Com. v. Johnson, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARRELL JOHNSON :
:
Appellant : No. 1398 EDA 2020
Appeal from the PCRA Order Entered June 25, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0007273-2016
BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 30, 2021
Darrell Johnson appeals from the order dismissing his Post Conviction
Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. Johnson
maintains that he is entitled to relief because his trial counsel was ineffective
for failing to request an alibi instruction and for stipulating that he sent letters
found in his girlfriend’s home. We affirm.
We previously summarized the relevant facts as follows:
On August 20, 2016, at about 10:30 p.m., the victim, Anthony
Gibbons, went to a bar with [Johnson’s] cousin and accomplice in
this crime, Latia Lofton. While they were at the bar, Lofton went
in and out of the restroom multiple times, and used her cellphone
to send text messages and make a phone call. When Gibbons and
Lofton went outside to smoke a cigarette at Lofton’s request,
[Johnson] approached them with his face covered. [Johnson] was
carrying a gun, and he snatched Lofton’s pocketbook. [Johnson]
put the gun to Gibbons’ head and demanded his cellphone, keys
and money. Gibbons complied, and then pulled his own gun from
his car. Both men started shooting, and Gibbons was struck in his
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foot and back. The bar owner called 911, and police and an
ambulance responded to the scene.
Police recovered Lofton’s cellphone, and downloaded and
reviewed text messages from the night of the robbery indicating
that she and [Johnson] planned the robbery together. One of the
text messages read: “You gone [sic] see us out front. We in
parking lot. Take my purse too.” Lofton eventually gave a
statement to police confirming her involvement in the robbery.
Cell site analysis performed on [Johnson’s] cellphone placed him
in the general vicinity of the bar on the night of the incident. Police
recovered a handgun from [Johnson’s] home during a search of
his residence. The gun matched the firearm used in the robbery,
and DNA testing showed [Johnson’s] DNA on the gun, along with
two other contributors.
Commonwealth v. Johnson, 192 A.3d 1149, 1151 (Pa.Super. 2018)
(citations omitted).
At trial, Johnson’s counsel stipulated that Johnson had sent five letters
that police found in Johnson’s girlfriend’s residence. The stipulation stated,
“The letters recovered from Shonda Gelermo’s home on March 16, 2017, are
stipulated as being sent by the defendant.” N.T., 3/23/17, at 83. The
prosecution introduced the letters into evidence during the testimony of
Detective Jeffrey Koch. Detective Koch read the letters to the jury. In the first
letter, dated September 17, Johnson stated that he had a dream in which the
true shooter of the victim came forward. Id. at 86-87. In the second letter,
dated September 25, Johnson suggested that his girlfriend provide testimony
that they were having dinner together on the night of the shooting. Id. at 87-
89. In the third letter, dated October 11, Johnson asked his girlfriend to talk
to his aunt about Latia Lofton possibly testifying against him and stated that
Lofton must say that the text messages she sent were not meant for him. Id.
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at 89-91. In the fourth letter, entitled “Xmas,” Johnson asked his girlfriend to
talk to Lofton to ask her not to incriminate him and to tell her that she did not
know her rights when she spoke with the police. Id. at 91-92. In the last
letter, dated March 9, Johnson gave his girlfriend advice on how to testify and
told her what her testimony should be if she testified at trial. Id. at 95-97.
In defense, Johnson presented the testimony of his sister and brother,
Zakiyha Henderson and Gregory Boyd, Jr. Henderson testified that she saw
Johnson at a barbeque on the evening of the shooting. Id. at 109. She said
that she arrived at the barbeque a little before 4:00 p.m. and stayed there
until 2:00 a.m. Id. Henderson recalled that she first saw Johnson at the
barbeque around 4:15 p.m. Id. at 110. She then saw Johnson a second time
later at the barbeque before it was completely dark outside. Id. at 110-111.
Henderson did not know when Johnson left the barbeque. Id. at 111.
Boyd also testified that he saw Johnson at the barbeque. Id. at 153-
154. He said that he arrived at the barbeque around 4:30 p.m. and had a
“nice amount of interaction” with Johnson. Id. at 154-155. Boyd stated that
he left the barbeque around midnight and did not know whether Johnson was
there when he left. Id. He did not recall the last time in the evening he saw
Johnson. Id. at 156.
Johnson took the stand and testified that he arrived at the barbecue in
the late afternoon and stayed there for approximately two-and-a-half hours.
Id. at 120. He said that he then went home to change clothes and returned
to the barbeque around 9:00 p.m. Id. at 120-121. Johnson testified that he
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left the barbeque “well in the hours of almost 12:00-ish, close to that hour,”
and then went to his mother’s house where he was living at the time. Id. at
122. He stated that he could not have been at the robbery because he was at
the barbeque during the relevant time. Id. at 139.
Johnson further testified that he wrote only the letters dated September
17 and March 9, but claimed that he “fabricated” their content to “support
[his] suspicions” that his letters “were being tampered with.” Id. at 130, 143-
144, 147-149. Johnson denied writing the letters dated September 25 and
October 11 and the letter entitled “Xmas.” Id. at 145-147.
At the conclusion of the trial, the jury found Johnson guilty of robbery,
criminal conspiracy, aggravated assault, persons not to possess firearms, and
firearms not to be carried without a license. The court sentenced him to 25 to
50 years’ incarceration.
Johnson appealed and we affirmed his judgement of sentence.
Johnson, 192 A.3d at 1151. The Pennsylvania Supreme Court denied
Johnson’s petition for allowance of appeal on January 11, 2019. On September
20, 2019, Johnson filed the instant PCRA petition pro se. The court appointed
PCRA counsel, who filed an amended PCRA petition. The Commonwealth filed
an answer and moved to dismiss the petition. The PCRA court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the petition without a hearing,
and ultimately dismissed it on June 25, 2020. This timely appeal followed.
Johnson raises the following issues in this appeal:
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1. Did the Trial Court err as a matter of law and discretion in
denying [Johnson’s] claim that trial counsel was ineffective for
neglecting to request and preserve an Alibi Instruction (Pa.SSJI
Crim. 3.11)?
2. Did the Trial Court err as a matter of law and discretion in
denying [Johnson’s] claim that trial counsel was ineffective for
entering into numerous stipulations with the Commonwealth
regarding the content and admissibility of the five letters
allegedly sent by [Johnson] without first obtaining [Johnson’s]
approval when said stipulations were in contrast to [Johnson’s]
approval when said stipulations were in contrast to [Johnson’s]
defense and trial testimony?
3. Did the Trial Court err as a matter of law and discretion in
denying [Johnson’s] claim that trial counsel was ineffective for
failing to conduct a colloquy with [Johnson] before agreeing to
the stipulation regarding the content and admissibility of the
five letters allegedly sent by [Johnson]?
4. Did the Trial Court err as a matter of law and abuse its
discretion in denying [Johnson’s] PCRA Petition without
conducting an evidentiary hearing on the issues that were
made known to the Trial Court in [Johnson’s] PCRA?
Johnson’s Br. at 4-5.
On appeal from the denial or grant of relief under the PCRA, our review
is limited to determining “whether the PCRA court’s ruling is supported by the
record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,
442 (Pa.Super. 2018) (citation omitted).
Johnson’s issues involve claims of ineffectiveness of trial counsel.
“[C]ounsel is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa.Super. 2010). To obtain relief based on a claim of
ineffectiveness, a petitioner must establish: “(1) his underlying claim is of
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arguable merit; (2) counsel had no reasonable basis for his action or inaction;
and (3) the petitioner suffered actual prejudice as a result.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Prejudice in this
context means that “absent counsel’s conduct, there is a reasonable
probability the outcome of the proceedings would have been different.”
Commonwealth v. Velazquez, 216 A.3d 1146, 1149 (Pa.Super. 2019)
(citation omitted). A failure to meet any of these prongs bars a petitioner from
obtaining relief. Commonwealth v. Sneed, 45 A.3d 1096, 1106 (Pa. 2012).
Johnson’s first issue is that the PCRA court erroneously denied his claim
that trial counsel was ineffective for failing to request an alibi instruction.
Johnson’s Br. at 17. He contends that he presented an alibi defense through
the testimony of two witnesses, Zakiyha Henderson and Gregory Boyd, Jr., as
well as his own testimony that he was at the barbeque and then went home
to his mother’s house during the time the shooting occurred. Id. at 21, 23.
Johnson concludes that “[e]ven if [t]rial [c]ounsel felt that the alibi testimony
was not the strongest, he should have requested an [a]libi [i]nstruction as it
would have advanced his [] defense.” Id. at 25-26.
“An alibi is a defense that places a defendant at the relevant time at a
different place than the crime scene and sufficiently removed from that
location such that it was impossible for him to be the perpetrator.”
Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa.Super. 2011) (citation
omitted). “Where [alibi] evidence has been introduced, a defendant is entitled
to an alibi instruction to alleviate the danger that the jurors might
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impermissibly view a failure to prove the defense as a sign of the defendant’s
guilt.” Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (citation
omitted). Nevertheless, an alibi instruction “is required only in cases where a
defendant’s explanation places him at the relevant time at a different place
than the scene involved and so far removed therefrom as to render it
impossible for him to be the guilty party.” Commonwealth v. Collins, 702
A.2d 540, 545 (Pa. 1997).
Here, the PCRA court concluded that Johnson could not prove prejudice
because the evidence supporting Johnson’s alibi was weak and the evidence
against him was overwhelming. PCRA Court Opinion, filed Sept. 4, 2020, at 9.
The court pointed out that since the police were called to the scene around
11:35 p.m., and neither Henderson nor Boyd knew when Johnson left the
barbeque, their testimony did not support an alibi defense. Id. The court
further observed that Johnson did not testify that he was at the barbeque at
11:35 p.m.; rather, he stated that he left the barbeque at “almost 12:00-ish[,
close to that hour.]”1 Id. On the other hand, the court found that there was
overwhelming evidence that placed Johnson at the scene of the robbery,
including accomplice testimony and cell site analysis evidence. Id.The PCRA court did not err. The only support for Johnson’s claimed alibi
was his own testimony, which the jury would likely have viewed as self-
serving, and he did not even clearly state in his testimony that he was at the
____________________________________________
1 See N.T., 3/23/17, at 122.
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barbecue at the relevant time. In contrast, the evidence that he was the
perpetrator was strong. That evidence included: Lofton’s testimony that
Johnson planned the robbery with her; text messages between Lofton and
Johnson; the fact that Johnson gave Lofton $300 shortly after the robbery;
cell site analysis that placed Johnson in the general vicinity of the bar on the
night of the incident; a handgun recovered from Johnson’s home that matched
the firearm used in the robbery; and evidence that Johnson’s DNA was found
on the gun. We cannot say that the PCRA court erred in concluding that
Johnson’s allegations were insufficient to undermine confidence in the verdict.
The court properly dismissed this claim.
Johnson’s next issue is that the court erred in denying his claim that
trial counsel was ineffective for “entering into numerous stipulations”
regarding “the content and admissibility of the five incriminating letters
allegedly sent by [Johnson] without first obtaining [Johnson’s] approval when
said stipulations were in contrast to [Johnson’s] defense and trial testimony.”
Johnson’s Br. at 17. Johnson maintains that counsel never consulted with him
before trial regarding the stipulation and that he told counsel prior to trial that
he did not write all five letters. Id. at 32-33. Johnson further contends that
he was unsure whether he was going to testify, but “after hearing the
stipulation and the letters read in court, [he] felt obligated to take the stand
and testify at trial that he did not send all five of these letters, which testimony
was contrary to the stipulation agreed to by his own attorney.” Id. at 33. He
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argues that this undermined his credibility since his testimony that he did not
write all five letters was contrary to the stipulation. Id. at 35-37.
Johnson mischaracterizes the stipulation. There was only one stipulation
about the letters, and it was that Johnson sent them. The purpose of the
stipulation was to address authentication. See Pa.R.E. 901. There was no
stipulation about the “content” of the letters.
The PCRA court rejected this claim on the ground that the stipulation
did not prejudice Johnson, as the letters were admissible even in the absence
of the stipulation. We agree. There was sufficient evidence to authenticate the
letters circumstantially without the stipulation. For evidence to be admissible,
it must be properly authenticated. Pa.R.E. 901(a); see Commonwealth v.
Talley, 236 A.3d 42, 59 (Pa.Super. 2020). To achieve authentication, the
proponent must produce evidence sufficient to support a finding that the item
is what the proponent claims it is. Pa.R.E. 901(a). Such evidence can be purely
circumstantial evidence. Pa.R.E. 901(b). In Commonwealth v. Collins, 957
A.2d 237, 266 (Pa. 2008), the Pennsylvania Supreme Court found
circumstantial evidence sufficient to authenticate letters. There, the letters
bore defendant’s name and return address, used his prison identification
number, and contained subject matter – including addressing the recipient by
nicknames and referring to trial strategy – linking the letters to the defendant.
Although not identical to the evidence in Collins, the circumstantial
evidence here was sufficient to authenticate the letters. The letters were found
at Johnson’s girlfriend’s home and they used language that one would use
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with a paramour, such as addressing the recipient as “baby.” The letters
discussed aspects of Johnson’s case and suggested testimony that would be
favorable to Johnson. The letters also discussed conversations he had with his
lawyer and testimony Lofton could give if she cooperated with police. One of
the letters was signed “Darrell.” These circumstances are sufficient, when
considered in their totality, to authenticate the letters.
Furthermore, even if the letters were not in evidence, the evidence of
Johnson’s guilt was quite strong, including inculpatory testimony from his co-
conspirator, Lofton, and the text messages between the two setting up the
attack. Johnson has not shown that but for the stipulation, there is a
reasonable probability the outcome of the trial would have been different.
Thus, Johnson has failed to establish prejudice and the PCRA court properly
dismissed this claim.
Johnson’s third issue is that the trial court erred in rejecting his claim
that counsel was ineffective for failing to conduct a colloquy with Johnson
before agreeing to the stipulation regarding the letters. Johnson’s Br. at 34.
Johnson points to precedents stating that a colloquy is necessary “any time a
defendant stipulates to evidence that virtually assures his conviction because
such a stipulation is functionally the same as a guilty plea.” Id. at 35 (quoting
Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014)).
Johnson’s argument fails because the stipulation that the letters were
sent by Johnson was not “functionally the same as a guilty plea.” Rather, the
letters were just one piece of evidence that the jury considered in finding
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Johnson guilty. Indeed, as explained above, there was an abundant evidence
of guilt independent of the letters.
Johnson’s final issue is that the PCRA court erred in denying his petition
without holding a hearing. Johnson’s Br. at 37. Johnson argues that there were
genuine issues of material fact regarding his claims. Id. at 38-40.
A PCRA petitioner does not have an absolute right to a hearing.
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.Super. 2008). A PCRA
court may decline to hold a hearing if it determines that there are no genuine
issues of material fact, the defendant is not entitled to PCRA relief, and no
purpose would be served by any further proceedings. See Pa.R.Crim.P.
907(1). “[T]o obtain reversal of a PCRA court’s decision to dismiss a petition
without a hearing, an appellant must show that he raised a genuine issue of
fact which, if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011) (citation omitted)
(alteration in original).
We find no error in the PCRA court’s decision to decline to conduct an
evidentiary hearing. All of Johnson’s claims involved ineffective assistance of
counsel and the PCRA court was able to determine that even taking Johnson’s
factual allegations as true, Johnson could not meet at least one of the prongs
of the ineffectiveness test. See Jones, 942 A.2d at 906.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2021
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