Com. v. Johnson, M. ( 2015 )

J. S03001/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL LEVANT JOHNSON, : No. 824 EDA 2013
:
Appellant :
Appeal from the PCRA Order, February 20, 2013,
in the Court of Common Pleas of Chester County
Criminal Division at Nos. CP-15-CR-0003533-2006,
CP-15-CR-0003572-2006
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 08, 2015
Appellant brings this appeal challenging the order denying his second
petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A.§§ 9541-9546. Finding no error, we affirm.
On January 11, 2008, appellant pleaded guilty to third degree murder
and flight to avoid apprehension in connection with an August 12, 2006
stabbing death in Coatesville. Following the plea, the court imposed the
negotiated sentence of 23 to 46 years’ imprisonment, plus restitution for the
victim’s medical and burial expenses. On June 25, 2009, this court affirmed
the judgment of sentence, and on August 31, 2010, our supreme court
J. S03001/15
denied appeal.1 Commonwealth v. Johnson, 981 A.2d 314 (Pa.Super.
2009) (unpublished memorandum), appeal denied, 4 A.3d 157 (Pa. 2010).
On August 5, 2011, appellant filed the instant PCRA petition pro se.
Counsel was appointed, and on November 16, 2012, an amended petition
was filed which adopted the issues stated in the pro se petition as well as
raising new issues. A hearing was held on January 22, 2013, and as noted,
relief was denied by order entered February 20, 2013. PCRA counsel was
permitted to withdraw on March 4, 2013. New counsel was appointed, but
while on appeal, appellant filed a petition to proceed pro se. Consequently,
on August 30, 2012, this court remanded the case to the PCRA court to
conduct a Grazier colloquy.2 The PCRA court conducted the hearing and
appellant was permitted to proceed pro se.
Appellant raises the following issues on appeal:
I. Did the Trial Court Judge abuse his discretion
and erred [sic] as a matter of law by
participation in the guilty plea which amounted
to improper interference with plea negotiations
which challenges the validity of the guilty plea?
II. Did the Trial Court abuse it’s [sic] discretion
when it ordered DNA evidence taken prior to
being convicted?
III. Whether defense counsel was ineffective for
sitting by silent at the motion to withdraw
guilty plea?
1
Appellant’s right to petition the supreme court for allowance of appeal was
reinstated nunc pro tunc pursuant to his first PCRA petition.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-2-
J. S03001/15
IV. Whether defense counsel was ineffective for
failing to object to the denial of Petitioner’s
verbal continuance or in the alternative
request a continuance himself?
V. Whether defense counsel was ineffective for
failing to object to the verbal guilty plea
colloquy where the defects appear on the
record rendering the plea uncounseled as to
the key element of MALICE?
VI. Whether defense counsel was ineffective for
failing to object to the defective written guilty
plea colloquy form where no definition of
MALICE appears nor any mention of MALICE
which distinguishes Murder from
Manslaughter[?]
VII. Did the Trial Court fail to give the mandatory
required six questions afforded to Petitioner
pursuant to Pa. R. Crim. P. 590 (A)(1)-(C)(1-7)
which is a requirement?
VIII. Whether defense counsel was ineffective for
failing to object to the Trial Court’s failure in
establishing voluntariness without questioning
Petitioner with the mandatory questioning
pursuant to Pa. R. Crim. P. 590 (A)(1)-(C)(1-7)
which is a requirement?
IX. Whether appeal counsel was ineffective for
failing to preserve and raise in Petitioner’s
1925 (b) statement that the trial court abused
it’s [sic] discretion and erred as a matter of
law by not reproducing and including the
record of the in court verbal colloquy to the
Superior court?
X. Whether the Trial Court violated Petitioner’s
rights when it amended the charges at the
guilty plea hearing with a[n] eleventh hour
amendment or a trial by ambush?
-3-
J. S03001/15
XI. Whether defense counsel was ineffective for
failing to object to the eleventh hour
amendment without adequate notice of the
charges?
XII. Was defense counsel ineffective for failing to
have the preliminary hearing transcripts
included in the record for impeachment and to
prepare a [sic] adequate defense and/or a
meaningful investigation of the evidence used
against Petitioner prior to coercing petitioner
into a[n] uncounseled guilty plea?
XIII. Was defense counsel ineffective for failing to
petition for dismissal for WANT OF
JURISDICTION for the failure to establish
Prima Facie against petitioner, no evidence was
entered of record of either case against
petitioner from his preliminary hearing?
XIV. Whether defense counsel was ineffective for
failing to file the correct pre-trial motions, trial
counsel should have filed for a FRANKS
HEARING, challenging the fact no Prima Facie
or probable cause was established?
XV. Was PCRA counsel ineffective for failing to
raise and preserve direct appeal counsel’s
ineffectiveness for failing to raise the defective
guilty plea colloquy the written and verbal
colloquy where no definition of MALICE exists
on direct appeal and for the first time on PCRA,
and for failing to raise Trial counsel’s
ineffectiveness for not objecting to the
defective written and verbal colloquy where no
mention of MALICE exists. Direct appeal
counsel also failed to raise and preserve the
abuse of discretion on trial court for failing to
include the record of the verbal colloquy to the
Superior Court for an adequate review? PCRA
counsel also failed to raise and preserve this
claim on the amended PCRA.
-4-
J. S03001/15
XVI. Was PCRA counsel Laurence Harmelin
ineffective for failing to raise and preserve
issues in Petitioner’s pro-se PCRA petition,
counsel gave no reason why he failed to raise
the remaining issues nor did he give a Finley or
Turner or Anders letter concerning the
remaining claims that were left out?
XVII. Did the Trial Court abuse it’s [sic] discretion
and commit an error of law by denying
Petitioner’s PCRA? There was no mention of
MALICE given to Petitioner at the verbal
colloquy, nor was there any definition or
mention of MALICE on the written colloquy
form this lack of definition challenges the
validity of the guilty plea.
XVIII.Was defense counsel ineffective for adding a
restitution amount in Petitioner’s guilty plea?
XIX. Was defense counsel ineffective for failing to
raise and preserve evidence had against
petitioner in the bill of particulars or his failure
to do any investigation before coercing
petitioner into a[n] unknowing and
unintelligent plea, so petitioner could prepare
an adequate defence [sic] to the charges?
XX. Whether the trial court had jurisdiction over
petitioner’s case, Petitioner is charged on a
[sic] invalid information it states no charge it
states no valid statute governed by the general
assembly[?]
XXI. Was the trial court abusing it’s [sic] discretion
when it sentenced petitioner in accordance
with the guilty plea where no saving clause
exists in the present form for any punishment
because no Constitutional authorization is in
place because of the unlawful radification [sic]
of the 1968 Constitution?
XXII. Whether the trial court, the DA, all prior
counsel’s [sic] were ineffective for not
-5-
J. S03001/15
correcting the record with the proper
information that was offered at the guilty plea
colloquy hearing?
Appellant’s brief at 1-3.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
will not be disturbed unless there is no support for the findings in the
certified record. Id.Moreover, as some of appellant’s issues on appeal are stated in terms
of ineffective assistance of counsel, we also note that appellant is required to
make the following showing in order to succeed with such a claim: (1) that
the underlying claim is of arguable merit; (2) that counsel had no reasonable
strategic basis for his or her action or inaction; and (3) that, but for the
errors and omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any
prong of this test will cause the entire claim to fail. Commonwealth v.
Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed
to be effective, and appellant has the burden of proving otherwise.
Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003). We will
address appellant’s issues seriatim.
-6-
J. S03001/15
In Issue I, appellant cites trial court error in participating in the guilty
plea. This issue is waived as it could have been raised on direct appeal but
was not. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(b).
In Issue II, appellant cites trial court error in ordering DNA evidence to
be taken prior to trial. This issue is waived as it could have been raised on
direct appeal but was not. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(b).
In Issue III, appellant asserts that trial counsel was ineffective in
sitting silent at the motion to withdraw appellant’s guilty plea. We disagree.
The motion to withdraw his guilty plea was a pro se motion. At the hearing
on appellant’s motion, it was appellant’s choice to argue the motion himself
and essentially have counsel act as stand-by counsel. (Notes of testimony,
1/24/08 at 2-5.) Nonetheless, appellant did confer with counsel at the
hearing and had the benefit of his advice. Appellant cannot be heard to
complain now about his own choice to proceed pro se at the hearing.
In Issue IV, appellant claims that counsel was ineffective in failing to
object to the denial of a continuance at a hearing on January 11, 2008. At
the beginning of the hearing, appellant made a pro se motion for a
continuance so that he could find a new lawyer to represent him because he
was unhappy with present counsels’ representation. The trial court denied
that aspect of appellant’s motion seeking to discharge his present attorneys,
but specifically allowed that if appellant found a new lawyer to represent
-7-
J. S03001/15
him, the court would reconsider the motion for a continuance. 3 (Notes of
testimony, 1/11/08 at 4-5.) We find no ineffectiveness because the trial
court effectively held its ruling on the motion for a continuance in abeyance
pending appellant’s retaining new counsel.
In Issues V, VI, XV, and XVII, appellant essentially argues that
defense counsel was ineffective in failing to insure that appellant understood
the meaning of malice. At the PCRA hearing, appellant’s defense counsel
testified that appellant was fully aware of the element of malice and that it
was covered many times. (Notes of testimony, 1/22/13 at 39-40.) Counsel
also testified that he defined malice to appellant four, five, or six times. (Id.
at 48.) The trial court made a specific on-the-record determination that it
found defense counsel to be credible and appellant to be incredible. (Order,
2/20/13 (dated 2/19/13) at 3 n.1.) We are bound by the credibility
determinations of the court where they are supported by the record.
Commonwealth v. Stewart, 84 A.3d 701, 711 (Pa.Super. 2013), appeal
denied, 93 A.3d 463 (Pa. 2014). Thus, we find that counsel fully informed
appellant as to the nature of malice and was not ineffective.
In Issue VII, appellant contends that the trial court conducted an
inadequate guilty plea colloquy. This issue was raised on direct appeal;
3
We note that appellant still had not obtained new counsel 11 days later
when he pleaded guilty.
-8-
J. S03001/15
consequently, it was previously litigated and is ineligible for review under the
PCRA. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(a)(2).
In Issue VIII, appellant complains that counsel was ineffective in
failing to object to the inadequate guilty plea colloquy. As the court on
direct appeal found the colloquy to be proper, there is no merit to the issue
underlying this claim of ineffectiveness.
In Issue IX, appellant claims that counsel failed to preserve the
defective plea colloquy issue for direct appeal. This is plainly incorrect as
the plea colloquy issue was addressed on direct appeal.
In Issue X, appellant asserts that the trial court erred in allowing an
eleventh hour amendment to the criminal charges. This issue is waived as it
could have been raised on direct appeal but was not. 42 Pa.C.S.A.
§§ 9543(a)(3); 9544(b).
In Issue XI, appellant claims trial counsel was ineffective in failing to
object to the eleventh hour amendment to the criminal charges and that said
amendment induced appellant to plead guilty. There is no merit here. The
criminal information was amended after appellant agreed to plead guilty and
could not have influenced his decision to plead guilty. In point of fact, the
criminal information was amended to reflect the plea. The information
originally charged appellant with second degree murder. It was amended to
charge third degree murder in order to align with appellant’s plea. (Notes of
testimony, 1/11/08 at 22-23.) Moreover, because the criminal information
-9-
J. S03001/15
was amended to reduce the criminal liability of appellant, we find no
prejudice.
In Issue XII, appellant argues that trial counsel was ineffective in
failing to have a transcript of his preliminary hearing prepared so that it
could have been used for impeachment purposes at trial. First, appellant
never indicates what testimony at the preliminary hearing could have been
used for impeachment. Second, appellant’s assertion of ineffectiveness is
purely anticipatory. Because appellant pleaded guilty, there was no reason
for counsel to obtain a transcript for impeachment. Had appellant chosen to
go to trial, counsel may have at that point obtained a transcript. At the
juncture of the guilty plea, counsel cannot yet be considered ineffective on
this basis.
In Issues XIII and XIV, appellant posits that trial counsel was
ineffective for failing to file a petition to dismiss the charges or other
pre-trial motions based on lack of jurisdiction for failure to establish a
prima facie case at the preliminary hearing. At the guilty plea hearing, the
Commonwealth stated what evidence would have been introduced. The
Commonwealth had an eyewitness, Marilyn Wright, who would testify that
she was present when appellant stabbed the victim in his heart. (Notes of
testimony, 1/11/08 at 18.) Also, police recovered appellant’s bloody
clothing at his home, and the DNA of the blood matched the victim. (Id. at
21.) Clearly, the Commonwealth had adduced evidence establishing a
- 10 -
J. S03001/15
prima facie case, and there was no basis for dismissal of charges.
Moreover, as appellant does not claim that counsel’s alleged error induced
his plea, appellant’s guilty plea effectively waived any failure to establish a
prima facie case.
In Issue XVI, appellant contends that PCRA counsel was ineffective in
failing to raise and preserve the issues raised in appellant’s pro se PCRA
petition.4 There is simply no truth to appellant’s accusation. PCRA counsel
specifically adopted all the issues in the pro se petition in the amended
PCRA petition:
15. Petitioner hereby incorporates his pro se
petition by reference and makes same a part
hereof. Said pro se petition is attached hereto
as Exhibit “E”.
Amended PCRA Petition, 11/16/12 at paragraph 15.
In Issue XVIII, appellant argues that trial counsel was ineffective in
adding a restitution term to the plea agreement. During the guilty plea
hearing, trial counsel called the court’s attention to the fact that a restitution
amount was supposed to be included in the plea agreement. (Notes of
testimony, 1/11/08 at 35.) Thereafter, the court accepted the plea
agreement and imposed the negotiated sentence including the restitution
4
Appellant raised the ineffectiveness of PCRA counsel at the PCRA hearing.
(Notes of testimony, 1/22/13 at 24.) Therefore, the Commonwealth’s
reliance on Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), and its
argument that this issue is being raised for the first time on appeal, are
misplaced.
- 11 -
J. S03001/15
term. When asked if appellant understood the sentence, appellant merely
replied, “Yes, your Honor.” (Id. at 36.) Appellant clearly accepted the
restitution term without objection at the plea hearing and cannot now attack
counsel’s effectiveness on this basis.
In Issue XIX, appellant asserts that trial counsel was ineffective in
failing to investigate his case and prepare an adequate defense. Appellant
argues that counsel failed to uncover exculpatory evidence. First, appellant
does not reveal what exculpatory evidence there was that counsel failed to
uncover. Trial counsel is simply not a magician capable of producing
exculpatory evidence where none exists. Unless appellant can demonstrate
that there was exculpatory evidence that counsel unreasonably failed to
discover, he cannot maintain an ineffectiveness claim on this basis.
Second, at the plea colloquy appellant was asked if he was satisfied
with the representation of his attorney and he replied affirmatively. (Id. at
16.) In fact, appellant even thanked counsel for all that had been done for
him. (Id. at 33.) “A person who elects to plead guilty is bound by the
statements he makes in open court while under oath and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Commonwealth v. Turetsky, 925 A.2d 876,
881 (Pa.Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007), quoting
Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa.Super. 2003) (citations
- 12 -
J. S03001/15
omitted). Appellant cannot now be heard to denigrate counsel’s
representation after stating his satisfaction at the plea colloquy.
In Issue XX, appellant complains that the trial court did not have
jurisdiction over his case. This issue is waived as it could have been raised
on direct appeal but was not and, in any event, is frivolous. 42 Pa.C.S.A.
§§ 9543(a)(3); 9544(b).
In Issue XXI, appellant asserts that the trial court abused its discretion
in sentencing him. This issue is waived as it could have been raised on
direct appeal but was not. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(b). Moreover,
the discretionary aspects of sentence are not cognizable under the PCRA.
Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.Super. 2007) (relief
with respect to discretionary aspects of sentence not cognizable in PCRA
proceedings).
In Issue XXII, appellant contends that the trial court, the district
attorney, and all prior counsel were ineffective in failing to correct the record
compiled at the guilty plea hearing to the effect that appellant entered the
victim’s house. To the extent that appellant’s issue implicates the trial court
or the district attorney, we note that the issue is waived as it could have
been raised on direct appeal but was not. 42 Pa.C.S.A. §§ 9543(a)(3);
9544(b). As for all prior counsel, there is no ineffectiveness. When the
district attorney was relating the facts at the guilty plea hearing, she
described the crime scene as follows:
- 13 -
J. S03001/15
After the stabbing the defendant then fled the scene,
running. It’s an outdoor porch area where furniture
is located, but yet it’s outside the home.
Notes of testimony, 1/11/08 at 18.
Thus, the record does not need correcting in the manner suggested by
appellant because the district attorney did not state that appellant entered
the victim’s house; the allegation plainly was that the crime occurred
outside. There is no ineffectiveness of counsel here.
Accordingly, having found no merit in the issues on appeal, we will
affirm the order below.
Finally, we note that appellant has three outstanding motions pending
before this court. On December 24, 2014, appellant filed two separate
motions asking this court to provide appellant with, respectively, a copy of
his appellate brief and a complete docket entry list. These motions will be
denied. Appellant should seek these items directly through the prothonotary
of this court. On April 16, 2015, appellant filed a motion asking this court to
order the lower court to provide him with a certificate of transmittal of the
record to ensure appellant that this court received the notes of testimony
from appellant’s guilty plea and sentencing. We note that these items were
included in the record and that appellant will receive notice of that fact by
receipt of this memorandum; consequently, we will deny appellant’s motion
as moot.
- 14 -
J. S03001/15
Order affirmed. Motion for this court to provide appellant with a copy
of his appellate brief is denied. Motion for this court to provide appellant
with a complete docket entry list is denied. Motion to order certificate of
transmittal of record is denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
- 15 -