Com. v. Johnson, J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

JAMES EARL JOHNSON Appellant No. 1751 WDA 2013

Appeal from the PCRA Order October 2, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000116-2011

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

JAMES EARL JOHNSON Appellant No. 2004 WDA 2013

Appeal from the PCRA Order October 2, 2013 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003200-2010

BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J. MEMORANDUM BY JENKINS, J. FILED AUGUST 22, 2014 Appellant James Earl Johnson appeals pro se from the Court of

the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. We affirm.

At docket number CP-25-CR-0003200-2010, after a non-jury trial, the court found Johnson guilty of rape,1 burglary,2 and terroristic threats.3 On direct appeal, this Court summarized the facts as follows:

On November 6, 2010, Johnson enteredAllyson

d

her shoulder to wake her up. Dragoone, who was asleep on her bed in the living room with the television on, awoke and saw a tall black man standing over her. She did not recognize him and initially asked if this was a joke.

Johnson said this was serious and told her to roll over or he would hurt her. He removed her pants and made her take off her shirt. Then he moved her underwear to the side and put his penis in her vagina. He stuck his tongue in her mouth and threatened to hurt her when she objected to the contact. He ejaculated inside her then grabbed her arm and brought her to the bathroom where he forced her to clean herself. The bathroom was lit and Dragoone was

her back to bed, told her to stay there, then left.

Dragoone ran to the window and saw a dark Dodge Durango drive away. She was familiar with this vehicle because she had worked at a Dodge dealership. Once Johnson left, Dragoone called 911. Officer Langdon responded to the residence and took a report of the incident from Dragoone, including a description of the suspect and vehicle. He then took Dragoone to the hospital for a rape kit.

The following evening Officer Langdon came across a vehicle illegally parked outside of a bar that matched the vehicle Dragoone described. Officer Langdon went back to get the license plate and observed Johnson standing next

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1 18 Pa.C.S. § 3121(a)(1).

2 18 Pa.C.S. § 3502(a).

3 18 Pa.C.S. § 2706(a)(1).

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to the vehicle. Believing that both the vehicle and Johnson

Johnson who provided him with identifying information.

Officer Langdon passed this information on to Detective Lawrence.

The following day Detective Lawrence created a photo lineup, which included a photo of Johnson. Dragoone came to the Police Department and viewed the photo lineup but was unable to identify her assailant; however, Detective Lawrence testified that while viewing the lineup she placed

that point Detective Lawrence created a composite sketch of the s

The next day Dragoone went to Magisterial District Judge

Website. Judge Robie asked her if that was the person who raped her. Dragoone vomited and then replied yes. Based on the identification Johnson was arrested and charged with the above offenses.

Dragoone positively identified Johnson at the preliminary hearing and at trial. Additionally, at trial a serologist from the Pennsylvania State Police Crime Lab testified that seminal material was present in the vaginal swabs from

testified that the DNA mixture found on the swabs was much more likely to have come from Dragoone and Johnson, than from Dragoone and another man.

Commonwealth v. Johnson, No. 1852 WDA 2011 (Pa.Super.Aug.10, 2012) (unpublished memorandum).

On October 17, 2011, the trial court sentenced Johnson to a term of life imprisonment without parole for the rape conviction, a term of life imprisonment without parole for the burglary conviction, and a term of 30 to 60 months imprisonment for the terroristic threats conviction.

4

At docket number CP-25-CR-0000116-2011, Johnson pled guilty to charges of possession of a small amount of marijuana4 and possession of drug paraphernalia.5 On October 17, 2011, the trial court sentenced Johnson to a term of 30 days imprisonment for the possession conviction, which was to run consecutive to the sentence imposed at CP-25-CR- 0003200-2010, and a term of 6 to 12 months imprisonment on the paraphernalia conviction, to run consecutive to the sentence for possession.

On November 23, 2011, Johnson appealed his judgment of sentence at CP-25-CR-0003200-2010. On August 10, 2012, we affirmed.6 On December 11, 2012,7 Johnson filed a pro se PCRA petition. His PCRA petition alleged:

(1) His arrest on the drug charges was pretextual and designed to allow police to interrogate him regarding the rape charges;

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4 35 Pa.C.S. § 780-113(a)(31).

5 35 Pa.C.S. § 780-113(a)(32).

6 Johnson did not file a direct appeal of his judgment of sentence at CP-25- CR-0000116-2011. See Docket, CP-25-CR-0000116-2011. Accordingly, because he was sentenced on October 17, 2011, any PCRA claims regarding his judgment of sentence and guilty plea at CP-25-CR-0000116-2011 are untimely. 42 Pa.C.S.A. § 9545(b)(1) (a PCRA petitio subsequent petition, shall be filed within one year of the date the judgment

7 The postage indicates Johnson mailed the PCRA petition on December 11, 2012.

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(2) Ineffective assistance of counsel for failing to request relief due to the pretextual nature of the arrest;

(3) Ineffective assistance of counsel for compromising his speedy trial rights;

(4) The court erred in not allowing his counsel8 sufficient time to prepare a defense;

(5) The Commonwealth failed to provide discovery materials;

(6) Ineffective assistance of counsel for failing to pursue this failure through a pre-trial motion; and (7) The identification evidence of a witness was unduly suggestive.

See Motion for Post Conviction Collateral Relief, 12/13/2012, and accompanying memorandum [hereinafter Pro Se Petition]; Letter to Judge Garhart from William J. Hathway, Esq., 3/21/2013 [hereinafter Turner Letter].

The PCRA court appointed counsel, who filed a no merit letter pursuant to Commonwealth v. Finley9 and Commonwealth v. Turner.10 Counsel noted that the case hinged on the identification evidence. Turner Letter, at

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8 Johnson had different pre-trial and trial counsel. Both counsel were from

9 550 A.2d 213 (Pa.Super.1998).

10 544 A.2d 927 (Pa.1988).

6

2-3.11 The admissibility of such evidence was previously litigated, because counsel filed a motion seeking to suppress the identification, counsel challenged the denial of the motion on appeal, and this Court affirmed the denial of the motion. Id. at 2. Counsel further opined t remaining allegations lacked merit. Id. at 3.

On August 5, 2013, the PCRA court issued a notice of intent to dismiss

Criminal Procedure 907.12 Johnson filed objections to this notice.

On October 2, 2013, the PCRA court dismissed the PCRA petition and,

On October 28, 2013, Johnson filed a notice of appeal. On December 2, 2013, Johnson filed a concise statement of matters complained of on appeal alleging:

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11 The Turner Letter does not contain page numbers. All numbers are supplied by this Court. 12

challenges his identification by [the victim] as unduly suggestive, due to the nature in which the identification took place; (2) the court failed to afford attorney Ungerman sufficient time to prepare a defense when it denied a continuance; (3) counsel wrongfully compromised his speedy trial rights; (4) counsel failed to compel the production of discovery materials as part of the

in nature and was designed solely to interrogate him with regard to the rape case, and (6) counsel was ineffective for failing to challenging the pretextual

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(1) A due process violation because the evidence was insufficient to sustain his conviction;

(2) The prosecution withheld exculpatory discovery evidence, including

(3)

was ineffective at the suppression hearing because he did not d a reasonable doubt and

ineffective at trial because he failed to effectively cross-examine witnesses;

(4) A violation of his speedy trial rights;

(5) The witness identification was unduly suggestive;

(6) Ineffective assistance of PCRA counsel; and (7) The trial court erred when it dismissed the PCRA petition without a hearing.

Concise Statement of Matters Complained of on Appeal, at 1-3.

The PCRA court issued a 1925(a) opinion and incorporated its Notice of

unduly suggestive was previously litigated, and that all ineffective assistance of counsel claims raised in the PCRA petition lacked merit. 1925(a) Opinion, at 4-5; Notice of Intent, at 4-5. The 1925(a) opinion further found any claim not raised in his PCRA petition was waived, except claims of PCRA

8

counsel ineffectiveness. 1925(a) Opinion at 4. His claims of PCRA counsel ineffectiveness lacked merit because Johnson failed to plead and prove any of the three ineffectiveness prongs. Id.

Johnson raises the following issues on appeal:13

(12) hour detention and custodial interrogation in violation of defendant's constitutionally guaranteed rights as afforded by USCA 4, USCA 5 and Pa.CW Art.1 § 8?

2. Was petitioner denied effective assistance of counsel [EAC] at critical stages of trial and appellate proceedings as constitutional and statutory guarantees of USCA 6, Pa.CW Art. 1 § 9 and 42 Pa.C.S. § 9541 et seq?

3. Was petitioner denied Due Process as constitutionally mandated by USCA 14 when [the Commonwealth] was awarded a conviction for §3121 & §3502 without proving every element of charged offense aka 'Burden of Proof, Beyond a Reasonable Doubt[BP-BRD]?

4. Did the PCRA Court abuse its discretion by denying a full and fair Evidentiary Hearing?

5. Has petitioner satisfied the statutory requirement of: 42

compelling Trial Court's Remand Order of Post-Conviction DNA Testing [PC-DNA]?

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13 An appellant waives any issue not raised in his or her appellate brief. State Farm Fire & Cas. Co. v. Craley, 675 A.2d 732, 733 n.1 (Pa.Super.1996) (finding issues waived where not mentioned in appellate brief). To the extent Johnson raises additional issues in his reply brief by discussing the issues raised in his 1925(b) statement, including that the identification was unduly suggestive, such issues are waived. See Commonwealth v. Otero presented before this court for the first time in a reply brief are waived . Further, the trial court pro 1925(b) statement.

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Our standard of review from the denial of post-

limited to examining whether the court's determination is supported by the Commonwealth v.

Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997)).

at 15. In support of this claim, he maintains the Commonwealth had a copy of a traffic stop video and did not provide this video to counsel. Id. This claim was not raised below. Johnson previously claimed his arrest on the drug charges was pretext to interrogate him regarding the rape allegations. Pro Se Petition, Facts of the Alleged Errors, at 1; Turner Letter at 2. This claim differs from the claim raised in his brief, i.e., the underlying traffic stop was pretextual. This claim, therefore, is waived. Commonwealth v. Jones presented in the original or amende Moreover, even if not waived, the claim is meritless. Evidence

matched the descriptions provided by the victim. Therefore, the stop was proper. See Commonwealth v. Chase, 960 A.2d 108, 120 (Pa.2008)

Vehicle Code

violation, a constitutional inquiry into the officer's motive for stopping the vehicle

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Johnson next alleges ineffective assistance of counsel claims. To

and prove by a preponderance of the evidence . . . that the conviction or sentence resulted from . . . ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa.2005) (citing Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1020 (2003)). Pennsylvania courts apply the following three-prong test to ineffectiveness

reasonable strategic basis for his or her action or inaction; and (3) but for the errors or omissions of counsel, there is a reasonable probability that the Ousley, 21 A.3d at

1244 (quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 presumed to be effective and the burden of demonstrating ineffectiveness Id. any one of the three [ineffectiveness] prongs results in the failure of Id. (quoting Rivera, 10 A.3d at 1279).

Johnson was denied a voice in assembling a defense theory and counsel ignored communications from Johnson regarding ex-parte communications between the Commonwealth, a district judge and detectives; evidence from the district attorney; clarification of charges; review of pretrial motions; and

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clarification of non-consentable waiver of speedy trial rights; (2) counsel abandoned Johnson and did not supply documentation to new counsel and new counsel was not provided sufficient time to prepare a defense; and (3)

-17.

Johnson also alleges PCRA counsel ineffectiveness for failing to fully Id., at 17.

To the extent the claims were raised below, including ineffective assistance of counsel related to speedy trial rights, the absence of discovery materials, and the lack of time to prepare for trial, the trial court acted within its discretion when it found Johnson failed to establish the ineffective assistance of counsel prongs. Johnson did not present any evidence his claims had arguable merit or that the trial outcome would have differed.14 The PCRA court also did not err in finding Johnson waived any claims raised in the 1925(b) statement, but not raised in the PCRA petition. 15 Jones, 912

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14 The court noted Johnson did not make any inculpatory statements when in custody and failed to establish a nexus between the drug arrest and the subsequent interrogation regarding the rape. Notice of Intent, 8/5/2013, at 5. Therefore, counsel was not ineffective for failing to raise the issue of a pretextual arrest. Id. 15 The waived claims include the claim of ineffective assistance of counsel due to an alleged failure to pursue inconsistent testimony, which was not raised in the PCRA petition.

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aims are meritless, the trial

PCRA counsel also failed. PCRA counsel cannot be found ineffective for failing to raise a meritless claim. Commonwealth v. Keaton, 82 A.3d 419, 426 ineffective for failing to pursue meritless claims Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 304 (1999))).

ufficient to

support the conviction. Because he did not raise this claim in his PCRA petition, the claim is waived. Commonwealth v. Jones, 912 A.2d 268,

original or amended PCRA petitio claims are not cognizable on PCRA review. See 42 Pa.C.S. § 9543(a)(2) (listing categories eligible for PCRA relief).

when it denied his PCRA petition without a hearing. This claim lacks merit. A hearing is not required where there are no genuine issues of material fact,

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16 Moreover, Johnson fails to establish any counsel ineffectiveness claims because he fails to establish any underlying claim had merit and fails to

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the defendant is not entitled to PCRA relief, and no purpose would be served by further proceedings. Pa.R.Cr.P. 907(1). The trial judge found no hearing was required because there existed no genuine issues of material fact and PCRA relief is not warranted. This was not error.

PCRA petition to request additional discovery related to DNA evidence.17 Amendment would not be proper. A trial court may grant leave to amend a

Pa.R.Crim.P.905(A). However, the Commonwealth was not required to conduct DNA testing of evidence obtained from the apartment, particularly

any amendment to allow additional discovery would not achieve substantial justice.

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17 In a November 27, 2013 correspondence to the trial court, Johnson claimed a number of items were missing from discovery, including reports pertaining to fingerprint lifts, hair and fiber dustings, and testing of the bedding, clothing, and towels. 1925(a) Opinion, 12/20/2013, at 3 n.1. The PCRA court ordered the Commonwealth to file a written response. Id. The Commonwealth responded stating it sent a copy of the serology report

conducted, and that the Commonwealth did not send the bedding or clothing

concerns and we agree.

Order affirmed and application for relief denied.18

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/22/2014

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18 Consequences for Failure to File a Brief Pursuant to Pennsylvania Rules of