Com. v. Ellis, M. (memorandum)

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J-S21008-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL LAMONT ELLIS Appellant No. 726 WDA 2016 Appeal from the PCRA Order April 29, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003801-2012 BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.* MEMORANDUM BY LAZARUS, J.: FILED MAY 04, 2017 Michael Lamont Ellis appeals from the order, entered in the Court of Common Pleas of Allegheny County, dismissing, without a hearing, his petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 95419546 (“PCRA”). After our review, we affirm. The facts of this case are set forth in this Court’s unpublished memorandum decision in Commonwealth v. Ellis, 116 A.3d 692 (Pa. Super. 2014): Officers Jeffrey Labella and Elizabeth Vitalbo of the Pittsburgh Police Department were on patrol duty in the early morning hours of December 31, 2011, in the Point Breeze/Squirrel Hill area of [Pittsburgh]. At approximately 3:40 a.m., the officers observed [a] black Jeep on Penn Avenue swerving on the roadway. Appellant’s vehicle made a right-hand turn against a ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S21008-17 red light on South Dallas Avenue without stopping or signaling. On Dallas, the officers observed the Jeep continue to swerve and cross the centerline and travel off the roadway to the right-hand side. After observing these traffic violations, the officers activated their lights and sirens and attempted a traffic stop. The Jeep did not come to a complete stop, but the engine remained on and the officers testified that the Jeep appeared to inch forward as they approached. Using the police vehicle’s P.A. system, the officers got [Ellis] to finally put his vehicle in park. However, [Ellis] did not pull over to the curb, but stopped the car in the middle of the road. When the officers approached, they suspected that he might be intoxicated upon observing his glassy and bloodshot eyes and hearing his slurred speech. [Ellis] failed to comply with the officers’ verbal instructions to put the car in park. Instead, he turned the steering wheel in the direction of Officer Labella and drove away at a rapid speed. Officer Labella had to jump backwards into the opposing lane of traffic to avoid being struck by appellant’s car. The officers immediately pursued appellant’s vehicle. [Ellis] drove erratically through a residential neighborhood; he was driving approximately 60 miles per hour in a 25-miles-per-hour zone. He went through two red lights without pausing or stopping, [one] at the corner of Wilkins and Beechwood and one at Wilkins and Shady. Near the intersection of Wilkins and Wightman, [Ellis’] vehicle crossed the opposite lane of traffic and went up on the sidewalk. The vehicle then hit several parked vehicles and two telephone poles. The vehicle finally came to rest head-on with a tree. The officers approached with guns drawn and instructed [Ellis] to show his hands; [Ellis] did not comply. To remove appellant from the vehicle, Officer Labella had to smash the passenger side window, as the doors would not open. [Ellis] was pulled through the window and placed under arrest. [Ellis] was transported to Mercy Hospital where Officer Kevin Walters, an impaired driving specialist, obtained his consent to a blood draw for chemical testing. As he consented, refusal warnings were not read to [Ellis]. [Ellis’] blood alcohol content was .242. [Ellis] filed a motion to suppress. Following a hearing, the Honorable Jill E. Rangos denied [Ellis’] motion. Ellis, supra at *1-3 (citations omitted). -2- J-S21008-17 Following a two-day trial, a jury convicted Ellis of driving under the influence (“DUI”) .16 or higher,1 DUI-causing accident,2 DUI-general impairment,3 recklessly endangering another person (“REAP”),4 driving while operator’s license is under suspension or revoked,5 fleeing or attempting to elude police,6 and numerous summary offenses. The court sentenced Ellis to an aggregate term of 12 to 72 months’ incarceration and a consecutive period of three years’ probation. Ellis filed a post-sentence motion, which was denied, and on direct appeal, this Court affirmed. Ellis, supra. The Pennsylvania Supreme Court denied allowance of appeal on April 28, 2015. Commonwealth v. Ellis, 114 A.3d 1038 (Pa. 2015) (Table). On June 8, 2015, Ellis filed a pro se PCRA petition.7 The court appointed counsel, who filed an amended petition on March 21, 2016. The Commonwealth filed an answer on April 7, 2016 and the PCRA court filed a ____________________________________________ 1 18 Pa.C.S.A. § 3802(c). 2 18 Pa.C.S.A. § 3803(b)(1). 3 18 Pa.C.S.A. § 3802(a)(1). 4 18 Pa.C.S.A. § 2705. 5 18 Pa.C.S.A. § 1543(b). 6 75 Pa.C.S.A. § 3733. 7 The trial court’s opinion states that Ellis’ pro se petition was filed on July 1, 2015. The trial court’s docket, however, indicates the petition was in fact filed on June 8, 2015. -3- J-S21008-17 notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 on April 8, 2016. Ellis filed his response to the notice on April 28, 2016, and the PCRA court entered its order dismissing Ellis’ petition on April 29, 2016. Ellis appealed, and he raises the following issues for our review: 1. Was trial counsel ineffective for failing to produce [arresting] Officer Jeffrey Labella and EMT Jill Fox as witnesses at [Ellis’] suppression hearing? 2. Was trial counsel ineffective in failing to object to a gross exaggeration made by the ADA during his opening statement to the effect that police were forced to chase [Ellis] for nearly three miles through the streets of Pittsburgh? 3. Did the Commonwealth commit a Brady[8] violation in failing to provide a copy of a transcript of the questioning of Officer Jeffrey Labella taken as part of an internal investigation of Ellis’ arrest? 4. Did the transcript of a statement made by Officer Jeffrey Labella and the testimony of Officer Labella and EMT Jill Fox offered in a federal civil rights suit constitute exculpatory evidence not available at the time of trial under the PCRA which compels the granting of a new trial? Appellant’s Brief, at 3. ____________________________________________ 8 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). To establish a Brady violation, a defendant must demonstrate the evidence at issue was favorable to him, either exculpatory or used as impeachment; prosecution either willfully or inadvertently suppressed the evidence; and defendant was prejudiced. -4- J-S21008-17 Our standard of review of the denial of a PCRA petition is limited to examining whether determination and the evidence whether its of record decision is supports the court’s free legal error. of Commonwealth v. Conway, 14 A.3d 101, 108 (Pa. Super. 2011). This Court grants great deference to the PCRA court’s findings if supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). However, we are not bound by the PCRA court’s legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). Further, there is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). After our review of the record, the briefs of the parties, the applicable law, and the opinion of the Honorable Jill E. Rangos, we conclude Ellis’ claims on appeal merit no relief. Judge Rangos’ opinion properly disposes of the questions presented. See PCRA Court Opinion, 11/2116, at 4-6 (finding: counsel not ineffective for failing to call witnesses not present at hospital during disputed blood draw; although both witnesses may have corroborated some of Ellis’ testimony as to what occurred during ambulance ride, neither was present during blood draw that Ellis claims was made -5- J-S21008-17 without consent;9 counsel was not ineffective for failing to object to Ellis’ allegation that prosecutor exaggerated distance Ellis attempted to elude police, claiming it was one mile, not three miles as referenced by prosecutor; no Brady violation where Ellis failed to establish reasonable basis the evidence at issue was material to his defense; and civil trial transcript not relevant as Officer Labella and EMT Fox were present in ambulance, not at hospital, where disputed consent occurred). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and we affirm on the basis of Judge Rangos’ opinion. We direct the parties to attach that opinion in the event of further proceedings. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/4/2017 ____________________________________________ 9 Ellis acknowledges in his brief that the testimony to which he points, that of Officer Labella and EMT Fox, refers to the exchange that occurred in the ambulance, not at the hospital. Appellant’s Brief, at 6. -6- Circulated 04/17/2017 10:53 AM

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