Com. v. Johnson, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANIEL RASHEED R. JOHNSON :
:
Appellant : No. 2630 EDA 2016
Appeal from the PCRA Order July 26, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008608-2009
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 14, 2019
Daniel Rasheed R. Johnson appeals from the order dismissing his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. The PCRA court found the claims raised in his PCRA petition
lacked merit. We affirm.
The trial court set forth an extensive factual history in its Pa.R.A.P.
1925(a) opinion filed on direct appeal. Trial Court Opinion, filed June 10, 2013,
at 1-14. In November 2012, a jury convicted Johnson of second-degree
murder, robbery, criminal conspiracy to commit murder, and carrying a
firearm on public streets in Philadelphia.1 The evidence admitted at trial
included, among other things, eye witness testimony, testimony that Johnson
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 903, and 6106(a)(1), respectively.
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had been riding a red bike and that a red bike was discovered at the crime
scene, and video recordings of the crime scene.
The trial court sentenced Johnson to life imprisonment for the second-
degree murder conviction and additional terms of imprisonment for the
remaining convictions. Johnson appealed, and this Court vacated the sentence
for the robbery conviction, finding the robbery conviction merged with the
second-degree murder conviction for sentencing purposes. We affirmed the
judgment of sentence in all other respects.
In February 2015, Johnson filed a timely PCRA petition alleging counsel
was ineffective for failing to call a witness and for failing to object during the
Commonwealth’s opening statement, and that a conflict of interest existed
with his trial counsel. The PCRA court appointed counsel, who filed a
Turner/Finley2 letter and a petition to withdraw as counsel. In the
Turner/Finley letter, counsel explained why the issues raised in Johnson’s
PCRA petition lacked merit. In June 2016, the PCRA court filed notice of its
intent to dismiss the petition without a hearing under Pennsylvania Rule of
Criminal Procedure 907. Johnson filed an extension of time to file a response,
which the trial court did not address. On July 26, 2016, the court dismissed
the petition and permitted counsel to withdraw. Johnson filed a response to
the notice of intent on August 1, 2016. He filed a timely notice of appeal.
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2 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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In September 2017, in response to Johnson’s “Petition for Release of
Notes of Testimony and All Other Related Documents,” we remanded the case
to the PCRA court to provide Johnson, either via counsel or directly, copies of
any requested transcripts or documents.
In addition, Johnson filed an “Application For Leave To File Post-
Submission Communication and Motion To Stay Proceedings For Remand To
The Trial Court For Full Evidentiary Hearing Pursuant To Pa.R.A.P. & Pursuant
To §9545(b)(1)(ii) Newly Discovered Facts.” He claimed he had new evidence
that his conviction and sentence were based on fabricated and misleading
testimony and police misconduct. In October 2018, this Court denied the
application “without prejudice to [Johnson’s] right to raise the issues in the
motion, if properly preserved, in [Johnson’s] brief or in a newly filed
application for relief that may be filed after the appeal has been assigned to
the panel of this Court that will decide the merits of the appeal.” Order, filed
Oct. 15, 2018.
In his appellate brief, Johnson states the following as his issues
presented:
(A) Trial counsel was ineffective in failing to conduct a
statutory and[/]or reasonable pretrial investigation for the
development of witness, counsel’s none action violated
[Johnson’s] right to counsel as guaranteed by the [S]ix and
[F]ourteenth Amendments to the United States
Constitution[.]
(B) A conflict of interest existed causing structural error
denying [Johnson] a fair trial and effective assistance of
counsel, being that, prior to trial petitioner filed a
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malpractice claim against trial counsel . . . on August 18[,]
2011.
(C) Trial counsel was ineffective for failing to obtain an
independent ballistics evaluation where proper testing of the
ballistics evidence could have meant the difference between
reasonable doubt and conviction and the prosecutor’s
deliberate misrepresentation of the ballistics evidence went
unanswered.
Johnson’s Br. at ii-iii (citations omitted). In the argument section of his brief,
however, he argues the criminal indictment was a “product of police
solicitation of false testimony, suggestive identification and undue influence.”
Johnson’s Br. at B. He argues a Commonwealth witness Jasmine Fields initially
identified another person from a photograph array. He further argues the
Commonwealth failed to provide mandatory discovery and requests that we
remand to the PCRA court so that such discovery can occur. He argues the
Commonwealth’s failure was unknown to him. He further requests that we
reconsider our November 2018 order, in which we denied his request to
remand to the PCRA court.
Johnson has failed to preserve the claims argued in his appellate brief,
that is, the indictment was the result of undue influence, the Commonwealth
failed to provide discovery, and any failure by the Commonwealth was
unknown to him. Johnson did not raise the claims in the PCRA court, and he
cannot raise the claims for the first time on appeal. Pa.R.A.P. 302(a). We
therefore will not review the claims. As stated in our October 2018 order,
Johnson may file a PCRA petition and attempt to raise the claims. We note,
however, that, as the petition will not be filed within one year of the date the
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judgment became final, Johnson must plead and prove an exception to the
time-bar. Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding
where a PCRA appeal is pending, subsequent PCRA petition “cannot be filed
until the resolution of review of the pending PCRA petition by the highest state
court in which review is sought, or upon the expiration of the time for seeking
such review,” and if subsequent petition is not filed within one year of date
when judgment became final then the petitioner must plead and prove one of
the three exceptions to the time-bar and comply with time limit set forth in
42 Pa.C.S.A. § 9545(b)(2)).
As to the claims raised in the PCRA court, Johnson does not argue such
claims on appeal, and he has therefore waived them. Commonwealth v.
Sarvey, 199 A.3d 436, 452 (Pa.Super. 2018) (appellant waived claim where
only cited single case and relied on suppositions and bald facts). Further, even
if he had not waived them, we would conclude the claims lacked merit.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
To prevail on an ineffective assistance of counsel claim, the petitioner
must establish: “(1) his underlying claim is of 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). “[C]ounsel is presumed to be effective and the burden of
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demonstrating ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244
(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).
“The failure to prove any one of the three [ineffectiveness] prongs results in
the failure of petitioner’s claim.” Id. (quoting Rivera, 10 A.3d at 1279).
Johnson’s first claim was that his trial counsel was ineffective for failing
to interview or call a witness.
To establish counsel was ineffective for failing to interview a witness, a
PCRA petitioner must show that:
(i) the witness existed; (ii) the witness was available to
testify; (iii) counsel knew of, or should have known of, the
existence of the witness; (iv) the witness was willing to
testify; and (v) the absence of the testimony was so
prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Pander, 100 A.3d 626, 639 (Pa.Super. 2014) (en banc).
The PCRA court concluded the claim lacked merit. It reasoned Johnson
failed to name any alleged witness that trial counsel failed to interview, and
did not state what any witness would have testified to, or how such testimony
would have altered the outcome of the trial. The PCRA court further noted that
the evidence against Johnson at trial was “overwhelming, including an
eyewitness identification at the scene of the crime.” Trial Court Opinion, filed
June 28, 2017, at 11-12 (“1925(a) Op.”).
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The record supports the PCRA court’s findings and the court did not err
in finding the ineffectiveness claim lacked merit.3
Johnson next argued counsel was ineffective for failing to object to
“false” remarks made during opening statements. The PCRA court found: “This
undeveloped claim is also without merit because [Johnson] provides no
evidence as to what constituted the alleged false remarks.” 1925(a) Op. at
12. It further found Johnson failed to establish prejudice. Id. The PCRA court’s
findings are supported by the record, and it did not err in finding Johnson
failed to establish his claim. As the PCRA court noted, Johnson failed to
establish the prejudice prong of ineffectiveness claim, as he failed to establish
the result of the trial would have been different if counsel had objected to any
allegedly improper remarks made during the Commonwealth’s opening
statement.
Johnson’s last claim was that there was a conflict of interest. On appeal
he claims he filed a malpractice claim against his trial attorney in August 2011.
The PCRA court found: “[Johnson] does not provide any evidence as to
the nature of the alleged conflict of interest.” 1925(a) Op. at 12. It concluded
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3 In Johnson’s late response to the notice of intent to dismiss, he claims that
Leroy Jeter told a detective that the assailant was light in color and he could
not tell the assailant’s race, and claims that Johnson is “an extremely dark[-
]skinned individual.” Response, filed Aug. 1, 2016, at 2. However, Johnson
does not establish that this testimony would have altered the outcome of the
trial.
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“this wholly undeveloped issue, with no basis in law or fact, does not entitle
[Johnson] to relief.” Id.
This was not error. Johnson has provided no evidence of any conflict of
interest, including any evidence to establish he filed a claim against his trial
counsel.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/19
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4 Johnson’s Application for Leave to File Post-Submission Communication is
denied. As with the claims raised in his appellate brief, Johnson may attempt
to raise any additional PCRA claims raised in the post-submission
communication in a subsequent PCRA petition.
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