Com. v. Johnson, D.

J-S51013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK EUGENE JOHNSON :
:
Appellant : No. 1222 MDA 2018
Appeal from the PCRA Order Entered June 29, 2018
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005271-2013
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 10, 2019
Derrick Eugene Johnson appeals, pro se, from the June 29, 2018, order
entered in the York County Court of Common Pleas, which dismissed his first
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. Johnson seeks relief from a term of life imprisonment, imposed
on June 25, 2014, after a jury convicted him of first-degree murder1 in the
shooting death of Trevhan Kent (“the victim”). On appeal, he raises claims of
prosecutorial misconduct, abuse of discretion, and ineffective assistance of
counsel.2 Based on the following, we affirm.
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1 18 Pa.C.S.A. § 2502(a).
2 Based on the nature of Johnson’s claims, we have reordered his issues and
will address the third argument first, and then the remaining two.
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A panel of this Court previously set forth the underlying factual and
procedural history on direct appeal as follows:
Lamin Goodman testified that, on the evening of January 13,
2013, he and the victim, were playing pool at Temptations Bar on
East Market Street in York, Pennsylvania. Some words were
exchanged with another group of men, one of whom was Johnson.
Goodman testified that he and the victim decided to leave, but
one of the men in Johnson’s group punched the victim in the face.
When Johnson moved to join the fray, Goodman jumped in to stop
him. The fight ended ten to fifteen minutes later. Sometime during
the fight, the victim was stabbed in the rib area. See N.T., 6/9-
11/2014, at 116-126.
Goodman explained that a month later, on February 17,
2013, he received a text message from the victim, stating that the
victim was at Pandora’s, another bar in York, and “the same guys
that [they] had an altercation with prior” were at the bar. Id. at
128. Goodman went to meet the victim, but by the time he
arrived, Johnson and his cohorts had left. Goodman and the victim
then decided to go to Temptations. While they were waiting for
drinks, they noticed Johnson and another man try to enter the
club, but were turned away by the bartender. Goodman testified
that he and the victim stayed at Temptations for another 45
minutes because they “didn’t want to get into any problems.” Id.
at 136. After having the bartender check to ensure no one was
waiting on the street, Goodman and the victim then left through
the door of the adjoining bar, NV’s Bar and Grill. As they began to
walk home, Goodman heard a gunshot coming from behind. When
he saw the victim start running, he fled in another direction, and
eventually ran into a police officer. Goodman did not see who shot
at him and the victim. See id. at 140-144.
Amanda Trout testified that she was working as a dancer at
Temptations on the night of the shooting. After her shift, she left
the club through the door to NV’s Bar and Grill. At that time, she
saw Johnson, whom she knew as “Ace,” and another man standing
in the covered entrance of Temptations. Id. at 168-170. She said,
“Hey, what’s up?” and found it “unusual” that Johnson did not
respond because she “normally talked to him, maybe once a week
or so.” Id. at 170. She decided to go to her friend’s house across
the street from the club. As she closed the door, she heard a
gunshot. Although she did not see the shooter, Trout testified that
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the only people she noticed on the street when she left the club
were Johnson and his friend. See id. at 170-172.
Khadijah Weary testified that she was also working as a
dancer at Temptations on the night of the shooting, and that
Johnson, whom she knew as “Ace” and Damian Banks,1 whom she
called “Dre,” were there to give her a ride home. When she walked
outside and greeted the men, she gave them both a hug, and felt
that each had a gun on his hip. Johnson even pulled back his
jacket to show her the gun. Id. at 243-245, 248-249. Weary
testified that Johnson told her “everything was going to be okay
and to go to the car.” Id. at 250. Weary then waited in the car
for about a half an hour before she heard three gunshots.
Immediately thereafter, Weary saw Johnson and Banks running to
the car. She began screaming at them to take her home, and when
she leaned up from the backseat, she saw each man had a gun in
his lap.
____________________
1 Banks and Weary were dating at that time. Id. at 245.
____________________
Weary conceded that she gave several statements to police
that differed from her trial testimony. See id. at 260-265.
However, she explained that she was “scared for [her] life and
scared that [Johnson and Banks were] going to hurt [her.]” Id.
at 266. Weary also acknowledged that she lied to protect her then
boyfriend, Banks. Id. at 274.
Damian Banks, who was facing murder charges for the same
incident, also testified on behalf of the Commonwealth. Banks
corroborated Goodman’s story about the January 2013 bar fight
involving Goodman and the victim. Banks acknowledged that he
had punched the victim in the face after they started arguing.
However, he did not know who stabbed the victim that night. See
id. at 292-295. A few weeks later, Banks and Johnson saw the
victim on the street, and Johnson told Banks, “I seen him a couple
of times, and I got to do something before he do something to
me.” Id. at 296.
Banks’ testimony regarding the night of the shooting largely
confirmed the account provided by both Goodman and Weary.2
Banks explained that he and Johnson first saw the victim at
Pandora’s earlier that evening. He testified that Johnson wanted
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to “do something” to the victim there, but Banks told him there
were too many cameras. Id. at 298. They ran into the victim
again, however, when they went to Temptations to pick up Weary
from work. When Weary emerged from the club, she gave him a
hug, and he told her to “go to the car, I am about to go holler at
my peoples real quick.” Id. at 299. Banks testified he and
Johnson were waiting in the covered entryway to Temptations,
when Johnson saw the victim and Goodman exit the club through
the bar next door.3 Johnson said, “there they go right there,”
pulled a gun from his hip and fired a shot, using a laser for
accuracy, at the victim’s back. Id. at 303. Banks and Johnson
both ran to the car and fled the scene.
____________________
2 Banks’ testimony differed somewhat from Weary’s in that
he claimed he was not carrying a gun that night, and that
Weary never hugged Johnson. Id. at 309-310.
3 Banks testified he was waiting for a friend to bring him
“some weed.” Id. at 312.
____________________
Banks also testified that after he was arrested for the
murder, he was in the York County Prison in a cell near Johnson.
At one point, Johnson told him, “You and I are the only ones that
know what happened, and you and I both know I did it.” Id. at
307. Banks confirmed that when Johnson made the statement,
Banks’ cellmate, Samuel Lawson, overheard the conversation.
On cross-examination, Banks admitted that he was the one
who assaulted the victim during the January 2013 altercation.
Furthermore, he acknowledged that he expected his first-degree
murder charge would be dropped as a result of his testimony. See
id. at 308, 313. However, he further testified no concrete
agreement had been reached.4 Id. at 290.
____________________
4 We note that on June 26, 2014, the murder charge
pending against Banks was withdrawn. See CP-67-CR-
3933-2014.
____________________
The Commonwealth also presented the testimony of Samuel
Lawson who corroborated Banks’ testimony regarding the
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conversation between Banks and Johnson at the York County
Prison. According to Lawson, Banks asked Johnson, “Why am I
here?” Id. at 341. Lawson testified that Johnson replied,
I’m not the reason you’re here, the bitch Khadijah, ask her.
And he also stated that, you don’t have anything to worry
about, because I did it. The only person that knows what
happened that night is me and you.
Id. Under cross-examination, Lawson admitted he did not see
Johnson when he made the statement, because Johnson was in
the shower, but he did see him immediately thereafter. Id. at 343,
347. He also conceded he was facing a felony drug charge for
delivering cocaine, and he expected some type of consideration in
exchange for his testimony. Id. at 345.
Johnson presented only two witnesses in his defense.5
Private investigator George Morrison testified that when he
interviewed Amanda Trout, she admitted to him she was a heroin
addict, and had been using four to six bags of heroin a day at the
time of the shooting. Id. at 359-360. Morrison also testified Trout
asked him questions about recanting her former statement. Id. at
360. Additionally, Kalvin Beady testified he was incarcerated with
Banks and Johnson at the time Lawson allegedly overheard
Johnson confess to the crime. Beady stated he heard the
conversation in question, and at no time did either Banks or
Johnson state Johnson was the shooter. Id. at 363.
____________________
5Johnson did not testify on his own behalf.
____________________
Johnson was eventually apprehended in Memphis,
Tennessee, while using a fake driver’s license, and charged with
first-degree murder. A jury trial was conducted from June 9, 2014
through June 11, 2014. On June 11, 2014, the jury returned a
verdict of guilty on the charge of first-degree murder. Thereafter,
on June 25, 2014, Johnson was sentenced to a mandatory term
of life imprisonment. He filed a timely post-sentence motion
challenging both the weight and sufficiency of the evidence, which
the trial court denied on November 24, 2014.
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Commonwealth v. Johnson, 131 A.3d 86, 2160 MDA 2014 at *1-3 (Pa.
Super., filed August 7, 2015) (unpublished memorandum).
This Court affirmed his judgment of sentence on August 7, 2015,3 and
the Pennsylvania Supreme Court denied his petition for allowance of appeal
on December 22, 2015. See id.
Johnson filed this, his first, pro se, PCRA petition on March 24, 2017.
From March of 2017 to December of 2017, the PCRA court appointed four
attorneys to represent Johnson. The most recent appointed counsel filed a
motion to withdraw and Turner/Finley4 “no merit” letter on March 5, 2018.
On June 7, 2018, the PCRA court granted counsel’s motion to withdraw and
issued a Pa.R.Crim.P. 907 notice of intent to dismiss Johnson’s petition without
a hearing. Johnson did not a file a response to the court’s Rule 907 notice.
Subsequently, on June 29, 2018, the court dismissed Johnson’s petition,
finding there were no genuine issues of material fact and he was not entitled
to post-conviction relief. This pro se appeal followed.
Our standard of review with regard to PCRA petitions is well settled.
“When reviewing the denial of a PCRA petition, we must determine whether
the PCRA court’s order is supported by the record and free of legal error.”
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3Johnson raised one claim on direct appeal – that the verdict was against the
weight of the evidence.
4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018) (citation
omitted). While we are generally bound by a PCRA court’s credibility
determinations, we apply a de novo standard to our review of the court’s legal
conclusions. See id.
Generally, all PCRA petitions “shall be filed within one year of the date
the judgment [of sentence] becomes final” unless an exception applies. 42
Pa.C.S.A. § 9545(b)(1). The PCRA’s time limitations are jurisdictional in nature
and, as such, may not be altered or disregarded in order to address the merits
of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007). As the timeliness of a petition is separate from the merits of Johnson’s
underlying claims, we must first determine whether the PCRA petition is timely
filed. See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
Here, Johnson’s judgment of sentence became final on March 21, 2016,
following the Pennsylvania Supreme Court’s denial of his petition for allowance
of appeal on December 22, 2015, and the expiration of the 90-day period for
filing a petition for writ of certiorari. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.
Ct. R. 13. Therefore, under the PCRA one-year time limitation, any PCRA
petition was required to be filed by March 21, 2017. See 42 Pa.C.S.A. §
9545(b)(1). Here, the docket reflects that Johnson’s petition was filed on
March 24, 2017, three days late.
Nevertheless, pursuant to the “prisoner mailbox rule,” a pro se
prisoner’s document is deemed filed on the date he delivers it to prison
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authorities for mailing. See Pa.R.A.P. 121(a); see generally,
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super 2006).
However, to avail oneself of the mailbox rule, a prisoner must supply sufficient
proof of the date of the mailing. See Commonwealth v. Jones, 700 A.2d
423, 426 (Pa. 1997) (accepting any reasonable verifiable evidence of the date
a prisoner places his filing in the control of prison authorities);
Commonwealth v. Perez, 799 A.2d 848, 851 (Pa. Super. 2002) (finding
certified mail receipt sufficient evidence of date prisoner deposited his notice
of appeal in the prison mail system).
Turning to the present record, Johnson included an envelope for the
petition, stamped with an Inmate Mail Pennsylvania Department of
Corrections postage that is dated March 21, 2017, which was within the one-
year period. Based on the record, and applying the “prisoner mailbox rule,”
we conclude Johnson has provided sufficient proof that he filed a timely PCRA
petition. We may now proceed to the merits of his appeal.
Preliminarily, we note a review of Johnson’s brief reveals he identifies
14 issues in his statement of questions involved, see Appellant’s Brief at 5-6,
but only elaborates on three of those claims in the argument section, see id.
at 10-23. “[A]lthough this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special benefit upon an
appellant.” Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003)
(citations omitted). “[A]ny layperson choosing to represent himself in a legal
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proceeding must, to some reasonable extent, assume the risk that his lack of
expertise and legal training will prove his undoing.” Commonwealth v.
Gray, 608 A.2d 534, 550 (Pa. Super. 1992) (citation omitted). As such, we
cannot serve as Johnson’s counsel and litigate his claims for him. Further, it
is well settled that any “issue identified on appeal but not developed in the
appellant’s brief is abandoned and, therefore, waived.” Commonwealth v.
Heggins, 809 A.2d 908, 912 n.2 (Pa. Super. 2002). Accordingly, those non-
developed issues are waived.
In his third enumerated argument, Johnson raises a claim of
prosecutorial misconduct, which appears to be in reference to a statement
made by the Commonwealth during opening arguments. See Appellant’s Brief
at 22-23. We note that, generally, claims of trial court error and prosecutorial
misconduct, other than those enumerated in 42 Pa.C.S.A. § 9543(a)(2)(i-viii),
are not cognizable under the PCRA. See also 42 Pa.C.S.A. § 9544(b) (“For
purposes of this subchapter, an issue 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 postconviction proceeding”). Here, Johnson could
have raised his claim of prosecutorial misconduct on direct appeal, but failed
to do so. Accordingly, we conclude this argument is waived and need not
address it further.
With respect to Johnson’s first enumerated argument, titled “Abuse of
Discretion,” Appellant’s Brief at 10, we find his discussion to be disjointed and
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difficult to follow at times with no cogent train of thought. Johnson appears to
set forth the following averments: (1) the Commonwealth withdrew the
conspiracy counts to first and third degree murder charges in Johnson’s case;
(2) neither the court nor the parties informed the jury that to find Johnson
guilty of first-degree murder, “it must be proven beyond a reasonable doubt
that [Johnson] and co-defendant Damian Banks shared the intent to kill which
is required for” first-degree murder based on an accomplice liability theory,
Id. at 13; (3) Johnson’s Fourteenth Amendment rights were violated because
the trial court erred by allowing the theory of accomplice liability to be raised
during closing arguments at trial; (4) his Sixth Amendment confrontation
rights were violated because he never had a full and fair opportunity to cross-
examine a witness, Trout, since he did not have vital impeachment evidence
regarding the witness prior to the preliminary hearing; (5) his due process
rights under the Sixth and Fourteenth Amendments were violated because the
Commonwealth had knowledge that Trout committed perjury and withheld
this information. See id. at 10-17.5
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5 For instance, the following is an example of Johnson’s exact language:
Prior to the start of [Johnson]’s Jury Trial, Commonwealth
Attorney Ramseure withdrew Count 3 and Count 4, Conspiracy to
First and Third Degree Murder. The only logical explanation behind
this action was the [Johnson]’s Co-defendant, Damian Banks
became a Commonwealth witness. [Johnson] is now going to trial
on the theory that he committed the murder. All culpability was
now absent in this case which drastically alter[ed] his defense
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Upon review, Johnson fails to present a coherent legal argument on
appeal. Accordingly, we find this argument waived. See Pa.R.A.P. 2101, 2119.
See also Commonwealth v. Walter, 966 A.2d 560, 567 (Pa. 2009) (finding
waiver where argument was vague and confusing); Commonwealth v.
Puksar, 951 A.2d 267, 293-294 (Pa. 2008) (holding that failure to make or
develop argument was fatal to claim). Furthermore, to the extent Johnson
____________________________________________
strategy because with Conspiracy charges now present, the
defense now becomes that he and his Co-defendant did NOT
murder the victim. Without conspiracy, defense strategy was that
Appellant was NOT the murderer. 18 Pa. C.S. sec.306 (c).
…
To be an active accompli[c]e, one must be an active partner
in the intent to commit the crime. An accompli[c]e must have
done something to participate in the venture.
In the Commonwealth’s opening statement, the prosecutor
stated “a witness is going to testify that the [Johnson] was
planning to shoot the decedent in Pandora’s Bar but was talked
down.” That witness was the co-defendant, Damian Banks who
was then asked, “Why did you leave Pandora’s.” His response was
“because I wasn’t trying to get involved with anything going on as
far as shooting or fighting or anything with Mr. Kent.” The
Commonwealth also asked Mr. Kent, “What happened at
Pandora’s Bar?” His response was, “We walked in the Bar, we had
a drink. We seen Mr. Kent. Mr. Johnson was like [‘]Yo[’], I got to
do something to him now. I might as well get him now. I said,
Ain’t no sense. Too many cameras in here. And I am not trying to
get involved with it.” In 18 Pa. SC 306(c) as stated a person has
to promote, facilitate, solicit, aids, agrees or attempts to aid such
other person in planning or committing the offense.
Johnson’s Brief at 11-12 (record citations and italics omitted).
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again alleges that the trial court erred, we reiterate that he should have
presented these arguments before the trial court and/or on direct appeal. See
42 Pa.C.S.A. § 9544(b).
Lastly, in Johnson’s second enumerated argument, he raises several
ineffective assistance of counsel assertions. See Appellant’s Brief at 18-19.
Specifically, he asserts the following: (1) counsel was ineffective for failing to
impeach a witness, Khadijah Weary,6 on grounds of prior inconsistent
statements; (2) counsel was ineffective for failing to object to statements
made by the Commonwealth during open and closing arguments concerning
Johnson and his cohorts attempting to determine the identity of the victim,
which he claims was a mischaracterization of the evidence; and (3) counsel
was ineffective for failing to object to an erroneous jury instruction regarding
accomplice liability because the conspiracy charges were withdrawn. See id.
With respect to ineffectiveness claims, our standard of review is as
follows:
In order for [the a]ppellant to prevail on a claim of ineffective
assistance of counsel, he must show, by a preponderance of the
evidence, ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place. [The a]ppellant must
demonstrate: (1) the underlying claim is of arguable merit; (2)
that counsel had no reasonable strategic basis for his or her action
or inaction; and (3) but for the errors and omissions of counsel,
there is a reasonable probability that the outcome of the
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6 Johnson refers to Weary as “Khadijah Okay” in his brief. Appellant’s Brief at
18.
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proceedings would have been different. The petitioner bears the
burden of proving all three prongs of the test.
Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)
(citations omitted). “Counsel is presumed effective, and the appellant has the
burden of proving otherwise.” Commonwealth v. D'Collanfield, 805 A.2d
1244, 1246 (Pa. Super. 2002) (citation omitted).
With respect to Johnson’s first two allegations of ineffectiveness, a
review of the record reveals that he failed to include these issues in his PCRA
petition. See PCRA Petition, 3/24/2017, at 3-8.7 It is well-settled that
[r]egardless of the reasons for [an a]ppellant’s belated raising of
[an] issue, it is indisputably waived. We have stressed that a claim
not raised in a PCRA petition cannot be raised for the first time on
appeal. We have reasoned that permitting a PCRA petitioner to
append new claims to the appeal already on review would wrongly
subvert the time limitation and serial petition restrictions of the
PCRA. The proper vehicle for raising this claim is thus not the
instant appeal, but rather is a subsequent PCRA petition.
Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (internal
brackets, citations, and quotation marks omitted). Accordingly, these issues
are waived.
With respect to his remaining assertion, that counsel was ineffective for
failing to object to an erroneous jury instruction regarding accomplice liability,
Johnson fails to explain how counsel had no reasonable strategic basis for his
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7 See also Rule 907 Notice, 6/7/2018.
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inaction. See Johnson, 868 A.2d at 1281; see also Appellant’s Brief at 21.
Furthermore, as the PCRA court found:
[Johnson] contends that accomplice liability was argued in the
Commonwealth’s closing and that the Court instructed the jury in
regard to accomplice liability. This is correct. [Johnson] claims,
however, that accomplice liability does not pertain to this case and
that the definition of accomplice liability is absent in this case.
[Johnson]’s contentions are without merit and belied by the
record. Numerous witnesses testified that [Johnson] and Damian
Banks were together:
- for the original altercation with the Victim at Temptations
bar;
- when they went back to the house to figure out who
Trevahn Kent was;
- a week after the fight when they saw the Victim driving
by and the statement was made “I need to get him before
he gets me.”
- on the night the shooting occurred, in the alcove outside
the bar, waiting for the Victim and Lamin Goodman to
leave the club.
Given the foregoing, if the jury did not find that [Johnson] was the
shooter, they could still have found [Johnson] guilty of murder
based upon [a]ccomplice [l]iability. Therefore, [a]ccomplice
[l]iability does pertain to this case. As a result, [t]rial [c]ounsel
was not ineffective for failing to argue that accomplice liability is
not applicable. Moreover, the Court properly instructed the jury
regarding [a]ccomplice [l]iability, and included in those
instructions was the definition of [a]ccomplice [l]iability.
Rule 907 Notice, 6/7/2018, at unnumbered 2-3. Our review indicates the
court’s analysis is well supported by the record. We therefore agree with the
court’s conclusion that Johnson also failed to establish that the underlying
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claim had arguable merit. Accordingly, we conclude Johnson’s final argument
is unavailing.
Having discerned no error of law, we affirm the PCRA court’s June 29,
2018 order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2019
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