Commonwealth v. Johnson

51 A.3d 237, 2012 Pa. Super. 168, 2012 WL 3326626, 2012 Pa. Super. LEXIS 2057
CourtSuperior Court of Pennsylvania
DecidedAugust 15, 2012
StatusPublished
Cited by48 cases

This text of 51 A.3d 237 (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, 51 A.3d 237, 2012 Pa. Super. 168, 2012 WL 3326626, 2012 Pa. Super. LEXIS 2057 (Pa. Ct. App. 2012).

Opinions

OPINION BY

MUNDY, J.:

Appellant, Kevin Johnson, appeals from the July 15, 2009 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the relevant facts of this case as follows.

[On October 8, 1986, the victim], Lyndon “Cowboy” Morris, was selling cocaine from a second-floor bedroom that he rented in a home in southwest Philadelphia. He was assisted by one James Smith who would answer the door at the residence, collect money from the prospective purchasers, give the money to [Appellant] who was positioned in the second-floor bedroom, and then deliver the cocaine to the buyers who were waiting on the first floor.
The owner of the residence, Opal Nickson, arrived home that night and joined Angelo Smith, Elijah Bennett, and James Smith in another second-floor bedroom where they were all smoking marijuana and cocaine. In response to a [239]*239knock on the door, James Smith went downstairs and encountered [Appellant] who was armed with a revolver and his accomplice who was carrying a sawed-off shotgun. [Appellant] demanded to see [Morris], and when the three of them reached the second floor, [Appellant] ordered Nickson, Angelo Smith, and Bennett to lie on the floor. Both Nickson and Bennett (along with the Smiths) identified [Appellant] at trial, and testified that they recognized him “from the neighborhood[.]”[ ]
With the accomplice standing by, [Appellant] banged on [Morris’] door. When he unlatched the door and saw the shotgun, he attempted to slam the door shut. [Morris] was unsuccessful in that effort, and the accomplice fired through the open door and struck [Morris] in the lower abdomen. [Appellant] then rushed into the bedroom, fired his gun a number of times, and shot [Morris] in the chest while he was lying on the ground. After scooping up [Morris’] cash and drugs, [Appellant] and his accomplice ran out of the house and fled.
[A seven-day jury trial began on January 27, 1988. During the trial Stephen Gallagher, Esquire, (Attorney Gallagher), Appellant’s] trial counsel[,] called a number of alibi witnesses, Douglas Yancy, James Lawrence, and Wanda Johnson, in his effort to establish that [Appellant] was selling clothes from the back of a car at various locations in West Philadelphia. His mother and a family member gave testimony that contradicted the Commonwealth[’s] witnesses who had described what he was wearing and the vehicle in which he was riding. [Appellant] also testified at trial on his own behalf. He denied being involved in the shooting or robbery of [Morris], and recounted his actions that evening as he traveled around the neighborhood with a friend while attempting to sell clothes.

PCRA Court Opinion, 7/7/10, at 5-6.

On February 4, 1988, the jury convicted Appellant of first-degree murder. The following day, the trial judge concluded that the Commonwealth had failed to establish the aggravating circumstance of endangerment of another person, and held that it would be illegal for the jury to consider the death penalty. On July 1,1988, Appellant was sentenced to life imprisonment.

Attorney Gallagher filed a timely notice of appeal. The trial court ordered Attorney Gallagher to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Attorney Gallagher failed to file a Rule 1925(b) statement and brief with this Court. Due to these failures, this Court dismissed the appeal. On March 11, 1991, Appellant filed a petition under the PCRA requesting restoration of his direct appeal rights nunc pro tunc. The Commonwealth did not object. On March 25, 1991, the trial court granted Appellant nunc pro tunc relief, and appointed Jaime Smarro, Esquire (Attorney Smarro) to represent him on direct appeal. On March 4, 1992, this Court affirmed the judgment of sentence. Commonwealth v. Johnson, 610 A.2d 65 (Pa.Super.1992) (unpublished memorandum). Our Supreme Court denied Appellant’s petition for allo-catur on September 30, 1992.

Thereafter, Appellant filed a timely pro se PCRA petition on December 23, 1996.1 [240]*240Counsel was appointed to represent Appellant, but failed to file an amended PCRA petition. The trial court subsequently appointed another attorney, who filed an amended petition on June 12, 2002 averring various claims of ineffective assistance of counsel. Appellant’s PCRA petition was dismissed without a hearing on January 15, 2003. On January 31, 2005, this Court reversed the PCRA court’s order and remanded with instructions to conduct an evidentiary hearing on the issue of whether Attorney Gallagher was ineffective for failing to consult with Appellant prior to trial. Commonwealth v. Johnson, 873 A.2d 768 (Pa.Super.2005) (unpublished memorandum).

On remand, the PCRA court conducted two hearings on March 6, 2006 and April 17, 2006.2 The matter was transferred to the Honorable Peter Rogers because the original PCRA judge was no longer sitting on the trial bench.3 On June 17, 2009, pursuant to Pennsylvania Rule of Criminal Procedure 907, the PCRA court advised Appellant that his petition was going to be denied because the PCRA court found that the issues he raised lacked merit. The PCRA court formally entered an order denying relief on July 15, 2009.

Appellant filed a timely notice of appeal on July 23, 2009.4 On June 27, 2011, a divided panel of this Court reversed the PCRA court’s order, vacated the judgment of sentence, and remanded the matter for a new trial. Commonwealth v. Johnson, 2187 EDA 2009 (Pa.Super.2011) (unpublished memorandum). The panel majority found that Attorney Gallagher had rendered ineffective assistance of counsel under Commonwealth v. Brooks, 576 Pa. 332, 839 A.2d 245 (Pa.2003). The dissent argued Brooks did not control the outcome of the case, Attorney Gallagher provided Appellant with effective representation, and Appellant could not show that he was prejudiced under Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (Pa.1987). On July 11, 2011, the Commonwealth filed a petition for reargument en banc. On August 29, 2011, this Court granted the Commonwealth’s motion for reargument and withdrew the June 27, 2011 panel memorandum.

In his substituted brief on reargument, Appellant raises the following issues for our review.

1. Should reargument en banc be dismissed as improvidently granted?
[241]*2412. Due to court error, prosecutorial misconduct and ineffective assistance of trial and appellate counsel, was Appellant denied a fair trial?
A. Is Appellant entitled to relief under the authority of Commonwealth v. Brooks [576 Pa. 332], 839 A.2d 245 (Pa.2003) and Strickland v. Washington, 466 U.S. 668 [104 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
51 A.3d 237, 2012 Pa. Super. 168, 2012 WL 3326626, 2012 Pa. Super. LEXIS 2057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-johnson-pasuperct-2012.