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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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July 12, 2011) (unpublished memorandum).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
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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,
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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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Com. v. Milas, J.
Combined Opinion