this Court on direct review. Id. at 5-6. Judge Minehart dismissed Appellant’s third claim because it was properly raised by his appellate counsel on direct appeal. Id. at 6. With respect to Appellant’s fourth claim, Judge Minehart concluded that Appellant could not prove that he was prejudiced by the trial court’s purported error. Additionally, Judge Minehart concluded that the testimony for which Appellant sought a cautionary jury instruction came from Appellant himself to offer exculpatory evidence in support of his alibi defense. Id. at 7. Judge Minehart determined Appellant’s fifth claim lacked merit because it was waived insofar as Appellant could have raised it on direct appeal. Id. Finally, Judge Minehart concluded that the court properly dismissed Appellant’s PCRA petition because Appellant was unable to establish every element of a Brady5 violation, as alleged in his sixth claim. Id. at 9. We, ____________________________________________

5 Brady v. Maryland, 373 U.S. 83 (1963).

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therefore, affirm the PCRA court’s order dismissing Appellant’s PCRA petition. We direct that a copy of the PCRA court’s January 27, 2014 Rule 1925(a) opinion be attached to any future filings in this case.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/14/2014

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