Com. v. Johnson, J. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JEROME JOHNSON, : No. 553 EDA 2018
:
Appellant :
Appeal from the PCRA Order, February 9, 2018,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-11983-2012
BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 19, 2019
Jerome Johnson appeals from the February 9, 2018 order entered in the
Court of Common Pleas of Philadelphia County denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
The PCRA court set forth the following procedural history:
On April 24, 2014, following a bench trial[Footnote 1]
before the Honorable Chris R. Wogan, [a]ppellant was
convicted of robbery, aggravated indecent assault,
possessing an instrument of crime (“PIC”) and simple
assault.[1][Footnote 2] Judge Wogan subsequently
imposed a sentence of 42-120 months’ incarceration,
followed by 5 years’ probation. Appellant filed a direct
appeal[Footnote 3] in the Superior Court, which
affirmed the judgment of sentence on November 13,
2015.
1 18 Pa.C.S.A. §§ 3701, 3125(a), 907 and 2701, respectively.
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[Footnote 1] Appellant was represented at
trial by Louis T. Savino, Esquire.
[Footnote 2] Judge Wogan also acquitted
him of numerous other offenses,
including, inter alia, VUFA offenses.
[Footnote 3] Appellant was represented
on appeal by Peter A. Levin, Esquire.
Appellant did not seek discretionary review, but
instead filed a timely PCRA petition on February 22,
2016. PCRA counsel, John P. Cotter, Esquire, was
appointed, and subsequently filed amended/
supplemental petitions alleging: (1) ineffectiveness of
trial counsel for failing to object to the playing of
hearsay 911 tapes; (2) ineffectiveness of trial counsel
for failing to request a mistrial based on prosecutorial
misconduct for referencing the complainant as
“terrified”; and (3) ineffectiveness of appellate
counsel for waiving all issues on appeal that could
have been addressed by the Superior Court.
In an abundance of caution, on December 8, 2017,
the Court held a hearing regarding [appellant’s]
claims.[2] Upon determining that [a]ppellant’s claims
were without merit, the Court entered an Order on
2 We note that the PCRA court did conduct a hearing on December 8, 2017.
A review of the hearing transcript demonstrates that the purpose of the
hearing was to take testimony of direct appeal counsel. (See hearing
transcript, 12/8/17 at 4.) Appellant stated that his motion requesting an
evidentiary hearing related to his claim of trial counsel ineffectiveness had
been denied. (See id.) However, a review of the record does not establish
that this motion was, in fact, denied. At the hearing, appellant presented a
“Stipulation of Testimony of Peter A. Levin, Esq.” stating that had direct appeal
counsel testified at the hearing, he would have stated that the claims relating
to the inadmissibility of the 911 call and prosecutorial misconduct had merit.
(See “Stipulation of Testimony of Peter A. Levin, Esq.,” 12/8/17 (full
capitalization removed).) Trial counsel did not testify at the hearing nor was
a similar stipulation of his testimony presented. Appellant did, however,
present an oral argument on the issue of merit as to his underlying claims of
inadmissibility of the 911 call and the alleged prosecutorial misconduct. (See
hearing transcript, 12/8/17 at 6-8.)
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February 9, 2018, denying PCRA relief. This timely
appeal followed.
PCRA court opinion, 11/7/18 at 1-2.
The PCRA court directed appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant timely complied. The
PCRA court subsequently filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
I. D[id] the trial court err in denying appellant an
evidentiary hearing when the appellant raised a
material issue of fact that trial defense counsel
was ineffective in failing to object to improper
hearsay evidence introduced at trial?
II. Did the trial court err in denying [appellant] an
evidentiary hearing when appellant raised a
material issue of fact that trial defense counsel
failed to request a mistrial when the prosecutor
told the trial court that the complaining witness
was terrified?
Appellant’s brief at 2.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
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could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted). In contrast, we review the
PCRA court’s legal conclusions de novo. Commonwealth v. Henkel, 90
A.3d 16, 20 (Pa.Super. 2014) (en banc). Moreover, a PCRA court may decline
to hold a hearing on the petition if the PCRA court determines that the
petitioner’s claim is patently frivolous and is without a trace of support either
in the record or from other evidence. See Commonwealth v. Jordan, 772
A.2d 1011, 1014 (Pa.Super. 2001).
Instantly, appellant’s claims assert ineffectiveness of trial counsel.
(Appellant’s brief at 2.)
In evaluating claims of ineffective assistance of
counsel, we presume that counsel is effective.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
435, 441 (Pa. 1999). To overcome this presumption,
Appellant must establish three factors. First, that the
underlying claim has arguable merit. See
Commonwealth v. Travaglia, 541 Pa. 108, 661
A.2d 352, 356 (Pa. 1995). Second, that counsel had
no reasonable basis for his action or inaction. Id. . . .
Finally, “Appellant must establish that he has been
prejudiced by counsel’s ineffectiveness; in order to
meet this burden, he must show that ‘but for the act
or omission in question, the outcome of the
proceedings would have been different.’” See
Rollins, 738 A.2d at 441 (quoting Travaglia, 661
A.2d at 357). A claim of ineffectiveness may be
denied by a showing that [appellant’s] evidence fails
to meet any of these prongs.
Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007) (some
citations omitted). “[C]ounsel cannot be deemed ineffective for failing to raise
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a meritless claim.” Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa.
2015).
Here, appellant first claims that trial counsel was ineffective for failing
to object to the admissibility of the 911 tape. Appellant argues that the 911
tape did not fall under the present sense impression exception or the excited
utterance exception to the rule against hearsay “because one half hour
elapsed from the time of the incident to the time of reporting it which means
that the call was not made contemporaneous with the incident and the witness
had time to reflect about what happened before he reported it.” (Appellant’s
brief at 6.) In support, appellant cites to Harris v. Toys “R” Us-Penn, Inc.,
880 A.2d 1270 (Pa.Super. 2005), but entirely fails to explain its applicability.
(Appellant’s brief at 6.) In fact, appellant’s “argument” on the first prong of
the ineffectiveness test consists of three sentences which entirely fail to
establish that his underlying claim has arguable merit. Consequently, this
claim of ineffectiveness fails.3
Appellant next claims that trial counsel was ineffective for failing to
request a mistrial when the prosecutor informed the trial court that the
complaining witness “did not want to be here and was terrified.” (Appellant’s
3 We note that with respect to the prejudice prong, appellant claims that if the
evidence had not been admitted at his waiver trial, “the verdict may have
been more favorable.” (Appellant’s brief at 7.) Appellant’s speculation falls
far short of establishing that “but for the act or omission in question, the
outcome of the proceedings would have been different.” See Washington,
927 A.2d at 594 (citations omitted). Therefore, appellant’s ineffectiveness
claim would have also been denied for failure to establish prejudice.
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brief at 9.) Appellant’s seeming argument as to why this claim has arguable
merit is:
[T]here was no reason at all to say that to the trial
court, who was the fact finder in the case, and
[appellant] was prejudiced because he was denied a
fair trial because the trial court could improperly infer
that [appellant] was guilty because the complainant
was afraid of him.
Id.
Once again, appellant has entirely failed to establish that his underlying
claim has arguable merit. Consequently, this claim of ineffectiveness equally
fails.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
4 We note that with respect to the prejudice prong, appellant claims that
appellant “was prejudiced by counsel’s failure to move for mistrial because
this statement of the prosecutor was allowed to be considered by the trial
court in rendering a decision in the case.” (Appellant’s brief at 9.) This reason
falls far short of establishing that “but for the act or omission in question, the
outcome of the proceedings would have been different.” See Washington,
927 A.2d at 594 (citations omitted). Therefore, appellant’s ineffectiveness
claim would have also been denied for failure to establish prejudice.
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