Commonwealth v. Johnson

27 A.3d 244, 2011 Pa. Super. 173, 2011 Pa. Super. LEXIS 2231, 2011 WL 3558140
CourtSuperior Court of Pennsylvania
DecidedAugust 15, 2011
Docket606 WDA 2010
StatusPublished
Cited by47 cases

This text of 27 A.3d 244 (Commonwealth v. Johnson) 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
Commonwealth v. Johnson, 27 A.3d 244, 2011 Pa. Super. 173, 2011 Pa. Super. LEXIS 2231, 2011 WL 3558140 (Pa. Ct. App. 2011).

Opinions

OPINION BY

STEVENS, P.J.:

Carl Edward Johnson (“Appellant”) appeals from the order of the Court of Common Pleas of Greene County, denying his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 After careful review, we affirm.

The trial court aptly summarized the factual background of this case as follows:

[Appellant], his wife, and two daughters were neighbors to the five year old victim and her mother and father. On the evening of July 30, 2005, the victim’s mother had made arrangements with [Appellant’s] wife for the child to stay overnight at [Appellant’s] residence and to go to church with [Appellant’s wife] the next morning. In the early morning hours of July 31, 2005, [Appellant] went into the bedroom where the victim was sleeping on the floor between the beds of his two daughters and enticed the victim to go downstairs to the living area of his home. [Appellant] then apparently sat down on the sofa with the victim beside him. He exposed his penis to her and placed his hand on the back of her head, attempting to pull her head down in a way in which his penis would go into [246]*246her mouth. Prior to his penis making contact with the victim’s mouth, she broke away from him and ran back upstairs. [Appellant’s] wife was awakened by the victim’s crying and the victim apparently made some comment that [Appellant] had attempted inappropriate behavior with her but was less than specific in that allegation.
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After the victim went to church with [Appellant’s] wife that morning, [Appellant’s wife] took the child home and informed the child’s mother that something had occurred but had no specifics. The mother contacted the Pennsylvania State Police who investigated but could not obtain sufficient evidence from the victim to file charges against [Appellant,] who denied any contact with the child. Over the next several months, there was a reluctance on the part of the child to tell anyone, including her mother, what had occurred although the parents could tell by her behavior that she was disturbed and obtained counseling for her. Some months after the event, the child told her mother what had happened and the Pennsylvania State Police were immediately contacted. After once again investigating the case, the Pennsylvania State Police filed charges....

Trial Court Opinion (T.C.O.), 7/30/07, at 2-4.

Appellant was arrested and charged with criminal attempt to commit Involuntary Deviate Sexual Intercourse (IDSI) with a child,2 indecent assault,3 and indecent exposure.4 On January 18, 2007, a jury convicted Appellant of the aforementioned offenses. On April 10, 2007, the trial court sentenced Appellant to 60-120 months imprisonment for attempted IDSI, 9-18 months for indecent assault, and 3-6 months for indecent exposure with all sentences set to run concurrently. Appellant filed a post-sentence motion, which the trial court denied on July 30, 2007.

Appellant filed a timely appeal to this Court on August 28, 2007. On direct appeal, Appellant claimed, inter alia, that the trial court abused its discretion in precluding Appellant from offering eight witnesses to testify as to Appellant’s reputation in the community as a chaste person who acted appropriately around children. During trial, Appellant’s counsel had made an offer of proof to show that these witnesses would have testified as to Appellant’s chastity and child-appropriate behavior within his own family. On appeal, this Court found that the trial court did not abuse its discretion in excluding this evidence “since character evidence is limited to testimony about a defendant’s general reputation in the community.” See Commonwealth v. Johnson, No. 1587 WDA 2007, unpublished memorandum at 8, 959 A.2d 966 (Pa.Super. filed July 16, 2008). Accordingly, this Court affirmed Appellant’s judgment of sentence.

On July 10, 2009, Appellant filed the instant, timely PCRA petition. Following a hearing held on October 19, 2009, the PCRA court denied Appellant’s petition on March 17, 2010. Appellant filed a timely appeal and complied with the trial court’s directions to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant raises one issue for our review on collateral appeal:

[247]*247Whether the trial court erred in denying [A]ppellant’s Post Conviction Relief Act Petition as [Ajppellant established trial counsel’s ineffectiveness in failing to properly offer [A]ppellant’s reputation witnesses at trial and the trial court’s conclusion that the reputation witnesses’ knowledge of [Appellant’s reputation would not have been developed from their general knowledge of [A]ppellant within the community is not supported by, and in fact is belied from, the instant record?

Appellant’s Brief, at 4.

In reviewing an appeal from the denial of PCRA relief, “our standard of review is whether the findings of the PCRA court are supported by the record and free of legal error.” Commonwealth v. Martin, 607 Pa. 165, 5 A.3d 177, 182 (2010) (citations omitted). “The PCRA provides relief to individuals who prove they were convicted of crimes they did not commit and those receiving illegal sentences.” Commonwealth v. Fletcher, 604 Pa. 493, 514, 986 A.2d 759, 771-72 (2009) (citing 42 Pa.C.S.A. § 9542). 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 Subsection 9543(a)(2); one of those circumstances is the ineffective assistance of counsel. 42 Pa.C.S.A. § 9543(a)(2)(h).

Appellant’s sole claim on collateral appeal is that he was denied effective assistance of counsel when counsel failed to properly call character witnesses on Appellant’s behalf, by mischaracterizing the testimony the witnesses would give. Because there is a presumption that counsel provided effective representation, the defendant bears the burden of proving ineffectiveness. Commonwealth v. Ligons, 601 Pa. 103, 124, 971 A.2d 1125, 1137 (2009) (citation omitted). To prevail on an ineffective assistance claim, a defendant must establish “(1) [the] underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his [client’s] interests; and (3) but for counsel’s ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different.” Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (2010) (citations omitted). A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim. Id.

A defense counsel’s failure to call a particular witness to testify does not constitute ineffectiveness per se. Commonwealth v. Cox, 603 Pa. 223, 267, 983 A.2d 666, 693 (2009) (citation omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
27 A.3d 244, 2011 Pa. Super. 173, 2011 Pa. Super. LEXIS 2231, 2011 WL 3558140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-johnson-pasuperct-2011.