Com. v. Johnson, A.

J-S41007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTONIO M. JOHNSON,
Appellant No. 2083 MDA 2016
Appeal from the PCRA Order December 1, 2016
in the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0007270-2011
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 18, 2017
Appellant, Antonio M. Johnson, appeals from the order denying his first
petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541–9546. Counsel has filed a petition to withdraw from
further representation pursuant to Turner/Finley.1 We affirm the order and
grant counsel’s petition to withdraw.
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*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Appellant has not
filed a response to counsel’s notice of his petition to withdraw.
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A jury convicted Appellant of murder of the first degree and numerous
other related crimes2 stemming from his participation in an armed assault on
September 18, 2011, against Brandon DeJesus and Angel Rengifo, enemies
of his best friend, Rudolph Mendoza. DeJesus and Rengifo were shot and
wounded in the assault. Appellant also fatally shot his friend, Mendoza, (and
fellow shooter), who evidently crossed into Appellant’s line of fire. (See
Commonwealth v. Johnson, (No. 2271 MDA 2013), (unpublished
memorandum, at *2), (Pa. Super. filed Feb. 18, 2015), appeal denied, 119
A.3d 350 (Pa. 2015)).
Appellant gave a videotaped statement to the police who were
investigating the shootings of DeJesus and Rengifo. Appellant does not
dispute that he received Miranda warnings prior to giving this statement.3
In the tape, Appellant appears distraught over the death of his best friend,
and denies that he was responsible.
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2
In addition to first degree murder, the jury also convicted Appellant of
conspiracy to commit first degree murder, two counts of attempt to commit
homicide, and two counts of aggravated assault.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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There is also no dispute that Appellant asked his trial counsel, George
Marros, Esquire, to file a pre-trial motion to suppress the statement.
Counsel declined.4
At trial, Appellant exercised his constitutional right not to testify, but,
through counsel, argued self-defense. A redacted version of the video was
played for the jury.
The jury convicted Appellant of first degree murder, conspiracy to
commit first degree murder, two counts of attempt to commit homicide, and
two counts of aggravated assault, as noted. The court sentenced him to an
aggregate term of life imprisonment without possibility of parole, plus a
consecutive term of not less than twenty nor more than forty years’
incarceration.
This Court affirmed the judgment of sentence, and our Supreme Court
denied allowance of appeal. (See Johnson, supra). On July 14, 2016,
Appellant timely filed a pro se PCRA petition, raising six disparate grounds
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4
Defense trial attorney Marros testified at the PCRA hearing that in his
opinion there were no legal grounds to pursue suppression, chiefly because
Appellant had, without dispute, waived his Miranda rights. Attorney Marros
also thought that the presentation of Appellant in the video as distraught
over the loss of his best friend would “humanize[ ]” him to the jury, without
subjecting him to cross-examination. (N.T. PCRA Hearing, 12/01/16, at 17).
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for relief.5 The PCRA court appointed counsel who, with the agreement of
Appellant and the permission of the court, withdrew Appellant’s pro se
claims and substituted the issue raised in this appeal. The PCRA court
denied relief, after a hearing. This timely appeal followed. Counsel filed a
“Turner/Finley brief” and a petition to withdraw from further
representation. Preliminarily, we must review whether counsel is entitled to
withdraw.
Counsel petitioning to withdraw from PCRA representation must
proceed not under Anders but under Turner [supra] and
Finley, [supra]. . . . Turner/Finley counsel must review the
case zealously. Turner/Finley counsel must then submit a “no-
merit” letter to the trial court, or brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review of the
case, listing the issues which the petitioner wants to have
reviewed, explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel’s petition to
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5
In a meandering and unduly lengthy pro se petition, Appellant challenged
the constitutionality of the murder statute, and asserted a variety of
ineffectiveness claims, including the failure to raise a diminished capacity
defense based on the immaturity of his “adolescent brain.” (Pro Se Petition,
7/14/16, at 1). Appellant was twenty at the time of the murder. (See
Integrated Offender Case Management System record, 10/05/16). Under
the guise of proving ineffectiveness, Appellant presents a circuitous, pseudo-
academic tour d’horizon of American and colonial history, citing, inter alia,
alleged evidence of racist tendencies of Woodrow Wilson, Theodore
Roosevelt, Thomas Jefferson, Calvin Coolidge, and William Howard Taft,
interspersed with theological observations from Thomas Aquinas. (See Pro
Se PCRA Petition, at 1-62). Some of this is mildly amusing. Most of it is
tendentious claptrap. None of it is relevant to a cognizable PCRA claim.
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withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the
merits of the underlying claims but, rather, will merely deny
counsel’s request to withdraw. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file a
proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley,
the court—trial court or this Court—must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if the claims
appear to have merit, the court will deny counsel’s request and
grant relief, or at least instruct counsel to file an advocate’s
brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (some
citations omitted).
Here, counsel identified the issue agreed on with Appellant, explained
why and how it lacked merit, sent Appellant a copy of his request for
permission to withdraw, furnished Appellant a copy of the Turner/Finley
brief, and advised him of his right to retain other counsel, or proceed on his
own. On independent review, we determine that counsel has substantially
complied with the requirements of Turner/Finley. Accordingly, we will
proceed with our independent review of the merits of Appellant’s claims.
The Turner/Finley brief raises one issue on appeal:
I. Whether the PCRA court erred in denying Appellant’s
PCRA petition when trial counsel was ineffective in representing
Appellant by failing to file a pretrial motion to suppress
Appellant’s statements to police?
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(Turner/Finley Brief, at 4) (most capitalization omitted).
Our standard of review of a PCRA order is well-settled:
Under the applicable standard of review, we must
determine whether the ruling of the PCRA court is supported by
the record and is free of legal error. The PCRA court’s credibility
determinations, when supported by the record, are binding on
this Court. However, this Court applies a de novo standard of
review to the PCRA court’s legal conclusions.
Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citations omitted).
In this appeal, Appellant claims ineffective assistance of trial counsel.
Counsel is presumed effective, and in order to overcome that
presumption a PCRA petitioner must plead and prove that: (1)
the legal claim underlying the ineffectiveness claim has arguable
merit; (2) counsel’s action or inaction lacked any reasonable
basis designed to effectuate petitioner’s interest; and (3)
counsel’s action or inaction resulted in prejudice to petitioner.
With regard to reasonable basis, the PCRA court does not
question whether there were other more logical courses of action
which counsel could have pursued; rather, [the court] must
examine whether counsel’s decisions had any reasonable basis.
Where matters of strategy and tactics are concerned, [a] finding
that a chosen strategy lacked a reasonable basis is not
warranted unless it can be concluded that an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued. To demonstrate prejudice, a
petitioner must show that there is a reasonable probability that,
but for counsel’s actions or inactions, the result of the
proceeding would have been different. Failure to establish any
prong of the Strickland/Pierce test will defeat an
ineffectiveness claim.
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations,
quotation marks and footnote omitted).
At the PCRA hearing, trial counsel explained his strategy of
“humanizing” Appellant by way of the videotape, which showed him to be
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distraught over the death of his friend. Moreover, counsel explained that, in
his view, the motion to suppress was unmeritorious, because Appellant was
informed of his Miranda rights and waived them. Counsel observed that
Appellant gave no indication of a mental defect or other limitation which
could call into question whether his waiver was knowing, voluntary, and
intelligent. “Trial counsel cannot be held to be ineffective for failing to take
futile actions or to raise a meritless claim.” Commonwealth v. Howard,
645 A.2d 1300, 1304 (Pa. 1994) (citations omitted). Finally, counsel
reasoned that the playing of the videotape would allow Appellant to present
his version of the events, without subjecting him to cross-examination.
We conclude that counsel presented a reasonable basis for the action
he undertook. We need not examine whether there were other courses of
action counsel could have pursued; rather, this Court must examine whether
counsel’s decisions had any reasonable basis. See Mason, supra at 618.
Because Appellant failed to prove that counsel’s action did not have a
reasonable basis in effecting his client’s interest, the claim of ineffectiveness
fails. See id. The PCRA court properly denied relief.
On independent review, we discern no other issues which would
provide Appellant with relief under the PCRA. In particular, none of the
claims Appellant previously raised in his pro se petition (and later agreed to
withdraw) present a cognizable claim, or would merit collateral relief. (See
supra at *3-*4 n.5).
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Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2017
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