Com. v. Nazario, M.

J-A27026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MITCHELL NAZARIO :
:
Appellant : No. 665 MDA 2022
Appeal from the PCRA Order Entered March 31, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001479-2017
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 22, 2023
Mitchell Nazario appeals from the order dismissing his Post Conviction
Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In January 2018, a jury convicted Nazario of first-degree murder. 18
Pa.C.S.A. § 2502(a). The trial court previously summarized the facts of the
case as follows:
On the night of February 1, 2016, Alexa Pritt heard people
talking outside her home in the area of Kittatinny and South
14th Street in Harrisburg[, Pennsylvania]. She next heard
two loud booms or cracks, then the sound of car tires
screeching. Ms. Pritt looked out her window and saw a dark-
colored car drive away toward a stop sign [and] then turn
right. Ms. Pritt saw something in the middle of the street[,]
which she thought might have been a tire. Frightened, Ms.
Pritt looked out her front door and saw a truck drive by the
object, flash its lights, [and] then continue on. Within
approximately five minutes of hearing the loud noises,
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* Retired Senior Judge assigned to the Superior Court.
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police and ambulances arrived at the scene and attempted
to revive a person lying in the street.
That night, Robert Mumma went with a friend to the area of
[South] 14th and Kittatinny Streets to buy drugs. Shortly
before the killing occurred, Mumma briefly saw the victim,
Freddy J. Williams, known as Freddie J, in an alleyway near
the house where Mumma intended to buy drugs. Mumma
knew [Williams] from Dauphin County Prison and as a fellow
drug user.[ ] After buying drugs, Mumma returned to the
vehicle in which his friend waited. Mumma intended to use
the heroin in the vehicle. As he sat in the parked vehicle,
Mumma saw [Williams] pace back and forth from corner to
corner. Mumma next observed a car pull up and stop.
[Williams] approached the passenger side of the car and
leaned on the car. Mumma did not see any attempt by
[Williams] to enter the car. Mumma took note of the vehicle,
worried that it might be police. Immediately after [Williams]
approached the stopped car, Mumma heard shots. Mumma
heard [Williams] yell something[,] which he could not
discern, [and] then saw him fall down. Mumma observed
the car speed off. The driver of the vehicle in which Mumma
rode drove to the spot where [Williams] was lying in the
street. It was apparent to Mumma that [Williams] was
mortally wounded. Mumma and the driver left the scene.
Mumma did not observe any weapons on [Williams] as he
lay in the street.
Harrisburg City Police Officer Brian Carriere[ ] was working
patrol in a marked police unit that night when, at 9:52 p.m.,
he received a dispatch of a victim down near the intersection
of South 14th and Kittatinny Streets. When Officer Carriere
arrived, he saw a man lying in the middle of the street.
Officer Carriere observed a gunshot wound to the victim’s
right arm and a bullet in the chest or abdominal area.
Officer Donald Bender also responded to the scene. Officer
Bender observed the victim to be in grave condition. Officer
Bender observed an exit wound to Williams’ back and an
expanded projectile embedded in his clothing on the right
side of his chest. Paramedics arrived and transported the
victim to [the] hospital. Williams was pronounced dead
shortly after arrival at the hospital.
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Forensic pathologist Wayne Ross, M.D., testified regarding
the autopsy performed upon Williams. The autopsy revealed
gunshot wounds to the right side of the body, one to the
right chest, one to the right forearm and a third impact
wound to the chest. Dr. Ross categorized the injury to the
victim’s right forearm as a defensive [wound] sustained
when the victim raised his right extremity in an attempt to
ward off a gunshot. One gunshot passed entirely through
the right lung, with a trajectory of front to back and
downward. The gunshot to the lung caused Williams’ death.
Because no soot or gunshot powder residue existed at the
wound sites or on the clothing, Dr. Ross opined that the
shots were fired from a distance of three to four feet or
greater. Dr. Ross opined that based upon Williams’ height
[of] five feet two inches, the lack of soot and gunpowder
residue, and the trajectory of the bullets, Williams was
outside the vehicle when shot.
Ten days later, on February 11, 2016, Harrisburg City Police
Officer Daniel [Antoni] encountered [Nazario] in the area of
Hall Manor near the scene of the homicide. Officer [Antoni]
identified himself as a police officer and approached
[Nazario]. [Nazario] appeared shocked, then took a step as
if he intended to run. Officer [Antoni] drew his gun and
commanded [Nazario] to get on the ground. Fellow officer
Nate Owens arrived and placed [Nazario] in handcuffs.
Officer Owens patted [Nazario] down and retrieved a .40
caliber semiautomatic handgun with an extended magazine.
[Nazario] told police that he obtained the gun a few days
earlier. [Nazario] was not charged with the murder at that
time.
Harrisburg Police sent the gun to the Pennsylvania State
Police for laboratory testing. The testing revealed that the
cartridge case obtained from the homicide scene and the
bullet jacket retrieved from Williams’ body during the
autopsy were discharged from the .40 caliber semiautomatic
handgun removed from [Nazario’s] person on February 11,
2016.
On February 1, 2017, one year after the killing occurred,
Harrisburg City Police Detective Jason Brinker conducted a
recorded interview of [Nazario]. Throughout the one hour
and forty minute interview, [Nazario] denied involvement in
the killing. Detective Brinker then consulted with the Office
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of the District Attorney to obtain authorization to charge
[Nazario]. Detective Brinker apprised [Nazario] that he
would be charged with murder. The detective then initiated
a second interview of [Nazario] in which he employed a
different interview technique. In that interview, [Nazario]
admitted that he shot [Williams.]
At trial, [Nazario] testified that on the night of the incident,
as he slowed his car to [a] stop at a stop sign in the area of
[South] 14th and Kittatinny Streets, he saw [Williams]
running toward the car. When [Nazario] stopped his car,
[Williams] banged on the window. [Nazario] testified that
[Williams] then ran to the passenger side of the car.
[Nazario] testified that he rolled down the window and
asked [Williams] what he needed. [Nazario] testified that
[Williams] appeared intoxicated and partially entered the
passenger side window and appeared to reach for
something. [Nazario] stated that he grabbed his gun from
his lap and shot [Williams] twice. [Nazario] admitted that
he did not see what [Williams] had in his hand and that
[Williams] neither displayed a weapon nor made a threat
upon [Nazario’s] life.
Trial Court Opinion, Sept. 4, 2018, at 1-5 (citations to notes of testimony
omitted).
At trial, Nazario raised a self-defense claim. His counsel also argued that
the castle doctrine applied. The Commonwealth objected, and the trial court
concluded the castle doctrine did not apply because Nazario illegally possessed
a gun at the time of the shooting. The trial court provided the following self-
defense instruction to the jury:
If the Commonwealth proves to you beyond a reasonable
doubt that [Nazario] used deadly force then to prove that
such force was not justifiable in this case it must prove one
of the following elements beyond a reasonable doubt: A,
that [Nazario] did not reasonably believe that he was in
immediate danger of death or serious bodily injury at the
time he used the force, and that, therefore, his belief that it
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was necessary for him to use deadly force to protect himself
was unreasonable.
Put another way, the Commonwealth must prove either that
[Nazario] did not actually believe he was in danger of death
or serious bodily injury such that he needed to use deadly
force to defend himself at that point; or, that while [Nazario]
actually believed he needed to use deadly force, his belief
was unreasonable in light of all the circumstances known to
him.
Keep this in mind: A person is justified in using deadly force
against another not only when they are in actual danger of
unlawful attack but also when they mistakenly but
reasonably believe they are.
A person is entitled to estimate the necessity for the force
he employs under the circumstances as he reasonably
believes them to be at the time. In the heat of conflict, a
person who has been attacked ordinarily has neither time
nor composure to evaluate carefully the danger and make
nice judgments about exactly how much force is needed to
protect himself.
Consider the realities of the situation faced by [Nazario]
here when you decide whether or not the Commonwealth
has proven beyond a reasonable doubt either that, one, he
did not believe he was actually in danger of death or serious
bodily injury to the extent that he needed to use such force
in self-defense; or, two, that while he did believe that, his
belief was unreasonable.
That [Nazario] knew he could avoid the necessity of using
force with complete safety by retreating, but he failed to do
so, is the other area that you should consider when deciding
whether or not the Commonwealth has proven the elements
beyond a reasonable doubt.
Now, the final area I must discuss with you is voluntary
manslaughter. And then I’m going to give you some final
instructions, and you’ll be prepared to deliberate.
As my earlier definition of malice indicates, there can be no
malice when certain reducing circumstances are present.
When these circumstances are present a killing may be
voluntary manslaughter, but never murder. This is true
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when a defendant kills under an unreasonable mistaken
belief in justifying circumstances.
Accordingly, you can find malice and murder only if you are
satisfied beyond a reasonable doubt that [Nazario] was not
acting under an unreasonable belief that the circumstances
were such that if they existed would have justified the
killing.
The reducing circumstance of a defendant acting under an
unreasonable belief that the circumstances of the killing
were justified applies where [Nazario] actually believed that
he was in immediate danger of death or serious bodily injury
at the time he used deadly force but his belief was
unreasonable in light of the facts as they appeared to him
at the time; or [Nazario] did not violate his duty to retreat
from the place as I explained those terms when I described
to you the justification defense.
So let me read this again to you: The reducing circumstance
of a defendant acting under an unreasonable belief that the
circumstances of the killing were justified applies where,
one, [Nazario] actually believed that he was in immediate
danger of death or serious bodily injury at the time he used
deadly force but his belief was unreasonable in light of the
facts as they appeared to him at the time; or [Nazario] did
not violate his duty to retreat from the place as I explained
those terms when I described to you the justification
defense.
N.T., Jan 16-18, 2018, at 401-404.
The jury found Nazario guilty of first-degree murder, and the court
sentenced Nazario to life imprisonment. Nazario filed a post-sentence motion,
which the trial court denied. Nazario filed a direct appeal nunc pro tunc
arguing, among other issues, that the trial court erred in failing to instruct the
jury on the castle doctrine.1 This Court affirmed the judgment of sentence,
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1 Appellant had filed a timely notice of appeal, but this Court dismissed it for
failure to file a brief. The trial court re-instated his direct appeal rights, and
he timely filed the nunc pro tunc appeal.
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concluding Nazario had waived his challenge to the jury instructions. We
explained that he had done so by failing to object after the court instructed
the jury but before the jury began to deliberate and, even if he had not waived
the claim, it lacked merit. Commonwealth v. Nazario, 2020 WL 2120078,
at *6, *6 n.6 (Pa.Super. filed May 4, 2020).2 The Pennsylvania Supreme Court
denied Nazario’s petition for allowance of appeal.
Nazario filed a timely pro se PCRA petition, raising, among other things,
trial court error for failing to instruct the jury as to the castle doctrine and
counsel ineffectiveness for failing to effectively litigate and preserve the issue.
The PCRA court appointed counsel, who filed a Turner/Finley3 letter and
petition to withdraw as counsel. The trial court granted the petition to
withdraw and issued notice of its intent to dismiss the PCRA petition without
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2 We noted that the castle doctrine was “an evidentiary means by which a
defendant may attempt to prove justification by self-defense.” Nazario, 2020
WL 2120078, at *6 (citation omitted). Under the castle doctrine a person “is
presumed to have a reasonable belief that deadly force is immediately
necessary” if “[t]he person against whom the force is used is in the process
of unlawfully and forcefully entering, or has unlawfully and forcefully entered
and is present within, a dwelling, residence or occupied vehicle” and “[t]he
actor knows or has reason to believe that the unlawful and forceful entry or
act is occurring or has occurred.” Id. (quoting 18 Pa.C.S.A. § 505(b)(2.1)).
Further, the presumption is not available where “the actor is engaged in a
criminal activity or is using the dwelling, residence or occupied vehicle to
further a criminal activity.” Id. (quoting 18 Pa.C.S.A. § 505(b)(2.2)(iii)).
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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a hearing. Nazario filed a response, and the court dismissed the petition in
March 2022. Nazario filed a timely notice of appeal.4, 5
Nazario raises the following issues:
I. Did the (PCRA) court abuse its discretion in denying the
PCRA petition, where [Nazario] has established that:
A) The trial prosecutor introduced unsupported
testimony to persuade the trial court from allowing
[Nazario’s] defense access to an affirmative-legal
defense which ultimately deprived [Nazario] from his
local and federal guarantee[d] right to submit an
effective legal defense in accordance with: Pa. Const.
Article one, Section nine; and U.S. Const.
Amendment[s] six[] and fourteen?
B) The trial court abuse[d] its discretion when
considering unsupported Commonwealth’s arguments
which ultimately deprived [Nazario] from presenting,
an affirmative-legal defense?
C) The trial court abuse[d] its discretion when
refusing to permit a “self-defense” theory and/or
refusing to charge the jurors from Pennsylvania’s law
as written our General Assembly [at] 18 Pa.C.S.A. §
505, which embodies the facts in [Nazario’s] case.
Nazario’s Br. at 7.6
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4 The clerk’s office filed and distributed the order on March 31, 2022. Thirty
days would have been Saturday, May 1, 2022. Nazario filed his notice of
appeal Monday, May 3, 2022. See 1 Pa.C.S.A. § 1908 (providing that the
calculation of time periods omits weekends and holidays when the last day of
the period is a weekend or holiday).
5 The trial court did not issue an order directing Nazario to file a Rule 1925(b)
statement, and Nazario did not file one.
6In the argument section of his brief Nazario also claims his PCRA counsel
was ineffective because she did not speak with him prior to filing her
(Footnote Continued Next Page)
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Nazario claims the court abused its discretion in dismissing the petition
without a hearing. He maintains there was government interference and a
miscarriage of justice. He argues he sought to argue the castle doctrine, but
the Commonwealth opposed it and the Commonwealth relied on assertions
that did not have supporting evidence.
We review the denial of PCRA relief to determine “whether the PCRA
court’s order is supported by the record and free of legal error.”
Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020) (quoting
Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa.Super. 2018)).
To be eligible for PCRA relief, a petitioner must plead and prove his
claims are not previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3);
Commonwealth v. Williams, 196 A.3d 1021, 1027 (Pa. 2018). “An issue is
previously litigated if ‘the highest appellate court in which the petitioner could
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Turner/Finley letter. He claims, among other things, that, had PCRA counsel
spoken with him, she would have known he was attempting to argue that he
based his decision to testify on counsel’s advice, and counsel advised him that
the castle doctrine would apply to his case. Nazario’s Br. at 13. He also argues
his trial counsel was ineffective and that the PCRA court erred by relying on
counsel’s no-merit letter. However, Nazario did not include ineffectiveness
claims implicating PCRA counsel or trial counsel or a claim of PCRA court error
in the statement of questions involved section of his brief. He therefore waived
the claims on appeal. See Pa.R.A.P. 2116(a) (providing that “No question will
be considered unless it is stated in the [appellant's] statement of questions
involved or is fairly suggested thereby.”).
In addition, to the extent Nazario argues his direct appeal counsel was
ineffective for failing to file a brief, he has waived this claim by failing to
include it in his statement of questions presented. Moreover, that error was
cured when he was permitted to appeal nunc pro tunc, and litigated such an
appeal with new counsel.
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have had review as a matter of right has ruled on the merits of the issue. . .
.’” Williams, 196 A.3d at 1027 (citation omitted); 42 Pa.C.S.A. § 9544(a)(2).
An issue is waived “‘if the petitioner could have raised it but failed to do so
before trial, at trial, . . . , on appeal, or in a prior state postconviction
proceeding.’” Williams, 196 A.3d at 1027 (citation omitted); 42 Pa.C.S.A. §
9544(b).
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Nazario’s claims of “government interference” and “miscarriage of justice” are
claims of trial court and prosecutorial error. That is, he claims that the
Commonwealth improperly objected to his affirmative defense and made
claims that were not supported by the evidence, and that the court erred in
not allowing the castle defense. Nazario could have raised these claims on
direct appeal, and in fact did raise a claim the court erred in failing to instruct
on the castle doctrine. The claims are therefore previously litigated and/or
waived and are not cognizable on PCRA review. See Commonwealth v.
Ford, 809 A.2d 325, 329 (Pa.Super. 2002) (finding claims of prosecutorial
misconduct at trial and trial court error waived because they could have been
raised on direct appeal); Williams, 196 A.3d at 1031 (finding claims raised
on direct appeal previously litigated).7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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7 The PCRA court found Nazario’s claim of trial court error was barred from
relief because it was previously litigated, and his claim of prosecutorial
misconduct lacked merit. Trial Court Opinion, filed Feb. 23, 2022, at 7-8. We
can affirm the trial court on any basis supported by the record. See R.M. v.
J.S., 20 A.3d 496, 506 n.8 (Pa.Super. 2011).
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