Com. v. Johnson, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIE DANIEL JOHNSON, III :
:
Appellant : No. 799 WDA 2018
Appeal from the PCRA Order January 8, 2016
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001031-2013
BEFORE: PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J.
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 14, 2019
Willie Daniel Johnson, III, appeals from the order entered in the Mercer
County Court of Common Pleas, denying his petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. Appellant contends
the PCRA court erred in concluding his claim of ineffective assistance of trial
counsel was meritless. We affirm.
On September 9, 2013, Appellant was charged with aggravated assault,
assault by prisoner, simple assault and harassment. These charges arose
following an attack on Appellant’s cellmate, Rashod M. Brown, at State
Correctional Institution – Mercer (“SCI-Mercer”).
Appellant proceeded to a jury trial in July of 2014. At trial, the
Commonwealth first presented the testimony of the security captain of SCI-
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* Retired Senior Judge assigned to the Superior Court.
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Mercer, Christopher Meure. Meure provided the jury with an overview of the
layout of C-block, the minimum security housing unit where Appellant and
Brown were housed. See N.T., 6/18/14 and 6/19/14, at 22-28. C-Block is
housed within a two-floor building and each floor in the unit consists of 13-16
prison cells, showers, and a day room. See id., at 22-23. Further, while the
inmates on C-block each have keys to their own cells and are free to wander
about the unit, they are generally not permitted to leave C-block without prior
permission. See id., at 23, 27-28.
The Commonwealth’s next witness, Brown, testified that on June 9,
2013, he was sleeping in his prison cell located on the upper floor of C-block.
At approximately eight in the morning he woke to Appellant, his cellmate,
dousing him with a pitcher of hot water. See id., at 50, 61. When Brown pulled
a cover over his head to protect himself, Appellant struck him in the chest and
stomach with a closed fist. See id., at 51-52. After Appellant ceased his
attack, Brown ran to the prison infirmary. See id., at 54.
Vista Johnson, a registered nurse at SCI-Mercer, was working in the
prison infirmary on the morning of June 9, 2013. At approximately 8:30,
Brown came into the infirmary with second-degree burns on his face, neck
and shoulder. See id., at 96, 98. Though initially reluctant to provide any
information, Brown eventually told the nursing staff that his “cellie [threw]
water on [him].” Id., at 95.
Finally, Appellant testified on his own behalf. Appellant claimed that on
the morning of the attack, he left his cell to go to breakfast between 7:30 and
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7:40 a.m. See id., at 127. After spending approximately 4 – 5 minutes at
breakfast, Appellant returned to C-block where he proceeded to the upstairs
day room. See id., at 128-129. Appellant claimed he spent approximately an
hour in the dayroom and only went back to his cell at 8:30-8:40 when the unit
was locked down following the attack on Brown. See id., at 131. Therefore,
Appellant argued he could not have been responsible for the attack on Brown.
See id., at 136.
Following closing arguments, the jury convicted Appellant of all four
charged offenses. On August 14, 2014, the trial court sentenced Appellant to
an aggregate sentence of 6 to 12 years’ imprisonment. Appellant filed a direct
appeal, but discontinued it prior to disposition.
On November 4, 2014, Appellant filed a timely pro se PCRA petition
alleging ineffectiveness of trial counsel. Specifically, Appellant claimed trial
counsel was ineffective for failing to request an alibi jury instruction and for
failing to object to the trial court’s failure to include the alibi instruction in its
charge to the jury.1 See PCRA Petition, 11/4/14. Counsel was appointed, and
trial court held an evidentiary hearing on these issues on December 18, 2015.
Appellant’s trial counsel, Lowell T Williams, Esq., testified at the
evidentiary hearing. Attorney Williams confirmed he did not present any alibi
witnesses on Appellant’s behalf. See N.T., PCRA Hearing, 12/18/15, at 4.
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1 Appellant also claimed trial counsel was ineffective for failing to investigate
his claimed alibi witnesses prior to trial. See PCRA Petition, 11/4/14. However,
Appellant appears to have abandoned this claim on appeal.
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Further, Attorney Williams testified that he did not recall making any request
that the trial court include the alibi jury instruction in its charge to the jury.
See id., at 13.
Following the hearing, the PCRA court denied Appellant’s petition,
determining that Appellant had failed to demonstrate any prejudice from
Attorney Williams’ purported failures. This appeal follows the nunc pro tunc
reinstatement of Appellant’s appellate rights as to the denial of PCRA relief.
“The standard of review for an order denying post-conviction relief is
limited to whether the record supports the PCRA court’s determination, and
whether that decision is free of legal error. The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.”
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation
omitted).
On appeal, Johnson contends the PCRA court erred in failing to find
Attorney Williams ineffective for failing to request an alibi jury instruction. See
Appellant’s Brief, at 6. “It is well-established that counsel is presumed
effective, and a PCRA petitioner bears the burden of proving ineffectiveness.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779-780 (Pa. Super.
2015) (brackets and citations omitted). To obtain relief on an ineffectiveness
claim, a petitioner must plead and prove by a preponderance of the evidence,
“[i]neffective assistance of counsel which, in the circumstances of the
particular case, so undermined the truth-determining process that no reliable
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adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. §
9543(a)(2)(ii).
To prove ineffectiveness, a petitioner must establish: his underlying
claim has arguable merit, no reasonable basis existed for counsel’s action or
failure to act, and he suffered prejudice as a result of counsel’s error. See
Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018). A failure to
plead or prove any prong will defeat an ineffectiveness claim. See
Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017).
“A claim has arguable merit where the factual averments, if accurate,
could establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701,
707 (Pa. Super. 2013) (en banc) (citation omitted). “Whether the facts rise to
the level of arguable merit is a legal determination.” Id. (citation and internal
quotation marks omitted). Further, “[c]ounsel will not be deemed ineffective
for failing to raise a meritless claim.” Commonwealth v. Spotz, 896 A.2d
1191, 1210 (Pa. 2006) (citation omitted). In order to determine whether
Appellant’s claim is of arguable merit, we must consider whether an alibi
instruction was warranted.
“An alibi is a defense that places a defendant at the relevant time at a
different place than the crime scene and sufficiently removed from that
location such that it was impossible for him to be the perpetrator.”
Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa. Super. 2011) (citation
omitted). “Where [alibi] evidence has been introduced, a defendant is entitled
to an alibi instruction to alleviate the danger that the jurors might
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impermissibly view a failure to prove the defense as a sign of the defendant’s
guilt.” Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (citation
omitted).
However, we note that this instruction “is required only in cases where
a defendant’s explanation places him at the relevant time at a different place
than the scene involved and so far removed therefrom as to render it
impossible for him to be the guilty party.” Commonwealth v. Collins, 702
A.2d 540, 545 (Pa. 1997) (citation omitted). Therefore, no alibi instruction is
required “[w]here a defendant’s own testimony places him close enough to
the scene that it would not have been impossible for him to have committed”
the crime. Id. (citations omitted).
Here, Appellant points to his testimony that he was not in his prison cell
at the time of Brown’s attack as definitive proof that he presented an alibi
defense at trial and was therefore entitled to the alibi instruction. However,
by his own testimony, Appellant was on the same floor of C-Block as Brown
when he was attacked. See N.T., Jury Trial, 6/18/14 and 6/19/14, at 128-
129, 131. As each floor of C-Block consists of only a day room, showers, and
13-16 prison cells, we do not find that Appellant has presented evidence that
he was sufficiently removed from his prison cell at the relevant time to make
it impossible for him to have committed the attack on Brown. No alibi
instruction was required. As counsel cannot be faulted for failing to raise a
meritless claim, Appellant’s sole ineffectiveness claim on appeal fails.
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Order affirmed.2
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/2019
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2We recognize that the trial court dismissed Appellant’s petition on a different
basis. However, “[i]t is well-settled that this Court may affirm on any basis.”
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).
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