Opinion
J-S79011-16 No. 2494 EDA 2015
11-30-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL LANE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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. We affirm.
18 Pa.C.S.A. §§ 3701(a)(1)(i), (ii), (iii); 2702(a)(1), (a)(4); 907.
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.
___,] 133 S.CT. 2151, 186 L.ED.2D 314 (2013).(Appellant's Brief at 4).
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?
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 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) 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; 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; Investigator's explanation was relevant in light of defense counsel's questions to establish Appellant's ownership of clothing; Appellant suffered no undue prejudice). Accordingly, we affirm on the basis of the trial court's opinion.
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.
Appellant admits the court accurately described in its supplemental opinion Appellant's conduct as reflected in the record. ( See Appellant's Brief at 17.)
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.
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).
Judgment of sentence affirmed.
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