Com. v. Johnson, J.

Opinion

J-S62012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMIEL JOHNSON,

Appellant No. 1831 EDA 2013

Appeal from the PCRA Order entered May 20, 2013, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0801541-2004

BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.: FILED SEPTEMBER 26, 2014

pro se from the order denying his

petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

sections 9541-46. We affirm.

The pertinent facts are as follows:

On August 24, 2003, [at] approximately 9:30 p.m., Harrison Wiggins, a/k/a Slim, the decedent, (hereinafter

57th Street, Philadelphia, owned by Dana Wallace

shortly after Harrison. Dana, Geraldine Brooks

present in the house when [Appellant] arrived.

At approximately 4:30 a.m., Dana and Geraldine left the house to buy drugs. At that time, Jerome and Wanda were upstairs in the back room, Jason and a young lady were in another bedroom, Crystal and Angelo were in another bedroom, Harrison was downstairs in the dining J-S62012-14

room and [Appellant] was sitting on a couch in the living room.

Shortly after Dana left, Jerome went to buy drugs. Wanda, who remained upstairs in the back bedroom,

Within a couple of minutes, Wanda heard what sounded like the furniture being bumped around followed by the sound of glass breaking.

Immediately thereafter, Dana and Geraldine returned to the house to find the front door locked. Dana banged on the door and after five to ten minutes of banging on the door, [Appellant] opened the door. Dana and Geraldine entered the house and [Appellant] asked Dana to call 911 and asked for an ambulance but not the police. He then

At that point, Wanda made her way downstairs and on her way out of the door she observed [Appellant] standing in the middle of the living room and Harrison in the dining room with one leg extended straight out, the other bent with his hands on his head moaning and moving from side to side. Harrison was completely saturated in blood almost down to his waist. Dana left the living room, went upstairs, and when he returned downstairs, [Appellant] was gone.

Officer Milligan testified that at approximately 6:26 a.m. she arrived at 1206 South 57th Street, Philadelphia. Upon entering the house [s]he observed Harrison lying on the floor in the dining room covered in a large amount of blood. Officer Milligan noticed broken glass all over the

a rag in a corner. At that time, Officer Milligan sent all of the individuals in the house outside where they were detained by Officer Singleton, another officer who had arrived on the scene. Officer Toughill, who arrived on the scene at approximately 6:30 a.m., questioned the individuals who had been in the house. After speaking with the witnesses, Officer Toughill learned that the

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suspect was a black male named Jamiel wearing a black doo rag, black shirt and black pants. [She] also learned that a female wearing a red jacket left the scene. At that point, Officer Toughill looked down Thomas Avenue and saw a woman fitting that description. The woman was brought back to the scene for questioning and identified as Wanda Ibrahim.

Officer [John] Taggett photographed the crime scene and recovered a roll of toilet paper with a red stain found in the bathroom, a door handle with a red stain removed from the interior side of the front storm door, three pieces of mirror with a red stain found in the dining room and several other items. T were transmitted to the Criminalistics Laboratory for analysis. Latent prints were lifted from a red stained piece of mirror found in the dining room. The prints were s of

was on the piece of toilet paper and a swab of stain taken from the door handle.

Harrison was pronounced dead at 7:28 a.m. at the Hospital of the University of Pennsylvania. Doctor Ian Hood, the medical examiner, testified that Harrison died from multiple stab and slash wounds and the manner of death was homicide. He testified that seven slash wounds were about the forehead, face and cheeks and one stab wound was in the right side of the neck which severed the jugular vein. Harrison also had several small scratches and superficial incised wounds about the neck, back, shoulders, upper arm and his right thumb. Dr. Hood testified that [those] wounds are consistent with an implement such as [a] shard of glass rather than a knife.

An arrest warrant was issued for [Appellant] and the police made several attempts to apprehend [him] in Philadelphia. [Appellant] was not apprehended until February 29, 2004, in Memphis, Tennessee. At trial, [Appellant] testified that four days before the murder he went to Memphis, Tennessee and was not in Philadelphia at the time of the murder. He also testified that he learned of the murder from family members who told him that he was accused of committing the murder.

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Commonwealth v. Johnson, 919 A.2d 289, 290-92 (Pa. Super. 2006)

(citation omitted).

Based upon the above facts, a jury convicted Appellant of first-degree

murder and possessing an instrument of crime. Thereafter, the trial court

sentenced Appellant to the mandatory term of life in prison without the

possibility of parole for the murder conviction, as well as a concurrent eleven

to forty-eight months for the possessing an instrument of crime conviction.

Appellant filed a timely appeal to this Court in which he raised the

following issues: 1) a challenge to the sufficiency of the evidence supporting

his murder conviction; 2) a claim that the Commonwealth violated Brady v.

Maryland, 373 U.S. 83 (1963), by failing to produce allegedly exculpatory

mental health records; and 3) a claim that the trial court erred in concluding

that Appellant was competent to stand trial. Finding that the trial court

correctly addressed and rejected each issue, this Court adopted the trial

See Johnson, supra. On October 24, 2007, our Supreme Court denied

Commonwealth v. Johnson,

934 A.2d 1276 (Pa. 2007).

Appellant filed a pro se PCRA petition on March 26, 2008, but later

withdrew it. On October 1, 2008, Appellant filed another pro se PCRA

petition, as well as an amendment to that petition on March 18, 2009. On

November 12, 2009, the PCRA court appointed counsel. After receiving

several continuance requests, the PCRA court removed PCRA counsel, and

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appointed new counsel. Ultimately, Appellant requested the right to proceed

pro se. After conducting a Grazier1 hearing, the PCRA court permitted

Appelant to proceed pro se. Thereafter, Appellant supplemented his pro se

PCRA petition.

On February 8, 2013, the Commonwealth filed a motion to dismiss

hearing. After being granted a continuance, Appellant filed a response on

May 14, 2013. By order entered May 20, 2013, the PCRA court dismissed

PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues verbatim in his handwritten brief:

(1) Should [Appellant] be awarded an arrest of judgment on the charges of Murder in the First Degree and PIC where [the Commonwealth] did not have corpus delecti to prove that [Appellant] is guilty of [these charges] beyond a reasonable doubt, thus [trial counsel] lacked effective assistance and [the trial court and the PCRA court are] stripped of personal jurisdiction?

(2) Should above relief be granted against above cause to adhesion [sic] of [the Commonwealth] proceeding without bill of particulars based on unclear first degree murder (in part) and third degree murder (wholly) statutes because

elements, no factors, thus the statutes are void for vague[ness] [sic], overbroad, and has caused arbitrary ____________________________________________

1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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and discriminatory enforcement by commitment and

there is no [controversy], assuredly no subject-matter jurisdiction?

(3) [] Was [the trial court] uncan[n][o]y [sic] and [the Commonwealth and trial counsel] unprofessional when they instructed the jury on the lesser included offense of - included offense of third degree murder is recklessness,- (wanton) a willful disregard of an unjustified . . . high risk that . . . would result in death or serious bodily injury . . . ., -a callous mistake, and a greater offense of third degree

is specific intent to kill while the evidence only shows the question was was [sic] the killing done with malicious intent or the malicious and specific intent, (or voluntary

no corpus delecti for the lesser included offense of third

and Due Process rights, therefore [Appellant] is entitled to a reversal of the first degree murder conviction, vacation of the life without parole sentence, and a remand to the [trial] court for a new trial with instructions on charging the trial jury only on the greater offense of third degree murder and first degree murder?

(4) [] Did [the trial court, the Commonwealth, and trial counsel] apply the wrong standards of [Pa.R.Crim.P.] 600

Amendment speedy trial rights were violated pre-trial upon

are responsible in bringing [Appellant] to trial in a timely manner?

(5) [] [S]hould [Appellant] be awarded a discharge from custody where [the trial court and the PCRA court] forgot about a primary (mandatory) authority, Article [1], § 11(,1) Pennsylvania Constitut -(in) speedy trial to the claim of (re-)sentencing where they unnecessarily delayed in ruling on the [PCRA] petition for 4¾ years

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causing gross inadequate communication of [Appellant] and his (11-age, Jafar) son [sic]?

(6) [] [S]hould [Appellant] be awarded a reduction of sentence where [the trial court] failed to protect

and trial counsel] failed to advise [Appellant] to openly plea to third degree murder than go to trial on the theory of self-defense and theory of first degree murder when the evidence on [its] body and face is third degree murder?

(7) [] [S]hould the Court take Judicial Notice [of] all the records of the Court below which purport the facts and

third-party Fifth Amendment (and Fourth and Fourteenth) rights being violated by Detective(s) [sic] Booker not reading the Commonwealth witnesses their Fifth Amendment rights; the police complaints a double

wavier of extradition trial and no warrant of rendition

up a voluntarily waived claim of false DNA at trial, and of [the PCRA court] committing fraud when [it] states in [its] opinion that [Appellant] did not prove by a preponderance of the evidence that he is entitled to relief [under the PCRA]?

(8) [] [S]hould [Appellant] be awarded an arrest of judgment and a discharge from custody despite [the fact that Appellant] admitted to the crime [during the] post- conviction phase, when the confession was brought on by subterfuge?

See -9 (citations and footnotes omitted).

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

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findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a

he

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,

1104 (Pa. Super. 2001).

To be eligible for post-conviction relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from one or more of the enumerated errors or defects in 42

Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been

previously litigated. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue, or if the issue has been raised and decided

Koehler,

36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2). If a claim has not been

previously litigated, the petitioner must prove that the issue was not waived.

raised it but failed to do so before trial, at trial, during unitary review, on

appeal, or in a prior state post[- Id. at 132; 42

Pa.C.S.A. § 9544(b).

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Moreover, to the extent Appellant challenges the effectiveness of prior

counsel, we note the following: To obtain relief under the PCRA premised on

a claim that counsel was ineffective, a petitioner must establish by a

preponderance of the evidence that counsel's ineffectiveness so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place. Commonwealth v. Johnson, 966 A.2d

s performance is presumed to be

constitutionally adequate, and counsel will only be deemed ineffective upon

Id. This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

petitioner was prejudiced by counsel's act or omission. Id. at 533. A

finding of "prejudice" requires the petitioner to show "that there is a

reasonable probability tha

result of the proceeding would have been different." Id. Counsel cannot be

deemed ineffective for failing to pursue a meritless claim. Commonwealth

v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied,

852 A.2d 311 (Pa. 2004).

In its Pa.R.A.P. 1925(a) opinion, the PCRA court initially notes that the

all of his claims on appeal, explaining:

It is well settled that when the trial court orders an appellant to submit a 1925(b) Statement, it is a crucial

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component of the appellate process. Pa.R.A.P. 1925(b) requires that the statement of issues complained of shall be concise and set forth only those rulings or errors that [an] appellant intends to challenge. This rule guards against lengthy and incoherent statements that impede appellate review. Issues not raised in accordance with the provisions of Pa.R.A.P. 1925(b) are waived. Although the number of issues, standing alone, is not grounds for finding such waiver, the issues raised in the 1925(b) - -

It is also well settled that when the trial court orders an appellant to submit a 1925(b) Statement, the statement must indicate, with specificity, the error to be addressed on appeal. This rule guards against vague statements which require the Court to guess which issues are being raised on appeal. Such vague and nonspecific 1925(b) Statements do not provide enough for the Court to conduct a meaningful review of the issues, and are the functional equivalent of no 1925(b) Statement at all. Furthermore, even if by chance the trial court correctly guesses the issues [an appellant] raises on appeal and writes an opinion pursuant to that supposition, the issues are still waived.

Here, the Court and the Commonwealth had to literally guess what issues [Appellant] was seeking to raise in his handwritten PCRA Petitions. The Court, understanding that [Appellant] proceeds pro se, went to great lengths to scour a voluminous record to discern what issues [Appellant] might be raising, both in the underlying PCRA

claims, all of them are waived on appeal for his failure to comply with Pa.R.A.P. 1925(b).

PCRA Court Opinion, 8/28/13, at 7-9 (citations omitted).

on this basis alone. See generally In re A.B., 63 A.3d 345 (Pa. Super.

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sixteen claims raised by Appellant in his Rule 1925(b) statement. PCRA

claims, finding them either previously litigated, waived, or otherwise without

Thus, to the extent that Appellant has properly raised and preserved any of

his appellate issues, we adopt

Here, our appellate review is hampered for several reasons. First, we

agree with the trial court that Appellant did not raise some of his issues with

the requisite specificity in his Rule 1925(b) statement. Thus, the PCRA court

did not address them, and they are inappropriately being raised for the first

time on appeal. See generally Pa.R.A.P. 302(a). Moreover, although

superficially complies with the Pennsylvania

Rules of Appellate Procedure as to the contents of an appellate brief,

Appellant fails to separate his supporting argument as to each issue,

Pa.R.A.P. 2119(a), and within the argument section of his brief he raises a

myriad of claims not raised in his statement of questions involved. See

PCRA court error, and ineffective assistance of counsel, amount to no more

than bare assertions, and therefore are undeveloped. See Commonwealth

v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that undeveloped

claims will not be considered on appeal); Commonwealth v. Thomas, 783

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A.2d 328, 333 (Pa. Super. 2001) (explaining that claims of ineffectiveness

cannot be raised in a vacuum).

PCRA Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/26/2014

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