J-S04011-26
2026 PA Super 52
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN MITCHELL :
:
Appellant : No. 1127 EDA 2025
Appeal from the PCRA Order Entered April 25, 2025
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004744-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN MITCHELL :
:
Appellant : No. 1534 EDA 2025
Appeal from the PCRA Order Entered April 25, 2025
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007776-2019
BEFORE: LAZARUS, P.J., STABILE, J., and NEUMAN, J.
OPINION BY LAZARUS, P.J.: FILED MARCH 19, 2026
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Justin Mitchell appeals,1 pro se, from the orders,2 entered in the Court
of Common Pleas of Montgomery County, dismissing his petition filed pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
review, we affirm.
This Court previously set forth the facts of these cases as follows:
Around 9:10 p.m. on January 23, 2019, Mitchell, Henry Diaz-Ayala, and Russel Montalvo-Fernandez broke into the home of
David Pass and his father, Ralph Williams. Carrying guns, the men
planned to rob Pass of money he owed [Mitchell,] who in turn
owed it to Diaz[-Ayala] and Montalvo[-Fernandez].
While Montalvo-Fernandez and Pass were on the third floor, Diaz-Ayala was with Williams in his second-floor bedroom. Williams
resisted and stabbed Diaz-Ayala, who screamed. Upon hearing
Diaz-Ayala’s scream, Montalvo-Fernandez shot Pass in the leg and
buttocks. Montalvo-Fernandez ran downstairs, where he
repeatedly shot and killed Williams.
The three home invaders fled the scene. Diaz-Ayala left a trail of
blood from Williams’ bedroom, down the stairs, through the
kitchen, out the back door, and into the street. Montalvo-
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1 Mitchell filed a single timely notice of appeal containing both of the above-
captioned docket numbers in violation of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), which requires appellants to file separate notices of
appeal when a single order resolves issues arising on more than one lower
court docket. But see Commonwealth v. Young,
265 A.3d 462, 475 (Pa.
2021) (permitting appellate courts to remand, pursuant to Pa.R.A.P. 902, for
correction of non-jurisdictional defects in notice of appeal). On June 13, 2025,
this Court, in accordance with Young, directed Mitchell to file Walker-compliant amended notices of appeal. See Order, 6/13/25, at 1-3. On June
23, 2025, Mitchell filed the instant Walker-compliant amended notices of
appeal. Accordingly, his appeals are now properly before us and we proceed
to address his appeal.
2 On July 15, 2025, this Court consolidated Mitchell’s appeals sua sponte. See
Pa.R.A.P. 513.
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Fernandez drove Mitchell home and then took Diaz-Ayala to the
hospital.
Two days later, a traffic-patrol officer attempted to stop Mitchell
for illegally tinted car windows. Mitchell began to slow[ ]down but
then sped away. Instead of pursuing the car, the patrol officer
obtained a [] warrant for Mitchell’s arrest.
Several months passed and police eventually apprehended
Mitchell and Diaz-Ayala. Meanwhile, Montalvo-Fernandez escaped
to Mexico with the help of his close friend, Elijah Moody.
The Commonwealth filed two cases against Mitchell. [Docket No.
CP-46-CR-0007776-2019] was for the eluding apprehension by
the patrol officer[, and Docket No. CP-46-CR-0004744-2019] was
for the crimes committed during the home invasion.
See Commonwealth v. Mitchell, 297 A.3d 714, at *1 (Pa. Super. 2023)
(Table) (citations and quotations omitted).
Ultimately, a jury convicted Mitchell of second-degree murder and
related offenses. On December 16, 2021, the trial court sentenced Mitchell to
an aggregate term of life imprisonment without the possibility of parole.
Mitchell filed a direct appeal and waived all of his claims by either failing to
supplement the record with his Pa.R.A.P. 1925(b) concise statement of errors
raised on appeal, raising claims in his brief that were not preserved before the
trial court, or failing to raise a substantial question. See Mitchell, supra.
Consequently, on April 11, 2023, this Court affirmed Mitchell’s judgment of
sentence. See id. Mitchell did not seek review in our Supreme Court.
On April 14, 2024, Mitchell filed the instant pro se PCRA petition and
outlined the following claims of error: (1) the evidence was insufficient; (2)
the verdict was contrary to the weight of the evidence; (3) the trial court erred
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by admitting testimony of a forensic pathologist; (4) the trial court erred by
allowing the Commonwealth to amend the bills of information; and (5) the
trial court erred by admitting a timeline exhibit produced by the
Commonwealth. See PCRA Petition, 4/14/24, at 1-8. Mitchell also averred
that he would provide additional claims in an amended PCRA petition. See
id.
On July 16, 2024, the PCRA court appointed Sean E. Cullen, Esquire, to
represent Mitchell. On February 25, 2025, Attorney Cullen filed a
Turner/Finley3 no-merit letter, in which he concluded that Mitchell’s above-
mentioned claims were not cognizable and/or lacked merit. See No-Merit
Letter, 2/25/25, at 1-34. On the same day, Attorney Cullen filed a motion to
withdraw. On March 11, 2025, the PCRA court accepted Attorney Cullen’s no-
merit letter, granted his motion to withdraw, and issued notice of its intent to
dismiss Mitchell’s PCRA petition without an evidentiary hearing pursuant to
Pa.R.Crim.P. 907. Mitchell, now acting pro se, did not file a response to the
Rule 907 notice.
Instead, Mitchell filed timely amended notices of appeal, as described
supra, and a court-ordered Rule 1925(b) concise statement. Mitchell now
raises the following claim for our review: “Was PCR[A] counsel’s assistance
rendered ineffective by PCR[A] counsel’s failure to argue appellate counsel’s
ineffectiveness?” Brief for Appellant, at 4.
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3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley,
550 A.2d 213 (Pa. Super. 1988) (en banc).
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Mitchell argues that Attorney Cullen rendered ineffective assistance of
counsel because he failed to assert that Mitchell’s direct appeal counsel was
ineffective by waiving all of his direct appeal claims. See Brief for Appellant,
at 11-28. Unfortunately, Mitchell has waived his claim by failing to raise it in
a timely Rule 907 response.
Recently, this Court decided that pro se litigants waive a layered
ineffectiveness claim where “it was possible for [a]ppellant to timely raise a
claim of PCRA counsel’s ineffectiveness in the PCRA court . . ., but [a]ppellant
did not do so[.]” See Commonwealth v. Davey, 345 A.3d 1218, 1224 (Pa.
Super. 2025).4 In reaching this conclusion, this Court emphasized that our
Supreme Court in Bradley5 “recognized that traditional issue preservation
principles do not apply where they would make it impossible for a petition
to timely raise a claim of initial PCRA counsel’s ineffectiveness.”
Davey, 345 A.3d at 1224 (quoting Commonwealth v. Parrish,
273 A.3d
989, 1003 (Pa. 2022)) (emphasis added). Thus, this Court explained that
Bradley only permits an appellant to raise a claim of PCRA counsel’s
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4 Notably, in Davey, PCRA counsel filed a Turner/Finley no-merit letter and
was granted leave to withdraw. See Davey, 345 A.3d at 1221.
Subsequently, the PCRA court filed its Rule 907 notice of intent to dismiss the
PCRA petition, and Davey failed to file a response. See id. Davey
subsequently filed a motion to reinstate his right to file a Rule 907 response,
which the PCRA court granted. See id. Nevertheless, Davey still failed to
preserve a challenge to PCRA counsel’s ineffectiveness for failing to challenge
prior counsel’s ineffectiveness, resulting in the aforementioned waiver. See
id. at 1221-22, 1224.
5 Commonwealth v. Bradley,
261 A.3d 381 (Pa. 2021).
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ineffectiveness for the first time on appeal where, “owing to the procedural
posture of his case, he had no opportunity to raise that claim before the PCRA
court.” Davey, 345 A.3d at 1224.
In light of this Court’s decision in Davey, we are constrained to conclude
that Mitchell, acting pro se, has waived his claims of Attorney Cullen’s
ineffectiveness by failing to raise them in a timely Rule 907 response after
Attorney Cullen was granted leave to withdraw. Thus, we may not address
his claim. See Davey, supra.
Order affirmed.
Date: 3/19/2026
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