Com. v. Johnson, T. ( 2019 )

J-S38010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYRONE JOHNSON :
:
Appellant : No. 2954 EDA 2018
Appeal from the PCRA Order Entered September 21, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006372-2012
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 24, 2019
Tyrone Johnson appeals from the order entered on September 21, 2018,
in the Court of Common Pleas of Philadelphia County, denying him relief,
without a hearing, on his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. § 9542 et seq. In that petition, Johnson raised the
single claim that trial counsel provided ineffective assistance by failing to file
a motion challenging the verdict as against the weight of the evidence. In this
timely appeal, Johnson claims the PCRA court erred in failing to provide a
hearing on the issue, and in determining trial counsel was not ineffective.
After a thorough review of the submissions by the parties, relevant law, and
the certified record, we affirm.
We begin with a brief recitation of the facts, taken from the PCRA court’s
Pa.R.A.P. 1925(a) opinion.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S38010-19
On the evening of May 4th, 2012, Robert Parks, Maurice
Washington, and Washington’s nephew [also Maurice] were in the
apartment that they shared at 1918 North Broad Street. They
were accompanied by three friends; Parks’ girlfriend, Randy
Phillips and Phillips’s brother Cam. [Johnson] lived in the first
floor apartment in the same building. As the six individuals were
exiting the apartment building to go to a karaoke bar, [Johnson]
came out to the porch and started yelling at the group. [Johnson]
explained he was angry with Phillips in particular because he didn’t
live in the building and was making noise and leaving the door
unlocked. [Johnson] and Phillips began to argue until Washington
stepped between them.
Phillips warned Washington to be careful because [Johnson] had
a knife, but Washington continued to argue with [Johnson]. As
the two men stood on the porch arguing, [Johnson] pushed
Washington, who fell backwards into Cam. When Washington
returned to his feet, he raised his fists into the air. At that
moment, [Johnson] began stabbing Washington with a knife,
striking him in the stomach, chest and neck. The handle of the
knife broke off from the blade, which remained inside
Washington’s stomach. After stabbing Washington, [Johnson] ran
from the porch, returned to his room, and locked the door.
Parks’ girlfriend called the police to tell them about the stabbing.
Police officers arrived on the scene and found Washington on the
ground bleeding from the neck, Parks’ girlfriend rendering aid, and
a knife blade separated from its handle on the ground. The police
officers were told that the individual responsible for the stabbing
was inside the building on the first floor. They entered the building
and approached the first floor apartment, hearing both a male and
female voice. One officer knocked on the door for approximately
one or two minutes, announcing his presence. After four officers
attempted to force [Johnson’s] door open, the door was opened
from the inside. The police entered the apartment and noticed a
female in the apartment. They also noticed [Johnson], who was
sweating and had blood on his hands. [Johnson] would not
comply with the officer’s repeated requests to get on the ground,
so they used a taser and a control hold to get [Johnson] onto the
ground, placing him in handcuffs. Police observed the female
place an item on top of the refrigerator that was later determined
-2-
J-S38010-19
to be a knife handle matching the blade that was found on the
porch.
During the trial, [Johnson] took the stand and gave an alternative
account of the incident. He stated that when he came out on to
the porch, he was hit on the back of the head and fell. He was
then hit in the face by Washington, fell back, hit the side of the
wall, and blacked out due to an epileptic seizure. The next thing
[Johnson] remembers is stumbling back inside the apartment
building and returning to his apartment.
PCRA Court Opinion, December 3, 2018, at 1-3.
Johnson claimed trial counsel was ineffective for failing to challenge the
weight of the evidence. The PCRA court denied this claim without a hearing.
Johnson claims the PCRA court erred in both failing to grant a hearing and in
denying the claim.
We relate the various standards of review that apply to this appeal.
First,
[o]ur standard of review of the denial of a PCRA petition is limited
to examining whether the evidence of record supports the court's
determination and whether its decision is free of legal error.
Commonwealth v. Conway, 14 A.3d 101, 109 (Pa. Super.
2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This
Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such
deference, however, to the court's legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).
Further, a petitioner is not entitled to a PCRA hearing as a matter
of right; the PCRA court can decline to hold a hearing if there is
no genuine issue concerning any material fact, the petitioner is
not entitled to PCRA relief, and no purpose would be served by
any further proceedings. Commonwealth v. Wah, 42 A.3d 335,
338 (Pa. Super. 2012); Pa.R.Crim.P. 907.
-3-
J-S38010-19
The law presumes counsel has rendered effective assistance.
Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008).
Under the traditional analysis, to prevail on a claim of ineffective
assistance of counsel, a petitioner bears the burden to prove his
claims by a preponderance of the evidence. Commonwealth v.
Turetsky, 925 A.2d 876 (Pa. Super. 2007), appeal denied, 596
Pa. 707, 940 A.2d 365 (2007). The petitioner must demonstrate:
(1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for the asserted action or inaction; and
(3) but for the errors and omissions of counsel, there is a
reasonable probability that the outcome of the proceedings would
have been different. Id. See also Commonwealth v. Kimball,
555 Pa. 299, 724 A.2d 326 (1999). “A reasonable probability is a
probability that is sufficient to undermine confidence in the
outcome of the proceeding.” Commonwealth v. Spotz, 624 Pa.
4, 34, 84 A.3d 294, 312 (2014) (quoting Commonwealth v. Ali,
608 Pa. 71, 86-87, 10 A.3d 282, 291 (2010)). “Where it is clear
that a petitioner has failed to meet any of the three, distinct
prongs of the...test, the claim may be disposed of on that basis
alone, without a determination of whether the other two prongs
have been met.” Commonwealth v. Steele, 599 Pa. 341, 360,
961 A.2d 786, 797 (2008).[1]
Commonwealth v. Adams-Smith, 209 A.3d 1011, 1018-19 (Pa. Super.
2019).
Additionally,
[w]hen considering challenges to the weight of the evidence, we
apply the following precepts. “The weight of the evidence is
exclusively for the finder of fact, who is free to believe all, none[,]
or some of the evidence and to determine the credibility of the
witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.
Super. 2015) (quotation marks and quotation omitted). Resolving
contradictory testimony and questions of credibility are matters
for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa. Super. 2000). It is well-settled that we cannot substitute
our judgment for that of the trier of fact. Talbert, supra.
____________________________________________
1 Abrogated on other grounds.
-4-
J-S38010-19
Moreover, appellate review of a weight claim is a review of the
trial court's exercise of discretion in denying the weight challenge
raised in the post-sentence motion; this Court does not review the
underlying question of whether the verdict is against the weight
of the evidence. See id.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court's
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court's conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a
defendant to prevail on a challenge to the weight of the evidence,
the evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Id. (quotation marks
and quotation omitted).
Commonwealth v. Mikitiuk, 213 A.3d 290, 305 (Pa. Super. 2019).
Underlying Johnson’s claim of ineffective assistance of counsel is the
assertion that the jury verdict convicting him of aggravated assault and
possession of an instrument of crime was against the weight of the evidence.
If this claim fails, then Johnson’s claim counsel was ineffective for failing to
raise the claim also fails.
Here, the PCRA court examined the evidence presented at trial and
concluded,
[Johnson’s] claim lacks merit. The trial testimony of Parks,
Washington, Officer Matthew Swan and Officer Paul Camarote was
coherent, consistent, and reliably demonstrated [Johnson’s] guilt.
-5-
J-S38010-19
Moreover, [Johnson’s] own testimony could easily and reasonably
been seen as self-serving and false. In short, the verdict was in
no way contrary to the evidence and does not come remotely close
to shocking the conscience. Therefore, [Johnson] was not
prejudiced by his attorney’s failure to file a post-sentence motion
on these grounds, i.e., such a motion would not have been
successful.
PCRA Opinion, 12/3/2018 at 3.
Our review of the certified record convinces us the PCRA court’s decision
is supported fully by the record and is not the product of an abuse of discretion
or error of law. Accordingly, Johnson is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/19
-6-