Com. v. Johnson, K.

CourtSuperior Court of Pennsylvania
DecidedMarch 17, 2021
Docket621 MDA 2020
StatusUnpublished

This text of Com. v. Johnson, K. (Com. v. Johnson, K.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Johnson, K., (Pa. Ct. App. 2021).

Opinion

J-S47026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KHAFRE RAHEEM JOHNSON : : Appellant : No. 621 MDA 2020

Appeal from the PCRA Order Entered March 20, 2020 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000147-2017

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.: FILED MARCH 17, 2021

Appellant Khafre Raheem Johnson appeals from the order denying his

first Post Conviction Relief Act1 (PCRA) petition. Appellant raises three claims

of ineffective assistance of counsel. We affirm.

We state the facts as set forth by this Court in resolving Appellant’s

direct appeal:

Three witnesses testified in this [bench trial]. First, the victim Kory Filson testified.[fn3] He testified that at 10:30 p.m. on December 2, 2015, he was walking to a gas station in the area of Jackson Street, Sunshine Alley, and Mount Rose Avenue. He described the area as well lit by street lights and a garage light. While Filson was walking, Appellant and one other man approached him from behind.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S47026-20

Mr. Filson did have a previous unsworn falsification [fn3]

conviction in 2013.

Filson knew Appellant before that night because he had attended middle school with Appellant’s older brother and because Appellant was one or two classes behind Filson.[2] In fact, Filson had almost instantly recognized Appellant when he and the other man approached him.

The other man grabbed Filson from behind, and Appellant stood in front of Filson. Appellant pulled out a handgun and told Filson to empty Filson’s pockets.

During this incident, Appellant pointed the gun at Filson’s midsection. Then, Appellant and the other man went through Filson’s pockets and took all of the pockets’ contents. For example, they took his wallet, cell phone, pocket knife, $100 in cash, credit cards, and a prescription. During the altercation, Filson had feared for his life.

In fact, during the altercation, Filson said Appellant’s name and asked Appellant if he was serious, to which Appellant responded, “he was dead serious.” Afterwards, the two men ran down an alleyway, and Filson went several blocks to his home, where he called the police with a second cell phone that he had at home.

Officer Richard Morris (“Officer Morris”) testified next. . . . At about 10:45 p.m., Officer Morris was dispatched for a robbery, and he met with Filson at South Albermarle Street.

That night, Filson walked Officer Morris through what had happened. For example, he took Officer Morris to the 700 block of Sunshine Alley, just North of Jackson Street, which is where Filson told the officer that the robbery occurred. Officer Morris described the lighting in that vicinity as “very good for an alley. It’s a residential area, it’s densely residential, a lot of ambient lighting from the homes. I would say in an alley with the light

2 Specifically, Filson testified that “I went to middle school with [Appellant’s] older brother, Antonio, and [Appellant] was a class or two behind me in high school.” N.T. Trial, 5/17/17, at 9. Filson also identified Appellant at trial. Id. at 8.

-2- J-S47026-20

being what it was, looking at your face from here and there, I’d have no problem identifying you.” During his testimony, Officer Morris noted that he had met Filson before. Further, he explained that while Filson was normally an energetic and talkative person, his personality that night was “very somber, downtrodden, and he appeared scared to the officer, beaten down, if you will.”

Lastly, Appellant testified. Appellant stated that he did not know Filson, and that while he was in the middle school Filson referred to, he did not attend the high school that Filson described. Appellant stated he did not know where he was that night specifically, but he was not in the area that the robbery occurred. He pointed out that he lived on the other side of town and did not have any reason to be in Spring Garden Township or that part of town.[fn24]

During his testimony, Appellant acknowledged that he [fn24]

was adjudicated in 2013 for retail theft and pled guilty to theft by unlawful taking. He also acknowledged that in 2012 he pled guilty to receiving stolen property. These convictions were pointed out for crimen falsi purposes only during the trial.

Police arrested Appellant on September 2, 2016. The Commonwealth charged him with two counts of robbery, 18 Pa.C.S. § 3701(a)(1)(ii) and (iv) (counts 1 & 3); one count of conspiracy to commit robbery, 18 Pa.C.S. § 903 (count 2); one count of theft by unlawful taking, 18 Pa.C.S. § 3921(a) (count 4); one count of receiving stolen property, 18 Pa.C.S. § 3925(a) (count 5); and one count of possession of firearm prohibited, 18 Pa.C.S. § 6105(a)(1) (count 6). Appellant proceeded to a non- jury trial on May 17, 2017. That same day, the trial court found him guilty on all counts except for the firearm offense. On June 26, 2017, the trial court sentenced Appellant to 6-12 years’ incarceration at count 1, and a concurrent term of 5-10 years’ incarceration at count 2. The court merged the remaining counts for sentencing purposes.

On July 5, 2017, Appellant filed a timely post-sentence motion, in which he sought a motion for judgment of acquittal on sufficiency grounds, and a motion for a new trial on weight-of-the-evidence

-3- J-S47026-20

grounds.[3] The trial court denied Appellant’s post-sentence motion on July 11, 2017. Appellant filed a timely notice of appeal on July 18, 2017.

Commonwealth v. Johnson, K., 180 A.3d 474, 476-77 (Pa. Super. 2018)

(citations omitted and formatting altered), appeal denied, 205 A.3d 315 (Pa.

2019).

In his direct appeal, Appellant asserted “there was insufficient evidence

supporting his identity as the perpetrator of the robbery committed against

the victim.” Id. at 478. This Court affirmed, and our Supreme Court denied

Appellant’s petition for allowance of appeal on March 27, 2019.

On May 2, 2019, Appellant filed a pro se PCRA petition, and the PCRA

court appointed PCRA counsel, who filed an amended PCRA petition on January

8, 2020.

The PCRA court held an evidentiary hearing on January 29, 2020, at

which Appellant’s trial and direct appeal counsel John Hamme, Esq., Mandy

Keiser (Appellant’s alibi witness), and Appellant testified. In relevant part,

Attorney Hamme seemingly testified on direct examination that he did not

challenge the weight of the evidence. See N.T. PCRA Hr’g, 1/29/20, at 15.4

3 The certified record includes Appellant’s motion for a new trial based on weight of the evidence. Appellant’s Post-Trial Mot., 7/5/17, at ¶ 14 (stating, a “new trial should be granted in the interest of justice because a review of the weight of the evidence provides that the fact finder’s verdict was not based upon the facts presented, but was a product of speculation and conjecture such that when the evidence is weighed, the verdict is against it.”). 4 We summarize additional testimony from the PCRA hearing below.

-4- J-S47026-20

The PCRA court denied Appellant’s PCRA petition on March 17, 2020.

Order, 3/17/20. Appellant timely appealed and timely filed a court-ordered

Pa.R.A.P. 1925(b) statement.

On appeal, Appellant raises the following three issues:

1.

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Bluebook (online)
Com. v. Johnson, K., Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-johnson-k-pasuperct-2021.