Opinion
J. S30019/16 No. 545 EDA 2015
05-06-2016
COMMONWEALTH OF PENNSYLVANIA v. ARTHUR JOHNSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order, January 22, 2015, in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0014152-2008 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Arthur Johnson appeals from the order entered in the Court of Common Pleas of Philadelphia County that dismissed his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"). We affirm.
The PCRA court set forth the following:
On May 9, 2008[,] [a]ppellant was arrested and charged with [m]urder and weapons offenses[,] and on February 12, 2010, following a jury trial before this Court, he was adjudged guilty of Murder of the First Degree and Possessing Instruments of Crime. On March 26, 2010[,] [a]ppellant was sentenced to an aggregate term of life imprisonment, and on March 27, 2012[,] the Superior Court of Pennsylvania affirmed the Judgment of Sentence. Commonwealth v. [] Johnson , 949 EDA 2010. On April 20, 2012[,] [a]ppellant filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania. On
November 8, 2012[,] the Petition for Allowance of Appeal was denied. Commonwealth v. [] Johnson , 200 EAL 2012.PCRA court opinion 6/19/15 at 1-2 (footnote omitted).
Appellant filed the instant Petition pursuant to the [PCRA] on November 13, 2013[,] and on February 12, 2014[,] he filed an Amended PCRA Petition. On April 16, 2014[,] the Commonwealth filed a Motion to Dismiss the PCRA Petition[,] and on September 24, 2014[,] the Commonwealth filed a Supplemental Motion to Dismiss. Appellant was sent Notice pursuant to Pa.R.Crim.P. 907 on December 8, 2014, and on January 22, 2015[,] the PCRA Petition was dismissed. This timely appeal followed on February 19, 2015.
Appellant raises the following issues for our review:
[1.] Whether the trial court violated the confrontation clause and abused its discretion when it allowed the prosecution to introduce into evidence a statement of the non-testifying codefendant that referred to the appellant as "the other guy" in a two defendant jury trial, causing substantial harm to the appellant[?]
[2.] Whether trial counsel was ineffective for failing to object to the double hearsay in non-testifying codefendant's written statement to police, causing substantial harm and undue prejudice to the appellant[?]
[3.] Whether trial counsel was ineffective for failure to strike reference to Baz Parker in the [s]tatement of non-testifying codefendant, causing substantial harm and undue prejudice to the appellant[?]
[4.] Whether trial counsel was ineffective for failing to object to references to the appellant as "the other guy" in prosecutor's closing, causing
substantial harm and undue prejudice to the appellant[?]Appellant's brief at 5-6.
[5.] Whether trial counsel was ineffective for failing to object to the trial court's Spencer Charge, causing substantial harm and undue prejudice to the appellant[?]
[6.] Whether counsel for direct appeal was ineffective for failing to raise issues to correct the errors of trial as to the double hearsay, and to codefendant's counsel, who named the appellant as the shooter in his opening, causing substantial harm and undue prejudice to the appellant[?]
In PCRA appeals, our scope of review "is limited to the findings of the PCRA court and the evidence on the record of the PCRA court's hearing, viewed in the light most favorable to the prevailing party." Commonwealth v. Sam , 952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. Commonwealth v. Pitts , 981 A.2d 875, 878 (Pa. 2009). We defer to the PCRA court's factual findings and credibility determinations supported by the record. Commonwealth v. Henkel , 90 A.3d 16, 20 (Pa.Super. 2014) ( en banc ). In contrast, we review the PCRA court's legal conclusions de novo. Id.
To be eligible for PCRA relief, a petitioner must show, among other things, that the claims of error have not been previously litigated. 42 Pa.C.S.A. § 9543(a)(3). An issue has been previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue." Id.; Commonwealth v. Spotz , 47 A.3d 63, 76 (Pa. 2012).
In his first issue on appeal, appellant complains that the trial court abused its discretion when it permitted the prosecution to introduce a statement of a non-testifying co-defendant that referred to appellant as "the other guy." Appellant raised this issue on direct appeal. See Commonwealth v. Johnson , No. 949 EDA 2010, unpublished memorandum (Pa.Super. filed March 27, 2012). Therefore, because this issue was previously litigated, it is not properly before us.
Under the guise of ineffectiveness, appellant's fourth issue alleging that trial counsel failed to object to a supposed Bruton violation is belied by the record, and the Bruton issue was previously litigated.
Bruton v. United States , 391 U.S. 123 (1968).
Appellant's four remaining issues assert claims of ineffective assistance of trial counsel and direct appeal counsel.
In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. Commonwealth v. Rollins , 558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999). To overcome this presumption, Appellant must establish three factors. First, that the underlying claim has arguable merit. See Commonwealth v. Travaglia , 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995). Second, that counsel had no reasonable basis for his action or inaction. Id. In determining whether counsel's action was reasonable, we do not question whether there were other more logical courses of action which counsel
could have pursued; rather, we must examine whether counsel's decisions had any reasonable basis. See Rollins , 738 A.2d at 441; Commonwealth v. (Charles) Pierce , 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally, "Appellant must establish that he has been prejudiced by counsel's ineffectiveness; in order to meet this burden, he must show that 'but for the act or omission in question, the outcome of the proceedings would have been different.'" See Rollins , 738 A.2d at 441 (quoting Travaglia , 661 A.2d at 357). A claim of ineffectiveness may be denied by a showing that the petitioner's evidence fails to meet any of these prongs. Commonwealth v. (Michael) Pierce , 567 Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v. Basemore , 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 701 (Pa. 1998) ("If it is clear that Appellant has not demonstrated that counsel's act or omission adversely affected the outcome of the proceedings, the claim may be dismissed on that basis alone and the court need not first determine whether the first and second prongs have been met."). In the context of a PCRA proceeding, Appellant must establish that the ineffective assistance of counsel was of the 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." 42 Pa.C.S. § 9543(a)(2)(ii). See also (Michael) Pierce , 786 A.2d at 221-22; Commonwealth v. Kimball , 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999).Commonwealth v. Washington , 927 A.2d 586, 594 (Pa. 2007).
Having determined, after careful review, that the learned Judge Gwendolyn N. Bright, in her June 19, 2015 Rule 1925(a) opinion, ably and comprehensively disposes of appellant's issues on appeal, with appropriate reference to the record and without legal error, we affirm on the basis of that opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/6/2016
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