J-A27026-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MITCHELL NAZARIO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 665 MDA 2022

Appeal from the PCRA Order Entered March 31, 2022

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0001479-2017

BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 22, 2023

Mitchell Nazario appeals from the order dismissing his Post Conviction 

Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In January 2018, a jury convicted Nazario of first-degree murder. 18 

Pa.C.S.A. § 2502(a). The trial court previously summarized the facts of the 

case as follows:

On the night of February 1, 2016, Alexa Pritt heard people 

talking outside her home in the area of Kittatinny and South 

14th Street in Harrisburg[, Pennsylvania]. She next heard 

two loud booms or cracks, then the sound of car tires 

screeching. Ms. Pritt looked out her window and saw a darkcolored car drive away toward a stop sign [and] then turn 

right. Ms. Pritt saw something in the middle of the street[,] 

which she thought might have been a tire. Frightened, Ms. 

Pritt looked out her front door and saw a truck drive by the 

object, flash its lights, [and] then continue on. Within 

approximately five minutes of hearing the loud noises, 

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* Retired Senior Judge assigned to the Superior Court.
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police and ambulances arrived at the scene and attempted 

to revive a person lying in the street.

That night, Robert Mumma went with a friend to the area of 

[South] 14th and Kittatinny Streets to buy drugs. Shortly 

before the killing occurred, Mumma briefly saw the victim, 

Freddy J. Williams, known as Freddie J, in an alleyway near 

the house where Mumma intended to buy drugs. Mumma 

knew [Williams] from Dauphin County Prison and as a fellow 

drug user.[ ] After buying drugs, Mumma returned to the 

vehicle in which his friend waited. Mumma intended to use 

the heroin in the vehicle. As he sat in the parked vehicle, 

Mumma saw [Williams] pace back and forth from corner to 

corner. Mumma next observed a car pull up and stop. 

[Williams] approached the passenger side of the car and 

leaned on the car. Mumma did not see any attempt by 

[Williams] to enter the car. Mumma took note of the vehicle, 

worried that it might be police. Immediately after [Williams] 

approached the stopped car, Mumma heard shots. Mumma 

heard [Williams] yell something[,] which he could not 

discern, [and] then saw him fall down. Mumma observed 

the car speed off. The driver of the vehicle in which Mumma 

rode drove to the spot where [Williams] was lying in the 

street. It was apparent to Mumma that [Williams] was 

mortally wounded. Mumma and the driver left the scene. 

Mumma did not observe any weapons on [Williams] as he 

lay in the street.

Harrisburg City Police Officer Brian Carriere[ ] was working 

patrol in a marked police unit that night when, at 9:52 p.m., 

he received a dispatch of a victim down near the intersection 

of South 14th and Kittatinny Streets. When Officer Carriere 

arrived, he saw a man lying in the middle of the street. 

Officer Carriere observed a gunshot wound to the victim’s 

right arm and a bullet in the chest or abdominal area.

Officer Donald Bender also responded to the scene. Officer 

Bender observed the victim to be in grave condition. Officer 

Bender observed an exit wound to Williams’ back and an 

expanded projectile embedded in his clothing on the right 

side of his chest. Paramedics arrived and transported the 

victim to [the] hospital. Williams was pronounced dead 

shortly after arrival at the hospital.
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Forensic pathologist Wayne Ross, M.D., testified regarding 

the autopsy performed upon Williams. The autopsy revealed 

gunshot wounds to the right side of the body, one to the 

right chest, one to the right forearm and a third impact 

wound to the chest. Dr. Ross categorized the injury to the

victim’s right forearm as a defensive [wound] sustained 

when the victim raised his right extremity in an attempt to 

ward off a gunshot. One gunshot passed entirely through 

the right lung, with a trajectory of front to back and 

downward. The gunshot to the lung caused Williams’ death. 

Because no soot or gunshot powder residue existed at the 

wound sites or on the clothing, Dr. Ross opined that the 

shots were fired from a distance of three to four feet or 

greater. Dr. Ross opined that based upon Williams’ height 

[of] five feet two inches, the lack of soot and gunpowder 

residue, and the trajectory of the bullets, Williams was 

outside the vehicle when shot.

Ten days later, on February 11, 2016, Harrisburg City Police 

Officer Daniel [Antoni] encountered [Nazario] in the area of 

Hall Manor near the scene of the homicide. Officer [Antoni] 

identified himself as a police officer and approached 

[Nazario]. [Nazario] appeared shocked, then took a step as 

if he intended to run. Officer [Antoni] drew his gun and 

commanded [Nazario] to get on the ground. Fellow officer 

Nate Owens arrived and placed [Nazario] in handcuffs. 

Officer Owens patted [Nazario] down and retrieved a .40 

caliber semiautomatic handgun with an extended magazine. 

[Nazario] told police that he obtained the gun a few days 

earlier. [Nazario] was not charged with the murder at that 

time.

Harrisburg Police sent the gun to the Pennsylvania State 

Police for laboratory testing. The testing revealed that the 

cartridge case obtained from the homicide scene and the 

bullet jacket retrieved from Williams’ body during the 

autopsy were discharged from the .40 caliber semiautomatic 

handgun removed from [Nazario’s] person on February 11, 

2016.

On February 1, 2017, one year after the killing occurred, 

Harrisburg City Police Detective Jason Brinker conducted a 

recorded interview of [Nazario]. Throughout the one hour 

and forty minute interview, [Nazario] denied involvement in 

the killing. Detective Brinker then consulted with the Office 
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of the District Attorney to obtain authorization to charge 

[Nazario]. Detective Brinker apprised [Nazario] that he 

would be charged with murder. The detective then initiated 

a second interview of [Nazario] in which he employed a 

different interview technique. In that interview, [Nazario] 

admitted that he shot [Williams.]

At trial, [Nazario] testified that on the night of the incident, 

as he slowed his car to [a] stop at a stop sign in the area of 

[South] 14th and Kittatinny Streets, he saw [Williams] 

running toward the car. When [Nazario] stopped his car, 

[Williams] banged on the window. [Nazario] testified that 

[Williams] then ran to the passenger side of the car. 

[Nazario] testified that he rolled down the window and 

asked [Williams] what he needed. [Nazario] testified that 

[Williams] appeared intoxicated and partially entered the 

passenger side window and appeared to reach for 

something. [Nazario] stated that he grabbed his gun from 

his lap and shot [Williams] twice. [Nazario] admitted that 

he did not see what [Williams] had in his hand and that 

[Williams] neither displayed a weapon nor made a threat 

upon [Nazario’s] life.

Trial Court Opinion, Sept. 4, 2018, at 1-5 (citations to notes of testimony 

omitted).

At trial, Nazario raised a self-defense claim. His counsel also argued that 

the castle doctrine applied. The Commonwealth objected, and the trial court 

concluded the castle doctrine did not apply because Nazario illegally possessed 

a gun at the time of the shooting. The trial court provided the following selfdefense instruction to the jury:

If the Commonwealth proves to you beyond a reasonable 

doubt that [Nazario] used deadly force then to prove that 

such force was not justifiable in this case it must prove one 

of the following elements beyond a reasonable doubt: A, 

that [Nazario] did not reasonably believe that he was in 

immediate danger of death or serious bodily injury at the 

time he used the force, and that, therefore, his belief that it 
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was necessary for him to use deadly force to protect himself 

was unreasonable.

Put another way, the Commonwealth must prove either that 

[Nazario] did not actually believe he was in danger of death 

or serious bodily injury such that he needed to use deadly 

force to defend himself at that point; or, that while [Nazario] 

actually believed he needed to use deadly force, his belief 

was unreasonable in light of all the circumstances known to 

him.

Keep this in mind: A person is justified in using deadly force 

against another not only when they are in actual danger of 

unlawful attack but also when they mistakenly but 

reasonably believe they are. 

A person is entitled to estimate the necessity for the force 

he employs under the circumstances as he reasonably 

believes them to be at the time. In the heat of conflict, a 

person who has been attacked ordinarily has neither time 

nor composure to evaluate carefully the danger and make 

nice judgments about exactly how much force is needed to 

protect himself.

Consider the realities of the situation faced by [Nazario] 

here when you decide whether or not the Commonwealth 

has proven beyond a reasonable doubt either that, one, he 

did not believe he was actually in danger of death or serious 

bodily injury to the extent that he needed to use such force 

in self-defense; or, two, that while he did believe that, his 

belief was unreasonable.

That [Nazario] knew he could avoid the necessity of using 

force with complete safety by retreating, but he failed to do 

so, is the other area that you should consider when deciding 

whether or not the Commonwealth has proven the elements 

beyond a reasonable doubt.

Now, the final area I must discuss with you is voluntary 

manslaughter. And then I’m going to give you some final 

instructions, and you’ll be prepared to deliberate.

As my earlier definition of malice indicates, there can be no 

malice when certain reducing circumstances are present. 

When these circumstances are present a killing may be 

voluntary manslaughter, but never murder. This is true 
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when a defendant kills under an unreasonable mistaken 

belief in justifying circumstances.

Accordingly, you can find malice and murder only if you are 

satisfied beyond a reasonable doubt that [Nazario] was not 

acting under an unreasonable belief that the circumstances 

were such that if they existed would have justified the 

killing.

The reducing circumstance of a defendant acting under an 

unreasonable belief that the circumstances of the killing 

were justified applies where [Nazario] actually believed that 

he was in immediate danger of death or serious bodily injury 

at the time he used deadly force but his belief was 

unreasonable in light of the facts as they appeared to him 

at the time; or [Nazario] did not violate his duty to retreat 

from the place as I explained those terms when I described 

to you the justification defense.

So let me read this again to you: The reducing circumstance 

of a defendant acting under an unreasonable belief that the 

circumstances of the killing were justified applies where, 

one, [Nazario] actually believed that he was in immediate 

danger of death or serious bodily injury at the time he used 

deadly force but his belief was unreasonable in light of the 

facts as they appeared to him at the time; or [Nazario] did 

not violate his duty to retreat from the place as I explained 

those terms when I described to you the justification 

defense.

N.T., Jan 16-18, 2018, at 401-404.

The jury found Nazario guilty of first-degree murder, and the court 

sentenced Nazario to life imprisonment. Nazario filed a post-sentence motion, 

which the trial court denied. Nazario filed a direct appeal nunc pro tunc

arguing, among other issues, that the trial court erred in failing to instruct the 

jury on the castle doctrine.

1 This Court affirmed the judgment of sentence, 

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1 Appellant had filed a timely notice of appeal, but this Court dismissed it for 

failure to file a brief. The trial court re-instated his direct appeal rights, and 

he timely filed the nunc pro tunc appeal.
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concluding Nazario had waived his challenge to the jury instructions. We 

explained that he had done so by failing to object after the court instructed 

the jury but before the jury began to deliberate and, even if he had not waived 

the claim, it lacked merit. Commonwealth v. Nazario, 2020 WL 2120078, 

at *6, *6 n.6 (Pa.Super. filed May 4, 2020).2 The Pennsylvania Supreme Court 

denied Nazario’s petition for allowance of appeal.

Nazario filed a timely pro se PCRA petition, raising, among other things, 

trial court error for failing to instruct the jury as to the castle doctrine and 

counsel ineffectiveness for failing to effectively litigate and preserve the issue. 

The PCRA court appointed counsel, who filed a Turner/Finley3letter and 

petition to withdraw as counsel. The trial court granted the petition to 

withdraw and issued notice of its intent to dismiss the PCRA petition without 

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2 We noted that the castle doctrine was “an evidentiary means by which a 

defendant may attempt to prove justification by self-defense.” Nazario, 2020 

WL 2120078, at *6 (citation omitted). Under the castle doctrine a person “is 

presumed to have a reasonable belief that deadly force is immediately 

necessary” if “[t]he person against whom the force is used is in the process 

of unlawfully and forcefully entering, or has unlawfully and forcefully entered 

and is present within, a dwelling, residence or occupied vehicle” and “[t]he 

actor knows or has reason to believe that the unlawful and forceful entry or 

act is occurring or has occurred.” Id. (quoting 18 Pa.C.S.A. § 505(b)(2.1)).

Further, the presumption is not available where “the actor is engaged in a 

criminal activity or is using the dwelling, residence or occupied vehicle to 

further a criminal activity.” Id. (quoting 18 Pa.C.S.A. § 505(b)(2.2)(iii)).

3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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a hearing. Nazario filed a response, and the court dismissed the petition in 

March 2022. Nazario filed a timely notice of appeal.4, 5

Nazario raises the following issues:

I. Did the (PCRA) court abuse its discretion in denying the 

PCRA petition, where [Nazario] has established that:

A) The trial prosecutor introduced unsupported 

testimony to persuade the trial court from allowing 

[Nazario’s] defense access to an affirmative-legal 

defense which ultimately deprived [Nazario] from his 

local and federal guarantee[d] right to submit an 

effective legal defense in accordance with: Pa. Const. 

Article one, Section nine; and U.S. Const. 

Amendment[s] six[] and fourteen?

B) The trial court abuse[d] its discretion when 

considering unsupported Commonwealth’s arguments 

which ultimately deprived [Nazario] from presenting, 

an affirmative-legal defense?

C) The trial court abuse[d] its discretion when 

refusing to permit a “self-defense” theory and/or 

refusing to charge the jurors from Pennsylvania’s law 

as written our General Assembly [at] 18 Pa.C.S.A. § 

505, which embodies the facts in [Nazario’s] case.

Nazario’s Br. at 7.

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4 The clerk’s office filed and distributed the order on March 31, 2022. Thirty 

days would have been Saturday, May 1, 2022. Nazario filed his notice of 

appeal Monday, May 3, 2022. See 1 Pa.C.S.A. § 1908 (providing that the 

calculation of time periods omits weekends and holidays when the last day of 

the period is a weekend or holiday).

5 The trial court did not issue an order directing Nazario to file a Rule 1925(b) 

statement, and Nazario did not file one.

6

In the argument section of his brief Nazario also claims his PCRA counsel 

was ineffective because she did not speak with him prior to filing her 

(Footnote Continued Next Page)
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Nazario claims the court abused its discretion in dismissing the petition 

without a hearing. He maintains there was government interference and a 

miscarriage of justice. He argues he sought to argue the castle doctrine, but 

the Commonwealth opposed it and the Commonwealth relied on assertions 

that did not have supporting evidence.

We review the denial of PCRA relief to determine “whether the PCRA 

court’s order is supported by the record and free of legal error.” 

Commonwealth v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020) (quoting 

Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa.Super. 2018)).

To be eligible for PCRA relief, a petitioner must plead and prove his 

claims are not previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3); 

Commonwealth v. Williams, 196 A.3d 1021, 1027 (Pa. 2018). “An issue is 

previously litigated if ‘the highest appellate court in which the petitioner could 

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Turner/Finley letter. He claims, among other things, that, had PCRA counsel 

spoken with him, she would have known he was attempting to argue that he 

based his decision to testify on counsel’s advice, and counsel advised him that 

the castle doctrine would apply to his case. Nazario’s Br. at 13. He also argues 

his trial counsel was ineffective and that the PCRA court erred by relying on 

counsel’s no-merit letter. However, Nazario did not include ineffectiveness 

claims implicating PCRA counsel or trial counsel or a claim of PCRA court error 

in the statement of questions involved section of his brief. He therefore waived 

the claims on appeal. See Pa.R.A.P. 2116(a) (providing that “No question will 

be considered unless it is stated in the [appellant's] statement of questions 

involved or is fairly suggested thereby.”).

In addition, to the extent Nazario argues his direct appeal counsel was 

ineffective for failing to file a brief, he has waived this claim by failing to 

include it in his statement of questions presented. Moreover, that error was 

cured when he was permitted to appeal nunc pro tunc, and litigated such an 

appeal with new counsel.
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have had review as a matter of right has ruled on the merits of the issue. . . 

.’” Williams, 196 A.3d at 1027 (citation omitted); 42 Pa.C.S.A. § 9544(a)(2). 

An issue is waived “‘if the petitioner could have raised it but failed to do so 

before trial, at trial, . . . , on appeal, or in a prior state postconviction 

proceeding.’” Williams, 196 A.3d at 1027 (citation omitted); 42 Pa.C.S.A. § 

9544(b).
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Nazario’s claims of “government interference” and “miscarriage of justice” are 

claims of trial court and prosecutorial error. That is, he claims that the 

Commonwealth improperly objected to his affirmative defense and made 

claims that were not supported by the evidence, and that the court erred in 

not allowing the castle defense. Nazario could have raised these claims on

direct appeal, and in fact did raise a claim the court erred in failing to instruct 

on the castle doctrine. The claims are therefore previously litigated and/or 

waived and are not cognizable on PCRA review. See Commonwealth v. 

Ford, 809 A.2d 325, 329 (Pa.Super. 2002) (finding claims of prosecutorial 

misconduct at trial and trial court error waived because they could have been 

raised on direct appeal); Williams, 196 A.3d at 1031 (finding claims raised 

on direct appeal previously litigated).7

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2023

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7 The PCRA court found Nazario’s claim of trial court error was barred from 

relief because it was previously litigated, and his claim of prosecutorial 

misconduct lacked merit. Trial Court Opinion, filed Feb. 23, 2022, at 7-8. We 

can affirm the trial court on any basis supported by the record. See R.M. v. 

J.S., 20 A.3d 496, 506 n.8 (Pa.Super. 2011).