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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. §§ 9541-

9546 (“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The facts of this case are set forth in this Court’s unpublished 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 

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* Retired Senior Judge assigned to the Superior Court.
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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).
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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,3recklessly endangering another person (“REAP”),4 driving while 

operator’s license is under suspension or revoked,5fleeing or attempting to 

elude police,6and 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 

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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. 
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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. 

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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. 
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Our standard of review of the denial of a PCRA petition is limited to 

examining whether the evidence of record supports the court’s 

determination and whether its decision is free of legal error. 

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 
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without consent;9counsel 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

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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. 
Circulated 04/17/2017 10:53 AM