J-S79011-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL LANE

Appellant No. 2494 EDA 2015

Appeal from the Judgment of Sentence December 16, 2003

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0003487-2002

BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 30, 2016

Appellant, Michael Lane, appeals nunc pro tunc from the judgment of 

sentence entered in the Lehigh County Court of Common Pleas, following his 

jury trial convictions for three counts of robbery, two counts of aggravated 

assault, and possessing instruments of crime.1 We affirm. 

The trial court fully set forth the relevant facts and procedural history 

of this case in its opinion. Therefore, we have no reason to restate them.

Appellant raises three issues for our review:

DID THE APPLICATION OF 42 PA.C.S.A. § 9714(A)(2) 

(SENTENCES FOR SECOND AND SUBSEQUENT OFFENSES) 

VIOLATE APPELLANT’S RIGHTS UNDER THE UNITED 

STATES AND PENNSYLVANIA CONSTITUTIONS, AS 

DEFINED IN ALLEYNE V. UNITED STATES, [___ U.S. 

____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1)(i), (ii), (iii); 2702(a)(1), (a)(4); 907. 
J-S79011-16

- 2 -

___,] 133 S.CT. 2151, 186 L.ED.2D 314 (2013).

DID THE [TRIAL] COURT ERR WHEN IT EXCLUDED 

APPELLANT FROM THE COURTROOM DURING THE TRIAL 

AND PRECLUDED APPELLANT FROM TESTIFYING DESPITE 

APPELLANT’S CLEAR DESIRE AND INTENTION TO TESTIFY 

AT TRIAL?

DID THE [TRIAL] COURT ERR WHEN IT PERMITTED THE 

COMMONWEALTH TO INTRODUCE EVIDENCE OF 

APPELLANT’S RELIGION (ISLAM) AT TRIAL?

(Appellant’s Brief at 4). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Robert L. 

Steinberg, we conclude Appellant’s issues merit no relief. The trial court 

opinion comprehensively discusses and properly disposes of the questions 

presented. (See Supplemental Trial Court Opinion, filed August 27, 2015, at 

13-22; 26-27) (finding: (1) court may impose sentence of life 

imprisonment, under 42 Pa.C.S.A. § 9714(a)(2), where, at time of 

commission of current offense, defendant had been previously convicted of 

two or more crimes of violence, if court decides sentence of 25 years’ 

imprisonment is insufficient to protect public; Appellant has two prior 

convictions for separate murders occurring in 1972 and 1978, constituting 

“crimes of violence” for purposes of Section 9714; Appellant is prototypical 

“three strikes” offender; Appellant also has prior conviction for aggravated 

assault; Appellant’s prior aggravated assault conviction left that victim 

paralyzed; Appellant has demonstrated through persistent criminal behavior 
J-S79011-16

- 3 -

that he is not susceptible to reform; Appellant’s prior murder and 

aggravated assault convictions support court’s imposition of life 

imprisonment for current offense; Supreme Court’s holding in Alleyne does 

not apply to fact of prior conviction;2(2) Appellant’s behavior throughout 

trial was disruptive and obstreperous; Appellant indulged in constant 

outbursts and unwillingness to adhere to courtroom decorum; court 

repeatedly warned Appellant about his behavior, removed him from 

courtroom, and permitted him to return to courtroom after reforming 

behavior, to provide Appellant with fair trial; Appellant did everything in his 

power to sabotage trial; Appellant’s interference was intentional; despite 

multiple warnings from court and counsel, Appellant continued to disrupt 

proceedings and was removed from court each day; on final day of trial, 

Appellant was belligerent within fifteen minutes of start of trial, requiring 

removal; Appellant refused to view or participate in proceedings from 

adjacent room set up for that purpose; court discussed with Appellant that 

he might lose right to testify because of his disruptions; Appellant’s behavior 

contradicted his assertion that he was ready, willing, and able to testify;3

____________________________________________

2 On August 4, 2016, the Pennsylvania Supreme Court granted allowance of 

appeal in Commonwealth v. Bragg, 133 A.3d 328 (Pa.Super. 2016), 

appeal granted, ___ Pa. ___, 143 A.3d 890 (2016), to decide whether 

Section 9714 is unconstitutional as currently drafted. 

3 Appellant admits the court accurately described in its supplemental opinion 

Appellant’s conduct as reflected in the record. (See Appellant’s Brief at 17.) 
J-S79011-16

- 4 -

Appellant forfeited right to testify based on his actions; (3) fact that 

Appellant was Muslim was relevant; during cross-examination of Investigator 

Felchock, defense counsel emphasized that name on tag in clothes secured 

from Appellant upon his arrest (Mikal Lake) differed slightly from Appellant’s 

name; defense counsel sought to cast doubt on whether clothes secured and 

analyzed actually belonged to Appellant; Commonwealth then asked 

Investigator several questions about Appellant’s identity; Investigator 

testified that he questioned Appellant about discrepancy on name in clothes 

and name on his driver’s license, and Appellant explained that “Mikal” was 

his Muslim name; references to Appellant’s religion were minor;4

Investigator’s explanation was relevant in light of defense counsel’s 

questions to establish Appellant’s ownership of clothing; Appellant suffered 

no undue prejudice).5 Accordingly, we affirm on the basis of the trial court’s 

opinion.

Judgment of sentence affirmed. 

____________________________________________

4

If anything, Appellant exacerbated the references to his religion when he 

interrupted the Investigator’s testimony. Appellant’s outburst persisted, 

ultimately leading to his removal from the courtroom. 

5 Appellant also challenges the prosecutor’s references to God during 

opening and closing statements. Appellant did not object to counsel’s 

remarks, so this claim is waived. See Commonwealth v. Ali, 608 Pa. 71, 

10 A.3d 282 (2010) (stating failure to raise contemporaneous objection to 

prosecutor’s comment at trial waives claim of error arising from comment). 
J-S79011-16

- 5 -
2 See Commonwealth v. Lane, 81 A.3d 974 (Pa.Super. 2013). 

3 The appellant filed a Concise Statement on December 31, 2013 ,and then a second Concise Statement on June 11, 

2014. This Court filed its Pa.R.A.P. 1925(a) opinion on June 17, 2014. On June 26, 2014, the Superior Court 

returned the "unified record" to the Lehigh County Clerk of Judicial Records. 

A second Concise Statement was filed on June 11, 2014, which was after .the Commonwealth's 

Rule of Appellate Procedure 1925(b)" (hereinafter Concise Statement) on December 31, 2013.3 

premature "Concise Statement Of Errors Complained Of On Appeal Pursuant To Pennsylvania 

appellant to file a Pa.R.A.P. 1925(b) Statement "within twenty-one (21) days after remand" to be 

followed by this Court's supplemental 1925(a) Opinion.' Counsel for the appellant filed a 

On December 4, 2013, the Superior Court remanded this matter and directed the 

Robert L. Steinberg, Judge: 

SUPPLEMENT AL OPINION 

Gavin Holihan, Esquire 

For the Appellant 

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* * * * * 

Heather Gallagher, Senior Deputy District Attorney 

For the Commonwealth 

Appearances: 

* * * * * 

MICHAEL LANE 

: NO. CR-3487-2002 

Superior Court No.: 2494 EDA 2015 

vs. 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 10/31/2016 04:03 PM
2 

4 

~ Commonwealth v. Lane, 3 MAL 2014 (Pa. May 15, 2014). 

5 Lane, 81 A.3d at 981. 

6 Many of the issues raised were addressed by the Superior Court in its opinion dated July 12, 2006. See 

Commonwealth v. Lane, No. 1602 EDA 2004 (Pa.Super. July '12, 2006). The opinion by Judge Tamilia, which 

affirmed the judgment of sentence, was later withdrawn when an application for reargument was granted. 

Commonwealth v. Lane, No. 1602 EDA 2004 (Pa.Super. September 22, 2006). 

1 Notes of Testimony, Trial (hereinafter N.T.T.), August 12, 2003, pp. 62-63. 

8 Id. at p. 63. 

demands despite the fact that she was bleeding profusely, putting as much money as she could 

the store to the register area.8 Ms. Perikh anxiously attempted to comply with the appellant's 

finding the victim, the appellant forcefully took the telephone that the victim was holding and 

stabbed the victim's left hand.7 The appellant then pulled Ms. Perikh by the shirt to the front of 

brandished a large knife, at times thrusting it at the victim. In fact, upon entering the store and 

various registers. To that end, he had attempted, unsuccessfully, to conceal his face, and he 

the victim, Bhavna Perikh, who was working alone in the store, give him money from the 

located at 824 W. Broad Street, Bethlehem, in Lehigh County, Pennsylvania. He demanded that 

that afternoon, the appellant entered the Park Mart, a small gas station and convenience store, 

two years after the appellant's release from a lengthy period of incarceration in state prison. On 

The crime underlying the present conviction occurred on June 19, 2002, less than 

Background 

a new Superior Court number, and a new Notice of Appeal was not filed by PCRA counsel until 

August 13, 2015. This Opinion will address the issues raised as if this is a direct appeai. 

6 

rights nunc pro tune. "5 However, some procedural confusion existed concerning the creation of 

The Superior Court had ordered the "reinstatement of Appellant's direct appeal 

the Lehigh County Clerk of Judicial Records. 

opinion on June 17, 2014. However, on June 26, 2014, the Superior Court returned the record to 

Petition for Allowance of Appeal was denied. 

4 This Court then filed its Pa.R.A.P. 1925( a) 
3 

9 N.T.T., August 12, 2003, pp. 63-70. 

10 Id. at pp. 66- 72. 

11 Id. at pp. 65-79. 

12 Id. atpp. 146-147. 

13 Id. at pp. 153, 198. 

14N.T.T., August 13, 2003, p. 21. 

15 Id. at pp. 23, 28. 

16 Id. at pp. 27-29. 

positively identified him as the person he had observed earlier that day entering the white 

and Northampton Streets. Shortly after the arrest, Sergeant Cimera arrived at the scene and 

Street in Easton, Pennsylvania. He was arrested later that evening in Easton in the area of 17th 

Surveillance was then set up near the appellant's home located at 1342 Butler 

specifically, in the area near the driver's door.16 

covered in blood laying in the street in the area where the appellant's car had been parked, 

traced to the appellant.15 After the appellant fled the area, Sergeant Cimera noticed money 

relayed the vehicle description and registration information to police dispatch, and the car was 

at him, put the vehicle in gear, make a U-turn, and drive away rapidly.14 Sergeant Cimera 

Cimera chased the appellant, and ultimately, observed him start a white Chrysler vehicle, look up 

the officer of the situation and directed him to the area where the appellant had run. Sergeant 

David Cimera, who was driving through the area in a marked police vehicle.13 They informed 

plastic bag and what appeared to be a knife.12 The witnesses, in turn, flagged down Sergeant 

store. He was observed by several alert bystanders loping down the street carrying a white 

After obtaining less than three hundred dollars ($300), the appellant fled from the 

to attempt to do as instructed by the appellant, but had great difficulty. Ultimately, the appellant 

took the bag of money and also put additional money in his left front pants pocket. 11 

up," and ultimately cut her right hand as well, severing several tendons.l'' The victim continued 

into a plastic grocery-type bag.9 Nevertheless, the appellant demanded that the victim "hurry 
4 

17N.T.T., August 13, 2003, pp. 41-43. 

18 Id. atpp. 161-167. 

19 Id. at p. 267. 

20 Id. at p. 227. 

21 Id. at p. 229. 

22 The appellant refused to enter a plea of not guilty on the lnfonnation. 

23 N.T.T., August 11, 2003, p. 42. 

displaying pictures to the jury prior to them being admitted into evidence, which occurred 

injuries, the appellant became agitated because he believed that the District Attorney was 

the trial. During the first day of testimony, while the victim was reviewing photographs of her 

The appellant refused to heed to any instructions and was disruptive throughout 

speak through his attorney. 23 

appellant was permitted to speak, but was instructed that he would generally only be permitted to 

jury, the jurors were released in order to address issues of concern to the appellant. The 

seen fleeing the Park Mart.21 

Jury selection commenced on August 11, 2003. 22 Following the selection of a 

of the witnesses, Darren Smith, who immediately selected the appellant as the person he had 

shown to the victim, from which she immediately identified the appellant as the person who had 

robbed the Park Mart and injured her hands.20 In addition, the photo array was also shown to one 

individuals, including the appellant, who shared similar traits and characteristics. The array was 

A photographic array was also prepared that contained photos of six different 

discovered on the appellant's pants, specifically, in the area of the left front pants pocket.19 

the name "Mikal Lake." The clothing was analyzed and tested, and the victim's blood was 

Investigator Scott Felchock.18 The clothing was issued from the appellant's employer and bore 

secured at Lehigh County Prison and, pursuant to a search warrant, was later released to 

Chrysler and speeding away from the vicinity of the robbery.17 The appellant's clothing was 
5 

24N.T.T., August 12, 2003, p. 95. 

25 Id. at p. 93. 

26 Id. at pp. 93-94. 

27 Id. at p. 133. 

za Id. 

29 Id. 

So you'll get the opportunity to consult with Mr. Nelthropp 

prior to the end of this cross-examination. I'm going to 

give you that opportunity now. But you're not going to talk 

Okay. Mr. Lane, I'm going to tell you this once. I'll give 

you the opportunity to consult with your attorney. If you're 

going to talk when you want to talk, I'll have you removed 

from the courtroom. You're welcome to stay in the 

courtroom or you can leave. I'll give you some courtesies. 

But, at the same time, if you're going to talk when you 

want to talk, then you're going to be removed from the 

courtroom. 

**** 

I'm giving you some courtesies. 

But if you're going to talk whenever you want, I'm going 

to remove you. You can sit outside, down in the bullpen, 

while trial goes on. It doesn't matter. 

  

warning: 

opportunity to speak with counsel. During that recess, the Court gave the appellant a further 

when you want to talk."29 Nevertheless, this Court recessed briefly to give the appellant the 

appellant, "selling me out."28 The Court admonished the appellant that he could not 'just talk 

claimed that he needed to consult with his attorney because counsel was, according to the 

victim. When counsel concluded his questioning, the appellant again became upset and began to 

speak directly to the Court stating, "Your honor? Whoa! Whoa! Whoa!"27 The appellant 

After the lunch recess, defense counsel had the opportunity to cross-examine the 

concerns were addressed. 

was told "You're going to have to keep it down".26 Following that admonition, the appellant's 

directly address the Court.25 The appellant was instructed not to speak out in such a manner, and 

moments later.24 Instead of bringing the issue to his attorney's attention, the appellant began to 
6 

30 N.T.T., August 12, 2003, pp. 134-135. 

31 Id. at p. 136. 

32 Id. at pp. 137-138. 

33 Id. at pp. 140-141. 

So, I will again, try to accommodate you, Mr. Lane, as best 

I can. 

However, I will say to you, don't speak to me during open 

court. I'll give you every opportunity to speak to me when 

we take our breaks like we're speaking now. But I'm not 

going to let you speak just when you want to. The sheriffs 

will be instructed to remove you. So I don't want to do 

that. I will try my best not to do that. But you have to also 

understand that this is a court of law. 33 

and also warned the appellant: 

Court reviewed with him what had been discussed with trial counsel about consulting with him 

The appellant at that time elected to remain in the Courtroom for the trial. The 

One does not profit from their own misdeeds. And if Mr. 

Lane ... is going to act in that fashion, then Mr. Lane will 

have to suffer the consequences of it. 

This is a court of law. He doesn't get to speak when he 

wants to .... [Y]ou should inform him that ifhe chooses to 

testify, he'll have the opportunity to explain his version of 

the events. But, at the same time, you'll have the 

opportunity to present the case as you, as counsel, feel is 

approgriate to do. But you should consult with your client, 

okay? 2 

[W]e'll give Mr. Lane the opportunity to remain in the 

courtroom. However, if he continues to speak when he 

wants to, then we'll have him removed from the courtroom 

and we'll proceed in that fashion. 

** ** 

discussion with counsel during the recess: 

This Court, in choosing to overlook the appellant's comments, had a further 

a mother fucker rope around my neck."31 

The appellant's response to this Court's instructions was, "You might as well put 

to me just when you feel like during the course of the trial . 

. . . But this is a courtroom. It's a court of law and I'm 

going to conduct it as such. 30 
Mr. Lane: My lawyer is - is sitting here selling me out. 

And I'm not going to be quiet. 

7 

The Court: You're going to have to - The record should 

reflect that Mr. Lane is not listening to what I'm telling him 

to do. You can stay and sit quietly. You'll be given an 

opportunity - 

Mr. Lane: I'm not saying either/or. There ain't twelve 

white people going to find me not guilty. My lawyer's not 

doing a proper job. Man, do you know what I'm saying? 

The Court: Do you want to stay or do you want to leave? 

Mr. Lane: Do you mean - 

The Court: Do you want to stay or do you want to leave? 

Mr. Lane: I can't get a fair trial. Look at them. My lawyer 

is not doing a proper trial. I can't get a properThe Court: Do you want to stay, Mr. Lane? 

Mr. Lane: This lawyer's not doing what he's supposed to 

do. No way in the world. Their mind is already made up, 

the fact I'm already black. 

Mr. Shore: Objection. 

Mr. Lane: I can't get no fair trial. Man, this ain't no way 

for white people are going to find me not guilty. Man, 

there's no way. 

The Court: No. 

Mr. Lane: Your Honor - 

occurred: 

could take the stand, the appellant again began to speak out, and the following exchange 

the jurors were brought back into the courtroom. Two witnesses later, but before the witness 

regarding appropriate courtroom behavior, together with further consultation with his attorney, 

Following lengthy discussions with and several warnings to the appellant 
8 

34 N.T.T., August 12, 2003, pp. 166-167. It is unclear if the appellant was referring to Eagle, Pennsylvania, which is 

located in Upper Uwchian Township, Chester County, or New Eagle, which is a borough in Washington County. 

35 Id. at p. 170. 

36 Id. atpp. 168-171. 

37 Id. atpp. 168-169. 

38 Id. at p. 172. 

39 Id. 

interpreted by the sheriff to be threats against his attorney. Ultimately, the appellant even 

The appellant refused to speak with counsel, but he also made remarks that were 

appellant declined to return to the courtroom, the sheriff was instructed to periodically ask the 

appellant ifhe desired to return to the courtroom and participate in his trial.39 

regarding appropriate behavior and the possibility of returning to the courtroom. 38 If the 

Another short recess was taken and trial counsel was directed to consult with the appellant 

appellant would not be permitted to continually disrupt the trial. "You don't get a mistrial when 

you sabotage your own proceedings. "36 Both Counsel were informed that the appellant would be 

consistently returned to the courtroom to determine if he would like to participate in his trial." 

between the Court and attorneys outside the hearing of the jury. It was reiterated that the 

The appellant was removed from the courtroom, which prompted a discussion 

to proceed with this case with his outbursts and the statements he's making."35 

counsel found the appellant's conduct vexing, and said, "I'm having a very difficult time trying 

appeal issues because the prior witness, Phillip Tacket, did not even identify him. Defense 

It was apparent that the appellant intended to either sabotage the trial or create 

Mr. Lane: White people ain't going to find me not guilty. 

I can't ~et no fair trial here. I might as well be in Eagle 

County. 4 

The Court: Then you'll have to leave. 

Mr. Lane: If that's your will, that's your will. 

The Court: Then you're going to have-have to leave. 
9 

40 N.T.T., August 12, 2003, pp. 177, 187, 245-246. 

41Jd.atpp.174,241-245. 

42 Id. at p. 190. 

43Id. atpp.191-193. 

44N.T.T., August 13, 2003, pp. 6-12. 

45 Id. at pp. 74, 84-85, 145. 

46 Id. at p. 156. 

47 Id. at pp. 157-158. 

48 Id. at p. 159. 

49 Id. at pp. 241-246. 

arranged video feed in the adjacent room and demanded to be taken back to the prison.49 

man. I can't get no fair trial."48 The appellant refused to take advantage of the previously 

again removed from the courtroom, and as this occurred, he yelled, "I can't get no fair trial here, 

appellant kept speaking, in disregard to this Court's warning. As a result, the appellant was 

settle down and was told to cease his disruptive behavior, or else he would be removed.47 The 

appellant again became agitated and began to disrupt the trial. 46 The appellant was asked to 

afternoon, during the testimony oflnvestigator Scott Felchock, the police prosecutor, the 

to stay, and the morning proceeded largely without interruption.45 However, in the early 

whether the appellant wished to remain in the courtroom. While the appellant would not commit 

to behaving himself, he expressed a desire to stay and participate. 44 The appellant was permitted 

At the beginning of the second day of trial, the Court attempted to ascertain 

instruction was given to the jury. 

43 

appellant in the event additional cross-examination was necessary.42 Finally, a cautionary 

return, so throughout the evening hours, defense counsel could review his testimony with the 

the day, the Court made arrangements to have video equipment set up so that the appellant could 

watch the trial in an adjacent room.41 Additionally, the last witness of the day was asked to 

refused to speak to the sheriff sent to ask him about returning to his trial." At the conclusion of 
10 

50N.T.T., August 13, 2003, pp. 310-313. 

51 Id. at p. 312. 

52 Id. 

s3 Id. 

54N.T.T., August 14, 2003, p. 322. 

55 Id. at p. 323. 

S6 Id. 

57 Id. at p. 324. 

appellant persisted and was ultimately removed from the courtroom within the first fifteen 

defense counsel cautioned the appellant to be quiet and reform his behavior.57 However, the 

continued to obstinately defy the Court and interrupt the proceedings. Both the Court and 

attempted to calm the appellant, who was speaking very loudly and being extremely disruptive. 

The appellant then stated, "I want to testify."55 The Court responded, "Then, you will get an 

opportunity to testify. Otherwise, you will leave the room."56 Nevertheless, the appellant 

with his client, and then asked additional questions. However, the appellant, apparently 

dissatisfied with his attorney's questions, again began to directly address the Court. 54 The Court 

Felchock's testimony, defense counsel asked several questions on cross-examination, consulted 

Felchock, with the defendant present in the courtroom. At the conclusion of Investigator 

The third and final day of trial began with additional testimony from Investigator 

bench and in more than twenty (20) years of practice. 

53 

conducted himself in such an irresponsible and disrespectful manner in his six ( 6) years on the 

conduct again."52 The Court further commented that it had never observed a defendant who 

provided that he conducted himself appropriately. 51 This Court noted that "I will not permit his 

fact, this Court commented that if the appellant planned to testify, he could do so the next day, 

held. 50 Defense counsel was instructed to speak with his client about participating in the trial. In 

Once testimony had been completed for the day, a meeting with counsel was 
58 N.T.T., August 14, 2003, p. 325. 

59 Id. 

6018 Pa.C.S. § 370l(a)(I)(i)-(iii). 

61 18 Pa.C.S. § 2702(aXI),(4). 

62 18 Pa.C.S. § 907(a). 

63 Notes of Testimony, Sentencing (hereinafter N.T.S.), December 16, 2003, pp. 15-20. 

11 

was struck and killed. Another bystander was hit by a bullet, but recovered from his injuries. 

The appellant entered a guilty plea to the murder in June of 1972.63 

· the rival gang, but instead, an innocent bystander, David Autry, who was fourteen (14) years old, 

including one with which the appellant was affiliated. He and other gang members fired shots at 

involved in a homicide in Philadelphia. The incident apparently involved two rival gangs, 

regarding the appellant's extensive, violent prior criminal history. In 1972, the appellant was 

was sentenced to life without parole. The Commonwealth, at the hearing, presented testimony 

On December 16, 2003, at the conclusion of the sentencing hearing, the appellant 

seek a sentence of life imprisorunent without parole. 

24, 2003, the Commonwealth filed an amended notice alerting the appellant of its intention to 

Intention to Proceed With Mandatory Sentencing Pursuant to 42 Pa.C.S. § 9714". On October 

Prior to sentencing, the Commonwealth filed a "Notice of Commonwealth's 

Sentencing 

(2 counts), and Possessing an Instrument of Crime. 

62 

deliberations, the jury found the appellant guilty of Robbery'f (3 counts), Aggravated Assault" 

rested his case. Closing arguments were presented, as well as jury instructions. Following 

Defense counsel presented several witnesses on behalf of the appellant and then 

minutes of Court.58 As he had the previous day, the appellant refused to view and participate in 

the proceedings from the adjacent room that had been specifically set up for that purpose. 59 
12 

64 N.T.S., December 16, 2003, pp. 21-24. 

65 Id. at p. 75. 

66 Id. at p. 79. 

67 Id. at p. 87. 

68 Id. 

the victim was complying with his demands.68 The Court remarked that, in its opinion, the 

injured by the appellant's actions, which seemed even more unnecessary in light of the fact that 

a number of different levels. "67 The Court commented that the victim had been permanently 

the Court stated that the nature and circumstances of this offense were "particularly egregious on 

as the review of the mandatory and discretionary portions of 42 Pa.C.S.A. § 9714. In addition, 

Prior to sentencing, this Court noted its review of the pre-sentence report, as well 

violence. 

analysis, they provided this Court with additional insight into the appellant's propensity toward 

stabbing a prison guard. 66 While these convictions were not directly related to the "three-strikes" 

on two occasions of possessing an instrument of crime; one of the incidents apparently involved 

during his statement at the hearing. 

65 Additionally, while in prison, the appellant was convicted 

convicted of shooting and paralyzing an individual. The appellant admitted to this conviction 

related. While the appellant claims that he was injured during the exchange, he was ultimately 

1977, the appellant was involved in another shooting incident. Again, the shooting was gang 

The appellant was involved in additional violent behavior throughout his life. In 

death. After a trial on August 25, 1978, the appellant was found guilty of third degree murder 

and was sentenced to ten (10) to twenty (20) years incarceration.64 

recreation center with a handgun, and fired several times at the victim, ultimately causing his 

Donald Childs, who was twenty-seven (27) years old. The appellant chased Mr. Childs out of a 

This murder apparently resulted from an altercation between the appellant and the victim, 

On February 22, 1978, the appellant was again involved in another homicide. 
13 

69 N.T.S., December 16, 2003, pp. 88-89. 

70 Id. at p. 89. 

71 Id. at p. 90. 

Sentences for second and subsequent offenses 

(a) Mandatory sentence.-- 

(1) Any person who is convicted in any court of this 

Commonwealth of a crime of violence shall, if at the time of 

the commission of the current offense the person had 

previously been convicted of a crime of violence, be 

sentenced to a minimum sentence of at least ten years of total 

confinement, notwithstanding any other provision of this title 

or other statute to the contrary. Upon a second conviction for 

a crime of violence, the court shall give the person oral and 

written notice of the penalties under this section for a third 

conviction for a crime of violence. Failure to provide such 

notice shall not render the offender ineligible to be sentenced 

under paragraph (2). 

(2) Where the person had at the time of the commission 

of the current offense previously been convicted of two or 

more such crimes of violence arising from separate criminal 

transactions, the person shall be sentenced to a minimum 

sentence of at least 25 years of total confinement, 

notwithstanding any other provision of this title or other 

statute to the contrary. Proof that the offender received 

notice of or otherwise knew or should have known of the 

penalties under this paragraph shall not be required. Upon 

conviction for a third or subsequent crime of violence the 

court may, if it determines that 25 years of total confinement 

offender. This provision of the Sentencing Code provides in pertinent part: 

The appellant was sentenced pursuant to 42 Pa.C.S. § 9714, as a "Three Strikes" 

Life Imprisonment 

Discussion 

result, this Court imposed a sentence of life imprisonment without parole. 71 

the Court found that "[t]he public truly can never be fully protected from Mr. Lane."70 As a 

the conviction in this matter qualified as a third or subsequent crime of violence. Furthermore, 

appellant was a person who, if released from prison, would offend again. 

69 The Court found that 
14 

72 The appellant was also convicted of Aggravated Assault relating to the shooting which left the victim paralyzed. 

73 Concise Statement, December 31, 2013, ,r 9; Concise Statement, June 11, 2014, ,r 11; Concise Statement, August, 

25, 2015, ,r 14. 

74 Concise Statement, December 31, 2013, ,r 10; Concise Statement, June 11, 2014, ,r 12; Concise Statement, 

August, 25, 2015, ,r 15. 

is the functional equivalent of no [c]oncise [s]tatement at all."). See also In re A.B., 63 AJd 

[ c Joncise [ s ]tatement which is too vague to allow the court to identify the issues raised on appeal 

be raised on appeal. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 201 l)("[A] 

1925(b) statement must be specific enough for the trial court to identify and address the issues to 

the imposition of a life sentence to him, were error. It has repeatedly been explained that a 

The appellant fails to identify in what ways the application of Section 9714, and 

not pied nor proven to a jury beyond a reasonable doubt."74 

unconstitutional as applied to him "because the factors used to increase the ultimate penalty were 

§ 9714 and the imposition of a life sentence".73 It is also alleged that this section is 

The appellant contends that this Court erred "in its application of 42 Pa.C.S. 

activity despite the theoretically beneficial effects of penal discipline." Id. 

sentence enhancement is to punish more severely offenders who have persevered in criminal 

In Commonwealth v. Shiffler, 879 A.2d 185, 195 (Pa. 2005), it was explained that "[t]he point of 

criminal acts by imposing harsher penalties on those who commit repeated crimes of violence."). 

Knowles, 891 A.2d 745, 747 (Pa.Super. 2006)("The purpose of section 9714 is to deter violent 

9714(a). Thus, the appellant is the prototypical "Three Strikes" offender. Commonwealth v. 

Aggravated Assault convictions also qualified as "crimes of violence". See 42 Pa.C.S. § 

previously convicted of two murders "from separate transactions".72 His current Robbery and 

"Crime of violence" includes murder of the third degree. The appellant was 

§ 9714 (emphasis added). 

is insufficient to protect the public safety. sentence the 

offender to life imprisonment without parole. 
15 

trial court in Brown created an extensive record at the time of sentencing, including a review of 

Id. at 735-36 quoting Commonwealth v. Phillips, 601 A.2d 816, 823-24 (Pa.Super. 1992). The 

Where the court's sentencing colloquy 'shows 

consideration of the defendant's circumstances, prior 

criminal record, personal characteristics and rehabilitative 

potential, and the record indicates that the court had the 

benefit of the presentence report, an adequate statement of 

the reasons for the sentence imposed has been given.' 

safety. Id. at 730. In upholding one of the two life sentences, the court noted the following: 

twenty-five (25) to fifty (50) years of incarceration would not be sufficient to protect the public 

Attempted Rape. Two consecutive life sentences were imposed after the trial court concluded 

convictions under Section 9714, and the convictions that were appealed included Rape and 

of the sentence. Brown, 741 A.2d at 734. The defendant in Brown had two predicate 

sentence, this would be a challenge to the discretionary aspects of the sentencing, not the legality 

If the appellant is claiming that the Court abused its discretion in imposing a life 

sentence, and any constitutional challenge. 

current offense in which the victim suffered permanent injuries, supports the life imprisonment 

between the crime and sentence). Two prior murders among other violent offenses, and the 

claiming cruel and unusual punishment only arises when there is gross disproportionality 

Commonwealth v. Parker, 718 A.2d 1266, 1268 (Pa.Super. 1998)(A constitutional challenge 

1999). Likewise, a life sentence does not constitute cruel and unusual punishment. 

violate the appellant's due process rights. Commonwealth v. Brown, 741 A.2d 726 (Pa.Super. 

The "Three Strikes" provision is neither unconstitutionally vague nor does it 

process." Shiffler, 879 A.2d at 195. 

criminal behavior that he O is not susceptible to the reforming influence of the conviction 

345, 350 (Pa.Super. 2013). It is apparent that the appellant "has demonstrated, through persistent 
16 

75 See N.T.S., December 16, 2003. 

76 Concise Statement, August, 25, 2015, 117. 

77 Apprendi v. New Jersey, 530 U.S. 466 (2000). 

we recognized a narrow exception to this general rule for the fact of a prior conviction. Because 

Alleyne, 133 S.Ct. at 2160 n.l. "In Almendarez-Torres v. United States, 523 U.S. 224 [] (1998), 

.general rule is where the mandatory minimum sentence is affected by a prior conviction. 

"sentencing factor", that must be submitted to the fact-finder. However, an exception to this 

increases a mandatory minimum sentence for a crime is an "element" of the crime, not a 

light of appellant's Concise Statements. The Supreme Court in Alleyne held that any fact that 

discussion regarding Alleyne v. United States, 133 S.Ct. 2151 (2013), however, is warranted in 

sentence does not warrant relief. Commonwealth v. Lane, 941 A.2d 34, 36-38 (Pa. 2008). Some 

It has been previously determined that the appellant's Apprendi 77 challenge to his 

protect public safety, and sentenced the defendant to life imprisonment.76 

Court, as did the trial court in Brown, concluded that twenty-five (25) years was insufficient to 

the violence, in that the victim was complying with the appellant's demands. Ultimately, this 

than two years after the appellant's release from prison, and {2) the especially senseless nature of 

considered the nature and circumstances of the crime, including (1) that the crime occurred less 

actions. In addition, the Court reviewed and relied upon the presentence report. The Court also 

again heard from the victim and her family regarding the lasting impact of the appellant's 

which irrefutable evidence demonstrated that the appellant had been convicted of murder on two 

prior occasions. 75 In fact, the appellant ultimately acknowledged the convictions. The Court 

background of serious, violent offenses. A comprehensive sentencing hearing was conducted in 

Like the Court in Brown, the appellant was an individual with an extensive 

impact of the crime on the victims, and then imposed the life sentence. 

the presentence report, consideration of the defendant's behavior, and contemplation of the 
17 

78 The appellant also raises the allegation that 42 Pa.C.S. § 9714 is unconstitutional because the factors used to 

increase the mandatory minimum were not pied in the charging documents or proven to a jury beyond a reasonable 

doubt. Concise Statement, August, 25, 2015, 'l 16. In Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) citing 

Alleyne, the Supreme Court held that when a factual determination is necessary for the imposition of a mandatory 

minimum sentence, the factual determination, as an element of the offense, must be specifically alleged in 

the charging document, and the defendant has a right to have that fact determined by a jury beyond a reasonable 

doubt.". Here, the imposition of the mandatory minimum sentence was based on the appellant's prior convictions, 

and not on a factual determination, so the Commonwealth was not required to allege the fact in the charging 

documents. 

from the courtroom, .and permitted to return to the courtroom. All of this was done in an effort to 

any courtroom decorum. The appellant was repeatedly warned about his behavior, removed 

and obstreperous. His behavior included constant outbursts and an unwillingness to adhere to 

The appellant's behavior from the beginning of the trial to its end was disruptive 

(a) Forfeiture of Right to Testify 

Trial Issues 

for murder, and so Alleyne currently does not apply to the within matter. See Watley, 81 A.3d at 

117 n. 3.78 

standard.")(emphasis added). The appellant's enhancement was based on his prior convictions 

automatically increase a defendant's sentence based on a preponderance of the evidence 

not pertain to prior convictions constitutionally infirm insofar as they permit a judge to 

Alleyne decision [] renders those Pennsylvania mandatory minimum sentencing statutes that do 

before the finder of fact."); Commonwealth v. Watley, 81 A.3d 108, 117 (Pa.Super. 2013)("The 

conviction, that triggers a mandatory minimum sentence be proved beyond a reasonable doubt 

(Pa. Super. July 7, 2015)("[T]he constitutional jury trial right requires any fact, other than a prior 

a prior conviction is not unconstitutional."); Commonwealth v. Riggle, 2015 WL 4094427, *3 

2015)("[A]s the law currently stands, the imposition of a mandatory minimum sentence based on 

today." Id. See also Commonwealth v. Pennybaker, 2015 WL 4549869, *3 (Pa.Super. July 28, 

the parties do not contest that decision's vitality, we do not revisit it for purposes of our decision 
18 

79 The appellant has modified this claim throughout his original appeal and PCRA proceedings. Concise Statement, 

December 31, 2013, ,,r 5,6; Concise Statement, June 11, 2014, ~7,8; Concise Statement, August, 25, 2015, 1, 

10, 11. 

defendant may waive his right to be present at every stage of the proceedings either expressly or 

Allen, 397 U.S. at 343, 351; see also Commonwealth v. Vega, 719 A.2d 227, 230 (Pa. 1998) (A 

[A] defendant can lose his right to be present at trial if, 

after he has been warned by the judge that he will be 

removed if he continues his disruptive behavior, he 

nevertheless insists on conducting himself in a manner so 

disorderly, disruptive, and disrespectful of the court that his 

trial cannot be carried on with him in the courtroom. Once 

lost, the right to be present can, of course, be reclaimed as 

soon as the defendant is willing to conduct himself 

consistently with the decorum and respect inherent in the 

concept of courts and judicial proceedings. 

cannot be held when the courtroom is in "bedlam", reached the following conclusions: 

impossible." Allen, 397 U.S. at 338. The Supreme Court, in recognizing that a criminal trial 

Allen was disorderly and disruptive in both his speech and conduct, making the trial "wholly 

2015). In Allen, the trial court encountered conduct similar to the appellant's. The defendant in 

Illinois v. Allen, 397 U.S. 337, 343 (1970). See also State v. Anthony, 860 N.W.2d 10 (Wis. 

formula for maintaining the appropriate courtroom atmosphere will be best in all situations." 

defendant [] must be given sufficient discretion to meet the circumstances of each case. No one 

A Court faced with a "disruptive, contumacious, [and] stubbornly defiant 

could not be controlled by any restrictions placed upon him. 

He now claims that his conduct should not have resulted in a forfeiture of his right 

to testify.79 This argument is advanced with full knowledge that appellant's disruptive behavior 

reviewed earlier in this Opinion. 

and his interference with the trial was intentional. Highlights of his disruptive behavior were 

power to sabotage the completion of the trial. The appellant was not a novice to the courtroom, 

provide him with a fair trial. The appellant, however, had other ideas, and did everything in his 
19 

80 Notes of Testimony, PCRA hearing (hereinafter N .T.P.C.R.A.), pp. 24, 30. 

81 N.T.P.C.R.A. at p. 24. 

82 Id. at p. 27. 

demonstrated an unwillingness to participate except under his terms. He refused every olive 

direct and cross-examination without outbursts. Throughout the trial, the appellant's behavior 

behavior deteriorated within fifteen (15) minutes. It is doubtful that he could have managed 

would have been a precursor to his testimony. On the day that he would have testified, his 

It is not unreasonable to suggest that the appellant's conduct during the trial 

presented a defense and closed to the jury. 

he might lose the right to testify. 82 Ultimately, the appellant did not testify, but trial counsel 

security precautions.81 Counsel also discussed with the appellant that, because of his disruptions, 

proceed with him in the Courtroom.v'" The appellant's "threatening manner" required additional 

force in the Courtroom", "[h]e had many outbursts", "it was getting to be impossible to ... to 

Trial counsel at the PCRA hearing described the appellant as "a major disruptive 

proceedings from the adjacent room set up for that purpose. 

trial, and had to be removed from the courtroom. He then refused to view or participate in the 

have testified, he became belligerent within fifteen (15) minutes of the commencement of the 

from the courtroom each day. On the final day of trial, when the appellant most likely would 

the Court and from counsel, the appellant continued to disrupt the proceedings and was removed 

remove the appellant when he became disruptive. Unfortunately, despite multiple warnings from 

This Court ultimately concluded that the appropriate course of action was to 

promises to conduct himself properly." Allen, 397 U.S. at 344. 

keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he 

a trial court to deal with an obstreperous defendant, including: "(1) bind and gag him, thereby 

impliedly). The Supreme Court then went on to note three constitutionally permissible ways for 
branch offered to him, including a video feed in the adjacent room. Instead, the appellant 

demanded to be returned to the prison. 

A line is reached where a disruptive individual cannot be permitted to adversely 

affect the administration of justice. Everyone, including counsel, attempted to provide the 

appellant with a fair trial. As a result, the appellant's inability or unwillingness to testify falls 

squarely on him. Any assertion that he was ready, willing, and able to testify is contradicted by 

his behavior over the length and breadth of the trial. 

The appellant's misbehavior only left this Court with one option, i.e., his removal 

from the courtroom and the forfeiture of his right to be present at trial. Allen, 397 U.S. at 343. 

None of the other options suggested in Allen would facilitate his ability to testify, i.e., binding 

and gagging. Furthermore, continued removal is warranted if, after warning from the judge, the 

defendant "insists on conducting himself in a manner so disorderly, disruptive, and disrespectful 

of the Court that his trial cannot be carried on with him in the courtroom." Id. Therefore, by 

implication, a defendant under those circumstances may forfeit his right to testify. 

The right to testify is grounded in the Constitution. Rock v. Arkansas, 483 U.S. 

44 (1987); U.S. v. Leggett, 162 F.3d 237, 245 (3d Cir. 1998). However, constitutional rights 

may be forfeited due to the conduct of the accused. Id. at 246. See also Commonwealth v. 

Lucarelli, 971 A.2d 1173 (Pa. 2009); Commonwealth v. Kelly, 5 A.3d 370 (Pa.Super. 2010); 

United States v. McLeod, 53 F.3d 322 (I Ith Cir. 1995); Bultron v. State, 897 A.2d 758 (Del. 

2006); State v. Lehman, 749 N.W.2d 76 (Minn.App. 2008)(collecting cases). In other words, 

"[t]hrough misconduct, defendants can outright forfeit trial rights as fundamental as the Sixth 

Amendment right to counsel." Fischetti v. Johnson, 384 F.3d 140, 151 (3d Cir. 2004). 

The Supreme Court in Rock also recognized that the right to testify is not without 

limitation, and may "bow to accommodate other legitimate interests in the criminal trial 

20 
21 

process." 483 U.S. at 55. Even though the Supreme Court has never directly addressed whether 

the right to testify may be forfeited, other jurisdictions have done so. In Joyner v. Ercole, 2010 

WL 4457711, *3 (E.D.N.Y. November 1, 2010), it was held that "disruptive behavior that allows 

the right to be present to be forfeited under Illinois v. Allen would also qualify, . . . as a 

'legitimate interest' to which the right to testify may bow under Rock v. Arkansas." See also 

United States v. Ives, 504 F.2d 935 (9th Cir. 1974), vacated on other grounds 421 U.S. 944 

(1975), opinion reinstated in relevant part 547 F.2d 1100 (1976)(defendant waived his right to 

testify with his disruptive conduct); State v. Irvin, 628 S.W.2d 957, 960 (Mo.Ct.App. 1982)("A 

defendant has no more right to take the stand and 'testify in a way degrading the judicial system 

than he has to rob a bank or to assault a constable"') quoting Ives, 504 A.2d at 941; See also 

State v. Mosley, 200 S.W.3d 624, 633 (2006)(collecting cases). In Douglas v. State, 214 P.3d 

312 (2009), the Supreme Court of Alaska found, like the within case, that a defendant, by 

engaging in "disruptive conduct", may forfeit his right to testify as well as his right to be present 

during his trial. Id. at 322. Furthermore, "Allen does not say that a defendant automatically 

reclaims the right to be present whenever the defendant promises to behave. Rather, Allen says 

that the defendant reclaims the right to be present when the defendant 'is willing' to behave." Id. 

at 323 ( emphasis in original). Here, the appellant never even promised to behave when faced 

with warnings of exclusion from the Courtroom. 

Finally, as stated in Ives, 504 F.2d at 941, 'just as the right of presence in the 

courtroom can be waived by the defendant's contumacious conduct, the privilege to testify can 

also be waived by the defendant's conduct." See State v. Anthony, 860 N.W.2d at 22 ("Surely, 

the preservation of dignity, order, and decorum in the courtroom constitutes a legitimate interest 

in the criminal trial process that may outweigh a defendant's right to testify in certain 
22 

acting to preserve the very processes that the Constitution itself prescribes." 397 U.S. at 350. 

from his own wrong. The Constitution would protect none of us if it prevented the courts from 

disruptive activities of a defendant like respondent to prevent his trial is to allow him to profit 

In the words of Justice Brennan in his concurring opinion in Illinois v. Allen, "[t]o allow the 

Balancing all of the suggested factors, this appellant forfeited his right to testify. 

Id. at 942. 

There is a delicate balance between allowing an accused to 

defend himself against a criminal charge and maintaining the 

necessary decorum in our halls of justice. Obviously, the trial 

judge must approach this weighty decision with great 

circumspection. He should distinguish between occasional 

incidents which cause only slight disruption and those 

calculated to thwart the entire proceedings. Although 

occasional disruptions may be annoying to the judge and he 

may feel that they would prejudice the defendant in the eyes of 

the jury, the judge should consider, among other things, the 

gravity of the disruptions, the likelihood of continued 

disruption and the possibility of violence if the defendant takes 

the stand. In considering the probability of continued 

disruption and violence, the judge should not be unmindful of 

misconduct of the defendant in prior court appearances. 

trial judge's dilemma when faced with a disruptive defendant: 

circumstances."). In that regard, while recognizing the right to testify, the Court recognized the 
23 

33 Concise Statement, December 31, 2013 ,i 14; Concise Statement, June 11, 2014, ,r 16; Concise Statement, August, 

25, 2015, 122. 

746 A.2d at 1143 quoting Commonwealth v. Marinelli, 690 A.2d 203, 216 (Pa. 1997). 

First, a court must determine whether the photograph[ s are] 

inflammatory. If not, [they] may be admitted if [they] . 

ha[ve] relevance and can assist the jury's understanding of 

the facts. If the photograph[s are] inflammatory, the trial 

court must decide whether or not the photographs are of 

such essential evidentiary value that their need clearly 

outweighs the likelihood of inflaming the minds and 

passions of the jury. 

photographs was the following: 

victim as well as his bloody clothing, the two-step analysis for the admissibility of those 

Commonwealth introduced photographs that graphically demonstrated wounds suffered by the 

In Commonwealth v. Hatcher, 746 A.2d 1142 (Pa.Super. 2000), in which the 

seem to limit his claim to the photographs of the victim. 

inquiry and is therefore probative." Id. at 428. The appellant's use of the word "graphic" would 

"Relevant evidence is that which tends to establish facts in issue or in some degree advances the 

653 A.2d 626, 630 (Pa. 1995); Commonwealth v. Impellizzeri, 661 A.2d 422 (Pa.Super. 1995). 

admission of evidence, including the admissibility of photographs. Commonwealth v. Rompilla, 

and photographs of the appellant's clothing. Trial courts have broad discretion concerning the 

perpetrators that was displayed. to the victim and witnesses, photographs of the appellant's car, 

the appellant fled), photographs of the victim's injuries, the photographic array of potential 

photographs of the scene (inside the store, outside the store, and the surrounding area from which 

Multiple photographs were admitted during the course of this three-day trial, including 

The appellant alleges it was error to allow into evidence "graphic photographs".83 

(b) Photographs of the Victim 
24 

84 N.T.T., August 12, 2003, p. 91. 

85 Id. at pp. 90-91. 

86 Concise Statement, December 31, 2013 ,r 11; Concise Statement, June 11, 2014, ,r 13; Concise Statement, August, 

25, 2015, ,i 19. 

87 N.T.T., August 11, 2003, 1111-12. 

88 Id. 

stipulation to the Court regarding the retrieval of appellant's clothing. However, defense counsel 

second day of testimony, out of the presence of the jury, the attorneys presented a proposed 

custody, there would be no need to "bring out that it was secured from the prison".88 On the 

A possible stipulation regarding the chain of custody of the clothing was 

discussed prior to jury selection. 

87 If the appellant was willing to stipulate to the chain of 

pants to the appellant was relevant. 

name, "Mikal Lake". Testing uncovered the victim's blood on the pants, and so connecting the 

Lehigh County Prison. These items of clothing were issued by the appellant's employer with the 

The appellant alleges it was error to allow into evidence "trial testimony that 

indicated that the defendant was incarcerated."86 The appellant's clothing was secured at the 

(c) Appellant's Clothing 

Court did not commit error by admitting them into evidence. 

photographs admitted at trial were clearly relevant and not at all inflammatory, and as such, this 

occurred, and potentially could be relevant in evaluating the defendant's state of mind.85 The 

suffered by the victim was essential to the determination of whether serious bodily injury 

shown in the photographs, they were not "particularly gruesome" and would not be something 

that would "frighten jurors.t''" Furthermore, this Court noted that the depiction of the injuries 

inflammatory. They only depicted the hands of the victim, and while there was some blood 

introduction and display to the jury. The court noted, first, that the photographs were not 

This Court reviewed the photographs of the victim's injuries prior to their 
25 

89 N.T.T., August 13, 2003, pp. 94-97. 

90Id.atpp.161-169. 

chain of custody evidence. 

of the testimony outweighed any prejudice, and there was no abuse of discretion by admitting the 

"constant reminder" of appellant's incarceration. Johnson, 838 A.2d at 681. The probative value 

clothing was extremely relevant. Furthermore, the testimony was limited and did not serve as a 

Commonwealth v. Jordan, 65 A.3d 318, 325 (Pa. 2013). The victim's blood on the appellant's 

of unfairly prejudicing the accused, inflaming the passions of the jury, or confusing the jury." 

discretion of the trial court, which must balance evidentiary value against the potential dangers 

appellant's refusal to enter into the stipulation. "Admission of evidence rests within the sound 

regarding the retrieval of appellant's clothing from the prison was only necessitated by 

Commonwealth v. Home, 89 A.3d 277, 284 (Pa.Super. 2014). In this case, the testimony 

(Pa.Super. 2012) quoting Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003). See also 

awaiting trial or arrest for the crimes charged." Commonwealth v. Bedford, 50 A.3d 707, 716 

"[N]o rule in Pennsylvania[] prohibits reference to a defendant's incarceration 

for forensic testing. 

90 

regarding how the appellant's clothing was secured at the prison and the retrieval of the clothing 

was obliged to present the testimony of Deputy Warden James Bloom. Warden Bloom testified 

Due to appellant's refusal to stipulate to the chain of custody, the Commonwealth 

mentioning the appellant's incarceration, the appellant objected and directed his attorney not to 

sign any such stipulation. 89 

revealed that, while he believed it was appropriate to enter into the stipulation to avoid 
26 

91 Concise Statement, December 31, 2013, 17; Concise Statement, June 11, 2014, ,r 9; Concise Statement, August, 

25, 2015, ~ 12. 

92 N.T.T., August 13, 2003, p. 145. 

93 Id. at pp. 150-154. 

Felchock testified that the pants that were secured from the appellant bore the name "Mikal," as 

discrepancy, and that the appellant explained that "Mikal" was his Muslim name.93 Investigator 

on his driver's license (Michael). He testified that he questioned the appellant about the 

was wearing the night he was taken into custody (Mikal) differed from the name that appeared 

appellant's identity. Investigator Felchock testified that the name on the shirt that the appellant 

Thus, the Commonwealth subsequently asked Investigator Felchock several questions about the 

essence, he was attempting to cast doubt on whether the pants, in fact, belonged to the appellant. 

appellant because the name, "Mikal Lake," differed slightly from the defendant's name.92 In 

considerable emphasis on the name that appeared on the tag in the pants secured from the 

the proceedings. During the cross-examination of Investigator Felchock, defense counsel placed 

In this case, like Riggins, the fact that the appellant was a Muslim was relevant to 

assailants and stated that all three were Muslims."). 

of the killer" because the victim's dying declaration identified the defendant "as one of her three 

(Pa. Super 1988)(The defendant's being a Muslim was relevant with "respect to the identification 

be relevant, and thus, admissible. See Commonwealth v. Riggins, 542 A.2d 1004, 1007 

Hoskins, 403 A.2d 521, 528 (Pa. 1979). However, it is possible that the appellant's religion may 

hostility in the minds of the jurors, so as to prevent an objective verdict. Commonwealth v. 

religion into a criminal trial may, in fact, be inappropriate where it serves to form bias and 

The appellant asserts that this Court "erred when it permitted the Commonwealth 

to introduce evidence of the [appellant's] religion into the trial".91 The gratuitous interjection of 

( d) Religion 
27 

94 N.T.T., August 13, 2003, pp. 154-156. 

95 Concise Statement, December 31, 20131 12; Concise Statement, June 11, 2014 i 14; Concise Statement, August, 

25, 2015, 120. 

96 N.T.T., August 12, 2003, p. 82. 

97 N.T.T., August 11, 2003, p. 13. 

98 N.T.T., August 12, 2003, pp. 81-82. 

Thus, this Court did not err by admitting the tape into evidence and allowing the jury to view it. 

Furthermore, after viewing the videotape, counsel stipulated as to its authenticity and accuracy. 

Because the tape depicts the crime that was the subject matter of the trial, it was clearly relevant. 

"we've had to take measures to slow down the VCR in order for the viewing by the jury."98 

that the tape was an "accurate reproduction of the original", and the jurors were made aware that 

the video to aid in its viewing.t" The appellant and counsel were given the opportunity to view 

the tape as edited prior to jury selection. 

97 Consequently, during trial, defense counsel stipulated 

19, 2002. The tape in its original form was very fast, and so measures were taken to slow down 

surveillance camera at the Park Mart depicted the robbery committed by the appellant on June 

convenience store was "altered or tampered with and violated the best evidence rule".95 The 

The appellant makes the meritless claim that the surveillance video from the 

(e) Surveillance Tape 

clothing and did not serve to prejudice the appellant. 

was clearly relevant, in light of defense counsel's questions, to further establish ownership of the 

doubt on whether the pants belonged to the appellant. The explanation provided by the appellant 

the discrepancy between the name on the clothing and the appellant's name in order to cast some 

The reference to the appellant's religion was minor. Defense counsel highlighted 

no employee with the name "Mikal Lake," but rather employed "Michael Lane."94 

well. Furthermore, Investigator Felchock testified that Flexicon, the appellant's employer, had 
28 

99 N.T.T., August 12, 2003, pp. 55-56. 

States for thirteen (13) years at the time of the trial. When asked if she understood English, her 

native language was Gujrati, and she was originally from India.99 She had lived in the United 

The victim, Bhavna Perikh, testified with the assistance of an interpreter. Her 

(f) Interpreter for the Victim 

appellant. There was no abuse of discretion in admitting the Park Mart surveillance tape. 

the concerns addressed in Jordan or Hindi did not present any potential prejudice to the 

down. In its original format, it was worthless, but slowed down it could assist the jury. Many of 

the robbery unfolded. Furthermore, the jurors were fully informed that the tape was slowed 

The surveillance video from the Park Mart assisted the jury in understanding how 

Id. quoting Commonwealth v. Hindi, 631 A.2d 1341, 1345 (Pa.Super. 1993). 

In a sense, all slow motion and freeze frame video distorts 

reality . . . . Such distortion may enhance the jury's 

understanding or it may do the opposite . . . . If the judge 

concludes that the jury's understanding will be enhanced 

and that the slow motion or freeze frame is more probative 

than prejudicial, then the judge should admit the evidence. 

Of primary relevance is the purpose for which the party 

offers a slow motion or freeze frame version of a videotape. 

In determining whether to admit into evidence slow motion 

or freeze frame video, the standard to be applied by the trial 

court is the same as it is for the admission of other 

evidence. It must be relevant and material and its probative 

value must outweigh its prejudicial impact. 

court". The Supreme Court adopted the following standard: 

and murder, like other evidentiary rulings, "rest[ ed] within the sound discretion of the trial 

admission of a slow motion surveillance video from a Dunkin Donuts, which captured a robbery 

Additionally, in Commonwealth v. Jordan, 65 A.3d 318, 328 (Pa. 2013), the 
100 N.T.T., August 12, 2003, pp. 55-56. 

101 Concise Statement, June 11, 2014,, 18; Concise Statement, August, 25, 2015,, 24. 

102 Notes of Testimony, Post-Sentence Motions (hereinafter N.T.PSM), May 12, 2004, p. 46. 

103 Id. 

104 Id. 

105 Act No. 172 of2006 defines "Limited ability to speak and understand English" as follows: "The ability to speak 

exclusively or primarily a language other than English and the inability to sufficiently speak or understand English". 

42 Pa.C.S. § 4402. This Act, which became effective almost three and one-half years after this trial, demonstrates 

that the use of an interpreter for Ms. Perikh was appropriate. 

29 

There was no abuse of discretion by this Court in permitting the use of an interpreter. 

properly administered the appropriate oath. Finally, the interpreter was not related to the victim. 

for the interpreter, 

105 the interpreter was qualified to translate the questions of counsel, and was 

Commonwealth v. Pana, 364 A.2d 895, 898 (Pa. 1976). The victim in this case expressed a need 

The decision to use an interpreter rests in the sound discretion of the trial judge. 

related.104 

trial, and at that meeting, there was no indication that the two were acquainted, much less 

time he was needed.i'" He noted that the interpreter had one occasion to meet the victim prior to 

contacted were selected at random, and the interpreter secured was the only one available at the 

secured by contacting various translation service companies.102 He testified that the services 

Mussel, one of the District Attorneys associated with the trial, testified that the interpreter was 

Moreover, during the hearing on the appellant's Post-Sentence Motions, David 

604. 

native and primary language. Additionally, the interpreter was sworn as required by Pa.R.E. 

was not qualified. The interpreter spoke Gujrati, which is a dialect in India and Ms. Perikh's 

arguments. It is not alleged that the interpreter was related to the victim, nor that the interpreter 

"right to confrontation .... ", 

101 but this Court will attempt to cobble together potential 

The appellant does not fully explain how the use of an interpreter denied him the 

understanding the questions asked of her during her testimony. 

response was "little, little" .100 She believed the use of an interpreter would assist her in 
30 

106 Concise Statement, December 31, 2013, 15; Concise Statement, June 11, 2014 ,i 17; Concise Statement, August, 

25, 2015, ,i 23. 

Commonwealth v. Craver, 688 A.2d 691, 696 (Pa. 1997)(emphasis in original). 

distinctive groups in the community and thereby fail to be reasonably representative thereof." 

of names, panels, or venires from which juries are drawn must not systematically exclude 

"[ d]efendants are not entitled to a jury of any particular composition, but the jury wheels, pools 

were contained in the county's voter registration list .... " Romero, 938 A.2d at 374. Moreover, 

that "Lehigh County's selection method provided a greater number of prospective jurors than 

demonstrate any discriminatory practices in Lehigh County. In fact, in Romero, it was observed 

Sanchez, 907 A.2d 477, 488 (Pa. 2006). Here, as in Lopez, no statistical proof was presented to 

Lehigh County jury selection system. See also Romero, 938 A.2d at 374; Commonwealth v. 

The appellant in Lopez was unable to substantiate his claims with respect to the 

Lopez, 739 A.2d 485, 495 (Pa. 1999)(citing Duren v. Missouri, 439 U.S. 357, 364 (1979)). 

Conunonwealth v. Romero, 938 A.2d 362, 373-374 (Pa. 2007) guoting Commonwealth v. 

(1) the group allegedly excluded is a distinctive group in 

the' community; (2) representation of this group in the pool 

from which juries are selected is unfair and unreasonable in 

relation to the number of such persons in the community; 

and (3) the under-representation is due to the systematic 

exclusion of the group in the jury selection process. 

Amendment right to an impartial jury, the appellant was required to demonstrate the following: 

To establish a prima facie case that the jury selection process violated his Sixth 

violated his right to an impartial jury. 

were empanelled in this case.106 In other words, the jury selection process in some manner 

The appellant's challenge to the array is premised solely on the race of jurors who 

Jury ~ Challenge to the Array 
31 

107 Concise Statement, December 31, 2013, 113; Concise Statement, June 11, 2014, 'J 15; Concise Statement, 

August, 25, 2015, 121. 

wanted him to do so, but counsel disagreed with him. 

his trial counsel refused to file a recusal motion. Trial counsel did indicate that the appellant 

towards him.107 The appellant, in his original 1925(b) Statement filed in 2004, complained that 

The appellant alleges recusal was warranted because of "prejudicial animus" 

Recusal 

objection, this Court's denial of his challenge to the potential jury array was proper. 

Lehigh County's jury pool selection process, and because the appellant failed to make a timely 

evidence to substantiate his claim. Because there is no evidence of discriminatory practice in 

The appellant waited until the day of jury selection to raise this issue, but as noted earlier, had no 

Pa.R.Crim.P. 630(B)(l); see Commonwealth v. Davis, 406 A.2d 1087, 1089 (Pa.Super. 1979). 

trial of criminal cases for which the jurors have been summoned and not thereafter .... " 

challenge the array "not later than 5 days before the first day of the week the case is listed for 

panel, he is obligated to make the objection in a timely fashion. Specifically, the appellant must 

Nevertheless, if an appellant intends to object to the racial composition of a jury 

Commonwealth v. Henry, 569 A.2d 929, 933 (Pa. 1990). 

Commonwealth v. Estes, 851 A.2d 933, 935 (Pa.Super. 2004); Craver, 688 A.2d at 696; 

Commonwealth v. Johnson, 838 A.2d 663, 682 (Pa. 2004)(internal citations omitted); see also 

have been extended to approve the usage of driver's license lists for purposes of jury selection." 

drawn from voter registrations lists. More recently, the reasoning and holdings of those cases 

basis that African-Americans were underrepresented, to the racial composition of a jury panel 

The Supreme Court has also "rejected various criminal defendant's attacks, on the 

I I 
32 

108 N.T.T., August 11, 2003, p. 3. 

109 Id. at p. 4. 

the ramifications in this case are potentially great to Mr. Lane".109 Such a statement fails to 

appellant's recollection was incorrect. What was said was that this was a serious case "because 

statement he attributed to this Court that it would be "treated ... as a murder case".108 The 

The appellant made a recusal request at the beginning of the trial based upon a 

834 (Pa. 2006) 

they can rule impartially and without prejudice." Commonwealth v. Whitmore, 912 A.2d 827, 

competent, and, when confronted with a recusal demand, have the ability to determine whether 

omitted). "This Court presumes judges of this Commonwealth are honorable, fair and 

of discretion." Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998)(intemal citations 

a case fairly and without prejudice, that decision will not be overruled on appeal but for an abuse 

decision that only the jurist can make. Where a jurist rules that he or she can hear and dispose of 

tend to undermine public confidence in the judiciary. This is a personal and unreviewable 

his or her continued involvement in the case creates an appearance of impropriety and/or would 

manner, free of personal bias or interest in the outcome. The jurist must then consider whether 

first make a conscientious determination of his or her ability to assess the case in an impartial 

jurist whose impartiality is being challenged. In considering a recusal request, the jurist must 

impartially. As a general rule, a motion for recusal is initially directed to and decided by the 

bias, prejudice or unfairness which raises a substantial doubt as to the jurist's ability to preside 

"It is the burden of the party requesting recusal to produce evidence establishing 

displayed towards the appellant. 

behavior displayed hostility toward this Court. By contrast, there was no hostility or "animus" 

Throughout the proceedings, the appellant's disrespectful and out-of-control 

I ' 
33 

110 The appellant also makes two additional allegations which are vague and subject to waiver analysis. 

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011); In re A.B., 63 A.3d 345, 350 (Pa.Super. 2012). It is 

alleged that the trial court erred in allowing the Commonwealth to present evidence "which was tampered with by 

the Commonwealth prior to trial". Concise Statement, December 31, 2013, 1 12; Concise Statement, June 11, 2014, 

'l 19; Concise Statement, August, 25, 2015, ,r 25. If this claim pertains to the surveillance tape, it has already been 

addressed. The appellant's original post-sentence motion, amended post-sentence motions, and "Amended Petition 

For Relief Pursuant To The Post-Conviction Relief Act" mention this issue in the context of the surveillance tape. 

Issues not raised in the lower court are waived. Commonwealth v, Watson, 835 A.2d 786, 791 (Pa.Super. 

2003)(Issues not raised in the lower court are waived and cannot be raised for the first time on appeal and thus 

waiver cannot be rectified by "proffering it in response to a Rule l 925(b) order"). See also Commonwealth v. 

Melendez-Rodrigue~ 856 A.2d 1278, 1287 (Pa.Super. 2004). 

The appellant's final contention that trial counsel was not acting in his best interest, and that the trial court 

should have replaced him, is a spurious claim. Concise Statement, December 31, 2013, 'l 8; Concise Statement, 

June 11, 2014, 110; Concise Statement, August, 25, 2015,, 13. It was the appellant's conduct which erected 

obstacles to counsel's representation. This vague allegation ignores the requirement that when counsel is appointed 

"a motion for change of counsel ... shall not be granted except for substantial reasons". Pa.R.Crim.P. 122(c). See 

Commonwealth v. Keaton, 45 A.3d 1050, 1070-1071 (Pa. 2012)(Trialjudge did not abuse his discretion in denying 

motion for change of court-appointed trial counsel based on claim that counsel did not have his best interest at 

heart); Commonwealth v. Wrigh!, 961 A.2d 119, 134 (Pa. 2008)(Appellant failed to demonstrate irreconcilable 

differences between counsel and client and any communication breakdowns were due to appellant's lack of 

cooperation and refusal to follow counsel's advice). Here, a "Motion For Withdrawal of Counsel" was filed by the 

appellant on July 18, 2003, which was less than a month prior to trial. No irreconcilable differences were alleged, 

only that counsel failed to show him the surveillance video. The appellant's contention that counsel was not acting 

in his best interests is, at best, an abstract claim. It is doubtful that any counsel could have represented the appellant 

without developing angina, but that does not mean that counsel was not representing the appellant zealously. 

Pretrial motions were litigated, an investigator was hired, and a reasonable strategy to contest the identification was 

employed. This claim is without merit. 

For all the foregoing reasons, the judgment of sentence should be affirmed.l'" 

appellant's rights. 

establish bias, prejudice, or unfairness, but instead, an understandable concern for protecting the 

' ..