Com. v. Johnson, J. ( 2019 )

J-S10031-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES JOHNSON :
:
Appellant : No. 582 EDA 2018
Appeal from the PCRA Order February 9, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001693-2011
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED MARCH 22, 2019
Appellant, James Johnson, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
brought under the Post Conviction Relief Act (“PCRA”).1 We affirm.
In its opinion, the PCRA court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them.
Appellant raises the following issues for our review:
WHETHER THE COURT ERRED IN DENYING…APPELLANT’S
PCRA PETITION WITHOUT AN EVIDENTIARY HEARING ON
THE ISSUES RAISED IN THE AMENDED PCRA PETITION
REGARDING TRIAL COUNSEL AND/OR APPELLATE
COUNSEL’S INEFFECTIVENESS[?]
WHETHER THE COURT ERRED IN NOT GRANTING RELIEF ON
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10031-19
THE PCRA PETITION ALLEGING TRIAL COUNSEL AND/OR
APPELLATE COUNSEL WAS INEFFECTIVE FOR:
A. FAILING TO FILE A POST-TRIAL MOTION THAT THE
VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE;
B. FAILING TO FILE A POST-TRIAL MOTION FOR
RECONSIDERATION OF SENTENCE;
C. FAILING TO EFFECTIVELY REPRESENT…APPELLANT
ON APPEAL[?]
(Appellant’s Brief at 8).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d
74 (2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super.
2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no genuine issue
concerning any material fact, the petitioner is not entitled to PCRA relief, and
no purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.
After a thorough review of the record, the briefs of the parties, the
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J-S10031-19
applicable law, and the well-reasoned opinion of the Honorable Paula Patrick,
we conclude Appellant’s issues merit no relief. The PCRA court opinion
comprehensively discusses and properly disposes of the questions presented.
(See PCRA Court Opinion, filed April 13, 2018, at 5-18) (finding: (1)
Appellant’s PCRA claims of ineffective assistance of counsel established no
genuine issues of material fact to warrant hearing; (2) as factfinder, trial court
observed Officer McFillin’s demeanor and determined Officer McFillin’s trial
testimony was credible; any post-sentence motion raising weight of evidence
claim based upon court’s determination of Officer McFillin’s credibility would
have failed; also, trial court acted within its discretion when it imposed
separate but concurrent sentences for each offense; Superior Court decision
on direct appeal did not disturb overall sentencing scheme; with respect to
discretionary aspects of sentence, court considered PSI report and all other
relevant sentencing factors; further, trial court’s decision to allow
Commonwealth to amend bills of information to include possession of firearm
prohibited was proper, where possession of firearm prohibited charge
stemmed from same facts and included same basic elements as other offenses
charged; therefore, Appellant’s PCRA claims of ineffective assistance of
counsel merit no relief on these grounds). The record supports the court’s
decision. Accordingly, we affirm based on the PCRA court opinion.
Order affirmed.
-3-
J-S10031-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/19
-4-
Circulated 03/07/2019 02:42 PM
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COMMONWEALTH OF PENNSYLVANIA PHILADELPHIA COUNTY
COURT OF COMMON PLEAS
vs.
CP -51-CR-0001693-2011. Comm. v. Johnson, J�es CP-51-CR-0001693-2011
Op,n,on
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JAMES JOHNSON 582 EDA 2018
II II IIll llll III IIIll ll/1
8095327311
OPINION
Patrick, J. DATE: April 13, 2018
Defendant/Appellant, James Johnson, filed an appeal from this Court's dismissal of his
Post-Conviction Relief Act ("PCRA") Petition. This Court now submits the following Opinion in
support of its ruling and in accordance with the requirements of Rule l 925(a) of the Pennsylvania
Rules of Appellate Procedure. For the reasons set forth below, this Court's decision should be
affirmed.
PROCEDURAL/FACTUAL HISTORY
On January 3, 2011, at approximately 10:22 p.m., Philadelphia Police Officers Joe McFillin
and William Winckler received a radio call about a black male with a gun inside the Comfort Zone
Bar (the "Bar"), located at 2400 Germantown Avenue, a high drug and high crime area. N.T.
8/11/11 at 5-6, 8, 15-16. According to the flash information, the male was wearing a black vest,
blue sweatshirt, light colored jeans, and a gray hoodie. Id. at 6. The officers, who were dressed
in uniform, were driving in separate police cars. Id. at 9-10, 14, 20-21. They arrived in their
respective vehicles and entered the Bar. Id. at 9-10. Shortly thereafter, a woman passed by Officer
McFillin and said, "the male behind you, he just walked out of the bathroom." Id. at 6. Officer
McFillin turned around and saw the Defendant "walking from the bathroom area to leave the bar."
Id. Officer McFillin believed that the woman was letting him know that the suspect was nearby
and that this was, in fact, the person for whom he was looking. Id. at 7-8. While Officer McFillin
spoke with this woman, Officer Winckler approached the Defendant, who matched the flash
description. Id. at 17. Officer McFillin also walked over to the Defendant after corroborating the
anonymous tip and conducting an independent investigation of the scene. Id. at 7. Officer
Winckler calmly asked the Defendant to come outside with them so they could talk; Officer
Winckler politely led the Defendant outside by the arm. Id. at 17-18, 20. Once outside, Officer
Winckler asked Defendant if he was armed; the Defendant did not respond. Id at 17. For their
safety, Officer Winckler put the Defendant against a wall and performed a quick pat down and
frisk of his person for weapons. Id. Officer Winckler felt a budge which he immediately
recognized as a weapon; he then recovered a black and silver .40 caliber Smith & Wesson
semiautomatic firearm loaded with one round and containing nine (9) additional rounds of live
ammunition from Defendant's right front pants pocket. Id at 21.
Defendant was arrested and charged with Possession of a Firearm Prohibited (18 Pa.C.S.A.
§ 6105), Carrying Firearms Without a License (18 Pa.C.S.A. § 6106) and Carrying Firearms on
Public Property in Philadelphia (18 Pa.C.S.A. § 6108). On August 11, 20 I I, a waiver trial was
held before the Honorable Paula A. Patrick. Defendant was found guilty of the above-referenced
charges. On March 29, 2012, Defendant was sentenced to four (4)to eight (8) years' incarceration.
On April 18, 2012, Defendant filed a timely Notice of Appeal. On August 24, 2012, pursuant to
this Court's directive, Defendant filed his 1925(b) Statement of Errors Complained of on Appeal.
On June 4, 2013, this Court filed its Rule 1925(a) Opinion. On January 17, 2014, the Superior
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Court affirmed this Court's decision in part, and reversed in part; it vacated Defendant's
convictions for Carrying Firearms Without a License (18 Pa.C.S.A. § 6106), and Carrying
Firearms on Public Property in Philadelphia (18 Pa.C.S.A. § 6108). Despite this, Defendant's
overall sentence did not change. On February 12, 2014, Defendant filed a Petition for Allowance
of Appeal from the Order of the Superior Court; it was denied by our Supreme Court on August
28, 2014.
On August 27, 2015, Defendant filed a prose PCRA petition. Defendant filed an amended
pro se PCRA petition on January 7, 2016. Peter A. Levin, Esquire, was subsequently appointed to
represent Defendant and on May 2, 2017, Mr. Levin filed an amended PCRA petition on behalf of
Defendant. On October 30, 2017, the Commonwealth filed a Motion to Dismiss. On November
6, 2017, this Court filed a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. Rule 907, finding
that the issues raised in Defendant's PCRA petition were without merit. On February 9, 2018,
Defendant's PCRA petition was formally dismissed. On February 21, 2018, Defendant filed a
Notice of Appeal to the Superior Court. Pursuant to this Court's directive, Defendant filed a
1925(b) Statement of Errors Complained of on Appeal on March 12, 2018.
ISSUES
Defendant/Appellant raised the following issues in his 1925(b) Statement of Errors
Complained of on Appeal:
I. The court was in error in denying the amended PCRA due to the ineffectiveness of
counsel in failing to properly represent defendant[.] The issues are explained in the
amended PCRA filed by counsel and include the following:
a. Counsel was ineffective for failing to file post-trial motions that the verdict
was against the weight of the evidence.
b. Counsel was ineffective for failing to file post-trial motions for a
reconsideration of sentence.
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c. Appellate counsel was ineffective in representation for failing to appeal the
amending of Bills of Information by the Commonwealth.
2. The court was in error for failing to grant an evidentiary hearing.
STANDARD OF REVIEW
The applicable standard of review for an order denying a petition under the PCRA requires
an inquiry into whether the record supports the PCRA court's determination and whether the
PCRA court correctly stated and applied the law. Commonwealth v. duPont, 860 A.2d 525, 529
"
(Pa. Super. 2004). The PCRA court's findings will not be disturbed unless its findings are
unsupported by the record. Id
DISCUSSION
I. THIS COURT DID NOT ERR IN DENYING DEFENDANT'S PCRA PETITION
On appeal, Defendant contests the effectiveness of trial counsel. According to Defendant,
trial counsel was ineffective for (A) failing to file post-trial motions challenging the weight of the
evidence, (B) failing to file post-trial motions for reconsideration of sentence, and (C) failing to
appeal the Commonwealth's amendment of the bills of information. Defendant's claims should
be dismissed; Defendant has failed to satisfy his burden of establishing that he is entitled to any
relief.
It is well-established that counsel is presumed to have been effective. The Defendant bears
the burden of overcoming this presumption and proving ineffectiveness. Commonwealth v.
Rollins, 738 A.2d 435, 441 (Pa. 1999). To establish a claim of ineffective assistance of counsel
under the PCRA, the Defendant must demonstrate the following:
(1) the underlying claim has arguable merit; (2) counsel's course of conduct was
without any reasonable basis designed to effectuate his client's interest; and (3) he
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was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability
that but for the act or omission in question the outcome of the proceeding would
have been different.
Commonwealth v. Lauro, 819 A.2d 100, 105-06 (Pa. Super. 2003) (citing Commonwealth v.
Abdul-Salaam, 808 A.2d 558, 561 (Pa. 2001)). "Failure to prove any prong of this test will defeat
an ineffectiveness claim." Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).
A. Defendant has failed to satisfy his burden of proving ineffectiveness based on
counsel's failure to file post-trial motions that the verdict was against the weight of
the evidence
On appeal, Defendant claims that trial counsel was ineffective for failing to file post-trial
motions that the verdict was against the weight of the evidence. Defendant's assignment of error
hinges on the testimony of Officer McFillin, which Defendant contends was not credible. "Due to
the lack of credibility of the officer's testimony, which was the only evidence proffered by the
Commonwealth to support the charge, the evidence preponderates sufficiently against
[Defendant's] conviction and suggests that a serious miscarriage of justice may have occurred."
See Amended Petition Under Post-Conviction ReliefAct dated May 2, 2017. Defendant's claim
must fail.
It is well-settled that the credibility of witnesses and the weight to be accorded the evidence
are matters within the province of the trier of fact, who is free to believe all, some, or none of the
evidence. Commonwealth v. Taylor, 471 A.2d 1228, 1229-30 (Pa. Super. 1984). An appellate
court cannot substitute its judgment regarding the credibility of witnesses for that of the finder of
fact. Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003). A verdict will be reversed and
a new trial granted only where the verdict is so contrary to the evidence as to shock one's sense of
justice. Commonwealth v. Passmore, 857 A.2d 697, 708 (Pa. Super. 2004). "A new trial should
not be granted because of a mere conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion." Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa.
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2000). Our appellate courts have emphasized that"[ o ]ne of the least assailable reasons for granting
or denying a new trial is the lower court's conviction that the verdict was or was not against the
weight of the evidence and that a new trial should be granted in the interest of justice." Id. at 753.
Here, Defendant has failed to satisfy the prejudice prong of the test for ineffectiveness. As
previously discussed, a waiver trial was held on August 11, 2011 before this Court. At trial, the
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Commonwealth introduced, inter alia, the live testimony of Police Officer McFillin. Officer
McFillin testified that on January 3, 2011, at approximately 10:22 p.m., he received a radio call
about a black male wearing a black vest, gray hoodie, and light colored jeans, "with a gun inside
the Comfort zone bar located at Germantown and Cumberland." N.T. 8/11/11 at 6. Officer
McFillin entered the Bar and began walking towards the back when a woman passed by him and
said, "the male behind you, he just walked out of the bathroom." Id. Officer McFillin believed
the woman was letting him know that the suspect was nearby and that this was, in fact, the person
for whom he was looking. Id Officer McFillin testified that he and Officer Winckler approached
the Defendant and led him outside. Id. at 7-8. Once outside, Officer Winckler engaged in a
limited, protective search for concealed weapons. Id. at 9. According to Officer McFillin, a
firearm was recovered from Defendant's front right pants pocket. 2
I
It should be noted that, contrary to Defendant's claim, Officer McFillin's testimony was not the only evidence
proffered by the Commonwealth. The Commonwealth also introduced as evidence the property receipt referencing
the black and silver .40 caliber Smith & Wesson semiautomatic firearm that was recovered, a ballistics report for the
firearm, and a certificate of non-licensure for Defendant.
2
Officer Winckler's testimony corroborated that of Officer McFillin. Officer Winckler testified that he received a
radio call for "a black male, wearing a gray hoodie, black vest, jeans and a blue sweatshirt." Id. at 19. Once inside
the Bar, Officer Winckler observed the Defendant who matched the flash description. Officer Winckler approached
the Defendant and he and Officer McFillin led Defendant outside by the arm. Officer Winckler had the Defendant
face the wait and asked Defendant if he had a gun. The Defendant did not respond. Officer Winckler performed "a
quick frisk of him." Id. at 17. In doing so, Officer Winckler felt an object in Defendant's right front pants pocket,
which was in the shape ofa gun. Id. at 21. Officer Winckler removed a black and silver .40 caliber Smith & Wesson
semiautomatic firearm loaded with one round and containing nine (9) additional rounds of live ammunition. Id. at 33.
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This Court, as the fact finder, had an opportunity to view Officer Mcf'illin's demeanor and
evaluate his credibility. In doing so, this Court determined that Officer McFillin's testimony was
credible. This Court expressly stated as much in its June 4, 2013 opinion; it specifically stated the
following:
Officer McFillin credibly testified that someone in the bar had anonymously made
. the call to the police for a man with a gun.
See Trial Court Opinion dated June 4, 2013 at page 5 .
. . . Officer McFillin credibly testified that he believed the woman was letting him
know that the suspect was nearby and that this was, in fact, the person he was
looking for.
Id. at 11.
... Officer McFillin credibly testified that this bar preferred to handle issues and
complaints internally so as to avoid involving the police in its affairs.
Id. at 14.
At trial, this Court found the officers to be credible and that [Defendant] did possess
the gun beyond a reasonable doubt.
Id. at 13. Given this Court's explicit finding regarding Officer McFi11in's credibility, any post-
trial motion alleging that the verdict was against the weight of the evidence on the basis that Officer
Mcf'illin's testimony "was not worthy of belief' would have failed. Since Defendant did not and
could not establish that there existed a reasonable probability that had trial counsel filed a post-
trial motion, the outcome of the proceedings would have been different, this claim should be
dismissed. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011).
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B. Defendant has failed to satisfy his burden of proving ineffectiveness based on
counsel's failure to file a post-trial motion for reconsideration of sentence
On appeal, Defendant claims that trial counsel was ineffective for failing to file a post-trial
motion for reconsideration of sentence because his sentence of four (4) to eight (8) years'
imprisonment was harsh and unreasonable. Defendant's claim lacks arguable merit and should be
dismissed.
It is well-established that "{s]entencing is a matter vested in the sound discretion of the
sentencing judge." Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006) (emphasis
added) (quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).
[A] sentence will not be disturbed on appeal absent a manifest abuse ofdiscretion.
In this context, an abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant 1J1USt establish, by reference to the record, that the sentencing
court ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Id. The sentencing court is afforded such broad discretion because it His in the best position to
determine the proper penalty for a particular offense based upon an evaluation of the individual
circumstances before it." Commonwealth v. Allen, 24 AJd 1058, 1164 (Pa. Super. 2011).
This Court acted within its discretion when it sentenced Defendant in the underlying action.
As previously discussed, this Court found Defendant guilty of Carrying Firearms Without a
License (18 Pa.C.S.A. § 6106), Carrying Firearms on Public Property in Philadelphia (18
Pa.C.S.A. § 6108), and Possession of a Firearm Prohibited (18 Pa.C.S.A. § 6105). On March 29,
2012, this Court sentenced Defendant to two and a half (2 Yi) to five (5) years' incarceration for
Carrying Firearms on Public Property in Philadelphia (18 Pa.C.S.A. § 6108), three and a half (3
Yi) to seven (7) years' incarceration for Carrying Firearms Without a License, (18 Pa.C.S.A. §
6106), and four (4) to eight (8) years' incarceration for Possession of a Firearm Prohibited (18
Pa.C.S.A. § 6105). This Court specified that these sentences were to run concurrent. Defendant
8
subsequently filed an appeal to the Superior Court and on January 17, 2014, the Court vacated
Defendant's convictions for Carrying Firearms on Public Property in Philadelphia (18 Pa.C.S.A.
§ 6108) and Carrying Firearms Without a License (18 Pa.C.S.A. § 6106). Despite this, this Court's
overall sentencing scheme did not change; the Superior Court explained as follows:
We note that Appellant was sentenced to a term of three and one-half to seven
years' incarceration for carrying a firearm without a license, and two and one-half
to five years' incarceration for carrying a firearm on public streets or public
property in Philadelphia. These sentences were entirely concurrent to Appellant's
sentence of four to eight years' incarceration for the second-degree felony of person
not to possess firearms. Under these circumstances, we conclude that the trial
court's overall sentencing scheme has not been upset. Commonwealth v. Thur, 906
A.2d 552, 569 (Pa. Super. 2006).
See Superior Court Opinion dated January 17, 2014.
Defendant now claims that this Court's sentence of four (4) to eight (8) years for Possession
of a Firearm Prohibited (18 Pa.C.S.A. § 6105) was unreasonable and harsh. Defendant contends,
in part, that this Court "was considering the convictions on the two counts that the Superior Court
reversed" when it sentenced Defendant to four (4) to eight (8) years' imprisonment. See Amended
Petition Under Post-Conviction Relief Act dated May 2, 2017 at pages 12-13. According to
Defendant, had he "not been convicted of those two counts, a reasonable court would have
sentenced [Defendant] to a term of less than 4-8 years." Id. Defendant is mistaken. As explained
above, this Court imposed separate sentences for each offense. Although two of the convictions
were vacated, Defendant's conviction for Possession of a Firearm Prohibited (18 Pa.C.S.A. §
6105), which carried the longest sentence of four (4) to eight (8) years, was not overturned. As
such, the overall sentencing scheme had not been upset. Since there is no support for Defendant's
contention that this Court considered the overturned convictions when it sentenced Defendant for
Possession of a Firearm Prohibited (18 Pa.C.S.A. § 6105), his claim must fail.
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Defendant also contends that this Court failed to give consideration to the following
mitigating factors: (a) that Defendant remained arrest free for a substantial period of time; (b) that
Defendant waived his right to a jury trial; (c) that Defendant has a good relationship with his son
and provided for him and the boy's mother; and (d) that Defendant got his GED. According to
Defendant, trial counsel was ineffective for failing to raise this issue in a post-trial motion for
reconsideration of sentence. Defendant's claim fails for lack of arguable merit. As demonstrated
below, this Court considered a variety of factors in fashioning its sentence, including the factors
he listed.
Following the August 11, 2011 waiver trial, this Court ordered a pre-sentence report. As
our appellate courts have noted, where pre-sentence reports exist, there is a presumption that the
sentencing judge was aware of information relating to the Defendant's character, and considered
that information along with the mitigating statutory factors. Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988). See also Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
("where the trial court is informed by a pre-sentence report, it is presumed that the court is aware
of all appropriate sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed").
In addition to reviewing and considering the information in the pre-sentence report, this
Court listened to the arguments of counsel. The following arguments were advanced by defense
counsel at the March 29, 2012 sentencing hearing:
MS. REIFSNYDER: There was a motion in front of Your Honor back in August.
He was convicted of the VUF A charges. He is a 10-3 I believe. I'm going to tell
you a little bit about him. The three points come mostly from an incident in 2000.
So he was basically conviction free for about a decade and then ran into trouble
again and had this matter but he had been doing good things in that time period. He
got his GED. He lived in Philly. He has his wife here in the courtroom ...
IO
I would point out that he had about seven and a half months in. He had been in
from, I believe, January 4th until August 23rd. And then since he's been picked up
by Your Honor's bench warrant, he's been in another -- not quite a month.
Obviously with his guidelines he would still have some time to do. We are asking
for some mitigation. He did waive his preliminary hearing and given the fact that
he's only 29 -- and 28 when the incident happened -- his points are some what old,
in excess of a decade. I do believe this person is a different individual than the 17-
year old kid who got three points and, based on that, I'm asking for some slight
mitigation.
N.T. 3/29/12 at 2, 6-7. This Court also considered the arguments advanced by the Commonwealth:
MS. MITRICK: With respect to the sentencing on this VUF A case, Your Honor
is aware of the prior record. I reviewed the PSI. I agree that the prior record is a
three. Although he did remain arrest free for a period of time, I'd note or bring to
Your Honor's attention that he was on state parole for ten years after the
convictions. Your Honor, he was again arrested in 20 IO for a PWID. That was
withdrawn and again in 2011 for a PWID that was withdrawn. I want to give Your
Honor a little more information -- which I did show to counsel this morning. Your
Honor, December 22nd of 2010, which is about ten days before he picked up the
gun case for which Your Honor found him guilty, there was a shooting on Arizona
Street in Northwest Philadelphia in the 39th District not far from where he was
arrested with this gun.
So the allegations are that he shot a young man in a stomach because of a dispute
over a female. A 40-caliber FCC was recovered in that shooting. Multiple witnesses
identified him as] the shooter. Unfortunately that case was eventually withdrawn
prior to us getting ballistics because we simply could not get those witnesses to
court. We since have received the ballistics and I thought it was important for Your
Honor to know that the gun that he had in this case ten days later matches the FCC
for that shooting for which multiple witnesses identified him. He's being
reinvestigated now that we have that information. After Your Honor found him
guilty and gave him the benefit of not revoking his bail, trusting him to come back
for his sentencing -- and he basically thumbed his nose at the Court, disrespecting
the Court's, I guess, courtesy to him. He did pick up other cases which I wanted to
te11 you about. January 13th of this year, only t�o blocks from the Arizona Street
shooting, there was another shooting wherein a 50 year old man was shot in the
neck and this defendant was identified by at least two people as being the shooter
in that case.
That case already has been held for court. The witnesses are cooperating came in
testified at the preliminary hearing and that is going forward to trial on attempted
murder being that, again like the Arizona Street shooting, this shooting was, I guess,
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provoked because he thought somebody was looking at his girl, just like the
Arizona Street shooting. Your Honor, there was an active warrant for him for that
case after he was identified and he was eventually arrested on that body warrant,
on Your Honor's bench warrant when police actually observed him out on the street
beating a female who was identified later as his lawful wife, a different female. The
police actually observed that. So that's kind of what's going on with this defendant.
I would ask for an aggravated sentence in this case of five to 10 years -- that is
within the guidelines -- based on his prior record, based on the huge disrespect of
this Court in failing to appear at sentencing, on the new arrest, including the one
that has been held for court, the ballistics showing that this gun that he had was
used in the shooting just ten days prior in which he was identified and the fact there
has been no acceptance of responsibility whatsoever. This defendant has been
supervised by State Parole before. He came off that supervision not somebody who
wanted to walk the straight and narrow, not somebody who wanted to change his
life but somebody who continues to walk around the streets of Philadelphia with a
gun, gets arrested for that, picks up new shooting cases. And I would just state that
he is a danger to the community based on his prior history and the open cases that
he does have and the aggravated range would be appropriate.
Id. at 8-10. Finally, this Court heard testimony from the Defendant's wife, Megan Walker, as well
as the Defendant himself. The following exchange occurred between Ms. Walker and defense
counsel:
MS. REIFSNYDER: Ms. Walker, do you know my client, Mr. Johnson?
MS. WALKER: Yes.
MS. REIFSNYDER: How long did you know him?
MS. WALKER: We grew up together, actually.
MS. REIFSNYDER: I know you wrote some things out. If you wanted to read that
you could. But if you want to talk to Her Honor, what can you tell us about Mr.
Johnson?
MS. WALKER: I want to say that Mr. Johnson is caring and compassionate and
providing and everything like that. I see the way Your Honor ruled. I know that he
knows what he did. He just wanted everything to work out.
He was working on getting a job. As a matter of fact, he was working. Me and him
had took on a courtship. We have a son. He always provided for us and he did what
he did because he had to take care of us. Like I said, I know Your Honor, I don't
»
want you to think -- I don't want you to think that I think you are -- I want you to
know that I'm a respected citizen. Please hear me out when I say he's not a threat to
society or anything like that and he needs to be home for his family.
MS. REIFSNYDER: He has a son. How old is his son?
MS. WALKER: He'll be eight. He's seven.
MS. REIFSNYDER: He'll be eight?
MS. WALKER: Yes, he's seven.
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MS. REIFSNYDER: How is Mr. Johnson's relationship with his son?
MS. WALKER: It's excellent. He is a very good impression on my son. I wish that
he was home to help my son with his homework now and they have a good
relationship.
MS. REIFSNYDER: Is there anything else that you want to tell us?
MS. WALKER:No
Id. at 3-5. The following statements were made by the Defendant:
THE COURT: Do you have something that you want to say?
DEFENDANT: Yes. I apologize about me not coming to court. At the time when
I had got home, I got around my family. When it was time for me to come in, I got
scared.
THE COURT: Who were you afraid of?
THE DEFENDANT: Doing more time. I don't like going to jail.
THE COURT: That's real good to hear. I don't think most people like going to jail.
THE DEFENDANT: I don't Jike going to jail. I am supposed to take responsibility.
I should have came to court and everything but I just didn't want to lose my family
or nothing. That's basically it.
Id. at 6.
In addition to the above-referenced testimony, this Court considered the nature and
circumstances of Defendant's offenses as well as the need to protect the public. See
42 Pa.C.S. § 972l(b) ("the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of the offenses as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs of the defendant"). This Court
specifically stated the following in support of its sentencing decision:
THE COURT: For sentencing purposes I'll cite the fact that I did receive the PSI
reports, also the fact that you did have a waiver trial.' You spared the
Commonwealth the expense of a jury trial. However, I do think you are a danger
to the community based upon your prior record, and your prior record score is a
three. The offense gravity is a ten. That means that your guideline range is very
high. I'm going to sentence you to somewhere in the middle of guidelines. Four to
eight years on the 6105. Three and a half to seven on the 6106 charge. Two and a
half to five on the 6108 charge. The other to run concurrently. Credit for any time
served.
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Id. at 13. Although Defendant was facing a five (5) to ten (I 0) year sentence based on his guideline
score, this Court mitigated the sentence to four (4) to eight (8) years' incarceration upon
consideration of the above-referenced factors.
Based on the foregoing, Defendant's claim should be dismissed. Contrary to Defendant's
contention, this Court heard testimony that the Defendant remained arrest free for a substantial
period of time, that Defendant waived his right to a jury trial, that Defendant had a good
relationship with his son and provided for him and the boy's mother, and that Defendant got his
GED. This Court considered these factors, as well as the others mentioned above when fashioning
its sentence. Since Defendant's argument is completely unsupported by the record and without
merit, his claim that trial counsel was ineffective for failing to file a post-sentence motion for
reconsideration of sentence should be dismissed. Trial counsel cannot be deemed ineffective for
failing raise a meritless claim.
C. Defendant has failed to satisfy his burden of proving ineffectiveness based on trial
counsel's failure to appeal the amendment of the bill of information
On appeal, Defendant claims that trial counsel was ineffective for failing to appeal the
Commonwealth's amendment of the bill of information to include the charge of Possession of a
Firearm Prohibited (18 Pa.C.S.A. § 6105). This claim must fail. Defendant did not and cannot
satisfy the prejudice prong of the test for ineffectiveness.
According to Pennsylvania Rule of Criminal Procedure 564, the trial court "may allow an
information to be amended, provided that the information as amended does not charge offenses
arising from a different set of events and that the amended charges are not so materially different
from the original charge that the defendant would be unfairly prejudiced." Pa.R.Crim.P. 564. In
determining whether to permit such an amendment, courts consider "whether the crimes specified
in the original indictment or information involve the same basic elements and evolved out of the
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same factual situation as the crimes specified in the amended indictment or information. If so, the
defendant is deemed to have been placed on notice regarding his alleged criminal conduct."
Commonwealth v. Davalos, 779 A.2d I 190, 1194{1"�· tacl)(citing Commonwealth v. Stanley, 401
A.2d 1166, 1175 (Pa. Super. 1979)). If, on the other hand, "the amended provision alleges a
different set of events, or the elements or defenses to the amended crime are materially different
from the elements or defenses to the crime originally charged, such that the defendant would be
prejudiced by the change, then the amendment is not permitted." Id.Here, prior to start of trial on August 11, 2011, the Commonwealth moved to amend the
bill of information to include the charge of Possession of a Firearm Prohibited (18 Pa.C.S.A. §
6105). According to the Commonwealth, this charge was originally held for court and remained
open, but did not appear on the court extract. The following exchange occurred:
MS. TAYLOR: Before we proceed on a trial, I would like to ask the Court to
correct the Bills of Information. I spotted this earlier. It looks like this case was
originally heard by Judge DeLeon on February 9th. At that point the judge held for
court only the charge of 6105. The case was refiled, and then on April 5th, 2011
6106 and 6108 were also held for court. It looks from looking at the court's records,
that all three charges are open; but when I look at the court extract, it says that we're
only proceeding on two. I wanted to amend the bills and include 6105.
MS. REIFSNYDER: Your Honor, I do have an objection to that. The Bills of
Information clearly say they're proceeding on 6106 and 6108 only. The preliminary
hearing was February 9th of 2011. The appeal was taken I believe and actually
heard on April 5th, and the Bills of Information were returned at the time of
arraignment or at the time of arraignment we have had the 5/2 date in 1101 when
the bills were given to us. We had a trial date here on June 6th, and no amendment
was made. And we've had, frankly, all day today where we've already litigated a
motion and no amendments to the bills were made. So I do object to that at this
point.
THE COURT: Well, [the Commonwealth] certainly can amend any time prior to
trial, whether two weeks, two days, or two hours. So it's amended.
N.T. 8/11/11 at 27�28. As the transcript clearly demonstrates, this Court overruled defense
counsel's objection and allowed the amendment. This Court's decision was proper for several
reasons.
lS
First, as the Commonwealth pointed out, all three charges were open. Thus, although the
Possession of a Firearm Prohibited (18 Pa.C.S.A. § 6105) charge did not appear on the court
extract, it was intended to be included therein. As such, amendment was permitted to correct this
defect.
Second, even if Possession of a Firearm Prohibited (18 Pa.C.S.A. § 6105) was not
erroneously omitted from the court extract, amendment was proper because this charge involves
the same basic elements as 18 Pa.C.S.A. § 6106 and 18 Pa.C.S.A. § 6108. To convict a person of
Carrying Firearms Without a License (18 Pa.C.S.A. § 6106), the Commonwealth must prove
beyond a reasonable doubt that he "carrie[d] a firearm in any vehicle or ... concealed on or about
his person, except in his place of abode or fixed place of business, without a valid and lawfully
issued license." To convict a person of Carrying Firearms on Public Property in Philadelphia (18
Pa.C.S.A. § 6108), the Commonwealth must prove beyond a reasonable doubt that he carried a
firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city
of the first class unless he was licensed to carry a firearm or was exempt from licensing. To convict
a person of Possession of a Firearm Prohibited (18 Pa.C.S.A. § 6105), the Commonwealth must
prove beyond a reasonable doubt that he possessed a firearm and that he was convicted of an
enumerated offense that prohibits him from possessing, using, controlling, or transferring a
firearm, The elements of 18 Pa.C.S.A. § 6105 are not materially different from the elements of 18
Pa.C.S.A. § 6106 and 18 Pa.C.S.A. § 6108; all three crimes require the element of possession.
In addition to involving the same basic elements, the charges evolved out of the same
factual situation. To reiterate the facts, Officer McFillin and Officer Winckler received a radio
call on January 3, 2011 at approximately 10:22 p.m., about a black male wearing a black vest, blue
sweatshirt, light colored jeans, and a gray hoodie, with a gun inside the Comfort Zone Bar. After
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entering the Bar, Officer Winckler approached the Defendant while Officer McFillin spoke with a
woman who provided him with information sufficient to support an investigative detention. The
officers then escorted the Defendant outside and Officer Winckler performed a quick pat down
and frisk of his person for weapons. Officer Winckler recovered a black and silver .40 caliber
Smith & Wesson semiautomatic firearm loaded with one round and containing nine (9) additional
rounds of live ammunition from Defendant's right front pants pocket. AH charges against
Defendant stemmed from this event. As such, Defendant was on notice regarding his alleged
criminal conduct.
Finally, Defendant suffered no prejudice as a result of the amendment. Defendant knew
he was a convicted felon and was not permitted to carry a firearm. This is evident from
Defendant's criminal record. On June 5, 2000, Defendant pied guilty to several felony charges.
As a result of these convictions, Defendant was not permitted to possess, use, control, sell, transfer
or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm
in this Commonwealth. It would be nonsensical to suggest that Defendant was not aware of his
felony convictions and the fact that he was not permitted to possess a firearm.
For the foregoing reasons, Defendant's claim should be dismissed. Defendant did not and
cannot demonstrate that had trial counsel raised this issue, it would have been meritorious on
appeal. See Commonwealth v. Washington, 927 A.2d 586, 607-08 (Pa. 2007). As such, Defendant's
claim of ineffectiveness should be dismissed.
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II. THIS COURT DID NOT ERR IN FAILING TO GRANT AN EVIDENTIARY·
HEARING
On appeal, Defendant claims that this Court erred in failing to grant an evidentiary hearing.
Defendant's claim must fail. This Court properly disposed of Defendant's PCRA petition without
l
first conducting an evidentiary hearing.
It is well-established that "[t]here is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that no genuine issues of material
fact exist, then a hearing is not necessary." Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008); Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the PCRA
petition in light of the record to determine whether the PCRA court erred in concluding that there
were no genuine issues ot material fact and in denying relief without an evidentiary
hearing. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). It is appropriate to
dismiss claims "where the pleadings are insufficient to state a claim for post-conviction
relief." Commonwealth v. Clark, 961 A.2d 80, 94 (Pa. 2008).
Here, this Court determined that the claims raised in Defendant's PCRA petition contained
no genuine issues of material fact. As discussed at length above, Defendant's claims of
ineffectiveness were not supported by the record. Thus, an evidentiary hearing was not necessary.
CONCLUSION
For all the foregoing reasons, this Court respectfully requests that its judgment be affirmed
in its entirety.
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