concluding that while the trial court should have held a competency hearing for a thirteen (13
How later courts described this case
- concluding that while the trial court should have held a competency hearing for a thirteen (13
- proving three prong ineffectiveness test for trial counsel establishes arguable merit to appellate counsel's ineffectiveness
- the prisoner mailbox rule is extended to all appeals by pro se petitioners; a cash slip may provide sufficient evidence of mailing
Written by the judges who cited it.
The opinion
J-S95024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDY JOHNSON
Appellant No. 2893 EDA 2015
Appeal from the PCRA Order July 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007947-2010
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED APRIL 11, 2017
Randy Johnson appeals pro se from the July 17, 2015 order of the
Philadelphia County Court of Common Pleas dismissing his petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, and
granting his counsel’s petition to withdraw. We affirm.
The trial court accurately set forth the factual history of this case,
which we incorporate and adopt herein. Opinion, 3/17/16, at 3-4 (“1925(a)
Op.”).
On February 1, 2012, a jury found Johnson guilty of third-degree
murder, possession of an instrument of crime (“PIC”), and firearms not to be
carried without a license.1 That same date, following a stipulated bench
____________________________________________
1
18 Pa.C.S. §§ 2502(c), 907(a), and 6106(a)(1), respectively.
J-S95024-16
trial, the trial court found Johnson guilty of persons not to possess firearms.2
On April 2, 2012, the trial court sentenced Johnson to 14 to 28 years’
incarceration for the third-degree murder conviction, a concurrent term of 5
to 10 years’ incarceration for the conviction for persons not to possess
firearms, and a consecutive term of 1 to 2 years’ incarceration for the PIC
conviction.3 Johnson filed a post-trial motion, which the trial court denied on
May 17, 2012. On June 1, 2012, Johnson filed a timely notice of appeal. On
March 20, 2013, this Court affirmed. Johnson filed a petition for allowance
of appeal, which the Pennsylvania Supreme Court denied on August 20,
2013.
On December 2, 2013, Johnson filed a timely pro se PCRA petition.
The PCRA court4 appointed counsel, who filed a Turner/Finley5 letter and a
motion to withdraw as counsel. On June 23, 2015, the PCRA court filed
notice of its intent to dismiss the PCRA petition without a hearing pursuant
____________________________________________
2
18 Pa.C.S. §6105(a)(1).
3
The conviction for firearms not to be carried without a license
merged for sentencing purposes.
4
The Honorable Lillian H. Ransom was the judge for both the trial and
the PCRA proceedings. Judge Ransom was sworn in as a member of this
Court in August 2016, following her appointment to the Court in June 2016.
Judge Ransom was not involved in the review of this appeal.
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
-2-
J-S95024-16
to Pennsylvania Rule of Criminal Procedure 907. Johnson filed a response.
The PCRA court dismissed the PCRA petition on July 17, 2015.6 Johnson
filed a timely notice of appeal.7
Johnson raises the following issue on appeal:
1. THE PCRA COURT ERRED AS A MATTER OF LAW AND
ABUSED [ITS] DISCRETION WHEN ADOPTING PCRA
COUNSEL’S ERRONEOUS ASSESSMENT OF [JOHNSONS]
PCRA CLAIMS AS A BASIS FOR DISMISSING [JOHNSON’S]
PCRA PETITION, DEPRIVING [JOHNSON OF] BOTH A FAIR
AND MEANINGFUL PCRA REVIEW AND DUE PROCESS LAW.
____________________________________________
6
Also on July 17, 2015, a docket entry indicates counsel was
permitted to withdraw.
7
As the PCRA Court noted:
[Johnson’s] Notice of Appeal was received by this Court on
September 22, 2015. Attached to this Notice of Appeal
was a letter which explained that [Johnson] attempted to
send a Notice of Appeal on August 16, 2015, however the
envelope which contained his Notice of Appeal was marked
“Return to sender, attempted- not known, unable to
forward” and returned to him on September 10, 2015.
Also attached to Appellant’s Notice of Appeal were two (2)
exhibits. Exhibit “A” was a copy of the cash slip [Johnson]
submitted on August 14, 2015. The cash slip features a
signature by a Housing Unit CO dated August 16, 2015.
Exhibit “B” was a copy of the August 19, 2015, date -
stamped envelope with the aforementioned language. As
such, this appeal was timely under the prisoner mailbox
rule. Commonwealth v. Jones, 549 Pa. 58, 700 A.2d
423 (1997) (the prisoner mailbox rule is extended to all
appeals by pro se petitioners; a cash slip may provide
sufficient evidence of mailing). This appeal was docketed
as 2893 EDA 2015 on October 6, 2015.
1925(a) Op. at 2 n.3.
-3-
J-S95024-16
a) PCRA counsel’s erroneous assessment of
appellant’s PCRA claims for relief deprived appellant
of his state created right to the effective assistance
of counsel during Post-Conviction [proceedings].
Johnson’s Br. at 2.
Johnson first argues that the trial court erred by dismissing the
ineffective assistance of counsel claims raised in his PCRA petition. He
asserts that counsel was ineffective for: failing to file a motion in limine to
preclude, or otherwise object to, testimony and arguments indicating that
Johnson was a threat to two trial witnesses; failing to request a Kloiber8
instruction; failing to request a competency hearing for two child witnesses;
and failing to object to prosecutorial misconduct.
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).
For ineffective assistance of counsel claims, 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) (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010)).
“To demonstrate prejudice, the petitioner must show that ‘there is a
____________________________________________
8
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
-4-
J-S95024-16
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceedings would have been different.’” Id. at 312 (quoting
Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)). “[C]ounsel is
presumed to be effective and the burden of 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).
In his first ineffectiveness claim, Johnson maintains that his trial
counsel was ineffective for failing to file a motion in limine to preclude, or
otherwise object to, the testimony indicating that Johnson was a threat to
witnesses Christopher Benene and Jermaine Smith.
The PCRA court addressed this claim, and found that it lacked merit
because the testimony regarding the witnesses’ fear was relevant and
admissible to demonstrate the effect fear had on the witnesses’ actions. We
agree with and adopt the PCRA court’s reasoning. See 1925(a) Op. at 7-8.
Johnson next argues trial counsel was ineffective for failing to seek a
Kloiber instruction9 for both Benene and Smith. He argues a Kloiber
____________________________________________
9
A Kloiber charge instructs the jury “that a witness’[s] identification
should be viewed with caution . . . where the eyewitness: (1) did not have
an opportunity to clearly view the defendant; (2) equivocated on the
identification of the defendant; or (3) had a problem making an identification
in the past.” Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (quoting
Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa. 1997)).
(Footnote Continued Next Page)
-5-
J-S95024-16
charge was proper as to Benene because he was taking prescribed medicine
and marijuana at the time of the shooting and could not see the shooter.
Johnson maintains a Kloiber charge was proper as to Smith because Smith
denied seeing the shooter and denied identifying Johnson to the police. The
PCRA court concluded that a Kloiber charge was not required because both
witnesses knew Johnson before the shooting, made out-of-court
identifications, and expressed fear in testifying. We agree with and adopt
the PCRA court’s reasoning. See 1925(a) Op. at 8-9.
Johnson next claims trial counsel was ineffective for failing to request
a competency hearing for two child witnesses, K.M.A. and J.A. The PCRA
court concluded that no competency hearing was required for K.M.A., who
was 14 at the time of trial and, therefore, presumed competent. 10 1925(a)
_______________________
(Footnote Continued)
10
The Pennsylvania Supreme Court has held that: “In general, a
witness’s competency to testify at trial is presumed and the burden falls on
the objecting party to demonstrate the witness’s incompetence. However,
when a child under the age of fourteen is called to testify, the competency of
the minor must be independently established.” Commonwealth v.
Harvey, 812 A.2d 1190, 1199 (Pa. 2002) (citations omitted). “[T]o be
found competent, the minor must possess: (1) the capacity to communicate,
including both an ability to understand questions and to frame and express
intelligent answers; (2) the mental capacity to observe the occurrence itself
and the capacity to remember the matter about which she has been called to
testify; and (3) a consciousness of the duty to speak the truth. Id. In
Harvey, the Court concluded that although the trial court failed to conduct a
hearing, the appellant’s ineffective assistance of counsel claim failed. It
reasoned that because the trial court “had the opportunity to observe [the
witness’s] demeanor and was the sole determiner of her truthfulness, the
fact that the trial court did not engage in a distinct colloquy regarding the
truthfulness aspects of her competency did not prejudice Appellant.” Id.
(Footnote Continued Next Page)
-6-
J-S95024-16
Op. at 10. The PCRA court further found that, although it should have held a
competency hearing for J.A., who was 12 at the time of trial, the
ineffectiveness claim fails because the record established that the witness
was able to understand the questions and to frame and express intelligent
answers. Id. at 9-10. We agree with and adopt the PCRA court’s reasoning.
See 1925(a) Op. at 9-10.
Johnson next maintains his trial counsel was ineffective because he
failed to object to the statements of the assistant district attorney (“ADA”)
about the veracity of J.A.’s and K.M.A’s testimony. The PCRA court found
this claim lacked merit because the ADA was responding to comments made
by defense counsel that the testimony was inconsistent and the ADA did not
ask that the jury find the witnesses credible based on his personal
knowledge or on outside information. We agree with and adopt the PCRA
court’s reasoning. See 1925(a) Op. at 10-11.11
Accordingly, we conclude that the PCRA court did not err when it
dismissed Johnson’s PCRA petition.
_______________________
(Footnote Continued)
Although Johnson had a jury trial, not a bench trial, the trial court was able
to observe the testimony, and as the trial court noted, any “[m]inor
inconsistencies in the testimony of J.A. were not a sufficient basis to find him
incompetent.” 1925(a) Op. at 9.
11
PCRA counsel raised additional trial counsel ineffectiveness claims in
his Turner/Finley letter. Johnson, however, does not argue these claims
on appeal.
-7-
J-S95024-16
Johnson also argues that his PCRA counsel was ineffective for filing a
Turner/Finley letter stating Johnson’s claims were meritless.12 The PCRA
court concluded the PCRA counsel ineffectiveness claim lacked merit,
because all underlying claims lacked merit. We agree with and adopt the
PCRA court’s reasoning. See 1925(a) Op. at 14-15.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2017
____________________________________________
12
Johnson has preserved his PCRA counsel ineffectiveness claim for
our review because he raised the claim in response to the PCRA court’s
notice of intent to dismiss his petition. See Commonwealth v. Ford, 44
A.3d 1190, 1198 (Pa.Super. 2012).
-8-
Circulated 03/13/2017 09:58 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEAL TH OF CP-5 l-CR-0007947-2010
PENNSYLVANIA
.
v. MAR 1 7 2016 ;
CriminalAppealsUnit
RANDY JOHNSON, FirstJudicialDistrictqf PA
APPELLANT SUPERIOR CT: 2893 EDA 2015
OPINION
RANSOM,J. March 17, 2016
On February 1, 2012, the Appellant, Randy Johnson, was found guilty by a jury sitting
before this Court, of one (1) count of Third Degree Murder, a felony of the first degree; one
count {l) of Possession of an Instrument of Crime (''PIC"), a misdemeanor of the first degree;
and one count each ofViolation of the Uniform Firearms Act ("VUFA") § 6105 and 6106;
felonies of the second and third degree respectively. Sentencing was held on April 2, 2012, at
which time the Appellant received fourteen to twenty-eight (14-28} years of incarceration for the
Third Degree Murder and five to ten (5-10) years ofincarceration for the VUF A convictions, to
run concurrently. This Court also sentenced the Appellant to one to two (lc.2) years of
incarceration for PIC, to be served consecutively for an aggregate sentence of fifteen to thirty
(15-30) years of imprisonment.
Appellant filed timely post-sentence motions which were denied. Appellant filed a timely
Notice of Appeal on June 1, 2012. An Opinion was filed on September 25, 2012 and was
affirmed by the Superior Court on March 20, 2013. A Petition for Allowance of Appeal was filed
with our Supreme Court and denied thereafter on August 20, 2013.
\
On December 2, 2013, the Appellant filed a timely pro se PCRA Petition and James A.
Lammendola, Esquire, was appointed counsel. Appellant filed an Amended pro se Petition on
May 12, 2014. On May 6, 2015, counsel filed a Finleyi letter and a Motion to Withdraw as
Counsel.' On June 23, 2015, this Court filed a Dismissal Notice pursuant to Pennsylvania Rule
of Criminal Procedure 907, and Appellant filed a timely response to the Dismissal Notice on July
14, 2015. On July 17, 2015, the Appellant's PCRA Petition was formally dismissed and counsel
was permitted to withdraw by this Court. Appellant had thirty (30) days, or until August 16,
2015, to file an appeal. Pa.R.A.P. 903.
Appellant filed a Notice of Appeal on September 22, 2015.3 OnOctober 27, 2015, this
Court ordered the Appellant to file a self-contained and intelligible statement of matters
complained of on appeal pursuant to Rule l 925(b) of the Pennsylvania Rules of Appellate
Procedure. Appellant filed a timely 1925(b) Statement on November 30, 20J5. In his 1925(b)
Statement, Appellant raises the following two (2) issues, copied verbatim:
(1) THE PCRA COURT ERRED AS A MATTER OF LA w AND ABUSED rr-s
DISCRETION WHEN ADOPTING PCRA COUNSEL'S ERRONEOUS
ASSESSMENT OF APPELLANT'S PCRA CLAIMS AS A BASIS FOR DISMISSING
1
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1998).
2 This Finley letter and Motion to Withdraw were initially sent to SCI Albion, however Appellant was located at SCI
Forest.at the time. This Court sent PCRA counsel a letter indicating same on May 19, 2015. Thereafter, on June 5,
2015, PCRA counsel sent the Finley letter and Motion to Withdraw to SCI Forest via certified mail with a cover
letter explaining that the documents were previously sent to SCI Albion.
3 Appellant's Notice of Appeal was received by this Court on September 22, 2015. Attached to this Notice of Appeal
was a letter which explained that the Appellant attempted to send a Notice of Appeal on August 16, 2015, however
the envelope which contained his Notice of Appeal was marked "Return to sender, attempted-not known, unable to
forward" and returned to him on September JO, 2015. Also attached to Appellant's Notice of Appeal were two (2)
exhibits, Exhibit "A" was a copy of the cash slip Appellant submitted on August 14, 2015. The cash slip features a
signature by a Housing Unit COdated August 16, 2015. Exhibit "B" was a copy of the August 19, 2015, date-
stamped envelope with the aforementioned language. As such, this appeal was timely under the prisoner mailbox
rule. Commonwealth v. Jones, 549 Pa. 58, 700 k2d 423 (1997) (the prisoner mailbox rule is extended to all appeals
by pro se petitioners; a cash slip may provide sufficient evidence of mailing). This appeal was docketed as 2893
EDA 2015 on October 6, 2015.
2
APPELLANT'S PCRA PETITION, DEPRIVING APPELLANT BOTH A FAIR AND
MEANINGFUL PCRA REVIEW AND DUE PROCESS OF LAW.
A. PCRA counsel's erroneous assessment of the appellant's PCRA claims for relief
deprived appellant of his state created right to the effective assistance of counsel
during Post-Conviction Proceedings.
FACTS
These charges stemmed from an incident that occurred on December 28. 2009, during
which Appellant fatally shot Edward Rembert multiple times outside ofa barbershop located on
the 5200 block of Glenloch Street in the City and County of Philadelphia, Pennsylvania.
Christopher Benene ("Benene'') was at his friend Deyon Gilliard's ("Gilliard") house across the
street from the barbershop when he saw Appellant, whom he met a week earlier, walk from the
comer of Bridge and Glenloch Streets to the barbershop. Appellant was met by a second male
who came from the opposite direction. Appellant shot approximately five (5) times into the
barbershop. The two (2) men then ran away. KM.A, was in her home with her little brother, J.A
when she heard gunshots." She and her brother looked out of a window to see three (3) men
standing next to a tan car and a black car, Appellant went back to the barbershop and fired
another shot. Appellant passed a gun to one of the two (2) males, and they left in the tan car.
Appellant opened the hood of the black car with a flashlight in his hand, closed the hood and
threw the flashlight on the front passenger seat. Appellant tried to start the car, but when that
failed, he ultimately ran away.
Jermaine Smith ("Smith") was walking on Glenloch Street towards Bridge Street when
he heard gunshots and ducked into an alleyway. Appellant saw three (3) men running away
4 Both individuals were minors atthe time ofthe incident K.M.A was twelve (12) years-oldat the time andLA. was
ten(lO) years-old. {N.T. 1/26/12 at8, 36-37).
3
-
towards Pratt Street. Smith identified one (1) of the males as the Appellant, someone he had met
four to five (4~5)months prior. The Appellant was wearing a black hooded jacket with a fur vest
earlier in the day, and Smith saw him wearing that same vest as Appellant ran away. Both
Benene and Smith gave multiple statements to police. Maurice Wheeler ("Wheeler") and Tryee
Harrison {"Han·ison") both placed themselves at the barbershop at the time of the incident.
A black Buick Regal with a flashlight in the interior cabin was placed on a property
receipt, and Appellant's fingerprints were subsequently lifted from the hood of the car and from
the flashlight. Appellant's fiance testified that she owned a black Buick Regal and Appellant
borrowed it on the night of the incident, but did not return with it when he camehorn.e that night.
LEGAL DISCUSSION
An order dismissing a petition for PCRArelief is reviewed in the light most favorable to
the prevailing party at the PCRA level; this·review is limited to the findings of the PCRA court
andthe evidence of record. Commonwealthv. Burkett, 5 A.3d 1260, 1267 (Pa.Super.2010). In
considering PCRA claims an appellate court's scope ofreview is "limited to determining
whether the order is supported by the record and is free of legal error." Commonwealth v.
Fowler, 930 A.2d 586 (Pa. Super. 2007). The appellate court grants great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have no supportin the
record. Commonwealth v. Carter, 21 A.3ci680, 682 (Pa. Super. 2011 ).
The Appellant raises two (2) issues on appeal. The first issue Appellant raises is:
THEPCRA COURT ERRED AS A MATTER OF LAW AND ABUSED IT'S
DISCRETION WHEN ADOPTINGPCRACOUNSEL'S ERRONEOUS ASSESSMENT
OF APPELLANT'S PCRA CLAIMS AS A BASIS FORDISMISSING APPELLANT'S
.4
PCRA PETITION, DEPRIVING APPELLANT BOTH A FAIR AND MEANINGFUL
PCRA REVIEW AND DUE PROCESS OF LAW.
Under Pennsylvania law, the PCHA5 petitioner's right to counsel is established by rule of
the Pennsylvania Supreme Court in Commonwealth v. Turner, 518 Pa. 491, 495, 544 A.2d 927,
928 (1988) and Pa.R.Crim.P. 904 which provides in pertinent part:
(C) Except as provided in paragraph (H), when an unrepresented defendant
satisfies the judge that the defendant is unable toafford or otherwise procure
counsel, the judge shall appoint counsel to represent the defendant on the
defendant's first petition for post-conviction collateral relief.
(D) On a second or subsequent petition, when an unrepresented defendant
satisfies the judge that the defendant is unable to afford or otherwise procure
counsel, and an evidentiary hearing is required as provided in Rule 908, the judge
shall appoint counsel to represent the defendant.
(E) The judge shall appoint counsel to represent a defendant whenever the
interests of justice require it.
Pa.R.Crim;P. 904. Our Supreme Court held in Turner that the PCRA petitioner is accorded all
the protection incorporated in the right to appointed counsel in collateral proceedings under the
PCRA wherethe procedure announced in Commonwealth v. Finley, 330 Pa.Super. 313,322, 479
A.2d 568, 571-72 (1984) is followed. Turner and Finley mandate an independent review of the
record by competent counsel before a PCRA court or appellate court cart authorize an attorney's
withdrawal. Pennsylvania v. Finley, 481 U.S. 55l, 558, 107 S. Ct. 1990, 1995, 95 L. Ed. 2d 539
(1987); Finley, 330 Pa.Super. at 317-18.
The "independent review" necessary to assure a withdrawal request by competent PCRA
counsel requires proof of: 1) A "no-merit" letter by PCRA.counsel detailing the nature and
extent of his review; 2) The "no merit" letter by PCRA counsel listing each issue the petitioner
wished to have reviewed; 3) The PCRA counsel's "explanation;', in the "no-merit" letter, of why
the petitioner's issues were meritless; 4) The PCRA court conducting its own independent review
5 PCHA is the precursor to the PCRA, and all references to the PCHA will be changed to PCRA for ease of
readability.
5
'"'""'\
ofthe record; and 5) The PCRA court agreeing with counsel that the petition was meritless.
Finley, supra. Counsel must also serve upon his client contemporaneously: 1) a copy of the "no-
merit" letter/brief; 2) a copy of counsel's petition to withdraw; and 3) a statement advising
petitioner that if the court granted counsel's withdrawal request, the client has the right to
proceed pro se or by new counsel. Commonwealth v. Friend, 896 A.2d 607, 615
(Pa.Super.2006}
Appellant first challenges this Court's decision to deny relief based on PCRA counsel's
Turner/Finley no-merit letter. Pursuant to the requirements in Finley, PCRA counsel "reviewed
the quarter sessions file, corresponded with Appellant, reviewed all the relevant notes of
testimony, and reviewed all applicable law." (Finley Letter at 1 ). PCRA counsel listed and
addressed each issue Appellant wished to have reviewed. Id. Counsel came to the conclusion that
the issues raised by Appellant did not entitle him to relief. Id. Counsel also concluded that no
other issues existed that could be raised in a counseled petition, and therefore it was counsel's
professional opinion that it would be fruitless to file an amended petition. Id. A review of the
record confirms that the allegations raised in Appellant' s pro se Petition lacked merit and
Appellant received the review he was due under the PCRA.
To obtain relief under the PCRA, the conviction or sentence must have resulted from one
(1) or mote of the errors specifically enumerated in 42 Pa.C.S. § 9543(a)(2), including
ineffective assistance of counsel. Id.; § 9543(a)(2)(ii). In his prose petition, Appellant asserted
that trial counsel rendered ineffective assistance via seven (7) sub-issues, and he believed that the
cumulative effects of the errors asserted in his seven (7) sub-issues entitled him to a new trial.
Under the P.C.R.A., counsel is presumed to be effective and Appellant bears the burden of
establishing ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975-76
6
(1987) To establish ineffective assistance of counsel, a petitioner must demonstrate, by a
preponderance of the evidence, that: ( 1) the underlying claim is of arguable merit; (2) no
reasonable basis existed for counsel's action or omission; and (3) there is a reasonable probability
thatthe result of the proceeding would have been different absent such error. Commonwealth v,
Chmiel, 612 Pa. 333; 30 A.3d 1111, 1127 (2011) (employing ineffective assistance of counsel
test from Pierce, 527 A.2d 973). If an appellant fails to satisfy any prong of this test, the Court
must reject the ineffectiveness claim. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003),
Where a claim of ineffective assistance of counsel is the basis of a PCRA petition, "a petitioner
must establish ineffectiveness was of type "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." Commonwealth v . Garnett, 613 A,2d 569, 571 (Pa. Super. 1992),
appeal denied, 621 A.2d 1265, 1267 (Pa. Super. 1993), quoting Commonwealth v. Thomas, 578
A.2d 422, 425 (Pa. Super 1990); quoting 42 Pa.C.S.A. § 9543(a)(2)(ii).
The first sub-issue Appellant sought to raise in his pro se Petition argued that trial
counsel was ineffective for failing to file a Motion in Limine to preclude the Commonwealth
from eliciting testimony which indicated that the Appellant was a threat to Commonwealth
witnesses Benene and Smith. Benene testified that he failed to implicate Appellant as. the shooter
in his first statement to police because he was "scared of[ Appellant] because of what [he] saw
him do with a gun". (N.T. 1/24/12 at 85-86, 91-94). Benene's fear was also mentioned by the
interviewing detective and by the prosecutor for the Commonwealth. (N.T. 1/30/12 11, 36, 55-
57, 153-155}. Smith testified that "he was scared for [his] life". (N.T. 1/26/12 at 105-106). The
Appellant asserts these statements permitted the jury to infer that Appellant was dangerous and
had a propensity to commit crime. (Petitioner's Memorandum of Law in Support of Petition for
7
Post Conviction Relief hereinafter "Petitioner's Memorandum of Law" at 2). However, as
Appellant points out, "there were no 'specific circumstances' connectingBenene and Smith's
feelings or perceptions to Johnson." Id. at 5. Benene and Smith's testimony of fear of
endangerment was relevant and admissible to demonstrate the effect fear had ontheir actions.
Commonwealth v, Collins, 702 A2d 540, 544 (Pa. 1997). As a result, this issue was meritless,
The second sub-issue proposed that trial counsel was ineffective for failing to request a
Kloiber6 charge as a result of the unreliable identification testimony of Benene and Smith.
Specifically, Appellant asserted that Benene was not takingmedicine he was prescribed at the
time of the shooting, could not see the shooter, and was high on marijuana. (Petitioner's
Memorandum of Law at 6), Appellant claims Smith's testimony that he could not identify the
hooded men running and Smith's subsequent denial ofidentifying Appellant to police made a
Kloiber charge appropriate. Id. However, a Kloiber charge was not required as both men knew
Appellant prior to the shooting, made out-of-court identifications of Appellant to police, and
expressed fear in testifying. (N.T. 1/24/12 at 78-8, 85-86, 91-94; 1/26/12 at 106, 110). Kloiber
instructions are appropriate where there are special identification concerns: a witness did not
have the opportunity to clearly view the defendant, equivocated in his identification of a
defendant, or had difficulty making ah identification in the past. Cormnonwealth v. Rollins, 558
Pa. 532, 738 A.2d 435, 448 n. 14 (1999). There was no evidence that the view of either witness
was obscured. Both men's familiarity with the Appellant created an independent basis for their
identification and weakened his ineffective assistance of counsel claim based on failure to seek a
Kloiber instruction. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 303 (2010) (citations
omitted). Smith described Appellant as wearing a distinctive black hooded coat with an attached
6 Commonwealth v, Kloiber, 106 A.2d 820 (Pa. l 954)(where a witness was not in a position to observe the assailant
clearly, or had previously failed to identify the defendant, the court must instruct the jury to receive the witness'
identification testimony with caution),
8
black fur vest before the incident and at the time of the incident. (N.T. 1/26/12 at 107-110). In
the instant case, the prior inconsistent testimony of Benene and Smith based on fear of
endangerment did not equate to a failure of ability to identify the Appellant. Commonwealth v.
Fisher, 572 Pa. 105, 813 A.2d 761, 770-71 (2002). As such, a Kloiber charge was not required,
and Appellant's claim fails. Commonwealth v. Reid, 99 A.3d 427, 448, 449 (Pa. 2014).
Third, Appellant asserted that trial counsel was ineffective for failing to request
competency hearings for Commonwealth witnesses K.M.A. and J .A. who were both under the
age of fourteen at the time.of the incident. The Appellant claimed that the need fora competency
hearing was evinced by inconsistencies between the testimony and statements of each child.
(Petitioner's Memorandum of Law at 8). He further posited that J.A.'s account of the facts may
have been influenced by any discussion with K.M.A. and the detective who took his statement.
Id. at 9. Witnesses over the age of fourteen (14) are presumed to be competent; earlier case law
has held that for witnesses under fourteen (14) years of age, "there must be judicial inquiry as to
mental capacity, which must be more searching in proportion to chronological immaturity".
Roche v. McCoy, 156 A.2d 307, 310 (Pa. 1959). However, more recent cases have held that a
separate colloquy in order to determine the understanding of the oath is not necessary if the trial
court has the opportunity to observe the minor's demeanor. Commonwealth v. Harvey, 571 Pa.
533, 812 A.2d J 190, 1199 (2002) (concluding that while the trial court should have held a
competency hearing for a thirteen (13) year-old child witness to a shooting, the record
demonstrated that the child was able to understand the questions presented and was able to
formulate intelligent answers and therefore the defendant was not prejudiced). While a
competency hearing should have been held for J,A. who was twelve (12) years-old at the time of
trial, he was able to understand the questions asked by counsel and was able to frame and express
9
intelligentanswers to those questions.7 (N.T. 1/26/12 at 35-63). Minor inconsistencies in the
testimony of J.A. were not a sufficient bases to find him incompetent. Commonwealth v. Davis,
394 Pa.Super. 591, 576 A.2d 1005, 1009 (1990), rev'd on other grounds, 532 Pa. 297, 615 A.2d
732 (1992). Appellant offered no factual support for his allegations that J.A. was possibly
influenced by any discussion with K.M.A. or the detective who took his statement
Notwithstanding, any challenges defense counsel would have raised regarding J.A. 's testimony
would have been denied; therefore, this claim was rrieritless.
Appellant asserted in his fourth sub-issue that counsel was ineffective for failing to object
to statements by the Commonwealth about the veracity of J .M.A. and K.A. 's testimony, which
the Appellant claims amounted to prosecutorial misconduct. Generally, comments by a
prosecutor do not constitute reversible error unless the unavoidable effect of such comments
would beto prejudice thejury, forming in their minds fixed bias and hostility toward the
defendant so that they could not weigh the evidence objectively and render a true verdict.
Commonwealthv. Burton, 491 Pa. 13, 417 A.2d 611 (1980). A prosecutor does not engage in
misconduct when his statements are based on the evidence or made with oratorical flair.
Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100, 1110 (1993). Additionally, a
prosecutor must be permitted to respond to arguments made by the defense. Comrrionwealth v;
Clayton, 516 Pa. 263, 532 A.2d 385, 396 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99
L.Ed.2d 261 (1988). Here, the Commonwealth was responding to comments made by trial
counsel about the inconsistency of siblings' testimony, and the Commonwealth entreated the jury
to conclude that the children were credible considering the circumstances and corroborating
evidence. (N.T. 1/30/12 at 121, 133-135, J37, 144-146). Improper bolstering or vouching for a
7 KM.A was 14 years old at the time oftrial. (N:L l/26/12 at 7-8). Consequently, she was presumed competent to
testify.
10
government witness occurs where the prosecutor assures the jury that the witness is credible, and
such assurance is based on either the prosecutor's personal knowledge or other information not
contained in the record. Commonwealth v. Williams, 586 Pa. 553, 583, 896 A.2d 523,541
(2006). At no point during closing argument did the prosecutor ask the jury to find K.M.A. or
J.A credible based on his personal knowledge or any information outside of testimony presented
at trial. Moreover.Appellant could not show he was prejudiced by the Commonwealth's
comments. Appellant's position was devoid of merit.
In his fifth sub-issue, Appellant asserted trial counsel was ineffective for failing to call
three (3) witnesses, two (2) of which were subpoenaed and failed to appear in court. Appellant
maintained that the testimony of Gilliard; Annette Gouse ("Gouse"), and Gerardo Vega ("Vega")
would have changed the outcome of trial. (Petitioner's Memorandum at 12). A defendant who
voluntarily waives the right.to call witnesses during a colloquy cannot later claim ineffective
assistance and purport that he was coerced by counsel. Commonwealth v. Lawson, 762 A.2d
753, 756 (Pa. Super. 2000). Appellant is precluded from relief During a colloquy by this Court,
trial counsel explained that Gouse and Vega were subpoenaed to testify but failed to appear, and
Appellant confirmed that he wished to continue withoutthem. (N.T.1/30/12 at 97-104). At the
time of the colloquy Appellant made no mention of his desire to call Gilliard. Id. As a
consequence, this claim of counsel's ineffectiveness for failing to call witnesses is rejected.
Commonwealth v. Pander, 100 A.3d 626 (Pa. Super. 2014).
Appellant averred in his sixth sub-issue that trial counsel was ineffective for not objecting
on confrontation grounds to the testimony of Firearms Examiner Kelly Walker (°<Walker")
because she was not the primary examiner who created the ballistics report furnished at trial.
Although Walker explained she was co-examiner of the report and personally tested the evidence
11
after the primaryexaminer to reach her own conclusions.Appellant cites her lack of personal
notes on the report arid her inability to explain discrepancies between the location of physical
evidence and contents of the ballistics report to assert that his right to confrontation was violated.
(Petitioner's Memorandum at 14; N.T. 1/27/12 at 72-75). The Confrontation Clause ofthe Sixth
Amendment to the United States Constitution prohibits the use oftestimonial out-of-court
statements unless the witness is unavailable and the defendant had the prior opportunity for
cross-examination. Crawford v. Washington,541 U.S. 36, 53-56 (2004). Scientific reports
prepared for trial qualify as testimonial statements subject to the Confrontation Clause, and the
defendant must be allowed to confront the analyst responsible for the scientific conclusions
admitted against him. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-311 (2009).
Appellant was afforded the full opportunity to confrontthe analystresponsible for the scientific
conclusions admitted against him, as Walker conducted her own examination which confirmed
the findings ofthe primary examiner and she was cross-examined on those findings. (N.T.
1127/12 at 116, 114-128). Walker's inability to explain the discrepancy between the ballistics
report's cited source of Fired Cartridge Casings and the source for those same items listed by the
property receipt did not change Appellant's ability to confront the analyst who prepared the
report. Id. at 121-124. This claim was also devoid of merit.
In Appellant's seventh sub-issue, heasserted trial counsel was ineffective for failing to
present an alternative defense. Appellant averred that counsel should have argued specifically
that the two (2) other hooded men witnesses saw could not have been Harrison and Wheeler
because they both hid in the bathroom of the barbershop and were not charged with Conspiracy
as Appellant was. (Petitioner's Memorandum ofLawat 15-17). Counsel's strategic decision to
present a defense highlighting the inconsistencies inthe Commonwealth' s case did not constitute
12
ineffective assistance as it was the result of reasonable professional judgement. Strickland v.
Washington, 466 U.S. 668, 699, 104 S. Ct. 2052, 2071, 80 L. Ed. 2d 674 (1984). Trial counsel
explored holes in identification testimony, pointed out portions of testimony he found incredible,
and attacked the Commonwealth's theory of the case. (N.T. 1/30/12 at 114-128). Because this
was a reasonable course of action, Appellant's claim fails. Commonwealth v. Paolello, 542 Pa.
47, 665 A.2d439, 454 (1995)'.
The last allegation made by Appellant, that he was entitled to a newtrial on account of
the cumulative, prejudicial effects of the aforementioned errors, was equally unavailing. No
number of failed ineffectiveness claims may collectively warrant relief if they fail to do so
individually, except occasionally where the individual claims are all rejected solely for Jack of
prejudice. Commonwealth v. Eichinger; 108 A.3d 821, 849 (Pa. 2014).. Instantly,. as PCRA
counsel outlined, each of Appellant's individual ineffectiveness claims are rejected for failing
one (1) or more of the first two (2) prongs of the Pierce test; none were rejected solely for lack of
prejudice. Therefore, there was no basis for an accumulation claim.
Upon reviewing Appellant' s PCRA petition, Amended PCRA Petition, Memorandum of
Law, all Notes of Testimony and PCRA counsel's Turner/Finley letter and accompanying
Motion to Withdraw, this Court agreed with PCRA counsel's legal assessment. The record
supports PCRA counsel's position that Appellant' s Petition was meritless. Pursuant to Friend
PCRA counsel provided Appellant with a copy of his no-merit letter and Motion to Withdraw,
and Appellant was apprised of his appeal rights by PCRA counsel. Hence, Appellant received an
independent review of his PCRA by competent counsel and by the court. Accordingly,
Appellant's first pro se claim fails.
13
The second issue Appellant raises is:
PCRA counsel's erroneous assessment of the appellant's PCRA claims for relief deprived
appellant of his state created right to the effective assistance of counsel during Post-
Conviction Proceedings.
When counsel files a Turner/Finley no-merit letterto the PCRA court, a petitioner must
allege any claims of ineffectiveness of PCRA counsel in a response to the court's notice of intent
to dismiss. Commonwealth v. Ford, 2012 PASuper 98, 44A.3d 1190 (2012). Appellant
followed the procedure outlined in Ford and his claim of PCRA counsel's effectiveness is
properly preserved.
Where the defendant asserts a layered ineffectiveness claim he must properly argue each
prong of the three-prong ineffectiveness test for each separate attorney. Commonwealth v.
Chmiel, 612 Pa. 333, 30 A.3d 1111, 1128 (2011)~ see also Commonwealth v. Reyes, 582 Pa.
317, 870 A.2d 888 (2005}; Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003}. Our
Superior Court in Commonwealth v. Rykard,2012 PA Super 199, 55 A.3d 1177, 1190 (2012)
stated:
Layered claims of ineffectiveness "are not wholly distinct from the underlying
c la.irrrs ," because "proofofthe underlying claim is an essential elerrrent of the
derivative ineffectiveness claim[.]"Commonwealth v. Collins, 585 Pa. 45, 888
A.2d 564, 584 (Saylor, J. concurring) (2005); Reyes, supra at 896 (proving three
prong ineffectiveness test for trial counsel establishes arguable merit to appellate
counsel's ineffectiveness).
Rykard. See Appellant's first issue for a discussion of Appellant's rights under the PCRA, and
the Pierce test for establishing ineffective assistance of counsel.
14
Although the Appellant quite completely delineated the applicable standard of law
relating to ineffectiveness of trial counsel and PCRA counsel, he failed to meet his burden". This
Court finds nothing in the Turner/Finley letter to suggest that PCRA counsel's method of
advocacy constituted ineffective assistance of counsel. The record demonstrates that PCRA
counsel properly addressed each of Appellant's numerous claims oftrial counsel's
ineffectiveness, Counsel will not be considered ineffective for failing to pursue meritless claims.
Thus, this Court concludes.that Appellant's position is meritless for the reasons outlined inthe
discussion of his first issue. No relief is due.
CONCLUSION
For the reasons set forth above.jhe decision of this Court should be affirmed.
BY THE COURT:
~~
( (==~ansom, J.
a Appellant notes his dissatisfaction with PCRA counsel in bis pleading, "Objections to the June 23, 2015, Order of
the Court Pursuant to PA Rule of Criminal Procedure 907 Notice of Intent to Dismiss".
15
Re: Commonwealth v. Randy Johnson
CP-51-CR-0007947-2010
2893 EDA 2015
TYPE: OPINION
PROOFOF SERVICE
l hereby certify that I am this day serving the foregoing Court Order upon the person( s ), and in
the manner indicated below, which service satisfies the requirements of Pa.R. Crim.P. ll4:
Defendant: Randy Johnson
KL9547
SCI Forrest
286 Woodland Drive,
P.O. Box945
Marienville, PA 16239
Type of Service: ( ) Personal Service ( ) First Class Mail ( X ) Other: Certified
District Attorney: Robin Godfrey, Esquire
Chief PCRA Unit
'Philadelphia District Attorney's Office
Widener Building - Three South Penn Square
Philadelphia, PA 19107
Type of.Service: ( ) Personal Service ( X) First Class Mail ( ) Other: _
Date: March 17 2016
~
Tianna K. Kalogerakis. Esq.
Law Clerk to the Hon. Lillian H. Ransom