Com. v. Johnson, K.

J-S62021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KARLTON JOHNSON,
Appellant No. 3148 EDA 2013
Appeal from the Judgment of Sentence of August 7, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011564-2012
BEFORE: ALLEN, OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 18, 2014
Appellant, Karlton Johnson, appeals from the judgment of sentence
entered on August 7, 2013, as made final by the denial of Appellant’s post-
sentence motion on August 12, 2013. We affirm.
The trial court has ably explained the facts and procedural posture
underlying this appeal:
On the night of September 11, 2012, around 9:45 [p.m.],
[Philadelphia] Police Officer Daniel Loesch and his partner,
Police Officer Rodney Cottrell, were patrolling the area of
6001 Algon Avenue in Philadelphia on marked bicycles.
During their patrol, the two officers saw [25] to [30]
individuals in a crowd on the street. Because there had
been a shooting in the area a few days earlier, the officers
approached the group of individuals. The individuals
dispersed upon noticing the officers. When [Appellant] saw
the officers, he grabbed his waistband and ran away to the
west.
Officer Loesch pursued [Appellant] on bicycle while his
partner rode in the opposite direction to cut off [Appellant].
J-S62021-14
Officer Loesch observed [Appellant] run around a building
and then saw him hiding in a bush. Officer Loesch saw a
black gun with a brown grip in [Appellant’s] waistband while
[Appellant] crouched down in the bush.
[Appellant] then began to flee from the bush. As
[Appellant] started to run away, Officer Loesch, from [15]
feet away, and Officer [Cottrell], from the southeast corner
of a nearby building, observed [Appellant] throw a handgun
into a blue recycling bin. [Appellant] then continued to run
around the building.
[Appellant] next tried to enter the back door of a residence,
but the occupants would not let him in. Officer Loesch and
Officer Cottrell came up to [Appellant] and arrested
[Appellant].
While coming towards [Appellant], Officer Cottrell passed
the recycling bin and observed a weapon inside.
After the police officers arrested [Appellant], Detective John
Hopkins of Northeast Detectives arrived and took
photographs and recovered the discarded handgun from the
recycling bin. There was ample lighting in the area from
street lights – so much so that Detective Hopkins did not
need to use the flash on his camera.
Detective Hopkins was later able to determine that the
recovered gun was registered to a Brian Kemper, who had
reported [the gun] stolen in a burglary in May [2012].
Detective Hopkins inspected the weapon and discovered
rounds in the magazine and a bullet in the chamber. Ann
Marie Barnes, a firearms examiner with the Philadelphia
Police Department’s Firearms Identification Unit, identified
the firearm as a Polish semiautomatic [9-millimeter]
Marakov. She also concluded that there were six [9-
millimeter] Marakov rounds and one Remington .380 caliber
round in the gun. Ms. Barnes also found gunshot residue
and lint in the barrel, and she concluded that the gun was
operable.
...
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J-S62021-14
Following a trial on August 6, 2013, the jury found that
[Appellant] possessed a firearm without a license and [that
Appellant was, therefore, guilty of violating 18 Pa.C.S.A.
§ 6106].
Subsequent to the jury verdict, [Appellant] waived his right
to a jury trial on the remaining charge, and the trial court
convicted [Appellant] of [violating 18 Pa.C.S.A. § 6105,]
because [Appellant] was ineligible to possess a firearm as a
result of prior felony convictions.
[On August 7, 2013, t]he trial court sentenced [Appellant]
to [serve a term of] five to ten years [in prison] on the
[Section] 6105 [conviction] and [to serve] a consecutive
term of five years of reporting probation on the [Section]
6106 [conviction].
Trial Court Opinion, 1/23/14, at 1-3 (internal citations omitted).
After the trial court denied Appellant’s timely post-sentence motion,
Appellant filed a timely notice of appeal. The trial court ordered Appellant to
file a concise statement of errors complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied and
raised the following claims in his Rule 1925(b) statement:
1. The [trial c]ourt erred by not giving the jury cautionary
instructions after testimony was elicited by the
Commonwealth about a shooting in the area two days
before [Appellant] was arrested.
2. [Appellant] was not connected to the shooting and any
testimony about the shooting was overly prejudicial.
Appellant’s Rule 1925(b) Statement, 11/20/13, at 1.
Appellant now raises the following claim to this Court:
Is [Appellant] entitled to a new trial based on the
ineffectiveness of his trial counsel in failing to object to
testimony elicited by the Commonwealth regarding a recent
shooting in the area, in which [Appellant] was arrested, and
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for not requesting a cautionary instruction be given to the
jury?
Appellant’s Brief at 3.
Appellant’s ineffective assistance of counsel claim is waived on appeal,
as Appellant did not raise the claim in his court-ordered Rule 1925(b)
statement. Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule
1925(b) s]tatement . . . are waived”); Commonwealth v. Collins, 888
A.2d 564, 572 (Pa. 2005) (holding that an ineffective assistance of counsel
claim is distinct from the underlying claim of trial court error).
Further, even if Appellant had preserved his ineffective assistance of
counsel claim, the claim would be unreviewable on direct appeal.
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general
rule, a [defendant] should wait to raise claims of ineffective assistance of
trial counsel until collateral review”); Commonwealth v. Holmes, 79 A.3d
562, 620 (Pa. 2013) (“absent [certain, specified] circumstances [(that are
inapplicable to the case at bar)] claims of ineffective assistance of counsel
are to be deferred to PCRA review; trial courts should not entertain claims of
ineffectiveness upon post-verdict motions; and such claims should not be
reviewed upon direct appeal”).
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J-S62021-14
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2014
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