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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RONDELLE CHRISTAIN MIDDLETON, :
:
Appellant : No. 1997 MDA 2016
Appeal from the PCRA Order November 23, 2016
in the Court of Common Pleas of Dauphin County,
Criminal Division, No(s): CP-22-CR-0000012-2014
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 30, 2017
Rondelle Christain Middleton (“Middleton”) appeals from the Order
denying his first Petition filed pursuant to the Post Conviction Relief Act.1
We affirm.
In its Opinion, the PCRA court set forth the relevant factual and
procedural background, which we adopt for the purpose of this appeal. See
PCRA Court Opinion, 11/23/16, at 1-2 (unnumbered).
The PCRA court denied Middleton’s Petition. Middleton thereafter filed
a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
On appeal, Middleton raises the following issues for our review:
1. Did the trial court err in denying [Middleton’s] PCRA [Petition]
when:
1
See Pa.C.S.A. §§ 9541-9546.
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a. Appellate counsel did not specifically challenge the
Terry[2] frisk in the court[-]ordered Pa.R.A.P. 1925(b)
Concise Statement[,] and only raised a general
challenge to the trial court’s denial of his suppression
Motion; and
b. Appellate counsel failed to raise [] Middleton’s
sentencing issues on appeal[?]
Brief for Appellant at 4 (some capitalization omitted, issues renumbered,
footnote added).3
In reviewing the denial of a PCRA Petition, we examine whether the
PCRA court’s determination “is supported by the record and free of legal
error.” Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)
(citations omitted).
In his first issue, Middleton contends that “trial and appellate counsel
were ineffective in failing to present testimony to preserve the issue of
challenging the Terry frisk on appeal.” Brief for Appellant at 10. Middleton
concedes that, although Attorney Muller raised the issue on direct appeal,
the issue was deemed waived because he had failed to raise the issue before
2
Terry v. Ohio, 88 S. Ct. 1868 (1968)
3
As noted by the PCRA court, Paul Muller, Esquire (“Attorney Muller”), of the
Dauphin County Public Defender’s Office, represented Middleton at the non-
jury criminal trial, and filed a Pa.R.A.P. 1925(b) Concise Statement on his
behalf. A different public defender was thereafter appointed to represent
Middleton for the remainder of his direct appeal. However, based on our
review, it appears that each of Middleton’s ineffectiveness claims pertains to
Attorney Muller only.
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the trial court. Id. Middleton points out that the issue was further waived
because Attorney Muller had failed to specifically raise the issue in
Middleton’s Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal. Id. at 11; see also id. (wherein Middleton explains that Attorney
Muller merely raised a general challenge to the trial court’s denial of his
suppression Motion).
In its Opinion, the PCRA court addressed Middleton’s first issue, set
forth the relevant law, and determined that the issue lacks merit. See PCRA
Court Opinion, 11/23/16, at 2-5 (unnumbered). We agree with the
reasoning of the PCRA court, which is supported by the record and free of
legal error, and affirm on this basis as to Middleton’s first issue. See id.
In his second issue, Middleton contends that Attorney Muller was
further ineffective because he “failed to appeal the initial granting and the
subsequent denial of [Middleton’s] Motion to modify sentence.” Brief for
Appellant at 12. Middleton explains that the trial court initially granted his
Motion, and permitted the sentences for counts one and two to run
concurrently, but then reinstated the original sentence after the
Commonwealth filed a Motion for reconsideration. Id. Middleton claims
that, “[a]lthough the mandatory sentence was not imposed in this case,
[Middleton] was sentenced above the standard range upon the
Commonwealth’s erroneous assertion that this was [Middleton’s] fifth (5 th)
drug trafficking conviction.” Id. Middleton maintains that he had only two
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prior drug trafficking convictions, and contends that Attorney Muller was
ineffective for failing to preserve and raise this issue on appeal. Id.
In its Opinion, the PCRA court addressed Middleton’s second issue, and
determined that the issue lacks merit. See PCRA Court Opinion, 11/23/16,
at 5-6 (unnumbered). We agree with the reasoning of the PCRA court,
which is supported by the record and free of legal error, and affirm on this
basis as to Middleton’s second issue. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2017
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Circulated 08/10/2017 04:12 PM