Com. v. Boddy-Johnson, Z. ( 2017 )

J-S13039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ZAHIR BODDY-JOHNSON
Appellant No. 3029 EDA 2015
Appeal from the PCRA Order September 17, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0004485-2008
BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 20, 2017
Appellant, Zahir Boddy-Johnson, appeals from the order entered in the
Philadelphia County Court of Common Pleas denying his petition for relief
filed pursuant to the Post Conviction Relief Act1 (“PCRA”). Appellant
contends trial counsel was ineffective for failing to request a jury instruction
explaining the purpose for which they were to consider evidence of other
crimes. We affirm.
We adopt the facts as set forth by the trial court and relied upon by
this Court on direct appeal.
On February 17, 2008 Philadelphia Housing Authority
Police Officer Craig Kelley was on duty monitoring the
entrance to the public housing residence located at 301
Queen Lane, Philadelphia, PA when he heard a knock on
the steel door leading into the patrol booth where he was
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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stationed situated in the lobby area of the residence.
Officer Kelley testified that when he opened the door to the
patrol booth he found a male wearing a scarf partially
covering his face standing in front of him with the muzzle
of a rifle pointed at his face. The male’s finger was on the
trigger of the rifle and the male stated “Don’t move.” The
assailant then began shooting Officer Kell[e]y, whereupon
Kell[e]y closed the door to the booth and he was spun
around by the rifle fire and knocked to the floor. The male
continued to fire his weapon at Kell[e]y while he lay on the
floor beneath the window at his duty station as glass and
debris sprayed over him. Rifle bullets penetrated his
protective vest and struck Kell[e]y’s left torso.
In spite of his injuries, Officer Kelley was able to access
his radio and relay that he was down, needed assistance,
and required a medic. Kell[e]y was unable to get a
response however he was then able to get to a nearby
telephone and he called the Housing Authority radio room
for help. Philadelphia police officers responded shortly
thereafter and Kell[e]y was immediately transported to
Temple University Hospital.
Dr. Amy Goldberg testified that she was called to attend
to Officer Kell[e]y at Temple University Hospital and that
she found him with a large wound to the left side of his
chest and abdomen. Kell[e]y was treated and admitted to
the hospital where he remained for three days. Upon his
release from the hospital, Kell[e]y was prescribed pain
medication and was further treated at Temple Wound
Clinic and required the services of a home care nurse three
times a week for approximately two months. He continues
to receive physical therapy and continues on pain
medicines.[2]
Philadelphia Police Officer Robert Lee responded to the
police radio call that Officer Kelley had been shot. Lee
began patrolling the area near the crime scene whereupon
Appellant was observed wearing clothing that fit the
description relayed over the radio. Appellant was stopped
and [sic] Appellant where he was coming from. Appellant
2
We note that the trial court’s opinion is dated April 30, 2010.
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responded that he was coming from 301 Queen Lane
where his aunt lived. Lee testified that his next question
to Appellant was whether Appellant knew that a police
officer had been shot, whereupon Appellant responded,
“No, I did not know a police officer had got shot a[t] 301
Queen Lane, but I heard the gunshots.” Lee had not
identified the location of the shooting of Officer Kell[e]y
before Appellant’s response. Lee advised police radio that
he had a potential suspect and he was then instructed to
transport Appellant to Temple University Hospital. Upon
arriving at the hospital, Lee was able to meet with Officer
Kelley to attempt to make an identification and was further
instructed to transport Appellant to the homicide unit at
police headquarters.
Detective George Pirrone arrived at the scene shortly
after the shooting and determined that video surveillance
had been taken of the area from a camera at the Hung
Hing Restaurant located a block away. The video, which
was introduced into evidence, revealed a male running
past the restaurant carrying a rifle in his right hand while
bystanders entered the restaurant and hid behind a
counter.
In the area of Appellant’s arrest, and near the location
shown in the video, an Erinco SK assault rifle, a black
nylon bag containing live rounds of ammunition along with
other contraband was recovered. A bank card found at the
scene was traced to Appellant. Other ballistics and DNA
evidence linked Appellant to the shooting of Officer
Kell[e]y.
Shortly after Appellant was transported to police
headquarters, Detective Patrick Mangold and Detective
McNamee conducted an interview with him.3 Appellant
was first provided Miranda[4] warnings and he signed the
standard form indicating that he had been read his rights,
3
The trial court inadvertently indicates the date of the testimony as June 8,
2009. Detective Mangold testified on June 9, 2009.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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that he understood them, and that he was voluntarily
offering his statement. Thereafter, Appellant admitted
that he shot Officer Kelley, giving a detailed explanation.
Appellant signed the statement at the end of the
interview.[5] Detective Mangold testified that after the
5
Appellant moved to suppress his statement to Detective Mangold. The
following sidebar discussion was held regarding the statement:
[Defense counsel]: Your Honor, the portion where it refers
to restitution─
[Appellant] states “Pay restitution for my stolen car
case,” Your Honor, I would just submit that, obviously, this
would be something that would be a prior bad act. For
that to be brought in, the Commonwealth would have to
make that known to the [c]ourt and make it known to me
in writing prior to it actually being offered. That being
said, it hasn’t been. There has been nothing to indicate
that a Motion was filed to bring in that prior bad act. That
being said, I would just ask that one portion to be
redacted.
The Court: Commonwealth?
[The Commonwealth]: Your Honor, I would submit to the
[c]ourt that this goes to the essence of [Appellant’s]
motive. And as it stands, there can be a curative
instruction as to that, as in any case where a defendant’s
involvement in another crime comes out.
This is a case where [Appellant] is charged with
attempted murder and aggravated assault. Him saying
that he had a prior car case is certainly not going to make
the jury believe that because he had a car case, he is
somehow guilty, or should be seen as someone who would
be more likely to commit an aggravated assault. What it
does is─
What he says is, “I needed to get money for restitution
for my stolen car case.”
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interview was completed, Appellant’s aunt, Miriam Davis,
arrived and came into the interview room and that she
read over the statement with Appellant and then she also
signed if [sic] Appellant’s statement.
The defense offered evidence of Appellant[’s] reputation
for being peaceful, truthful, and law-abiding. The defense
also offered testimony that the glass enclosure of Kelley’s
patrol booth had been previously damaged with bullet
holes from prior occasions.
Boddy-Johnson, 2910 EDA 2009 (unpublished memorandum adopting Trial
Ct. Op., 4/30/10, at 2-4) (references to the record omitted).
At trial, Detective Mangold testified, in pertinent part, as follows,
reading from Appellant’s statement:
Question: Were you present when Officer Kelley was shot
tonight while he was working inside of the security booth
at 301 Queen Lane?
A: Yes.
Q: Can you tell me who shot him?
Answer: I did.
Question: Can you tell me why you shot him?
N.T., 6/9/09, at 43-44. The court denied defense counsel’s motion. On
direct appeal, Appellant argued he was entitled to a new trial as a result of
the denial of the motion to suppress his statement or to redact from his
statement his reference to an unrelated stolen car case. See
Commonwealth v. Boddy-Johnson, 2910 EDA 2009 (unpublished
memorandum at 2) (Pa. Super. Sept. 29, 2010). This Court opined: The
“portion of Appellant’s statement referencing Appellant’s need for money to
make restitution in separate stolen vehicle case was relevant to show
motive[.]” Id. at 3.
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Answer: I was going to rob him. When he opened the
door to the booth, I shot the gun one time and he closed
the door. Then I shot two more times while he was inside
of the booth. I was shooting through the glass, but I
don’t─
The bullets went through. I was just shooting.
Question: Can you explain to me exactly what happened?
Answer: I went to the door of the booth and I knocked on
the door. As soon as he opened the door, I pointed the
gun at him. After I pointed the gun at him, he tried to
close the door and that is when I shot. The gun went off.
Page three, continued.
He got the door closed and I just shot at the booth
because I thought he was going to shoot at me.
[Defense counsel]: Your Honor, I ask him to finish the
whole statement.
[The Commonwealth]: He said he got the door closed.
And what did he say after that?
A: And I just shot at the booth because I thought he was
going to shoot at me. I ran out of the building and onto
Queen Lane. I dropped the bag that I had the gun in on
Queen Lane. I kept on moving and I dropped the gun at
the corner of the next block, I think at Morris and Queen.
I went up the block and I just tried to chill. Then while I
was still on the block, the cops stopped me and brought
me here.
* * *
Question: When you told me that you were going to rob
the officer, what were you going to take form him?
Answer: I was going to take the laptop that was in there,
and I was going to try to take his gun.
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Question: What were you going to do with the things that
you took from the officer?
Answer: I was going to sell them and spend the money for
restitution for my stolen car case.
Question: When did you decide to do this?
Answer: I saw him in there last Sunday, but I really didn’t
think about it. Then today I saw him again and I just
decided to do it.
Question: What kind of gun did you have today and how
long have you had it?
Answer: It’s an SKS, a rifle. I had it about a month.
* * *
Question: Do you know the officer that was shot today?
Answer: No, I don’t.
N.T., 6/9/09, at 55-59.
On June 12, 2009, following a jury trial, Appellant was found guilty of
attempted murder, aggravated assault, weapons and related charges. On
September 15, 2009, he was sentenced to twenty-three and one-half to
forty-seven years’ imprisonment. On September 18, 2009, his sentence for
voluntary use of a firearm was amended to two and one-half to five years’
imprisonment, for an aggregate sentence of twenty-two and one-half to
forty-seven years’ imprisonment. Appellant’s judgment of sentence was
affirmed by this Court. See id. On October 14, 2010, Appellant filed a
petition for allowance of appeal. The Pennsylvania Supreme Court denied
the petition on February 8, 2011.
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Appellant filed a pro se PCRA petition on April 17, 2012.6 Counsel was
appointed and filed an amended PCRA petition on April 17, 2015. On
September 17, 2015, the PCRA petition was dismissed without a hearing.
This timely appeal followed.7 Appellant filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal.8 The PCRA court filed
a responsive opinion.
6
Appellant’s judgment of sentence became final on May 9, 2011, ninety
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review[ ]”). Appellant had until
May 9, 2012, to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1)
(providing PCRA petition must be filed within one year of the date the
judgment becomes final). His pro se PCRA petition was was docketed on
April 17, 2012. Therefore, it was timely.
7
The notice of appeal was filed by Gary Sanford Server, Esq. The Pa.R.A.P.
1925(b) statement of errors complained of on appeal was filed by Lawrence
J. Bozzelli, Esq. On June 29, 2016, this Court entered a per curiam order
remanding the case to the trial court for a determination as to which court
appointed attorney, Gary Sanford Server, Esq., or Lawrence J. Bozzelli, Esq.,
represented Appellant. On August 30, 2016, the trial court entered an order
allowing Lawrence Bozzelli, Esq. to withdraw from the instant case. Present
counsel filed the amended PCRA petition.
8
We note that Appellant suggests that the Commonwealth may argue the
issue raised in this appeal is waived because it was not in the Rule 1925(b)
statement filed by Mr. Bozzelli. Appellants Brief at 17. In the Rule 1925(b)
statement, it is averred “[t]he trial court committed error when it permitted
the Commonwealth to introduce evidence of [A]ppellant’s prior bad act as
well as reading a related jury charge to the jury.” Appellant’s 1925(b)
Statement, 2/12/16, at 1. Appellant refers to the notes of testimony where
defense counsel asks the trial court if it intends to give a judgment
instruction for prior bad acts. See N.T., 6/10/09, at 8. The trial court
responded as follows: “My law clerk is going to pull the chart. I will go
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Appellant raises the following issue for our review: “Was trial counsel
ineffective where they [sic] failed to request a jury instruction explaining to
the jury the purpose for which they were to consider evidence of other
crimes?”9 Appellant’s Brief at 6. Appellant contends that “[t]rial counsel
had no reasonable basis for not . . . requesting an appropriate instruction
during the Court’s closing charge.” Id. at 15. He argues that “[a]ppellate
courts have previously held that when bad acts evidence is admitted at trial
an instruction is necessary to explain the limited purpose for which the
evidence was admitted[.]” Id. He asserts Appellant was prejudiced by
counsel’s failure to request the instruction. Id. at 16.
Our standard of review from the denial of relief under the PCRA is well-
settled:
[A]n appellate court reviews the PCRA court’s findings to
see if they are supported by the record and free from legal
through it and I will talk to Counsel about it later . . . .” Id. Prior to
charging the jury, the issue of a curative instruction regarding prior bad acts
was raised. See infra. Rule 1925(b) provides, in pertinent part, that
“[e]ach error identified in the Statement will be deemed to include every
subsidiary issue contained therein which was raised in the trial court.”
Pa.R.A.P. 1925(b)(iv)(5). See also Commonwealth v. Laboy, 936 A.2d
1058, 1059-60 (Pa. 2007) (holding Superior Court erred in finding vague
Rule 1925(b) sufficiency of the evidence claim waived in straight forward
drug case where trial court addressed issue). The Commonwealth did not
argue that the issue was waived.
9
Appellant’s Rule 1925(b) statement also contains issues that are not raised
on appeal. See Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288 n. 11
(Pa. Super. 2015) (issues raised in Rule 1925(b) and not addressed in the
statement of questions or body of brief held abandoned on appeal).
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error. This Court’s scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court’s hearing, viewed in the light most
favorable to the prevailing party.
Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008) (quotation marks
and citations omitted).
To be eligible for PCRA relief, [a]ppellant must prove by
a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
circumstances found at 42 Pa.C.S. § 9543(a)(2) (listing,
inter alia, the ineffective assistance of counsel and the
unavailability at the time of trial of exculpatory evidence,
which would have changed the outcome of the trial had it
been introduced). Further, [a]ppellant must demonstrate
that the issues raised in his PCRA petition have not been
previously litigated or waived. Id. § 9543(a)(3). . . . A
PCRA claim is waived “if the petitioner could have raised it
but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post[-]conviction
proceeding.” Id. § 9544(b). . . .
It is well-established that counsel is presumed effective,
and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel’s performance was deficient and
that such deficiency prejudiced him. Strickland v.
Washington, [ ] 104 S. Ct. 2052, [ ] (1984). This Court
has characterized the Strickland standard as tripartite, by
dividing the performance element into two distinct parts.
Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.]
1987). Thus, to prove counsel ineffective, [a]ppellant
must demonstrate that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) [a]ppellant was prejudiced by
counsel’s act or omission. Id. at 975.
Relating to the reasonable basis prong, “[g]enerally,
where matters of strategy and tactics are concerned,
counsel’s assistance is deemed constitutionally effective if
he chose a particular course that had some reasonable
basis designed to effectuate his client’s interests.” Courts
should not deem counsel’s strategy or tactic unreasonable
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“unless it can be concluded that an alternative not chosen
offered a potential for success substantially greater than
the course actually pursued.” Id. Also “[a]s a general
rule, a lawyer should not be held ineffective without first
having an opportunity to address the accusation in some
fashion. . . . The ultimate focus of an ineffectiveness
inquiry is always upon counsel, and not upon an alleged
deficiency in the abstract.”
Relating to the prejudice prong of the ineffectiveness
test, the PCRA petitioner must demonstrate “that there is a
reasonable probability that, but for counsel’s error or
omission, the result of the proceeding would have been
different.” Particularly relevant herein, it is well-settled
that “a court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority;
instead, if a claim fails under any necessary element of the
Strickland test, the court may proceed to that element
first.”
Commonwealth v. Koehler, 36 A.3d 121, 131-32 (Pa. 2012) (some
citations omitted).10
10
Appellant cites Commonwealth v. Buehl, 658 A.2d 771 (Pa. 1985) in
support of the claim that counsel was ineffective in the instant case. In
Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001),
the Pennsylvania Supreme Court opined:
this Court has retreated from the view expressed in
Commonwealth v. Buehl . . . that Section 9543(a)(2)(ii)
of the PCRA places a higher burden on a petitioner to show
ineffective assistance of counsel than that required by the
Sixth Amendment as defined by Strickland v.
Washington, [ ] 104 S. Ct. 2052, [ ] (1984). In
Commonwealth v. Kimball, [ ] 724 A.2d 326 ([Pa.]
1999), we disapproved of Buehl and held that Section
9543(a)(2)(ii) does not place a more stringent standard for
collateral review of claims of ineffective assistance of
counsel than the Sixth Amendment standard applicable to
ineffectiveness claims raised on direct appeal. We
interpreted the language from Section 9543(a)(2)(ii)
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In reviewing the propriety of an order denying PCRA
relief, this Court is limited to examining whether the
evidence of record supports the determination of the PCRA
court, and whether the ruling is free of legal error. Great
deference is given to the findings of the PCRA court, which
may be disturbed only when they have no support in the
certified record.
Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)
(citations omitted).
In Commonwealth v. Spotz, 870 A.2d 822 (Pa. 2005), our
Pennsylvania Supreme Court opined: “Objections sometimes highlight the
issue for the jury, and curative instructions always do.” Id. at 832; accord
Commonwealth v. Washington, 927 A.2d 586, 606 (Pa. 2007).
In the case sub judice, the trial court opined:
[T]he [c]ourt offered Appellant the opportunity to have the
jury instructed that it could not consider his prior
conviction as evidence of his guilt. After conferring with
requiring proof that counsel’s ineffectiveness “so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place”
as embodying the prejudice element of the Sixth
Amendment standard for ineffectiveness claims articulated
in Strickland. Accordingly, we held that the standard of
review, pursuant to Section 9543(a)(2)(ii), of an
ineffectiveness claim raised in a PCRA petition is the
Strickland standard, as followed by this Court in
Commonwealth v. Pierce, [ ] 527 A.2d 973 ([Pa.]
1987). See Kimball, 724 A.2d at 333.
Id. at 129 (footnote omitted).
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counsel, Appellant declined to request the jury instruction.
. . . There was a reasonable basis for declining to request
a cautionary instruction regarding his prior conviction.
Such an instruction would serve only to highlight what was
otherwise minimally significant evidence. Moreover,
Appellant failed to plead and prove that any prejudice
redounded to his detriment from counsel’s decision not to
request a cautionary instruction. Appellant’s claim of
ineffective assistance is without merit and error was not
committed.
Trial Ct. Op., 3/4/16, at 6 (emphasis added). We agree no relief is due.
The court recessed the jury and stated as follows:
The Court: Counsel, basically what I am going to read is:
There was evidence tending to prove that the defendant
has a prior criminal matter involving car theft. That was
referenced in defendant’s statement to police. This
evidence is not evidence of the defendant’s guilt and you
must not infer guilt from the evidence of a prior criminal
matter. This evidence may be considered by you for one
purpose only: That is, to help you judge whether or not
there was potential for commission of the crime for which
the defendant is currently on trial.
That’s basically what I am going to read.
[Defense counsel]: Your Honor, I would just ask that it not
be read in general, just in terms of confusion.
The Court: So you don’t want the instruction at all?
[Defense counsel]: Your Honor, it’s a situation where, once
again, it’s not a conviction. It’s not something─
The Court: I understand. Do you want an instruction or
you do not want an instruction, or we can cut it off?
There was evidence tending to prove that [Appellant]
has a prior criminal matter involving car theft. That was
referenced in [Appellant’s] statement to police. This
evidence is not evidence of [Appellant’s] guilt and you
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must not infer guilt from the evidence of a prior criminal
matter.
Then the only purpose would be to help them assess
motive. We could leave that part out or─
[Defense counsel]: Let me just confer with my client.
The Court: Yes. Go ahead.
[Defense counsel]: Thank you, Your Honor. Your Honor, I
ask that it not be given.
The Court: Very well.
Commonwealth, you concur? You concur? They do not
wish to have this instruction.
[The Commonwealth]: It’s up to him. It’s totally his
decision.
The Court: Very well.
N.T., 6/10/09, at 26-28.
We discern no error by the PCRA court. Appellant has not satisfied the
prejudice prong of the ineffective assistance of counsel test. See Koehler,
36 A.3d at 131-32. He has not shown that but for counsel’s action the result
of the proceedings would have been different. See id. The record supports
the determination of the PCRA court. See Perry, 959 A.2d at 934-35.
Therefore, his ineffective assistance of counsel claim is without merit. See
Koehler, 36 A.3d at 131-32. Accordingly, we affirm the order of the PCRA
court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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