Commonwealth v. Johnson

771 A.2d 751, 565 Pa. 51, 2001 Pa. LEXIS 1073
CourtSupreme Court of Pennsylvania
DecidedMay 21, 2001
DocketCC 9604874
StatusPublished
Cited by34 cases

This text of 771 A.2d 751 (Commonwealth v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Johnson, 771 A.2d 751, 565 Pa. 51, 2001 Pa. LEXIS 1073 (Pa. 2001).

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

NEWMAN, Justice.

Antonio Lamont Johnson (Appellant) appeals an Order of the Superior Court that affirmed the Judgment of Sentence of the Court of Common Pleas of Allegheny County (trial court). After a bench trial, the trial court convicted Appellant of burglary,1 theft by unlawful taking,2 and receiving stolen prop[55]*55erty.3 We granted allowance of appeal to clarify our holding in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998) and to determine whether the Superior Court erred in rejecting Appellant’s claim that his Appellate Counsel was ineffective for failing to preserve an issue for appeal in the Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P.1925(b). Although we conclude that the Superior Court erred in summarily dismissing Appellant’s ineffective assistance of counsel claim without review, we affirm, on different grounds, the judgment of the Superior Court.

FACTUAL AND PROCEDURAL HISTORY

On July 29, 1994, Appellant broke into a residence and removed a television and other items totaling $1,711.00 in value. A warrant for Appellant’s arrest and a criminal complaint against him were issued on October 20, 1994. The investigating detectives contacted Appellant’s parole officer and advised him of the new charges filed against Appellant. It was not until February of 1996, however, that Appellant’s parole officer contacted one of the investigating detectives and advised him that Appellant had been located and was incarcerated on a parole violation. A second criminal complaint was then issued on February 27, 1996.

A hearing was held on October 22, 1996, and at that time counsel from the Office of the Public Defender of Allegheny County represented Appellant. Appellant argued that, pursuant to Rule 1100 of the Pennsylvania Rules of Criminal Procedure, the charges against him should be dismissed. The trial court concluded that the Rule 1100 period was triggered by the second criminal complaint, and that Appellant had not demonstrated any prejudice from the delay in its filing. The trial court then conducted a jury-waiver colloquy and Appellant proceeded to a non-jury trial.

Following a bench trial, Appellant was found guilty of all counts and was sentenced to serve four to fifteen years in [56]*56prison on the burglary conviction. Appellant received no additional punishment for the remaining crimes. He filed a timely appeal to the Superior Court, and then the trial court directed Appellant to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P.1925(b), on or before February 5,1997.

On February 5,1997, Appellant’s new counsel, also from the Office of the Public Defender of Allegheny County, sought an extension of time for filing a Concise Statement of Matters Complained of on Appeal based upon the absence of a transcript from the non-jury trial. At some point thereafter, the trial court entered an Order directing that the transcript be provided and ordered the Statement of Matters Complained of on Appeal to be filed by December 22, 1998. Appellant’s third counsel from the Office of the Public Defender of Allegheny County (Appellate Counsel) filed a Concise Statement of Matters Complained of on Appeal on December 22, 1998, raising five issues.4 The trial court rejected all of Appellant’s claims as without merit.

In his brief to the Superior Court, prepared by Appellate Counsel, Appellant argued a violation of Rule 1100 arising out of the delay in bringing Appellant to trial, and raised the additional question as to whether he validly waived his right to a jury trial, an issue that he failed to include in the Statement of Matters Complained of on Appeal.5 Further, Appellate [57]*57Counsel, asserting her own ineffectiveness, raised her own ineffective assistance of counsel for failure to preserve the jury-waiver colloquy issue for appeal by neglecting to include it in the 1925(b) statement.

The Superior Court, in a Memorandum Opinion, concluded that Appellant’s Rule 1100 argument had no merit. Further, relying on this Court’s holding in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), the Superior Court found Appellant’s complaint, that his trial counsel failed to ensure that his waiver of his constitutional right to a jury trial was knowing and intelligent, was waived because he did not include the issue in his 1925(b) statement. Finally, relying on Lord, supra, the Superior Court refused to review Appellate Counsel’s assertion of her own ineffective assistance of counsel for failing to include the issue as to the adequacy of the jury-waiver colloquy in the Statement of Matters Complained of on Appeal.

DISCUSSION

The Superior Court began its analysis by acknowledging that the failure to present an issue in a filed Statement of Matters Complained of on Appeal serves as a waiver of the issue pursuant to Lord, supra. As a result, the court found that Appellant waived any issue concerning his waiver of jury trial and trial counsel’s alleged ineffectiveness in failing to object to the supposed inadequacy of the colloquy. Additionally, the Superior Court deemed waived the issue of Appellate Counsel’s alleged ineffectiveness, which Appellate Counsel [58]*58raised in her brief to the Superior Court. In support of this conclusion, the Superior Court found that Lord, supra, would be rendered meaningless if the court were to consider the waived issue based on Appellant’s re-framing it as an ineffectiveness claim. Finally, the Superior Court concluded that Appellant could not establish the “prejudice” prong of the ineffectiveness standard set forth in Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (1994).

Appellant claims that notwithstanding this conclusion, Appellate Counsel’s raising the issue of her own ineffectiveness for failing to include the inadequate jury waiver colloquy issue in the Statement of Matters Complained of on Appeal is an issue that should have been reviewed by the Superior Court. As a consequence, in this matter, we are called upon to determine whether Appellate Counsel’s claim of his or her own ineffectiveness for failure to include a claim of ineffective assistance of counsel within a statement of matters complained of on appeal is a claim that is reviewable by the Superior Court irrespective of Lord, supra. We believe that such claims must be reviewed by the Superior Court. To hold otherwise would result in disparate treatment for appellants who are not provided new counsel to handle their appeal and would discourage conscientious appellate counsel who recognize their own ineffectiveness, from biinging such claims to the court’s attention at the first available opportunity.

Pa.R.A.P.1925 provides, in pertinent part:

(a) General Rule.

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Cite This Page — Counsel Stack

Bluebook (online)
771 A.2d 751, 565 Pa. 51, 2001 Pa. LEXIS 1073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-johnson-pa-2001.