J-S23026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NATHANIEL JOHNSON : : Appellant : No. 1950 EDA 2020
Appeal from the PCRA Order Entered September 16, 2020, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0003440-2011.
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
JUDGMENT ORDER BY KUNSELMAN, J.: FILED SEPTEMBER 17, 2021
Nathaniel Johnson appeals from the order denying his first timely
petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A.
§§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
[The victim] was eleven years old when [Johnson] raped her. She was eighteen years old when she testified at trial. In the summer of 2007, she was living with her mother, two brothers, and aunt. She spent many weekends with her godfather Eric and his mother, “Gammie.” Usually, Eric would pick [the victim] up and bring her to Gammie’s house. On one occasion that summer, [Johnson]—Eric’s brother— picked [the victim] up. Instead of bringing her directly to Gammie’s house, however, [Johnson] first brought her to his apartment. Once inside, he removed [the victim’s] ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S23026-21
clothing and penetrated her vagina with his penis. After the assault, [Johnson] took her to Gammie’s house. [The victim] did not initially report the assault to anyone. She told her mother that she did not want anyone to take her to Gammie’s house. When her mother told her she could not go without an adult, [the victim’s] behavior began to change. She became angry and aggressive, and her relationship with her mother and father became strained. When she was thirteen, [the victim] showed a social worker a page from her diary recounting the rape. The assault was reported to the Department of Human Services and the Special Victims Unit.
On January 16, 2015, a jury found [Johnson] guilty of rape of a child, unlawful contact with a minor, unlawful restraint, corruption of minors, and indecent assault. [The trial court] deferred sentencing for completion of a presentence investigation, mental health evaluation, and evaluation by the Sexual Offenders Assessment Board (“SOAB”). [After a hearing, the trial court found that the Commonwealth failed to meet its burden of proving that Johnson met the criteria of a sexually violent predator]. On December 9, 2015, [the trial court] sentenced [Johnson] to an aggregate term of 25 to 50 years of incarceration. [Johnson] filed a post-sentence motion on December 11, 2015, which [the trial court] denied on March 31, 2016.
PCRA Court Opinion, 2/9/21, at 1-2 (citations and footnotes omitted).
Johnson filed a timely appeal to this Court. On June 28, 2018, we
rejected Johnson’s illegal sentence claim and affirmed his judgment of
sentence. Commonwealth v. Johnson, 193 A.3d 1121 (Pa. Super. 2018)
(non-precedential decision). Johnson did not seek further review.
On February 12, 2019, Johnson filed a pro se PCRA petition, and the
PCRA court appointed counsel. On November 18, 2019, PCRA counsel filed an
amended PCRA petition. Thereafter, the Commonwealth filed a motion to
dismiss the petition. On August 12, 2020, the PCRA court issued a
-2- J-S23026-21
Pa.R.Crim.P. 907 notice of its intent to dismiss Johnson’s PCRA petition
without a hearing. Johnson did not file a response. By order entered
September 16, 2020, the PCRA court denied Johnson’s petition. This timely
appeal followed. Both Johnson and the PCRA court complied with Pa.R.A.P.
1925.
Johnson raises the following issues on appeal:
1. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented that trial counsel was ineffective for failing to investigate and present available defense witnesses; failing to provide notice of an alibi defense and present alibi evidence and witness; failing to present exculpatory defense evidence; failing to litigate a Rule 600 motion; failing to object to the admissibility of evidence and amendments to the bills of information; and refusing to allow [Johnson] to testify in his own defense.
2. Whether the PCRA court erred by dismissing [Johnson’s] PCRA petition when clear and convincing evidence was presented that appellate counsel was ineffective for failing to pursue claims challenging both the sufficiency and the weight of the evidence.
3. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented of violations of [Johnson’s] constitutional rights at trial and on direct appeal.
4. Whether the PCRA court erred by dismissing [Johnson’s] PCRA petition because the trial court issued an illegal sentence by imposing a third-strike sentence enhancement despite [Johnson] never previously being sentenced as a second strike offender, and by the punitive registration requirement of SORNA which violated [Johnson’s] due process rights and extended the length of the sentence beyond the statutory maximum.
5. Whether the PCRA court erred by failing to grant an evidentiary hearing.
-3- J-S23026-21
Johnson’s Brief at 9.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and 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. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings. To obtain a reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of material fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
Here, the PCRA court has authored a thorough and well-reasoned
opinion supporting the denial of post-conviction relief. The Honorable Donna
M. Woelpper has addressed each of Johnson’s claims with proper citation to
legal authorities and citation to the certified record. We discern no legal errors
in Judge Woelpper’s analysis and conclusion that each claim is either without
merit, waived, or previously litigated under the PCRA. As such, we adopt
Judge Woelpper’s opinion as our own in affirming the order denying Johnson
post-conviction relief. See PCRA Court’s Opinion, 2/9/21, at 3-21 (concluding
-4- J-S23026-21
that each of Johnson’s claims of ineffectiveness regarding trial and appellate
counsel had no merit); and at 22 (concluding Johnson’s challenge to his
sentencing as a “third strike” was previously litigated under the PCRA and
citing Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020) for the
proposition that Subchapter I of SORNA does not constitute criminal
punishment).1
Finally, because we agree with Judge Woelpper that Johnson’s post-
conviction claims did not warrant an evidentiary hearing, Johnson’s claim to
the contrary fails. Blakeney supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/17/2021
____________________________________________
1 The parties are directed to attach Judge Woelpper’s February 9, 2021, opinion to this memorandum in any future appeal.
-5- Circulated 09/13/2021 03:28 PM
IN THE COURT OF COMMON PLEAS: FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION
COMMONWEALTH OF CP-51-CR-0003446-2011 PENNSYLVANIA
V. SUPERIOR COURT .NATHANIEL JOHNSON 195.01DA 2020
OPINION
wOELRPER, I. FEBRUARY 9,, 2021
I: PROCEDURAL & FACTUAL BACKGROUND.
Nathaniel .Johnson ("Petitioner") appeals this Court's dismissal pf his petition for post-
- conviction relief..
A summary of the relevant facts and procedural history. of the case is as follows. I.J.J.
was eleven years old when Petitioner raped her. - She was eighteen years old.when she testified at
trial. * in the summer af'2007, she was living with her mother, two brothers, and aunt. She spent
.many weekends with her godfather Eric and his mother, "Garnmie." Usually; Eric would pick
I.J..T, up and. bring her to Gammie's house. On one occasion that summer,.-PetitionerEric's
brother—picked 11J.-up... Instead of bringing her directly to Gammie's house; however ;:
Petitioner first brought her to: his `apartment. Once inside ;he removed I.J.J:'s •clotliing and:
penetrated her vagina with his penis. Afte the.assault, Petitioner took her to Gammie's house.
11J. did. not initially report the assault: to anyone.. She told her mother that she did riot want
anyone to take 'her to Gammie's house. When her another told her she could not go . without aii
aduiti.I.J.J.'s behavior began to change. She. became angry and aggressive,. and her relationship
with her mother :and father became. s₹rained.. `When'she was thirteen, I.J.J. showed asocial worker apage from her diary recounting the rape. The.assault was reported. to :the Department of
Human Services. and the. Special Victims Unit.. Notes of Testimony ("N.T"), 111412015, at 20-
22,29, 31, 37-39,.56,..74.
On January+ 16, 2015, ajury found Petitioner guilty of rape of achild, unlawful caiitact.
with aminor, unlawful restraint,. corruption of minors, and indecent. assault. ( This Court deferred
for completion of apresentence investigation, mentaf health evaluation, and sentencing -
evaluation by the Sexual Offenders Assessment Board ("SOA13"). 2 On December.9;2015, this
Court sentenced Petitioner to an aggregate term of 25 to 50 years of incarceration. Petitioner
filed.a,post-sentence motion on December 11, 20.15, Which.'. this Court denied on March 31 : ,2016.
Petitioner timely appealed to the Superior Court on April 14, 201.6. On June 28, 2018, the
Superior Court affirmed Petitioner's judgment of sentence.
On February 12, 2419, Petitioner filed apetition pursuant to the Post Conviction* Relief
Act CPCRA"). Court appointed counsel,:Lawrence J. O'Connor Jr.,.Esq., entered.his
appearance on September 25, 2019 3 and filed an amended PCRA petition on November 18,
2419, 4 Ori February 19.,2020*,- the Cornmonwealth ,responded with amotion to dismiss.
On August. l2., 2020, this Court issued anotice*pursuant to Pa.R.Crim.P..907 of its intent
to disn3iss.the petition without ahearing: This Court formally dismissed the PCRA.petition on
September 16, 2020. Petitioner fled anotice of appeal to the. Superior Court on October 12,
2020. On October. 20, 2020, this Court ordered Petitioner to file aconcise statement of errors'
t18 Pa.C.S:. §§ 3121(c); 6318(a)(1) 2942(4)(1); 634.1(a)(Ij; and 312d(a)(7j, respectively.. 2 After ahearing, this Court .found.that the Commonwealth failed to meet its burden of proving that Petitioner met the criteria of a, sexually yiolent.predatgf; N.T. 1214124.15, ;at 44:. 3 Previously appointed counsel, Matthew F. Sullivan, .Esq., entered: his. appearance on. April.22,
2019 and subsequently moved to withdraw on September 10, 2019. 4Petitioner fled a pro se amended PCRA petition on September 30,,.2019.
2 com 'Wned of oft appeal pursuant to Pa.R.A:P: 1925(b) within twenty-one days. Counsel filed a
J925(b) statement on behalf of Petitioner on November 2, 2020.
11, DISCUSSION.
Petitioner.raises claims concerning the effectiveness of trial counsel, the effectiveness of
appellate oounseI ;and: the legali ty of.his sentence.
Effectiveness of Trial Counsel
As.to. trial'counsel, Petitioner argues:.
1. Trial counsel was ineffective for failing to investigate and, present.available defense witnesses.
2.' Trial counsel was ineffective for failing: to provide notice of an alibi defense.and present alibi evidence and witness.
3. Trial counsel was ineffective for failing to present exculpatory defense evidence.
4. Trial .counsel was ineffective for failing - to litigate.a Rule:60a motion.
5; Trial counsel was ineffective for. failing to object to the - admissibility of evidence and amendments to: the bills of information.
6.. Trial counsel was:ineffective for refusing to allow Petitioner to .testify jn*his own defense:.
Statement of Errors,. at 11.
In order to be. eligible for PCRA relief, .the. petitioner. must prove by: a.preponderance of the evidence that his conviction or sentence -
resulted from. one or more of the enumerated circumstances -found •in Section 9543(a)(2), Which includes the ineffective.,- assistanceof counsel. 42.Pa.C.& §9543{a)(2)(i),
It. is well-established that counsel is presumed. effective, .and. to rebut that presumption; the PCRA petitioner Inn* st demonstrate that eaunsel's .performance was deficient and that such deficiency prejudiced him.. To -prevail on an :ineffectiveness- claim,. the petitioner has the. burden to prove that (l) the underlying
3 substantive claim has arguable merit; (2). counsel whose effectiveness is being challenged did not,have areasonable basis for his or her actions :of failure 'to act; and (3) the petitioner suffered prejudice as aresult -of counsel's' deficient .performance. The failure'ta satisfy any one of the prongs will cause. the entire claim to, fail.
Coinmohwealth v. Benner, 147.A;3d.915, 919-20 (Pa.. Super. 2016).(gi*otation mai ks,
quotations ;:and citations: omitted)..
Petitioner claims:trial counsel was ineffective for failin gto investigate and present
available defense Witnesses. .fn. his counseled amended petition, Petitioner specifically identified
three fact witnesses wham he asserts trial counsel should have presented at trial. He averred that
Virginia Colenian*were available to testify. Ms. Anderson Tanya Anderson, Tracey Shaw,: acid -
and Ms: Shaw would have authenticated a. photograph "depicting certain unique markings on
[Petitioner's] lower body" and "ptovide[d] corroborating testimony regarding the distinctive and
extremely noticeable,markings on [P]etitioner's lower body," See Amended Petition for Relief
Pursuant to the Post Conviiction.Mief Act, 111181201.9; at -4: 5 Petitioner also claims that.trial
counsel refused to present.Theresa Sullivan from the Institute for Community Justice as a
witness. He contends that Ms. Sullivan's testimony "would have undermined the credibility of.
the complai ni ng witness," Id
When raising a claim* of ineffectiveness for the failure to call a potential witness ; a -petitioner satisfies. the performance and prejudice requirernents of the ineffectiveness assistance of counsel test by establishing that-.(I) the witness existed; P) the witness was available to -testify for the :defense; (3) counsel knew of, ar should have known of;the, existence of the witness, (4) the witness was willing to testify for the defense; and (5) the absence. of the. testimony- of the witness was so prejudicial* as to have denied the defendant afair. trial.
s. Petitioner's amended'PCRA petition.does not contairipagination.. For case of review ;we have .assigned.cach page a,aorresponding.page number;
4 Commonwealth v.. Selenski, 228 A.3d 8,.16 (Pa. Super. 2020) (brackets omitted) (quoting
Commonwealth v. Sneed, 45 A. 3d 1006, 1108--09 (Pa. 2012)). "Prejudice in this respect requires
the petitioner to show how the uncalled witnesses'testimony would have been beneficial under.
the circumstances of.the case. Therefore;the petifione ' sburden into show that testimony
provided by the *icalled , witnesses:`would have been helpful to the .defense. Id (quotation
marks and citation: vrnitted).
As to Ms. Sullivan, Petitioner failed to develop this claim.Therefore,. this Court cannot
engage in meaningful review.The remainder of Petitioner's claim-fails due.. to lack ' of.preJudice.
During trial,Brandon Holiday testified on behalf of the defense. Mr. Holiday,employed as a
private *investigator,. was hired. . by'irial counsel * . to investigate Petitioner' scase. N,T..111512015,
at 11, As part of his investigation .Mr. Holiday interviewed ' P.etitioner on March 15; 2014 and.
took photographs'of his genital area on -June 10, 2014 .Id. at 18-19. Mr.Hohday identified
Exhibits D-3A, D-3B; and D-3 C as aclose-up photograph of Petitioner holding his penis in his
hand,aside profile. of Petitioner and'his genital area, . and afront view of Petitioner and his
genitals; respectively. Id at 20. These photographs were.published to the jury and later moved
into evidence.
Furthermore, during acolloquy with this•Court,Petitioner answered "no" when asked if
there were any other witnesses that . he wished * to call. N.T.111512015,. at 9.:. Lastly, during his
closing argument, trial counsel emphasized the.importance of the photographs taken of
Petitioner' sgenitals.
And, the most. powerful piece of evidence, in my opinion, and -ohe' of the things that the - Judge asked*you,.if.you could be fair about, is [Petitioner's] mark on his genitals.' Nobody wanted to come here and see that; certainly didn't want to see it,but ,, it' svital because she testified,. she -told you. She .sat here; and of the little information she did disclose was that it.was black. She also said
5 that in her statement ; she said she -saw it and. it was black. The mark an it is. something. that * you cannot ,miss. The mark on it is. something that anyone.would..have noticed.. You.,didn thave to sit and stare at. the picture to see it: It was right.in front of you, there is amark. on it.. .1 am sure everyone saw.that. Idon't need to see anything else.
N.T. 1115/2015, at 9•-I d. Accordingly, Petitioner's first.claidi is without merit.
Nekt, Petitioner claims irial -counsel.was ineffective for failing to provide notice of an
alibi defense and failing to present an. alibi witness and evidence'. "Generally, an alibi. is a
defense that places :the defendant'at the relevant time in adifferent place than the scene involved
And so removed therefrom as to render it impossible for him to be the guilty party.... At the core
of an. alibi defense is, of course ;consistency between the date and time of the crime and'that of
the defendant's alibi. Commonwealth v. Dili, 10 A.3d .282, 315' (Pa. 20 1.0) (citation. omitted).
Contrary to .Petitioner's contention, triafcounsettfiled a"Notice of Possible Alibi.
Defense" on May 7, 2014. 'The notice read, in pertinent part, as follows; "Between 7m 15-2007
until the next day;[Petitioner] was at-Velda Young's [r]esidence.... M. "s time, defense counsel.
asserts thathe may present an alibi defense at trial and may call one or more of the.following
witnesses on [Petitioner's] behalf..:." Notice of Possible Alibi Defense, 5171201.4, at Tj 4-5. In
the alibi notice, trial :counsel provided Ms. Young's :address and telephone numbers,
However, on Litvary 1.3, 2015 ;the Commonwealth sought to amend the bills of
information due to the victim's inability to recall the specif adate, See hi.T; 111.3!2015 ;at 3-8..
This Court granted the Commonwealth's motion. to amend the bills of information from an
offense date of July 15,200.7 to:the summer of 2007. Id. This amendment rendered Petitioner's
alibi for July*15, 2007-irrelevant. Therefore, Petitioner cannot establish that he was prejudiced
by trial counsel's decision. not..to'present Ms. Young as an alibi witness..
6 Petitionef next claims thaftrial colinsel was ineffective for failing to present exculpatory
defense:evidence, .He maintains that he "provided [trial] counsel--with aphotograph depicting.
certain unique markings. on his lower body. The. markings were so distinctive that. the
complainant. would have noticed and remembered them." - Statement of. Errors, :at ¶l.
Petitioner's claim fails for lack of prejudice: As discussed earlier,.Mr. Holiday identified
photograpls he had taken of Petitioner's genital area., These photographs were also shown to the:
jury. Accordingly, trial:counsel was not.. ineffective.for failing to present an additional
photograph of Petitioner's lower body.
In his next claim, Petitioner argues that trial counsel was ineffective far.failing to .litigate
aRule. 600 motion. This claim* lacks arguable merit.. On November 21,-2613, the Honorable
Nina Wright Padilla denied Petitioner's Rule 600(a) motion to dismiss. On January. l3, 2015;
this *Cdurt denied Petitioner' s'motion to dismiss pursuant to Rule 600(a).
Petitioner also argues that his constitutional right to aspeedy trial Was yioIated, It is well
settled that
la] speedy .trial analysis ,:. mandates a two-step inquiry: (1) Whether the delay violated Pennsylvania Rule. of Criminal Procedure. [600]; and, if izot, then (2) whether the delay violated the defendant's 'right t d a speedy trial guaranteed by the Sixth Amendment to the United States Constitution and b• Article I ;
Section 9of the Pennsylvania Constitution.
Commonwealth v. Colon., 87 Ac3d 352,.356 (Pa. Super.. 2014).(citation omitted).
Pursuant to .Rule 600, acriminal trial must "commence within 3.65 days from the date on.
which the. complaint. is filed." Pa.R.Crim.P. 600(A)(2)(a), After.365 dayslave.passed,. a.
defendant "may file awritten motion requesting that the charges. be dismissed with prejudice on
the ground that this rule has been violated." Pa,R.Crim.P, 6a0(D)(1).
In calculating time,
7. periods of delay .at any stage of the proceedings caused by the .Commonwealth when the Commonwealth has failed to. exercise due diligence shall be included in -the computation of the time within which trial must commence. Any other periods of delay shall be excluded fr6ni the computation.
Pa,R.Crim.R '600(C)(1)..
The Superior Court has explained:
-Rule [600] sores two equally important .functions: '(1) the protection -of the accused': s .speedy trial rights, and (2) the protection of society. In determining. whether an. aceused's right to aspeedy trial has been. violated, .consideration must be.. given. to society's right to 'effective prosecution of criminal cases,- both to restrain 'those guilty of crime and to deter. those contemplating it: However, the adininistrative mandate of .Rule *[6001 was not. designed to *insulate the criminally accused from good faith prosecution delayed through .no fault of the. Commonwealth.
Commonwealth v. Hunt, 858 A.2d 1234, 1239-(Pa, Super. 2004) (en*banc) (citation omitted;
.brackets in original).. Furthermore,
Rule 600 "provides for dismissal of charges only in cases in-which. the. defendant has not. been brought to trial. withiff the term of the adjusted. run date, after subtracting . all excludable. and. excusable time. The adjusted run date is .calculated *by adding .to the mechanical run date ; i.e., the date 365 days from the complaint, both excludable time and excusable delay. "Excludable time' is classified as periods of delay -caused.by the defendant. "Excusable delay' occurs where the* delay is. caused by circumstances beyond. the. Commonwealth's control and despite-its due diligence. "'Due diligence is afact-specific concept that must be determined on a case-by-case basis. Due diligence does not require perfect vigilance and ,punctilious care, but rather a showing by the Commonwealth that areasonable 'effort.has. been putforth:" Due diligence includes ;.inter aliia,.listing acase for trial prior to the run date, preparedness for trial within the -run date, and keeping adequate records to -ensure compliance with Rule 600. Periods of delay caused by the Commonwealth's failure. to. exercise due diligence must be included in the computation of time. within. which trial must commence.-
Commonwealth -i Moore,, 214 A.3d 244, 24849 (Pa, Super. 2019) (citations omitted).
8 Here, the criminal complaint was filed on December 17, 2010. 6 Thus ;Petitioner's
mechanical run date was. December 19, 20.11 :7 -Although'Petitioner's trial did not commence.
until January 14,20.15 which was well beyond the mechanical run date, the. docket shows that
the extension of the mechanical run datewas largely the result ,ofdefense requests for
continuation. and judicial delay.
On May .17, 201.1, the defense requested as continuance for further discussion. of a
possible nontrial disposition, The case was continued to June 14,.2011. This 28-day period'is.
excludable Aime and results iri an. adjusted run date of January 16, 2012.
On June '14., 2011, Petitioner rejected the Commonwealth's offer and - 'a scheduling
conference was listed for. June 29, 20 1. This.period of 1.5 days* is. excludable time and results in
an adjusted run date of January 31; 2012. The scheduling conference.was continued to July 12,
2011 due to defense request fvr furthei :investigation. 'This 1.3 -day period is excludable time and
results. in an adjusted run.daie of February 13, 201.2. The scheduling conference was again
delayed until July 15, 2011* because the court was on.trial. This period"of three days firings the
adjusted run date to February 16,.2012.
The delays between the scheduling conference held on July 15, 201.1 and the motions
hearing held on. September 15; 241.1, xesuiting from the court's .schedule;the fact that°Petitioner
was not transported to. the courthouse,. and acontinuance. request made by the Commonwealth
because the assistant district attorney ("ADA') was on. funeral leave, all constituted excusable
delay.. The addition ofthese:62 days results in. an adjusted run date of April .18, .2012.
6Although the docket indicates the complaint was filed on .1/312011, Petitioner. lists the complaint date as 12/17/2010. TBecause.Decerriber 17,. 2011 was a:Saturday, the mechanical run*date was instead Monday, December 19,201L. ;See
9 On September 15, -201 I, otitioner's. motion to'set nominal bail was denied. The pretrial
conference date of February 3, 201 : 2and.1he jury trial date of February 6, 2012 remained. The
addition. of this 141-day period. results in an adjusted run date.of:September 6;2012.
On February 3, 2012, trial counsel requested a.continuance, informing the courtthat he
would not be prepared for the February 6, 201.2 trial date: A pretrial conference wasscheduled
for August 24, 2012. The addition of203 days. brings the adjusted full date to March 28, 2013.,
On August 24, ' 20 12, the trial dale was administratively relisted for September 4, 2011
The addition of 11 days xesults in an adjusted, run date of April 8, 2013.
On September 4, 2412, the defense requested acontinuance for further investigation. A
pretrial conference was scheduled - for November 1, 2.Q12, This time was ruled excludable. The
addition. of 5$ days brings the adjusted run date to June 5, 241.3.
On November 1, 2012, the case was continued to November 13; 2012 far the. status of an
offer made by the Commonwealth. The addition of12 days'results in an adjusiedrun date of
June 17,2013. On November 13, 2012 ;Petitioner rejected the Commonwealth's offer. A
pretrial conference was scheduled.for August.23, 201.3, The addition of 283 days brings the
adjusted.run date to. March 27, 20.14.
On August 23,. 2013;.rthe case was' continued to anew trial date of September•9, 2013.
The addition of 17 days results in an: adjusted run date of April 14, "2014, 8
On. September 9;2013, the case was continued to September 23 ;. 2013 due to the courts
.schedule.. The addition of 14..days brings :the adjusted run date to April2812014: -The
scheduling conference was .theh relisted for September 24,.2013 ;resuliing.in an adjusted run date.
8 Aprii 13,*2014 was aSunday. The adjusted.run date is instead - Monday, April 14, 20;14.
10 of April 2014. On September .24, 20:13, tlie•case was continued to.Novernber 21,.2013 for a
motions hearing. The addition of 58 days brings the adjusted run date to -June 26,.201.4,.
On.November 21, 2013 ;Petitioner's motion to dismiss pursuant to Rule 600 was denied.
Petitioner's.request fof additional discovery was also denied at that time. After the .case was
reassigned to this Court; amotions hearing w'as scheduled for February 25, 2014. The addition
of this 9d-day period of ti results in an.adjusted run date of September 30, 2014.
On February 25,.201 4,'thij Court granted Petitioner's Rule 60 0(B) motion and the
Commonwealth's mo₹ion to revoke bail. On that. date, trial counsel requested that.new counsel
be appointed'to represent Petitioner. The next court date was scheduled for February 28, 2014.
The addition of three days brings the adjusted zun date to. October 3, 201.4.
On February 28,.20.14, the defense requested acontinuance. after this Court appointed
new counsel to. represent Petitioner. A status hearing was scheduled for May 12, 2014. The
.addition of 73 days results in an adjusted run.date of December 15, 2414.
On. May 12 ;20.14; apretrial conference was held..A hearing. on Petitioner's motion in.
limine was.scheduled -for June 13, 2014, The addition of 32 days brings the adjusted run date to
January 16;.2015.. The motions hearing was continued from dune 13 ;2014.to July 17, 2014
Because the assigned ADA was. on trial. This 34;dayperiod. constitutes non-excludable: time.
Therefore, the adjusted run date remains January 16, 2015.
On July 17, 2014; acontinuance was granted to July.22, 2014 because the assigned ADA
was unavailable. This period of five days is n6ii-excludable, and the adjusted run date remains
the same. On duly 22, 2014, there were no motions. and trial was scheduled. for July 28.,. 2014:
The addition of six days results in an;adjusted run date. of January 22, 20 1.5.
11 Trial was' continued on filly 28, 2014. and July 29, 2014 due to the unavailability of the
defense expert witness. The Commonwealth objected to the continuance, and the time was ruled
excludable: A. trial readiness dohf rence was scheduled for November 6, 2014., The addition of
this 10'1=day period bdrgs the adjusted run date. to May 4, 20`15. 9
On November .10, 2014, the trial readiness conference was administratively rescheduled
:for January 8, 2015; The addition of 59 days brings the adjusted run date to July 2, 2015.
Because Petitioner's trial began before the adjusted run date, his right to aspeedy trial under
Rule 6.00 was not violated.
Having found.no'Rule 600 violation, this Court must next. determine whether a
constitutional violation occurred. See Colon, 87 A.3d at*356. There. are four factors to be
.considered in determining whether an unconstitutional speedy trial violation. has occurred:
(1)` whether the pretrial delay was uncommonly long;. (2) whether the governmerit or the criminal defendant is more to blame for that delay;: (3) whether, in due: course,. the defendant asserted : . his right to; a. speedy trial. ;and (4) . whether' fine defendant suffered prejudice Because of the delay, A finding in the defendant's favor of any one. of the four factors, standing alone, does, not constitute. aspeedy. trial violation. Rather, each of the four factors -are related and each must be: weighed carefully in the. court's evaluation of. acriminal defendant's. claim that his speedy trial rights were violated..
CoMomnwealth v. Dekase ;665 A.2d.427; 432 (Pa..1995) (citations omitted).
As to the first factor, this Court acknowledges that there.was an uncommonly long
:pretrial delay-of over three years.
Under the second factor, Petitioner is more to blame*than the Commonwealth for. the.
delay: As rioted above, the Commonwealth requested.three postponements,. due. to the assigned:
-A:DA's :unavailability:
run date.is instead Monday, May 4, 2015: vMay3, 2015 was a.Sunday. The adjusted *
12 As to the third factor; Petitioner did assert Rule 600 claims relating to.his. speedy trial
rights. wM 416ted above ;the Honorable Mina Wight Padilla denied Petitioner' 600(a) sRule.
motiorf io dismiss on November 21; 2013, and this Court denied Petitioner' s. motion to dismiss
a) on. january 13, 2415. pursuant to Rule 600(
In order to analyze the fourth factor,prejudice to the defendant, this Court must take into
account the following interests protected by the speedy trial right;
(1) preventing oppressive pretrial incarceration; .(2) minimizing the accused ' sanxiety and concern;and (3)limiting the impairment. of the defense. The last bonsideration,.iinpairment of. or prejudice to the defense, -represents -the most serious of these three concerns, . because the ; inability of adeferidanuadequately to properly prepare. his case .for trial skews the fairness of the: entire system..
DeBlase, . 665 A.2d at 43.6 (citations omitted). Here; Petitioner' s: counsel requested several
continuances in order to conduct further, investigation,to consider potential non-triat
dispositions,to have new counsel appointed to represent Petitioner,. and because of the
unavailability of adefense° expert witness.Beyond pretrial incarceration,Petitioner has not
indicated how he. was prejudiced by the delay i nthis case.
Considering and .weighing all four factors, this Court frids that Petitioner' sright to a
speedy trial was not violated, and theiefore,his claim is without merit.
Next,Petitioner. claims that. trial counsel was ineffective for failing to obj ect to the
admissibility of evidence.Petitioner fails toìdentify the•eviderice td which trial counsel was
ineffective. for failing to. object, Accordingly,this claim' is without arguable merit.
In his next claim. Petitioner argues. that trial counsel was ineffective for failing to object
to the amendment to the bills of information' .Petitioner alsq claims that t he amendment of the
bills of information constituted prosecutorial misconduct and violated his right to procedural and
substantive due process.Petitioner' sclaim concerning prosecutorial misconduct should have
13 been raised earlier but was riot, resulting in waiveri See 42 Pa. C.S. §9544(b). Insofar as
Petitioner challenges trial counsel's eff6ctiveness. based on failing.to object to the amendment of
the* bills. of information, this claim fails due to..a lack of prejudice.
Pennsylvania Rule of Criminal Procedure 564 governs the amendment of a.crirninal
information. The vetsion of Rule'564 in. effect when this Coui tgranted the. Commonwealth's.
motion to amend the information, provided as follows' :
the. court may allow an information to be amended when there is. , a defect in forin, the description of the offense(s), .the description of any person or .any. property, or the date charged,. *provided the information as amended does not charge an additional or different offense. Upon amendment,. the '-court may grant such .postponement of trial or other relief as is necessary in the interests of justice.
Pa.R.CrinLP. 564 (effective until December 24, 2017): 1°
When considering aPa.R.Crim.P, 564 amendment,
the Court will look to whether the appellant was fully apprised. of the. -factual scenario which .supporis.:the charges ;against him: Where the crinies'specified in the original information involved the same basic. elements :and. arose:out of the same factual. situation as the crime- dded. by the anriendment, the appellant is deemed to have Been placed on notice regarding his alleged criminal conduct and no prejudice to. defendant.results.
14 Rule. 564. was subsequently ai-ndhded-to read as follows:
The court m4y allow an information to be amended, provided. that. the information as amended does not charge offenses arising from adifferent secof events and that-the amended -charges -are °not so materially -different. from the original. charge that.*the defendant would be unfairly* prejudiced. Upon amendment, the court may grant such posiponement.of trial or other relief as is necessary in the interests of justice,
Pa.R,Crim.P. 564*(effective December 21, 20.17):
14 Commonwealth v. Beek, 78 A.3d 656, 660 (Pa, Super. 2413) (citation omitted).: The
Commonwealth may amend the information even on the day-of trial as long as`there is no
prejudice to theAeferidant. See C̀ommonwealth v.. Sinclair, 8.97 A.2d 1218; .1224 (Pa. Super.
2006) (citation omitted).
In determining whether adefendant would suffer prejudice, the following factors are.
taken into consideration:
(1) whether the amendment. changes the factual scenario supporting the charges; (2) whether the amendment adds. new facts previously unknown io the defendant; (3,), whether the entire factual scenario was developed during apreliminary hearing; (4) whether the description of the charges changed with .the. amendment;. (5) whether a change in defense strategy was necessitated by the amendment; and..(6) whether the timing of the Commonwealth's request for amendment allowed for ample notice and preparation,
Commonwealth v. Mentzer, 18. AI3d 1200,.1203 (Pa. Super. 2:0.11) (citation .omitted).
As discussed above, the offense date was amended from Juty 15, 2007 to the summer of
2007: At the motions hearing held on January 13, 2415, trial counsel asked this Court to deny
the Caminonwealth's request to amend the bills of information based on Petitioner's alibi notice.
co► Ding July 15, 2407. N.T. 1/ 13/2015,. at 3-1. However, trial counsel also acknowledged that
the Commonwealth provided notice of :9 larger period of time not limited to the date indicated in
the bills. o£ information. Id.' Trial .counsel also _agreed that the timeframe mentioned. at. the
preliminary hearing was July.of 20.07. Id at 7.
Here, the amendment brought no new charges and' changed no. elez:raents.of the charges.
that Petitioner was facing. Further;, it is clear that,-pdor to the January 13, 2015 hearing;
Petitioner was aware that the precise date of.the offense was.unknown. Accordingly, Petitioner,
suffered.no prejudice *froin the amendment.
15 Petitioner next claims.that trial counsel was `ineffective for refusing to :allow Petitioner to
testify. in his own defense,
"The decision of whether or not to testify an one's. own. behalf is ultimately to be made
by the defendant after full consultation with counsel. Commonwealth v. Michaud, 70 A.3d 862,.
869 (Pa.: Super. 2013) .(quoting Commonwealth v. Nieves ;746 A.2d . 1.102 ;11.04 (Pa. 2000)).
In order -to sustain aclaim that counsel. was ineffective for failing : to advise the appellant of his rights in this -regard, the appellant. must. demonstrate :either that counsel *interfered with his .right to testify, or that counsel gave specific advice. so unreasonable as io vitiate aknowing: and intelligent decision to "testify on his own behalf.
Id.
"lii addition,. where adefendantvoluntarily'waives his right to testify after acolloquy; he
generally car iaot,argue that *trial counsel was ineffective in failing to call hun to the stand:"
Commonwealth v..Rigg,.84 A;3d*1080, 1086 (Pa. Super. 20:14) (citations omitted). "kdefendant
will not be afforded relief where he voluntarily waives the right to take the'stand during a
colloquy with the court; but later claims that he was prompted by couinsel to lie or give cef ttaair
answers." Commonwealth v. Lawson, 762 A,2d 753, 75d (Pa. Super.. 2000)..
Here, after the Commonwealth rested its case,. this Court conducted acolloquy regarding
Petitioner's. right to testify. See N.T. 1115120:15, at 5-9. During the colloquy, the following
exchange: occurred:
THE.COURT: Mr. Johnson ;do.you wish to testify in your case?
'(PETITIONER]: No. Ihave nothing to say about it, so, I mean --
[TRIAL COUNSEL]: Mr. Johnson, the judge is asking you avery specific. question --
16.. [PETITIONER): No.
(TRIAL COUNSEL]: Please let me finish. I'm working ieally hard for.you so bear with me. So her Honor needs to put on the record whether. you had an opportunity to talk about whether you want to testify,or not.. Did we have an opportunity to talk about%the benefits and the detriment: of you testifying?
[PETITIONER]: Yes.
[TRIAL COUNSEL]: And aftei our. discussion you.made a decision .whether you. would like to take the. stand and testify in your. case?
(PETITIONER]; Yes.
[TRIAL COUNSEL]: And would you please let her .Honor know What. your decision is?
{PETITIONER]: No, Idon't Want to'testify.
THE COURT: Arad did you and Mr. Shaffer discuss the fact that you do have aright to testify in this matter?
[PETITIONER] : Yes:
THE COURT: Iwant to be clear that this is your .deeision and your decision alone.
[PETITIONER1: Yes.
*41*
THE COURT: Has anyone promised you anything, forced you or threatened you to make your decision not to -testify?
[PETITIONER]: No..
THE COURT: Have you made that decision `of.your. own free will? -
17 [PETITIONER]:: Yes.
THE COURT: Are.you satisfied wit:h,Mr. Shaffer's:representation?
Petitioner's decision not to testify was knowing,. voluntary, and intelligent, Therefore;
.Petitioner's claim that trial counsel was ineffective for refusing to allow him to testify is without
arguable merit,
Effectiveness of Appellate Counsel
Petitioner's next two allegations of error concern the effectiveness ofappellate counsel;
Petitioner claims appellate counsel was ineffective for.failin.g to,challenge both the: weight and
the sufficiency of ;the evidence.- According to Petitioner, he "expressly regiiested.that appellate
counsel pursue these grounds for appeal, yet. appellate counsel's brief ignored these claims,"
Statement of Errors; .12.
This- Court's opinion filed. jn`response to Petitioner's direct. appeal addressed four claims:
ie evidence ;the legality of Petitioner's sentence ; the weight, of the evidence ;the sufficiency of the
and. an evidentiary iruling. However, it appears that appellate: counsel challenged only the
legality of:Petitioner's sentence iii his bAeffiled with the Superior Court, Nevertheless ;
Petitioner's ineffectiveness claims must fail due to alack of prejudice.
"The finder Of fact 'is the exclusive judge of.the weight of the evidence as the fact finder
is.free.to believe all, part, :or.none of the evidence presented and determines the credibility: of the
witnesses." Commohwealth v. Rabold,. 920 A.2d 85.7, 860. (Pa. Super: 2407) (citation omitted).
A. defendant is not entitled to a. new trial based on aweight of the evidence claim*unless the
18 verdict "is so.contrary. to the evidence as to shack one's sense of justice." Commonwealth v..
Diggs, 949 A.2d 873, 879 (Pa. 2408,). Appellate review is limited to whether the trial judge.
.palpably abused his or her discretion in denying the appellant's motion for a-new trial. .Id. As
such, a`.`trial court's denial of amotion. for astew trial based. on aweight of the evidence claim is
the least assailable of its rulings. Id. at 87940 (citation omitted)..
This. Court provided the following analysis of Petitioner's weight of.the evidence claim
and concluded that it was without merit.
[Petitioner] first argues that the-verdict- was .against the :weight of the evidence because the victim "gave: a. different color for [Petitioner's] penislhan it actually was as shown through pictuires from [Petitioner's] investigator. Statement.. of Errors.., I 1: Specifically; a photograph of [Petitioner's] penis taken by [Petitioner's] investigator on June '10, 2014-approximately seven years after the. assault— showed adiscoloration. on [Petitioner's] penis that -I.J:J. did not -testify to..-. :Notably, however, 11J. was asked only if she recalled describing [Petitioner's] .penis. a$ "black, like skin complexion* ." N.T. 111412015, at 49. She was not asked if there was any discoloration. .Moreover, there was no evidence 'that the discoloration,,present In the photograph was yisible at the time. of the assault, seven years prior.
[Petitioner] also argues that -the victim's "description Hof the :apartment [where the -assault occurred] was different from what it 'was 48 shown through the investigator's diagram." Statement of Errors, ¶ 1. [Petitioner] does .not identify what :those alleged differences were. Id. Nor did. [Petitioner] establish that. the diagram--a drawing prepared by his investigator: seven years after the assault—accurately represented. the apartment as it. looked in the summer of 2007 or even that -it was the same apartment where. the assault took-place. These alleged discrepancies did not render .the jury's verdict against the weight of the evidence,
:Finally, [Petitioner] suggests. •that the verdict was against the weight of the evidence because U.J. "had ongoing. criminal justice. issues which may have brought about false tesOhn n}r;" Id. At Atial,-. defense counsel asked U.T.:
DEFENSE COUNSEL: And at the time [of the. investigation into the assault]
19 -you had an open case: over in juvenile court, right?
Yep.
DEFENSE COUNSEL: And did they offer to help you .out :with'that at all?
I.J.J.:. Yeah.
THE: COURT; Who is they:.. ?
DEFENSE COUNSEL: Sorry, did any of the prosecution. or police: officers offer.to help, you out with .your open criminal matter?
`I.J.J. Nope.. It wasn't criminal.
14N. 111412015, at.48.
111. specifically testified that she -did not., receive any favorable treatment ;let alone that she received favorable-tredtrr'ient based on her cooperation With the instant. investigation. The - weight to assign tQ I,T.J.'s testimony; including consideration.of an open matter that she had. in. juvenile court,. was entirely within the fact- finder's purview. Commonwealth v.. Hlatky D 626 A.2d 575; 580 (Pa. Super. 1993). Because the verdict did not shock one's sense of justice ; the. court. did not abuse its discretion when it denied [Petitioner's] weight of the evidence claim.
Trial Court Opinion, 512312017, at •-A
Petitioner has failed to establish why the Superior Court would have determined that this
Court abused its discretion in denying the weight of the .evidence claim, had the.claim been.
. addressed*inhis appellate brief. Therefore, Petitioner has not proven that appellate counsel was
ineffective for failing to pursue the claim on: appeal..
On sufficiency review;all evidence is viewed in the. light most favorable to. the verdict
winner to determine whether "there is sufficient evidence to enable the fact-finder to find every
24 element of the crime.beyond'a reasonable doubt." Commonwealth v.-Greenlee, 212 A.3d 1038,
1042 (Pa., Super: 2019) (citation ainitted), The Cot=onwealth itiay meet its burden "by means
of wholly circumstantial evidence." Id Finally, the reviewing court. "may not weigh the
evidence and substitute [its] judgil ent for the fact-finder." Jd.
In its opinion,.this Court addressed Petitioner's suffficiencyof the evidence claim as.
follows:
Although his.sec6fid claim of error is fashioned-as asufficiency claim, in substance ;it is areiteration of his weight of the evidence claim. [Petitioner] argues the evidence was - insufficient because "[I J.Vsj owfi testimony about [Petitioner's] genitals was directly [contradicted] by photographs" and her testimony "was incredible and lacked details that had the ring of truth, especially when. weighed against the defense investigator's' evidence." : Statement of Erroxs, 12. See Commonwealth a .Kinney, 157 A.3d 968, 972 (Pa. Super: 2017) ("Appellant's claims. are directed entirely to the credibility of the victim's testimony... and ; as such ;'challenge the r weight; not the. sufficiency, of *the* evidence: "). [Petitioner's] sufficiency claim is therefore waived.
.Trial Court.0pinion, 51231201..7, at 4.
Petitioner has not explained. how his challenge to the.sufficiency of the evidence would*
-have been successful, when* in fact It was. aweight of the evidence argument. See
Commonwealth v. Small, 741 A.2d 666, 572 .(Pa. 1999).(holding that an "appellant's challenge to
the sufficiency of the evidence must fail[;]" where an appellant phrases an issue as achallenge to
the sufficiency.of the evidence ;but the argument that appellant provides goes to the weight of
the evidence); see also Commonwealth v. Gibbs, 981 A.2d 274,281-82 (Pa. Super. 2009)
(finding. that asufficiency claim raising weight of the evidence arguments would be dismissed).
Accordingly, Petitioner's claims challengingthe effectivoess of appellate counsel are.withouf
merit.
2.1 Legality of Sentence
In his final:two allegations of error, Petitioner challenges the legality of his*sentence.
First; Petitioner claims that he was improperly sentenced as a.third- strike .offender because lie
was never convicted as asecond.strike offender. Tetitioner's :claim has been.previously litigated.
"A -claim is previously litigated under the.PCRA if the .highest appellate court in.which
the petitioner could have had review as amatter. of right has ruled on the merits of the issue,"
Con monwealth v. Edmiston,.851 A.2d 883,.887 (Pa. 2004) (citing 42 Pa.C.S. §9544(a)(2)).
On direct appeal,.Petitioner challenged the ;legality of his sentence., claiming that he
should not have been sentenced pursuant to the.mandatory minimum. of 25 years' incarceration
because he did not commit two qualifying crimes of violence; The Superior Court affirmed
Petitioner's judgment of sentence, finding that the mandatory minimum sentence imposed.
pursuant to the "third stnke"'prov.ision in '42 Pa.C.S. §9714 was proper:
In his second claim challenging the. legality of his sentence,. Petitioner argues his lifetime
registt-ation and reporting requirements'pursuant to: the Sexual Offender Registration and
Notification Act. (SORNA) are illegal because*they exceed the statutory maximums for his
offenses. Because Subchapter I.of SORNA. does not constitute criminal punishment, Petitioner's
claim fails.. See Corrirraonwecilth v. Lacoinbe, 234 A. 3d 602 (Pa.. 2020).
III.. CONCLUSION
For-the foregoing reasons, this.CourVs order dismissing Petitioner's petition for post-
conviction relief under the Post Conviction Relief Act should be aff imed.
BY THE COURT:
22 IN THE COURT OF COMMONPLEAS FIRSTJUDICIAL DISTRICT OF. PEI TRIAL DIVISION —CRIMINALSECTION
COMMONWEALTH'OF CP-51-CR=0003440 -2011 PENNSYLVANIA
We
NATHANIEL J OHNSON
PROOF OF SERVICE.
Ihereby certify that Iam. this 9`h clay of February,. 202.1, serving the fioregoing Opinion on the persons indicated Below:
Lawrence J. O'Connor; Jr., Esquire 2301 Cherry Street, Apt. 6A Philadelphia,* PA 19103
Lawrence J,.Goode, Assistant' District Attorney Supervisor, Appeals Unit District Attorney's Office Three South Penn Square Philadelphia, PA 19107
r-
Anna Dillon Secretary to-the Honorable Dolnna.M. Woelpper