Com. v. Mitchell, L. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LONNIE MITCHELL :
:
Appellant : No. 3393 EDA 2019
Appeal from the PCRA Order Entered November 18, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005633-2016.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: Filed: May 27, 2021
Lonnie Mitchell appeals from the order denying his first timely petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. Mitchell claims that trial counsel was ineffective for not properly
litigating a Pa.R.Crim.P. 600 motion, and for failing to properly assert a weight
of the evidence claim in his post-sentence motion. We affirm.
The pertinent facts and procedural history are as follows: On May 24,
2016, a criminal complaint was filed against Mitchell because of a domestic
dispute involving his then-fiancée. A preliminary hearing was held on June 9,
2016, after which Mitchell was held for trial on charges of aggravated assault,
terroristic threats, simple assault, and recklessly endangering another person.
The case was originally assigned to the Honorable Robert Coleman. On July
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19, 2016, Judge Coleman granted a continuance. It is unclear from the docket
who requested this continuance.
Thereafter, the case was reassigned to the Honorable Carolyn Nichols
(“the trial court”). On August 15, 2016, the trial court granted a defense
request for a continuance. Following a conference on August 22, 2016, a jury
trial was scheduled to commence on May 31, 2017. On August 30, 2016,
Mitchell filed a motion to vacate the jury trial date and schedule a waiver trial
instead.
Thereafter, Mitchell’s waiver trial was scheduled for January 9, 2017.
On that date, the Commonwealth was granted a continuance because the
assigned prosecutor was attached in a jury trial in an unrelated matter.
Mitchell’s waiver trial was relisted for April 18, 2017.1 On that date, the
Commonwealth requested another continuance because the complainant was
out of state and unavailable for trial. The trial court granted this request and
scheduled a new trial date of July 11, 2017. On June 28, 2017, Mitchell filed
____________________________________________
1 On January 30, 2017, Mitchell filed a counseled motion for immediate release
on nominal bail pursuant to Rule 600(B)(1) & (D)(2). On February 14, 2017,
Mitchell filed a pro se Rule 600 motion seeking the dismissal of all charges.
That same day, the trial court granted the counseled motion for nominal bail.
However, in the same order, the trial court also granted the Commonwealth’s
motion to revoke bail and Mitchell’s trial continued to be scheduled for April
18, 2017.
On February 16, 2017, trial counsel filed a motion to withdraw, which
the trial court granted. On March 30, 2017, the trial court appointed new
counsel.
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a pro se motion to dismiss all charges pursuant to Rule 600(A). On August 4,
2017, trial counsel filed a motion to dismiss pursuant to Rule 600(A).
On August 7, 2017, the parties litigated the Rule 600 motion. After
considering the docket entries regarding continuances, the trial court denied
the Rule 600 motion. That same day, Mitchell’s waiver trial began. The
Commonwealth presented testimony from the Complainant, who described
the incident, as well as testimony from the police officer who responded to the
scene. The Complainant’s hospital records, the police report, and photographs
of the Complainant’s injuries were also admitted. Important to this appeal,
although trial counsel cross-examined the Complainant regarding two calls
that she allegedly made to Mitchell while he was in prison, the contents of the
calls were not admitted into evidence. Mitchell testified on his own behalf.
After considering all the above, the trial court found Mitchell guilty of all
the charges. On October 16, 2017, the court sentenced Mitchell to an
aggregate term of four to ten years of imprisonment, and a consecutive five-
year probationary term. Mitchell filed a timely post-sentence motion in which
he claimed that his guilty verdicts were against the weight of the evidence.
Mitchell’s post-sentence motion was denied by operation of law on February
15, 2018.
Mitchell did not file a direct appeal. On April 26, 2018, he filed a pro se
PCRA petition. The PCRA court appointed counsel and, on January 14, 2019,
PCRA counsel filed an amended petition. Thereafter, the Commonwealth filed
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a motion to dismiss.2 On July 18, 2019, the PCRA court issued Pa.R.Crim.P.
907 notice of its intent to dismiss Mitchell’s petition without a hearing. Mitchell
filed a timely response. By order entered November 18, 2019, the PCRA court
denied Mitchell’s PCRA petition. This timely appeal followed. Although the
PCRA court did not require Mitchell to file a Pa.R.A.P. 1925(b) statement, the
court filed a Rule 1925(a) opinion in which it addressed the claims raised by
Mitchell in his PCRA petition.
Mitchell now raises the following issues:
I. Whether the [PCRA court] erred in denying [Mitchell’s]
PCRA petition without an evidentiary hearing on the
issues raised in the amended PCRA petition.
II. Whether the [PCRA court] erred in not granting relief
on the PCRA petition alleging [trial counsel] was
ineffective?
Mitchell’s Brief at 8.
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
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2 Mitchell claims that an evidentiary hearing is necessary because in its motion
to dismiss his PCRA petition, the Commonwealth claimed that Mitchell’s post-
sentence motion was denied by operation of law on November 17, 2017. The
Commonwealth repeats this date in its brief. See Commonwealth’s Brief at
7. This misstatement by the Commonwealth does not provide a basis for an
evidentiary hearing, especially when the weight issue was preserved, and
Mitchell filed at timely PCRA petition.
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factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(en banc) (citations omitted).
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
Before an evidentiary hearing will be granted, a PCRA petitioner “must
set forth an offer to prove at an appropriate hearing sufficient facts upon which
a reviewing court can conclude that trial counsel may have, in fact, been
ineffective.” Commonwealth v. Begley, 780 A.2d 605, 635 (Pa. 2001)
(quoting Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa. 1981). See
also Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008) (explaining that,
in the absence of a sufficient proffer, a petitioner’s bare assertions would
inappropriately convert an evidentiary hearing into a “fishing expedition” for
possible exculpatory evidence).
In his amended PCRA petition, Mitchell raised two claims of ineffective
assistance of trial counsel. To obtain relief under the PCRA premised on a
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claim that counsel was ineffective, a petitioner must establish by a
preponderance of the evidence that counsel’s ineffectiveness so undermined
the truth determining process that no reliable adjudication of guilt or
innocence could have taken place. Commonwealth v. Johnson, 966 A.2d
523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed ineffective upon a
sufficient showing by the petitioner.” Id. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3) the
petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding
of "prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
In his amended petition, Mitchell first claimed that trial counsel was
ineffective for failing to properly argue his Rule 600 motion. Our standard of
review is well settled:
This Court reviews a ruling under Rule 600 pursuant to an
abuse-of-discretion standard. An abuse of discretion is not
a mere error in judgment, but rather, involves bias, ill will,
partiality, prejudice, manifest unreasonableness, or
misapplication of law. Additionally, when considering a Rule
600 claim, this Court must view the record facts in the light
most favorable to the winner of the Rule 600 motion. It is,
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or course, an appellant’s burden to persuade us the trial
court erred and relief is due.
Commonwealth v. Martz, 232 A.3d 801, 809 (Pa. Super. 2020) (citation
omitted).
Most recently, this Court has discussed the principles and justifications
underpinning Rule 600, as well as new changes to the rule, in detail:
In 2012, the Pennsylvania Legislature enacted a new
Rule 600, effective as of July 1, 2013. The general dictates
of the new Rule 600 remained the same as they were prior
to its adoption: Rule 600 requires either the tendering of a
plea deal or a case to be called to trial within 365 days from
the date on which the criminal complaint was filed. See
Pa.R.Crim.P. 600(A)(2)(a). Specifically, the point in time
365 days after the complaint is filed is known as the
“mechanical run date.” Commonwealth v. McNear, 852
A.2d 401 (Pa. Super. 2004). If the defendant is not brought
to trial within the time required by the rule, he or she may,
at any time before trial, file a written motion seeking
dismissal of all charges with prejudice. See Pa.R.Crim.P.
600(d)(1).
Under the old Rule 600, the mechanical run date could
be exceeded through calculation of an adjusted run date by
an accounting of two mutually exclusive categories:
“excludable time” and “excusable delay.” Commonwealth
v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013). Our case
law emphasized that “[e]xcludable time” is delay that is
attributable to the defendant or his counsel. Excusable
delay is delay that occurs as a result of circumstances
beyond the Commonwealth’s control and despite its due
diligence.” Id. (citation omitted). Dismissal of charges was
then warranted if, after subtracting all excludable and
excusable time, the defendant had not been brought to trial
within the term of the adjusted run date. See id.The new Rule 600 eliminated the distinction between
these two buckets of removable calculable time. Under its
new verbiage, “the periods of delay at any stage of the
proceedings caused by the Commonwealth when the
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Commonwealth has failed to exercise due diligence” forms
the basis of what is known as “includable time.” See
Pa.R.Crim.P. 600(C)(1). Conversely, all other periods of
delay are excluded from the Rule 600 calculation. See id.Inherently, then, when a court is faced with a Rule 600
motion asserting a facial violation of the new Rule 600, the
onus is on the Commonwealth to demonstrate that it
engaged in due diligence in at least being capable of
bringing a defendant to trial within the prescribed time
parameters. The Commonwealth must show due diligence
by a preponderance of the evidence. See Commonwealth
v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). “Due
diligence is a fact-specific concept that must be determined
on a case-by-case basis. Due diligence does not require
perfect vigilance and punctilious care, but rather a showing
by the Commonwealth that a reasonable effort has been put
forth.” Commonwealth v. Moore, 214 A.3d 244, 249 (Pa.
Super. 2019)(citation omitted).
Commonwealth v. Wiggins, 2021 PA Super. 57 (Pa. Super. 2021), slip op.
at 4-5.
In Wiggins, this Court relied on our Supreme Court’s discussion in
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017) of how to handle “judicial
delay under Rule 600:
Our Supreme Court in [Mills] clarified that time
attributable to the natural progression of a case through the
court system (e.g., the time between the preliminary
hearing and the formal arraignment or pre-trial conference)
is not considered “delay” and therefore is not excludable for
the purposes of Rule 600. See [Id. at 325]. However, if
the court, itself, engaged in what is referred to in Mills as
“judicial delay,” such action, in most circumstances, could
be exclude from the Rule 600 calculation. See id.(distinguishing between ordinary trial preparation and
judicial delay as, for example, are result of scheduling
concerns). Accordingly, when determining the existence
and import of delay for computational purposes, trial courts
must exercise discretion to ascertain whether the period of
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time at issue is a delay attributable to the parties, the
natural progression of the case, or the court’s own calendar
when the parties are prepared to proceed. See id. (stating
that “where a trial-ready prosecutor must wait several
months due to a court calendar, the time should be treated
as ‘delay’ for which the Commonwealth is not accountable”).
Wiggins, at slip op. at 5-6.
As noted above, Mitchell challenges trial counsel’s ineffectiveness when
he litigated the Rule 600 motion in his case. In Wiggins, the PCRA petitioner
claimed that trial counsel was ineffective for failing to pursue a Rule 600
motion prior to trial. In Wiggins, we realized that
in this context, [the PCRA petitioner] bears both the burden
of demonstrating there was arguable merit to the proposed
motion and that he was prejudiced by the failure of counsel
to pursue it. See Commonwealth v. Natividad, 938 A.2d
310, 322 (Pa. 2007) (“A PCRA petitioner must exhibit a
concerted effort to develop his ineffectiveness claim and
may not rely on boilerplate allegations of ineffectiveness.”)
Id. at 6-7.
We then determined that Wiggins had not met this burden: “Even
reading Wiggin’s brief generously, containing only three pages of argument,
we are unable to locate the precise reasons he believes the PCRA court erred
in dismissing his Rule 600 claim.” Id. at 7. Instead, we noted that “the
gravamen of his contention [was] that the PCRA court erred by denying him
a hearing that would have allowed him to develop a factual basis for his claim.
Id. This Court then reiterated that there was no absolute right to an
evidentiary hearing, and that Wiggins had “not directly refuted the PCRA
court’s conclusion as to his Rule 600 claim, other than by resorting to
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unsubstantiated speculation and a series of ‘ifs.’” Id. at 7-8. After discussing
what little argument Wiggins made, we concluded, “Simply put, Wiggins’s
argument improperly shifts the burdens of production and proof under the
PCRA.” See id. at 9 (rejecting Wiggins’s assertion that there was “no evidence
the Commonwealth could not request that the case be brought to trial prior to
the expiration of Rule 600”). Thus, this Court held that the PCRA court did
not abuse its discretion in denying Wiggins’s PCRA petition without a hearing.
The same holds true in the present case. Mitchell asserts that “the
Commonwealth had the obligation to take reasonable steps to move the cases
[sic] to trial[,]” and that trial counsel never argued the Commonwealth’s
failure to exercise due diligence “in detail.” Mitchell’s Brief at 21. We do not
agree.
It is now well settled that the Commonwealth need not seek to rearrange
the trial court’s calendar or to transfer the case, or demand a trial earlier than
the earliest possible date consistent with the court’s calendar in order to
demonstrate due diligence. Commonwealth v. Wilson, 672 A.2d 293, 301
(Pa. 1996). In denying the Rule 600 motion, the trial court stated:
THE COURT: Well, the standard is clear. Due diligence
is, the case law - - the appellate courts have interpreted due
diligence, a reasonable effort by the Commonwealth to bring
the case forward.
Philadelphia County is the busiest criminal docket of all
67 counties.
The dates are given at the earliest possible date and then
gaps between certain SMART rooms and trial rooms.
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All of that is court time; it’s not the failure of the
Commonwealth to move the case forward. We do have, at
least from May 15th, it looks like defense counsel had a sick
child.
Also this case was once a jury trial and then it became a
waiver, so then it moved again. So all of that is attributed
to the defense and not to the Court or the Commonwealth.
And here we are today.
So there’s no showing that any of the gaps of time are
attributable to the Commonwealth not being diligent to
move the case forward. That’s what the standard is.
It can’t be because of court scheduling. It can’t be
because of defense request. It has to be because the
Commonwealth failed to be diligent.
I think one day I see when the witness was unavailable
because that witness was in Virginia or rather out-of-state.
So that’s not a failure of diligence.
Certainly, this [c]ourt has made every effort to move this
case forward as expeditiously as possible, given that this is
a very busy jury room. And the dates given are the earliest
possible dates, given all of the scheduling concerns.
So there’s been no showing here that the case failed to
move because of a lack of diligence attributable to the
Commonwealth, which is what the standard is. The delays
were due to either defense request moving the trial from
jury status to waiver status or court unavailable for trial
because of the competing jury trials in this room.
I think I even saw one date where the Commonwealth
itself wasn’t available because the assigned ADA was on trial
and, again, that is not a lack of diligence.
Again, it’s a very busy environment and the matters
unfortunately have to end up having to be postponed
because of scheduling, busy schedules. It’s not because
somebody sat on their hands and just didn’t do anything or
because of a lack of effort to move the case forward.
N.T., 8/7/17, at 13-16.
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Mitchell fails to proffer any evidence showing that the Commonwealth
failed to act with due diligence. To support his ineffectiveness claim, Mitchell
relies on an unpublished memorandum in Commonwealth v. Harrison,
1990 Pa. Super. LEXIS 184 (Pa. Super. 1990), and the cases cited therein. Of
course, citing to this case is inappropriate because it has no persuasive value.
See generally Superior Court Internal Operating Procedure § 65.37.
Moreover, the discussion in Harrison predates subsequent appellate decisions
that have rejected a challenge to Pennsylvania case law that holds “our courts
are under no obligation to rearrange their dockets” when court congest delays
a trial. See, e.g., Commonwealth v. Smith, 569 A.2d 337, 339-40 (Pa.
1990).
Here, as in Wiggins, supra, on collateral review, Mitchell attempts to
shift the burden of proving a lack of due diligence to the Commonwealth. As
he has failed to meet his burden of production, see id., Mitchell’s claim that
trial counsel was ineffective for failing to properly argue his Rule 600 motion
fails.3
In his remaining claim, Mitchell claims that trial counsel was ineffective
“by failing to argue why in post sentence motions the verdict was against the
weight of the evidence.” Mitchell’s Brief at 24. According to Mitchell, “[t]he
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3 In making his argument, Mitchell sets forth no Rule 600 calculations.
Our
review of the record supports the Commonwealth’s claim that no Rule 600
violation occurred. See Commonwealth’s Brief at 13-19.
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guilty verdict of aggravated assault against [him] was the result of testimony
of the Commonwealth’s witness that was not believable.” Id.
When reviewing a challenge to the weight of the evidence, our standard
of review is as follows:
The essence of appellate review for a weight claim appears
to lie in ensuring that the trial court's decision has record
support. Where the record adequately supports the
trial court, the trial court has acted within the limits
of its discretion.
***
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at
a different conclusion. Rather, the role of the trial judge is
to determine that notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.
***
An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard
of review applied by the trial court. Appellate review of a
weight claim is a review of the exercise of discretion,
not of the underlying question of whether the verdict
is against the weight of the evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
omitted) (emphasis added). Absent an abuse of discretion, the trial court's
decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d
865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest
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unreasonableness or a misapplication of the law.” Commonwealth v. West,
937 A.2d 516, 521 (Pa. Super. 2007). By contrast, a proper exercise of
discretion “conforms to the law and is based on the facts of record.” Id.Mitchell contends that he would have prevailed on his weight claim had
trial counsel admitted into evidence the contents of a prison phone call
between him and the Complainant. Mitchell contends that the contents of this
phone call would have disproved the Commonwealth’s theory that he
assaulted the Complainant because she did not want to have sex with him.
See Mitchell’s Brief at 24-25.
Initially, we note that trial counsel did raise a weight claim in a post-
sentence motion and, because the trial court never addressed it, it was denied
by operation of law. Mitchell’s speculation that if only trial counsel had raised
the contents of the prison phone call as part of his weight claim it would have
been granted fails.
Moreover, as found by the trial court, regardless of catalyst for the
domestic dispute, ample evidence supported the trial court’s finding that the
Complainant was injured by Mitchell. The PCRA court explained:
[Mitchell] argues that [the prison call] conversation
disproves the Commonwealth’s theory that the fight started
because the [Complainant] did not want to have sex with
[him] and impeaches [her] credibility since this is what she
testified to at trial. This claim is without merit. Whether
the altercation began over the victim rejecting [Mitchell’s]
sexual advances does nothing to change the fact that [he]
beat, choked, and stabbed her. The [Complainant] testified
that [Mitchell] attacked her while she was holding their 4-
month-old daughter, nearly threw her down the stairs while
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she was holding the baby, and that he stabbed her in the
leg with a knife.
The responding police officer testified regarding the
[Complainant’s] extensive injuries that were also
documented in hospital photos and medical records.
Moreover, the trial court, acting as fact-finder, already
rejected [Mitchell’s] version of events.
[Mitchell] testified on his own behalf and claimed the
fight started when he rejected the [Complainant’s] demands
for sex because he was suffering from painful hemorrhoids.
He claimed that the [Complainant] then became violent and
engaged in a “struggling match” with him, which was the
cause of her injuries, even though he maintained that he
“never hit” her. The trial court rejected this theory and
found the [Complainant’s] version of events to be credible.
[Mitchell] is unable to establish that the conversation on the
prison phone call transcript would have changed the trial
court’s mind and suddenly render the verdict so against the
weight of the evidence that it “shocked one’s sense of
justice.” Therefore, no relief is due.
PCRA Court Opinion, 5/21/20, at 6-7.4
Our review of the trial testimony supports the PCRA court’s conclusion.
Mitchell’s claim that the Complaint’s testimony was not believable does not
render his weight claim meritorious. Clay, supra. See also
Commonwealth v. Hunter, 768 A.2d 1136, 1142 (Pa. Super. 2001)
(explaining that the trier of fact, when passing upon the credibility of witnesses
and the weight to be accorded their testimony, is free to believe, all, part, or
none of the evidence).
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4 Our review of the trial transcript reveals that, on re-direct, the Complainant
clarified that Mitchell had stabbed her in the leg during a prior domestic
incident. See N.T., 8/7/17, at 62.
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In sum, because Mitchell’s two ineffectiveness claims lack arguable
merit, the PCRA court properly denied his PCRA petition without first holding
an evidentiary hearing. Blakeney, supra. We therefore affirm the PCRA
court order denying Mitchell post-conviction relief.
Order affirmed.
Judge Nichols did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/21
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