Com. v. Johnson, A.

J-S73020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARMONI M. JOHNSON
Appellant No. 2119 MDA 2013
Appeal from the Judgment of Sentence of October 21, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0002713-2011
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED JULY 30, 2015
Armoni M. Johnson appeals his October 21, 2013 judgment of
sentence for one count each of aggravated assault, a felony of the first
degree, and aggravated assault, a felony of the second degree. See
18 Pa.C.S. §§ 2702(a)(1), (4), respectively. This case returns to us
following our prior memorandum addressing Johnson’s counsel’s
Anders/Santiago brief.1 Therein, we explained that counsel had failed in
several regards to comply fully with the Anders/Santiago requirements.
Accordingly, we returned the matter to counsel with direction to prepare a
compliant Anders/Santiago brief or to prepare an advocate’s brief on
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1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). In Santiago, our Supreme Court
developed certain rules to ensure compliance with the principles underlying
the Anders decision.
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Johnson’s behalf. See generally Commonwealth v. Johnson,
Memorandum, 2/3/2015. Counsel elected to file an advocate’s brief, and the
case now is ripe for disposition on the merits. We affirm.
The trial court has provided the following factual history:
On August 7, 2011, the victim, Justin Barna, was a resident in
the Capital Hill Apartments, Mountaintop[,] Pennsylvania. In the
past, Justin Barna was a regular user of heroin and had
purchased drugs from Johnson, in particular, heroin.
Approximately one week prior to the date of the incident, the
victim purchased four (4) bags of heroin from Johnson. On
August 5, 2011, Johnson contacted the victim and accused him
of robbing him of his drugs and informing him that he was
coming to his home to retrieve the same.
On August 7, 2011, the victim had been with his neighbor,
Jeffery Petry, having traveled to a pawn shop in the Wilkes-Barre
area and then returning to their respective apartments. On that
date, the victim heard a knock at the door. As the victim slightly
opened his door, Johnson pushed the door open and commenced
stabbing him. Johnson repeatedly stabbed the victim in the
victim’s apartment and again in the hallway causing the victim to
fall through his neighbor’s, Jeffery Petry’s, door. The victim was
transported to the hospital where he spent five (5) days and
underwent three (3) separate surgeries. Johnson stabbed the
victim in the stomach, under the arm, and in the back.
The Commonwealth called Jeffery Petry as a witness who was a
neighbor of the victim, Justin Barna, at the Capital Hill
Apartments. Mr. Petry testified that after the victim left his
apartment on August 7, 2011, he heard noises, including a voice
saying “You’re stabbing me!” . . . . He further testified that he
observed a knife in [Barna’s] apartment with blood on it.
The Commonwealth called [Sergeant] Scott Rozitski from the
Wright Township Police Department who testified that when he
arrived at the scene on August 7, 2011, he witnessed the victim
standing on the sidewalk holding his stomach. He also described
blood on Barna’s shirt, blood on the ground near the victim, and
the fatty tissue coming out of the wounds that were inflicted.
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[Sergeant] Rozitski also testified that there were no weapons on
the victim and the victim told him that Johnson had stabbed him.
Trial Court Opinion (“T.C.O”), 1/23/2014, at 3-4 (record citations omitted
and nomenclature modified).
The trial court related the procedural history as follows:
[T]he Commonwealth of Pennsylvania brought the following
charges against [Johnson]: Count 1—Aggravated Assault 18
Pa.C.S. § 2702(a)(1); Count 2—Criminal Conspiracy 18 Pa.C.S.
§ 903; Count 3—Burglary 18 Pa.C.S. § 3502(a); Count 4—
Aggravated Assault 18 Pa.C.S. § 2702(a)(4); Count 5—Criminal
Conspiracy 18 Pa.C.S. § 903.
T.C.O. at 1. On or about August 6, 2012, Johnson tendered a guilty plea.
However, in a document entered on October 12, 2012, the trial court
granted Johnson’s putative request to withdraw his guilty plea. 2 See
Issue/Lift Capias, 10/12/2012.
Prior to the commencement of trial, the Commonwealth
withdrew Count 2 Criminal Conspiracy and Count 5 Criminal
Conspiracy. On July 15, 2013, Johnson presented a motion for
dismissal pursuant to Pa.R.Crim.P. 600. On that date, the
Commonwealth similarly presented a [Pa.R.E. 404(b)] motion
seeking to admit specific prior bad acts. Johnson’s Rule 600
motion was denied and the Commonwealth’s [Rule] 404([b])
motion was granted.
On Tuesday, July 16, 2013, a jury trial was commenced. At the
conclusion of the trial, the jury rendered a verdict as follows:
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2
The certified record contains no written motion to withdraw the prior
plea tender.
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Count 1—Aggravated Assault—Guilty; Count 2—Aggravated
Assault—Guilty; Count 3—Burglary—Not Guilty.[3]
On October 11, 2013, the [trial c]ourt sentenced Johnson as
follows: Count 1—Aggravated Assault—[a] sixty-six (66)[-]
month minimum to a one hundred fifty-six (156)[-]month
maximum in a state correctional institut[ion] followed by
sixty (60) months[’] special probation; Count 2—Aggravated
Assault—fifteen (15) months minimum to sixty (60) months
maximum concurrent to Count 1.
Thereafter, on October 18, 2013, Johnson filed a Motion to
Modify Sentence[,] which was denied by way of Order dated
October 21, 2013. Subsequent thereto, Johnson filed a Notice of
Appeal on November 13, 2013. On November 14, 2013, the
Court entered an order directing Johnson to file a Concise
Statement of Errors Complained of on Appeal [pursuant to
Pa.R.A.P. 1925(b)]. On December 4, 2013, Johnson filed an
Amended Motion to Extend Time for Filing a Concise Statement
Pursuant to Pa.R.A.P. 1925. Upon consideration of that motion,
the Court granted Johnson ten (10) days after receipt of
sentencing/revocation hearing transcript to file his Concise
Statement.
T.C.O. at 1-2 (citations and nomenclature modified).4 As noted, supra, upon
review of appointed counsel’s Anders/Santiago brief, we found that
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3
The trial court’s renumbering of the counts as originally charged
counts is immaterial to our analysis.
4
The trial court entered its order granting Johnson ten additional days
to file his Rule 1925(b) statement on December 6, 2013. The ten-day
extension was indexed to Johnson’s receipt of his sentencing hearing
transcript. The record does not disclose when Johnson received that
transcript, although the record does indicate that the transcript in question
was filed on October 18, 2013, long before Johnson filed his notice of appeal
and his motion to extend time to file his Rule 1925(b) statement.
Nonetheless, Johnson did not file his Rule 1925(b) statement until January
21, 2014, rendering it potentially untimely. Although our Supreme Court
has made clear that failure to file a Rule 1925(b) statement within the time
allotted by the trial court constitutes per se waiver of all issues on appeal,
(Footnote Continued Next Page)
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counsel failed fully to satisfy the Anders/Santiago requirements.
Accordingly, we remanded with direction that counsel file a compliant
Anders/Santiago brief or an advocate’s brief.
Counsel prepared an advocate’s brief raising the following issues:
I. Did the Trial Court err as a matter of law or abuse its
discretion in failing to dismiss all charges pursuant to
Pa.R.C[rim].P. 600[?]
II. Did the Trial Court err in allowing the Commonwealth to
present evidence of prior bad acts[,] of which the
probative value is outweighed by [the] prejudicial effect
this evidence would have on the minds of the jurors and
[which] is irrelevant to the Commonwealth’s proof of the
case[,] thereby depriving [Johnson] of a fair trial[?]
III. Did the Trial Court err by instructing the jury on a charge
of causing or attempting to cause serious bodily injury,
Aggravated Assault[,] wherein the Commonwealth failed to
produce a medical expert or sufficient evidence to sustain
such an instruction[?]
IV. Whether the verdict on count one, Aggravated Assault,
[was] against the weight of the evidence, that [Johnson]
caused or attempted to cause serious bodily injury [sic][?]
_______________________
(Footnote Continued)
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005), in the context of
direct appeals of criminal convictions, amended Rule 1925 has introduced an
efficiency that protects a defendant against the failure of counsel to comply
with a Rule 1925(a) order. Rule 1925(c) provides that, when an attorney
fails to file a timely Rule 1925(b) statement, we may remand the case for
the filing of a Rule 1925(b) statement nunc pro tunc. See Commonwealth
v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc). We further held
that, rather than remand for the filing of a new statement, we may decide
the appeal “if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal.” Id. Such is the case here.
Consequently, we will review the merits of this appeal rather than remand.
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Brief for Johnson at 1.
In Johnson’s first issue, he contends that the trial court erred in
declining to dismiss all charges due to the Commonwealth’s failure to bring
him to trial within one year of his arrest as required by Pa.R.Crim.P. 600.
We find that this issue is waived.
Rule 600(D)(1) provides as follows:
When a defendant has not been brought to trial within the [one-
year time limit] set forth in paragraph (A), at any time before
trial, the defendant’s attorney, or the defendant if
unrepresented, may file a written motion requesting that the
charges be dismissed with prejudice on the ground that this rule
has been violated. A copy of the motion shall be served on the
attorney for the Commonwealth concurrently with filing. The
judge shall conduct a hearing on the motion.
Pa.R.Crim.P. 600(D)(1) (emphasis added). Rule 600(D)(2) similarly
provides that relief under that provision may be sought by filing a written
motion that “shall be served on the attorney for the Commonwealth
concurrently with the filing.” Pa.R.Crim.P. 600(D)(2). Our Supreme Court
has held as follows:
[T]he requirement that a copy of a motion to dismiss be served
upon the attorney for the Commonwealth clearly presupposes
the filing of a written motion. . . . [W]e reiterate that a motion
to dismiss pursuant to Pa.R.Crim.P. 600 must be made in
writing, and a copy of such motion must be served on the
Commonwealth’s attorney.
Commonwealth v. Brock, 61 A.3d 1015, 1020-21 (Pa. 2013) (emphasis
added) (reaffirming that Commonwealth v. Drake, 414 A.2d 1023
(Pa. 1980), which was decided under Rule 600’s predecessor,
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Pa.R.Crim.P. 1100, applied to Rule 600 because Rule 600’s language
concerning the necessity of a written motion was materially the same as
Rule 1100’s corresponding language). Thus, failure to file a written motion
as required by Rule 600(D) necessarily results in waiver of any Rule 600(D)-
related claim on appeal.
The certified record in this matter contains no written motion, nor any
evidence that such a motion was served upon the Commonwealth. To the
contrary, the only evidence of such a motion contained in the record is a
notation in the court’s documentation of the July 15, 2013 pre-trial hearing
that “[Johnson’s] Oral Motion to Dismiss Pursuant to Rule 600(D)(1) is
Denied.” As Brock made clear, an oral motion for dismissal under
Rule 600(D)(1) is insufficient to preserve that issue for appeal.
Consequently, Johnson has waived this issue and we shall not review it
further.5
In Johnson’s second issue, he contends that the trial court erred in
permitting the Commonwealth to introduce prior bad acts evidence under
Pa.R.E. 404, specifically Barna’s testimony regarding his prior drug
transactions with Johnson. The admission of evidence of prior criminal acts
is generally precluded, by Rule 404, which provides, in relevant part:
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5
Notably, the case upon which Johnson relies, Commonwealth v.
Bowes, 839 A.2d 422 (Pa. Super. 2003), in which this Court did not find
waiver where the defendant’s Rule 600 motion was presented orally, was
expressly disapproved by the Brock Court. See Brock, 61 A.3d at 287.
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(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible
for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this
evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404.
Our Supreme Court has elaborated as follows regarding the purpose
and effect of the rule, as well as the exceptions thereto:
Evidence of distinct crimes [is] not admissible against a
defendant being prosecuted for another crime solely to show his
bad character and his propensity for committing criminal acts.
However, evidence of other crimes and/or violent acts may be
admissible in special circumstances where the evidence is
relevant for some other legitimate purpose and not merely to
prejudice the defendant by showing him to be a person of bad
character. As we recently stated . . . :
The general rule prohibiting the admission of evidence of prior
crimes nevertheless[:]
allows evidence of other crimes to be introduced to prove
(1) motive; (2) intent; (3) absence of mistake or accident; (4) a
common scheme, plan or design embracing commission of two
or more crimes so related to each other that proof of one tends
to prove the others; or (5) to establish the identity of the person
charged with the commission of the crime on trial, in other
words, where there is such a logical connection between the
crimes that proof of one will naturally tend to show that the
accused is the person who committed the other.
This list of “special circumstances” is not exclusive, and this
Court has demonstrated it will recognize additional exceptions to
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the general rule where the probative value of the evidence
outweighs the tendency to prejudice the jury.
Another “special circumstance” where evidence of other crimes
may be relevant and admissible is where such evidence was part
of the chain or sequence of events which became part of the
history of the case and formed part of the natural development
of the facts. This special circumstance, sometimes referred to as
the “res gestae” exception to the general proscription against
evidence of other crimes, is also known as the “complete story”
rationale, i.e., evidence of other criminal acts is admissible to
complete the story of the crime on trial by proving its immediate
context of happenings near in time and place.
Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988) (citations omitted;
internal quotation marks omitted; formatting modified).
When we review a trial court’s ruling on [the] admission of
evidence, we must acknowledge that decisions on admissibility
are within the sound discretion of the trial court and will not be
overturned absent an abuse of discretion or misapplication of
law. In addition, for a ruling on evidence to constitute reversible
error, it must have been harmful or prejudicial to the
complaining party.
Lykes v. Yates, 77 A.3d 27, 32 (Pa. Super. 2013) (quoting Reott v. Asia
Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010)).
The trial court explained its reasoning as follows:
In the instant matter, the Commonwealth sought to present
evidence that the victim purchased heroin from [Johnson] in the
week prior to the incident.
****
There is a logical connection between the act of selling drugs to
the victim and the crime at issue[,] which establishes that the
crime currently being considered grew out of or was in any way
caused by the prior set of facts and circumstances. Here, the
evidence could certainly provide the jury with the basis that the
aggravated assault charge grew out of or was in any way caused
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by the prior set of facts and circumstances. Further, this [c]ourt
finds no danger that the contested evidence would stir such
passion in the finder of fact as to sweep them beyond a rational
consideration of the guilt or innocence of the crime on trial. The
[c]ourt’s decision to allow evidence of prior drug sales from
[Johnson] to the victim was permissible to establish motive for
the crimes charged.
T.C.O. at 5-6 (citations omitted).
Johnson argues as follows:
[P]ermitting evidence that the victim had recently purchased
drugs from [Johnson] and that [Johnson] asked the victim to
stash drugs in his apartment was prejudicial, irrelevant, and
should have been excluded. . . . There was no evidence drugs
were ever sold by [Johnson] to the victim by way of video
evidence; proof money was exchanged in a drug transaction; the
drugs allegedly sold; or that [Johnson] was convicted of these
alleged drug offenses.
Instantly, the victim’s testimony about prior drug buys was
extremely prejudicial to [Johnson] and influenced the jury into
making its decision based on incidents that were not relevant to
the instant case.
****
The Commonwealth relied in totality upon the testimony of
Mr. Barna and failed to offer any tangible evidence of these
alleged “bad acts[.”]
Brief for Johnson at 10-11.
Johnson’s argument is devoid of any on-point case law establishing a
basis for relief under circumstances similar to those presented in this matter.
Moreover, we find no abuse of discretion in the trial court’s determination
that evidence of prior drug transactions between Johnson and Barna was
admissible as evidence of motive and/or under the res gestae exception to
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Rule 404. Barna testified that Johnson’s attack was retaliation based upon
Johnson’s belief that Barna had stolen drugs from Johnson, an averment
that presupposed prior criminal interactions between the parties. Thus,
Barna’s testimony regarding any such interactions was relevant to his own
assertion that the assault at issue in this case grew out of the prior set of
facts and circumstances, thereby establishing the parties’ prior course of
dealings as well as a possible motive for Johnson’s assault. Nor do we find
that this evidence was so prejudicial relative to its probative value that the
trial court’s admission of it was an abuse of discretion. Accordingly, Johnson
is entitled to no relief on this claim.
In his third issue, Johnson contends that the trial court erred by
instructing the jury on a charge of causing or attempting to cause serious
bodily injury because the Commonwealth did not introduce expert medical
evidence to sustain such an instruction. A defendant is guilty of aggravated
assault if a jury finds, beyond a reasonable doubt, that the defendant
“attempt[ed] to cause serious bodily injury to another, or cause[d] such
injury intentionally, knowingly, or recklessly under circumstances
manifesting extreme indifferent to the value of human life.” 18 Pa.C.S.
§ 2702(a)(1). Serious bodily injury is defined as “bodily injury which creates
a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of function of any bodily
member or organ.” 18 Pa.C.S. § 2301.
Appellant’s argument is difficult to decipher:
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At issue is [Johnson’s] contention that the words “attempted to
cause serious bodily injury” should have been eliminated from
the jury instruction . . . . [Johnson] further argues that because
the Commonwealth failed to present medical evidence proving
serious bodily injury, and by failing to do so, the attempt
language should be eliminated.
The jury instruction [at issue was] as follows:
At Count I, Aggravated Assault, the charge is that
[Johnson] intentionally, knowingly or recklessly under
circumstances manifesting extreme indifferent to the value
of human life caused or attempted to cause serious bodily
injury to Justin Barna, that is to say the actor stabbed the
victim multiple times.
[Notes of Testimony, 7/16/2013, at 141-42.6]
[Johnson] contends that the above is an improper jury charge
and suggests that a new trial is warranted.
Brief for Johnson at 12-13. Johnson cites no legal authority beyond a
handful of cases that establish the general principles that apply when a party
challenges a jury instruction. Notably, he cites no precedent to support the
putative necessity of medical testimony to establish that Barna suffered a
serious bodily injury. Moreover, he does not dispute that the trial court’s
jury instruction was faithful to the statutory definition of aggravated assault.
“In addressing challenges to jury instructions, we consider the
challenged portions in light of the entire instruction, and we acknowledge
that trial courts have broad discretion in phrasing the charge so long as the
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6
The record arrives before this Court without a transcript of the trial
proceedings. Rather than delay resolution of this appeal further, we accept
as true Johnson’s account of the jury instructions.
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law is clearly, adequately and accurately described.” Commonwealth v.
Ly, 980 A.2d 61, 88 (Pa. 2009). Moreover, a challenge to a trial court’s jury
instruction is subject to the harmless-error doctrine: “[U]nder the harmless
error doctrine, the judgment of sentence will be affirmed in spite of the error
only where the reviewing court concludes beyond a reasonable doubt that
the error did not contribute to the verdict.” Commonwealth v. Bullock,
913 A.2d 207, 218 (Pa. 2006).
Pennsylvania law does not support Johnson’s argument. Aggravated
assault cases routinely result in guilty verdicts without expert medical
evidence regarding the severity of the victim’s injuries. For example, in
Commonwealth v. Gray, 867 A.2d 560 (Pa. Super. 2005), we found
sufficient evidence to support a conviction for aggravated assault where the
only evidence of a medical nature involved the defense’s stipulation that the
victim had reported to her physician that she had been stabbed in the arm
with a knife and in the forehead and scalp with a screwdriver. Id. at 568.
No expert testimony was introduced at trial to establish that these wounds
were inflicted by the appellant or constituted serious bodily injuries.
Nonetheless, based upon the testimony of police officers and the fact of the
injuries themselves, we determined that “the fact-finder could conclude that
[the defendant] perpetrated the instant assault and that the infliction of
multiple stab wounds, including a wound above the eye and a wound to the
scalp, demonstrated his intent to inflict serious bodily injury.” Id.
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The evidence as related by the trial court, the substance of which is
not disputed, when viewed in the light most favorable to the Commonwealth
as verdict-winner, established a basis upon which a jury could conclude that
Johnson stabbed Barna in the stomach, under the arm, and in the back.
Barna spent five days in the hospital and underwent three separate
surgeries. Sergeant Rozitski, the first responder on the scene, testified that,
upon his arrival, he observed blood on Barna’s shirt, blood on the ground
near the victim, and saw fatty tissue emerging from Barna’s wounds.
See T.C.O. at 3-4.
In light of this evidentiary showing, it is difficult to discern why
Johnson believes that the “attempted to cause serious bodily injury”
language should have been omitted from the jury charge for want of
sufficient evidence to support such a conclusion. Moreover, the evidence
presented at trial also was consistent with the actual infliction of serious
bodily injury, as defined supra, and there is no basis in the record from
which we can conclude that the jury did not find Johnson guilty of
aggravated assault under that branch of the offense’s definition. Johnson
does not challenge this aspect of the jury instruction or address this
possibility that the jury determined that he was guilty on that basis rather
than of merely attempting to cause serious bodily injury. Accordingly,
Johnson is not entitled to relief on this claim.
Finally, Johnson contends that his conviction for aggravated assault
was against the weight of the evidence. When reviewing a trial court’s ruling
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that the verdict was not contrary to the weight of the evidence, we review
the trial court’s exercise of discretion, rather than the underlying question of
whether the verdict is against the weight of the evidence. Commonwealth
v. Smith, 985 A.2d 886, 888 (Pa. 2009). Because the jury is free to believe
all, part, or none of the evidence presented, a new trial should not be
granted merely because the judge, on the same facts, would have arrived at
a different conclusion. Commonwealth v. Widmer, 744 A.2d 745, 752
(Pa. 2000). Instead, “the role of the trial judge is to determine that[,]
notwithstanding all the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
justice.” Id. Hence, the trial court should award a new trial only when the
jury’s verdict is “so contrary to the evidence as to shock one’s sense of
justice[,] and the award of a new trial is imperative so that right may be
given another opportunity to prevail.” Commonwealth v. Brown,
648 A.2d 1177, 1189 (Pa. 1994). In effect, “the trial court’s denial of a
motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings.” Commonwealth v. Ramtahal, 33 A.3d 602, 609
(Pa. 2011). Precisely because we review the trial court’s discretion in
rejecting a challenge to the weight of the evidence rather than the evidence
itself, we may review a challenge to the weight of the evidence only if it has
been preserved in an oral or written post-trial motion, enabling the trial
court to assess the challenge in the first instance. See Pa.R.Crim.P. 607(A);
Commonwealth v. Causey, 833 A.2d 165, 173 (Pa. Super. 2003).
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The record indicates that Johnson did not challenge the weight of the
evidence in any of his written post-trial filings. Similarly, he does not assert
that he did so orally following trial. In any event, Johnson’s argument
consists of a recitation of aspersions against Barna that, Johnson contends,
necessarily discredited his testimony beyond repair. Johnson contends that
Barna was convicted of “several crimes of dishonesty” and acknowledged
being a heroin addict. Even assuming that Johnson properly preserved the
issue, none of these considerations establish that the trial court abused its
discretion in rejecting Johnson’s argument. Given the tendentious,
conclusory nature of Johnson’s argument and his failure to establish his
preservation of this issue in the first instance, we cannot conclude that he is
entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2015
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