Com. v. Johnson, O. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR JOHNSON :
:
Appellant : No. 1614 EDA 2019
Appeal from the PCRA Order Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013628-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR JOHNSON :
:
Appellant : No. 1617 EDA 2019
Appeal from the PCRA Order Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013632-2007
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 21, 2020
Appellant, Omar Johnson, filed two separate notices of appeal from the
denial of his request for relief under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. Appellant asserted that ineffective assistance of
counsel entitles him to a new trial for the crimes prosecuted at Philadelphia
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Court of Common Pleas Docket Number CP-51-CR-0013628-2007,
corresponding to Superior Court Docket Number 1614 EDA 2019, and
Philadelphia Court of Common Pleas Docket Number CP-51-CR-00013632-
2007, corresponding to Superior Court Docket Number 1617 EDA 2019.
Appellant raised the identical issue and filed the same brief in both appeals.
As such, pursuant to Pa.R.A.P. 513, we have consolidated these appeals sua
sponte, and address them concurrently. After careful review, we affirm.
The PCRA court recounted the relevant facts, as follows:
On November 13, 2003, [J.W.], who was then thirteen
years-old, left her after-school program at Benjamin Rush Middle
School at about 4:30 p.m. [J.W.] took a school bus that dropped
her off at Elkin Elementary School at around 5:00 p.m. where she
was then going to take a 10-15 minute Septa bus ride to her
house. However, when [J.W.] arrived at Elkin Elementary School,
she discovered that she lost her Septa token so she decided to
walk home down Kensington Avenue and Alleghany Avenue. As
evening approached, the streets became dark. Additionally, the
power had gone out on the Avenue and nearby stores were closed.
After walking about five or six blocks, Appellant approached [J.W.]
and attempted to get her attention by making a noise and saying
that his name was Tony. When [J.W.] ignored him, Appellant
grabbed her hip and put a gun to her side instructing that if she
screamed he would shoot her in her stomach. Appellant then
pulled [J.W.] into an abandoned garage on the 2400 block of Lee
Street. Once inside the garage, he laid [J.W.] on a table and
pulled down her pants. He vaginally penetrated her while she was
on her back then flipped her over and did it again while she was
on her stomach. When he was finished, he pulled his pants back
up and left.
Several minutes after Appellant left the garage, [J.W.]
walked home and told her parents about what had just happened.
[J.W.’s] parents immediately called the police. Officer Michael
Cahill and his partner, Officer McKeever, responded to the call and
went to [J.W.’s] home. After describing the events to the police,
[J.W.] and her mother went with Officer Cahill to the garage where
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the incident occurred. Afterwards, Officer Cahill drove [J.W.] and
her mother to Episcopal Hospital. While at the hospital, [J.W.]
spoke to a detective from the Special Victim’s Unit and underwent
an exam where a rape kit was performed.
On March 31, 2004, [C.B.] who was then sixteen years old,
was waiting at a bus stop at 2nd Street and Girard Avenue at
around 8:00 p.m. when she was approached by Appellant.
Appellant drove his car up to [C.B.] and asked her if she would
like to get something to eat with him then told her to get into the
car. When she declined to get into Appellant’s car, he got out of
the car, leaving the engine running and walked in front of the car
towards [C.B.]. When the Appellant reached [C.B.], he held a gun
to her back demanding again that she get in the car. At that time,
[C.B.] got into the passenger’s seat of the car. While Appellant
walked around the front of the car to get back inside, she tried to
get out of the car; however there was no door handle. When
Appellant got back in the car, he drove off in the direction of
[C.B.’s] father’s house.
After driving for approximately fifteen blocks, Appellant
stopped at an empty parking lot five blocks from [C.B.’s] father’s
house. Once parked, the Appellant demanded oral sex from [C.B.]
and reminded her that he had a gun. [C.B.] reluctantly complied.
Afterwards, Appellant leaned over [C.B.] to put her seat back. He
made her pull her pants down and forcefully penetrated her
vagina. [C.B.] cried and screamed as Appellant was having sex
with her. Appellant told her to be quiet. When he was done he
got out of the car, opened [C.B.’s] door and told her to get out of
the car. When he drove off, [C.B.] ran toward her father’s house.
As she did, she saw a police car that she tried to flag. However,
the officer drove off without seeing her.
When [C.B.] reached her father’s house, she told her father
and stepmother what had just occurred. The police were called
and Officer Sonya Ellis responded to [C.B.’s] father’s home. Id.
at 74, 117. Officer Ellis took [C.B.] to Thomas Jefferson hospital,
where an exam and rape kit were conducted. While at the
hospital, [C.B.] also talked to Detective Gregory Meissler from the
Special Victim’s unit. After an unsuccessful attempt to apprehend
the offender, both [J.W.’s] and [C.B.’s] cases were transferred to
Detectives Peter Marcellino and Linda Pace of the special
investigative unit.
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At trial, Appellant alleged that both encounters with the
victims was consensual and that he did not force himself on either
of the girls. Furthermore, he testified that both girls wanted to be
paid in exchange for sex. Appellant claimed that [J.W.] was a
prostitute who demanded $50. He also claimed that he gave
[C.B.] his phone number so that he could pay her at a later time.
During closing arguments, the prosecutor repudiated the
Appellant’s testimony by reiterating that what happened to the
victims was not consensual. The prosecutor focused on the fact
that the victims were young girls, not prostitutes, and that they
were forced to comply with Appellant’s commands because of his
gun. She stated that Appellant’s actions were “cold” and “sick”
because “while the Appellant may had convinced himself that the
girls wanted it,” they did not.
PCRA Court Opinion, 12/3/19, at 2–5 (record references omitted).
On or about July 5, 2007, police arrested Appellant and charged him
with the crimes associated with the rapes of [J.W.] on November 13, 2003,
and [C.B.] on March 31, 2004. On February 25, 2010, a jury found Appellant
guilty of two counts of rape, one count of involuntary deviate sexual
intercourse, two counts of kidnapping, two counts of sexual assault, two
counts of corruption of minors, two counts of violation of the Uniform Firearm
Act, and two counts of possessing instruments of crime.1 On October 21,
2010, the court conducted a Megan’s Law hearing and found Appellant to be
a sexually violent predator. That same day, the court sentenced Appellant to
an aggregate term of thirty-two to eighty years of incarceration.
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1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 2901(a), 3124.1, 6301(a)(1),
6105(a)(1), and 907(a), respectively.
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Appellant filed a direct appeal and, on November 29, 2011, this Court
affirmed the judgment of sentence. Commonwealth v. Johnson, 38 A.3d
932, 2912 EDA 2010 (Pa. Super. filed November 29, 2011) (unpublished
memorandum). On April 25, 2012, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Johnson,
44 A.3d 1161, 658 EAL 2011 (Pa. filed April 25, 2012).
On August 28, 2012, Appellant filed pro se PCRA petitions. On January
28, 2014, appointed counsel, Mark Mungello, Esquire, filed amended PCRA
petitions. Mr. Mungello was later relieved and Matthew J. Wolfe, Esquire, was
appointed to represent Appellant. Mr. Wolfe filed several amended petitions.
Following an evidentiary hearing on January 4, 2019, on April 26, 2019, the
PCRA court dismissed the PCRA petitions. On May 30, 2019, Appellant filed
notices of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
We initially address whether the appeals were timely. A review of the
certified record reveals that the orders dismissing the PCRA petitions state:
“And Now, this 29th day of April, 2019, it is hereby ORDERED that the
Defendant’s PCRA petition is DISMISSED, effective April 26,
2019. [Appellant] has the right to appeal this decision to the Superior Court
within thirty days of this Order.” Order, 4/29/19. This order is time-stamped
as filed on April 29, 2019. Additionally, the official docket demonstrates that
the orders dismissing the petition were filed on April 29, 2019. Docket Entry
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## 259, 253. Therefore, Appellant’s appeals, filed on May 30, 2019, and
thirty-one days after the orders dismissing his PCRA petition were filed, are
facially untimely.
On August 21, 2019, this Court directed Appellant “to show cause,
within ten days of the date that this Order is filed, why this appeal should not
be quashed as untimely filed on May 30, 2019, from the order denying the
petition for post-conviction relief on April 26, 2019.” Rule to Show Cause,
8/21/19, at unnumbered 1. Appellant responded that counsel received notice
from the Philadelphia County Court of Common Pleas that the orders
dismissing the PCRA petitions were filed on April 30, 2019, and attached a
copy of the email. The email read:
A court order or court notice has been issued and filed with the
Office of Judicial Records pursuant to Pa. R.Crim.P. 114 (A)(1) in
connection with a case in which you are either the attorney of
record for a party, or are an unrepresented party. Service of such
legal paper is hereby accomplished electronically on you as
authorized by Philadelphia Criminal Rule 576 (g).
The following information is provided for your records:
Docket No.: CP-51-CR-0013632-2007
Caption:
Com. v. Johnson, Omar
Date of Entry on Docket:
April 30, 2019 12:02 EDT/DST
Response to Rule to Show Cause, 8/28/19, Exhibit A. Counsel thus averred
that the appeals, filed on May 30, 2019, were timely. Counsel alternatively
requested the Superior Court to excuse the appeals’ untimeliness as it was
occasioned by a “breakdown in the judicial process by a standard practice of
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the Philadelphia Court of Common Pleas. . . .” Id. at ¶ 8. On August 29,
2019, this Court discharged the Rule to Show Cause and referred the matter
to the merits panel.
We agree with counsel that the appeals’ untimeliness resulted from a
breakdown by the Philadelphia County Court of Common Plea’s judicial
process. This Court will decline to quash an appeal when the appellant’s error
resulted from the trial court’s misstatement of the appeal period, which
operated as a “breakdown in the court’s operation.” Commonwealth v.
Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (footnote omitted) (citing
Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001) (where
appellant was led to believe that he had thirty days to appeal the denial of
reconsideration motion, our Court declined to quash appeal because the
problem arose as a result of the trial court’s misstatement of the appeal
period, which operated as a breakdown in the court’s operation)). Herein, the
notice from the Philadelphia County Court of Common Pleas stated that the
orders dismissing the PCRA petitions were filed on April 30, 2019. Counsel
was entitled to rely upon this representation when perfecting the appeals.
Thus, we will address the merits.
Appellant raises the following issue for review: “Was trial counsel
ineffective for failing to object to the prosecutor’s remarks in closing argument
as prosecutorial misconduct and raise the issue on appeal?” Appellant’s Brief
at 8.
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When reviewing the propriety of an order denying PCRA relief, this Court
is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012). We
grant great deference to the PCRA court’s findings that are supported in the
record and will not disturb them unless they have no support in the certified
record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014).
In order to obtain collateral relief, a PCRA petitioner must establish by
a preponderance of the evidence that his conviction or sentence resulted from
one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2).
Instantly, Appellant asserted in his PCRA petition the existence of ineffective
assistance of counsel (“IAC”) pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).
“To plead and prove an IAC claim, a petitioner must establish: (1) that
the underlying issue has arguable merit; (2) counsel’s actions lacked an
objective reasonable basis; and (3) actual prejudice resulted from counsel’s
act or failure to act.” Rykard, 55 A.3d at 1189–1190. To show actual
prejudice, a defendant claiming ineffective assistance of counsel is required to
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Commonwealth v. Mallory, 941 A.2d 686, 699 (Pa. 2008) (quoting
Strickland v. Washington, 466 U.S. 668, 695 (1984)). A claim of
ineffectiveness will be denied if the petitioner’s evidence fails to meet any one
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of these prongs. Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
We reiterate that counsel’s representation is presumed to have been effective,
unless the petitioner proves otherwise. Commonwealth v. Williams, 732
A.2d 1167, 1177 (Pa. 1999). Further, we have explained that trial counsel
cannot be deemed ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
Appellant’s issue presents an IAC claim based on alleged prosecutorial
misconduct. Prosecutorial misconduct does not occur unless the unavoidable
effect of the comments at issue is to prejudice the jurors by forming in their
minds a fixed bias and hostility toward the defendant, thus impeding their
ability to weigh the evidence objectively and render a true verdict.
Commonwealth v. Riggle, 119 A.3d 1058, 1068 (Pa. Super. 2015) (quoting
Commonwealth v. Bryant, 67 A.3d 716, 727–728 (Pa. 2013)). A
“prosecutor must be free to present his or her arguments with logical force
and vigor.” Commonwealth v. Chmiel, 30 A.3d 1111, 1146 (Pa. 2011)
(quoting Commonwealth v. Robinson, 864 A.2d 460, 517 (Pa. 2004)).
Pennsylvania courts have permitted prosecutorial advocacy “as long as there
is a reasonable basis in the record for the [prosecutor’s] comments.”
Robinson, 864 A.2d at 516. “Prosecutorial comments based on the evidence
or reasonable inferences therefrom are not objectionable, nor are comments
that merely constitute oratorical flair.” Chmiel, 30 A.3d at 1145 (citation
omitted). Furthermore, the prosecution must be permitted to respond to
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defense counsel’s arguments. Id. Any challenged prosecutorial comment
must not be viewed in isolation, but rather must be considered in the context
in which it was offered. Robinson, 864 A.2d at 517.
Appellant argues that trial counsel should have requested a mistrial
based upon the following portions of the prosecutor’s summation:
And then, callously and cold, [Appellant] gets out of the car,
opens up the door-she can’t even pull her pants up - and she’s
tossed out into the dirt lot. What happened to these girls was cold.
And we know it happened.
* * *
Your common sense tells you that when somebody sticks a
gun to your head, your back, your stomach, threatens to shoot
you, your common sense tells you that in that situation, do you
need to kick somebody? Do you need to punch them in order to
get them to do what you want them to do? Do you have to put a
knife – in addition to a gun, [to] have a 13-year-old submit to
sexual assault?
A gun is enough. The threat on your life is enough. The
feeling that I will never get married, that I will never have kids,
that my life will be over if I don’t submit to sex is enough. The
law contemplates that. And that’s why the only people you need
to hear from are [J.W] and [C.B.].
* * *
I couldn’t help but clutch my stomach just a little bit as I watched
him put his hand as if it were on [C.B.’s] head and stroke her hair
and stroke her butt and talk about how good her head game was.
He enjoyed that. It wasn’t just about the sex. It was about the
gun, and the violence, and about taking something. He enjoyed
every moment.
And the reason he remembers these two contacts, as
opposed to any contact he’s ever had in his life, is because it was
a little different. He took these girls at gunpoint, and he enjoyed
it.
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He brought to life the fact that he knew - that he thought
that [J.W.] was this young, little girl on the street when I showed
that picture of her one month after. Couldn’t help but get a little
sick when you realized that he, too, thought that she looked like
she was 5 or 6 years old, that girl that he wants you to believe
was a woman, a prostitute on the street on Kensington Avenue.
Your common sense tells you that there aren’t lockers on
Kensington Avenue where a 13-year-old girl can put her backpack
in and then go work the street. It’s sick.
And maybe he’s convinced himself that these girls wanted
it, that these two girls on the street were looking for him; they
were looking for sex. But you know that [J.W.] and [C.B.] never
wanted this to happen. They didn’t want to be taken off the street.
They didn’t want a gun to their bodies. They didn’t want to have
to think about this over and over again for the rest of their lives.
They didn’t want to have to come into this courtroom, in front of
people they don’t know, and testify about something brutal and
terrible that happened to them six years later. They didn’t want
to live every single day, from the time that had happened until
the time that they got his DNA, not knowing who it was that pulled
them off the streets. (N.T. 2/25/10 p. 30-31).
Appellant’s Brief at 9–10 (record references omitted).
The PCRA court disposed of this issue as follows:
Appellant’s claims fail because none of the comments made
by the prosecutor were of the type to have prejudiced the jury
and prevent them from rendering a true verdict. Viewing the
statements as a whole and not in isolation, it is clear that the
prosecutor was simply painting a picture for the jury. The
statements that the Appellant specifically alleges were
prosecutorial misconduct state that the Appellant’s actions were
“callous and cold” and that “[w]hat happened to these girls was
cold.” These statements were not the prosecutor’s attempt to
inflame the jury, but were a mere attempt to tell a story to the
jury and do so theatrically. The same could be said about the
prosecutor’s statements that, with regards to Appellant’s
testimony, she “couldn’t help but get a little sick” and that she
“couldn’t help but clutch her stomach just a little bit.” The words
were simply oratorical [flair] to get the point across that what
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Appellant did to the victims was forced upon them and, as such,
horrific.
Moreover, contrary to Appellant’s allegations, the
prosecutor did not stray from the evidence in her closing argument
and her statements were supported by the evidence. Each victim
testified about the events that occurred on the nights in question.
The prosecutor simply oratorically repeated for the jury what they
had already heard.
Therefore, Appellant’s claims fail because no prosecutorial
[mis]conduct took place during closing arguments. Accordingly,
even if Appellant’s counsel had objected to the prosecutor’s
comments during closing arguments, and contested them on
appeal, the outcome would not have been different. No relief
should be granted.
PCRA Court Opinion, 12/3/19, at 7–8.
In this appeal, Appellant maintains that the prosecutor’s statement that
his actions were callous and cold was “calculated to inflame the passions or
prejudices of the jury.” Appellant’s Brief at 16. Appellant’s position is not
sustainable. In Commonwealth v. Clancy, 192 A.3d 44 (Pa. 2018), the
Pennsylvania Supreme Court held that a prosecutor’s statements during
closing argument calling a defendant “cold-blooded” or “cold heart[ed]” were
permissible oratorical flair when they spoke “to the elements of the particular
charges levelled against the defendant and the evidence necessary to prove
those elements at trial. . . .” Id. at 64–65. Appellant’s defense in this case
was that the sexual acts of which he was accused, committed against a
thirteen-year-old and a sixteen-year-old, were both consensual. N.T.,
2/24/10, at 183, 198. The Commonwealth’s evidence, however, proved that
Appellant acted without the consent of either victim and threatened them with
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a gun. N.T., 2/23/10, at 67, 87–88 (related to J.W.); N.T., 2/24/10, at 59,
69–70 (related to C.B.). Classifying Appellant’s actions as “callous and cold”
correlated to the Commonwealth’s theory of the case, that he knowingly acted
without the victims’ consent and left them in precarious situations. Thus, the
prosecutor’s statement in this regard was permissible oratorical flair that
summarized the trial evidence and rebutted Appellant’s defense.
Appellant also asserts that trial counsel should have objected to the
prosecutor’s references to the victims’ and Appellant’s “unexpressed thoughts”
before and during the rapes. Appellant’s Brief at 16. Again, Appellant fails to
demonstrate merit to this claim.
As noted, a prosecutor may argue any legitimate inferences from the
evidence. Commonwealth v. Ragland, 991 A.2d 336, 340 (Pa. Super. 2010)
(quotation omitted). During Appellant’s trial, both victims testified that they
were frightened during their non-consensual encounters with Appellant. N.T.,
2/23/10, at 68 (related to J.W.); N.T., 2/24/10, at 61–62, 67 (related to C.B.).
Therefore, the prosecutor’s remarks in this regard arose in the context of the
victims’ expression of fear that Appellant would shoot them if they did not
comply with his demands and represented a legitimate inference from their
testimony.
Appellant’s assertion that the prosecutor improperly referenced
Appellant’s unexpressed thoughts likewise is unavailing. The prosecutor’s
remarks that Appellant enjoyed the violence associated with raping the victims
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at gunpoint recounted, albeit in dramatic fashion, Appellant’s testimony that
he liked his encounter with C.B. and did not rise to the level of prosecutorial
misconduct.
Appellant’s next claim of trial counsel’s ineffectiveness concerns her
failure to object when the prosecutor stated in her closing argument that she
“‘couldn’t [help] but get a little sick’ and that she ‘couldn’t help but clutch my
stomach just a little bit’ as she considered the Appellant’s alleged actions or
when she described the Appellant’s actions as “‘sick. . . .’” Appellant’s Brief at
16. Appellant contends that in uttering these words, the prosecutor was “both
attempting to inflame the passions and prejudices of the jury but also
expressing her personal belief and opinion.” Id.
This Court has observed that “[i]t is unprofessional conduct for the
prosecutor to express his personal belief or opinion as to the truth or falsity of
any testimony or evidence or the guilt of the defendant.” Commonwealth v.
Sampson, 900 A.2d 887, 890 (Pa. Super. 2006) (quoting American Bar
Association (ABA) Standards, Section 5.8.). However, we observe that the
prosecutor’s statements were not opinions on the truth of the testimony or
Appellant’s guilt. Rather, they described the prosecutor’s reactions to
Appellant’s testimony and demeanor.
In any event, even if the remarks were an improper expression of the
prosecutor’s personal opinion, “they cannot be characterized as prosecutorial
misconduct unless their effect was to ‘prejudice the jury, forming in their minds
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fixed bias and hostility toward the defendant so they could not weigh the
evidence objectively and render a true verdict.’” Commonwealth v. Chmiel,
889 A.2d 501, 545 (Pa. 2005) (quotation omitted). Nothing in the record
indicates that these statements had such an effect. Further, the trial judge
reminded the jurors that counsels’ arguments are not evidence and inferences
drawn by counsel are not binding on the jury. N.T., 2/26/10, at 16.
Finally, aside from Appellant’s succinct representation that “the
comments made by the prosecutor were harmful and could have impacted the
outcome of the trial,” Appellant’s Brief at 16, Appellant has failed to
demonstrate actual prejudice arising from counsel’s ineffectiveness, i.e., that
there was a reasonable probability that but for counsel’s alleged errors, the
outcome of the trial would have been different. Commonwealth v. Mallory,
941 A.2d 699. Here, Appellant merely claimed without elaboration that the
outcome could have been different but for trial counsel’s decision not to object
to the prosecutor’s closing argument. This bald assertion could not satisfy his
burden to show that if trial counsel had objected, a mistrial would have been
granted, and that he would have prevailed on appeal if a mistrial had been
requested and denied. Indeed, the PCRA court, who also presided over
Appellant’s trial, concluded that “even if Appellant’s counsel had objected to
the prosecutor’s comments during closing argument, and contested them on
appeal, the outcome would not have been different.” PCRA Court Opinion,
12/3/19, at 8.
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For all of the above reasons, we conclude that Appellant’s underlying
claim that prosecutorial misconduct warranted a new trial lacks merit.
Therefore, Appellant’s derivative IAC claim does not warrant relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/20
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