Opinion
J-S67042-16 No. 3762 EDA 2015
10-14-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. RAHEEM JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order December 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007442-2010 BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
Raheem Johnson ("Appellant") appeals from the order entered in the Court of Common Pleas of Philadelphia County dismissing his first petition filed under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. without an evidentiary hearing. We affirm.
On November 13, 2009, Appellant fatally shot eighteen year-old Legrand Peterkin outside of Larry's Bar on 5th Street in Philadelphia. Eyewitness Angelica Swint knew both men, as she was Peterkin's cousin and briefly dated Appellant in 2008. N.T., 10/4/11, at 154, 167. On the evening in question, she was inside Larry's awaiting the arrival of her child's father, Christopher Marshall, who was Peterkin's best friend, when she noticed Appellant standing across the room. N.T. at 155-56. Appellant's presence caused her concern because Peterkin had recently told her he sought revenge against Appellant for group-ambushing him in a nearby store a week earlier. Specifically, Peterkin said he planned to "smack the shit out of Rah-Rah [Appellant's nickname]." N.T. at 226. Peterkin was larger than Appellant and had a boxing background.
Before Marshall arrived at Larry's, Swint received a phone call from Peterkin, and she told him Appellant was inside the bar. N.T. at 159. Marshall and Peterkin arrived shortly thereafter and Swint went outside to talk to Peterkin, who was underage and could not enter the bar. N.T. at 161. Appellant, meanwhile, had preceded Swint out the door and walked over to a jeep, where he put something in his pocket. N.T. at 162-63. Swint asked Peterkin if he was okay and he told her Appellant and he were going to talk about what happened the week before. N.T. at 164. Peterkin then gave Swint a look as if to say "get back in the bar." N.T. at 163. Before she reentered Larry's, she saw the two men talking and thought everything was all right. N.T. at 169, 207. Nevertheless, once she returned to her table, she asked Marshall to go outside to watch over matters, which he did. N.T. at 170.
From about thirty feet away, Marshall could see the men talking momentarily until Peterkin attempted to punch Appellant but missed. N.T. 10/5/16 at 49. Appellant ducked back, pulled a gun out from his waistband, and pointed it at Peterkin. Id. Appellant lowered the gun briefly but then pointed it again at Peterkin and shot him. Id. Marshall observed Peterkin run down the block away from Appellant, but Appellant pursued him while firing about five or six more shots. N.T. at 50.
Marshall followed the men and came upon them as they struggled on the ground with each other. Id. He pulled Appellant off Peterkin and grabbed the gun, but three of Appellant's friends wrestled him to the ground, took the gun from his pocket, and ran. N.T. at 51.
Inside Larry's Bar, the noise was too loud to hear the gunfire, but someone ran inside and hollered "they're shooting." N.T. 10/4/16 at 171, 208. Swint went outside and heard more shots. N.T. at 176-77. She and others continued toward the end of the block from where the shots emanated and found Appellant standing motionless at a curb and a wounded Peterkin sitting on a flight of steps. N.T. at 184-190. Swint grabbed Appellant by his hoodie and repeatedly asked why he shot Peterkin, but Appellant just looked at her and said nothing. N.T. at 180. Swint released him and went to Peterkin, and Appellant fled before police arrived. Once there, police obtained Peterkin's identification of Appellant as his assailant.
Peterkin was transported to Albert Einstein Medical Center, where he died days later from complications of multiple gunshot wounds to his back, right side of his thigh, right buttock, left thigh, and left middle finger. N.T. at 119-134. The medical examiner ruled the manner of death a homicide, with the gun shot penetrating the back and exiting the lower chest causing the fatal wound. N.T. at 129.
On October 6, 2011, a jury convicted Appellant of Third Degree Murder, 18 Pa.C.S. § 2502(c) and Violation of the Uniform Firearms Act (VUFA), 18 Pa.C.S. § 6108. On January 20, 2012, the court sentenced Appellant to twenty to forty years' incarceration for the murder conviction, with a two and one-half to five year sentence for VUFA to run concurrently. After the trial court denied post-sentence motions, Appellant filed a counseled appeal to the Superior Court, which, on September 24, 2013, affirmed judgment of sentence.
On August 4, 2014, Appellant filed a timely pro se PCRA petition, and the court appointed counsel, who filed a supplemental PCRA petition. The court, however, issued a Pa.R.Crim.P. 907 Notice to Dismiss on November 12, 2015, and formally dismissed Appellant's petition on December 15, 2015. This timely appeal followed.
Appellant presents the following four issues for our review:
I. Is Appellant entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing since trial counsel rendered ineffective assistance of counsel?
A. Is Appellant entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffective assistance of trial counsel for failing to request a jury instruction as to "heat of passion" voluntary manslaughter?
B. Is Appellant entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffective assistance of appellate counsel for failing to properly argue the issue concerning the trial
Appellant's brief at 4-5.court's refusal to instruct the jury as to imperfect self-defense voluntary manslaughter?
C. Is Appellant entitled to post-conviction relief in the form of a new trial or a remand for an evidentiary hearing as a result of the ineffective assistance of trial counsel for failing to request the trial court to instruct the jury that the testimony of Angelica Swint emanated from a polluted source?
D. Is Appellant entitled to post-conviction relief in the form of resentencing or a remand for an evidentiary hearing as a result of the ineffective assistance of trial counsel for failing to object to the presentence investigation report and the ineffectiveness of appellate counsel for failing to raise in the direct appeal the issue concerning the excessiveness of Appellant's sentence?
As we have stated:
[t]his Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by evidence of record and is free of legal error. In evaluating a PCRA court's decision, our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. We may affirm a PCRA court's decision on any grounds if it is supported by the record.Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa.Super. 2010) (internal citations omitted). Moreover,
[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan , 772 A.2d 1011, 1014 (Pa.Super. 2001). It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing
court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing. Commonwealth v. Hardcastle , 701 A.2d 541, 542-43 (Pa. 1997).Commonwealth v. Wah , 42 A.3d 335, 338 (Pa.Super. 2012) (citations modified).
To be eligible for relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence resulted from "one or more" of the seven, specifically enumerated circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily enumerated circumstances is the "[i]neffectiveness 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." 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and "the burden of demonstrating ineffectiveness rests on [A]ppellant." Commonwealth v. Rivera , 10 A.3d 1276, 1279 (Pa.Super. 2010). To satisfy this burden, Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and, (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceedings would have been different.Commonwealth v. Fulton , 830 A.2d 567, 572 (Pa.2003). "A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim." Id. In the context of a challenge to the discretionary aspects of one's sentence, prejudice may be established only by pleading and proving that the challenge would have resulted in "a reduction in the sentence." Commonwealth v. Reaves , 923 A.2d 1119, 1032 (Pa. 2007) (internal quotations and citations omitted) at 1032.
Having reviewed Appellant's brief, the certified record, and the trial court's well-written Pa.R.A.P.1925(a) opinion, we have determined that the Honorable Rose Marie DeFino-Nastasi, in her opinion, cogently and comprehensively disposes of the issues presented on appeal, and so we affirm based on that opinion. See PCRA Court Opinion, filed March 15, 2016. With respect to the final issue regarding appellate counsel's alleged ineffective failure to challenge the discretionary aspects of Appellant's twenty to forty-year sentence of incarceration, we add that a claim regarding the discretionary aspects of a sentence raised in the context of an ineffectiveness claim is cognizable under the PCRA. Commonwealth v. Watson , 835 A.2d 786, 801 (Pa.Super. 2003) (contrasting claim challenging discretionary aspects of a sentence directly, which is not cognizable), Commonwealth v. Wrecks , 934 A.2d 1287, 1289 (Pa.Super. 2007). We also agree that the trial court applied a standard guideline range sentence under 42 Pa.C.S.A. § 303.17(b), "Deadly Weapon Enhancement/Used Matrix," which, given Appellant's offense gravity score of fourteen and prior record score of one, set a range from 102 months to Statutory Limit, +/- 12 months.
The Commonwealth failed to file a "Brief for Appellee" in this matter.
In his statement of reasons for allowance of sentencing appeal, Appellant contends that the trial court reviewed a misrepresentative pre-sentence investigation report containing "arrest information that was either inconclusive, resulted in a not guilty verdict, was dismissed for lack of evidence and/or resulted in withdrawal of the case," and from which was missing both the standard Sentencing Guidelines and the Deadly Weapon Possessed Enhancement guidelines, Appellant claims. Appellant's brief at 15. His sentence for third degree murder, he continues, did not "reflect[ ] proper consideration of [his] history, character, and condition...," Id. at 16, and was not consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of Appellant. Id. at 17.
Assuming, arguendo, that Appellant sets forth a substantial question regarding the court's discretion warranting review on the merits, we observe initially that his argument fails to allege that, let alone explain how, the court was actually misled by his presentence investigation report, which renders the first allegation raised in his concise statement pointless. To this point, the sentencing record reveals that defense counsel, without opposition, noted that a series of drug-related arrests listed in Appellant's juvenile record resulted in zero adjudications of delinquency. As such, we discern no confusion or controversy regarding the court's consideration of Appellant's prior record, including his juvenile record. N.T. 1/20/12 at 8-9.
Next, Appellant frequently refers to his sentence as a statutory maximum sentence in isolation, as if it were not also within the standard range guideline sentence under the Deadly Weapons Enhancement/Used matrix. Moreover, Appellant dedicates the vast majority of his argument to setting forth the law applicable to a discretionary aspects appeal without developing a meaningful discussion about what personal factors the trial court improperly failed to weigh in imposing its standard range sentence. In this respect, Appellant offers only the controversial-at-best positions that Peterkin was the aggressor—despite the fact that it was Appellant who went out to meet Peterkin with a loaded firearm at the ready—and that he used his gun with a self-defense mindset—a claim unsupported by eyewitness and expert testimonies confirming he was in pursuit of a fleeing Peterkin when he fired the majority of his shots, including the fatal shot through Peterkin's back.
Notwithstanding Appellant's argument, the notes of testimony from the sentencing hearing show the court tailored its sentence to Appellant's individual circumstances. It heard statements from family members attesting to Appellant's family values, his record of good parenting to his five children, and his acts of kindness to friends. N.T. at 5-8. The court also received argument from defense counsel explaining that the juvenile system never supplied Appellant with treatment for his obvious drug problem, and that it was not until his arrest and gun conviction in 2009 that he first received help in that regard. N.T. at 9.
Finally, the court stated that it reviewed the pre-sentence report, the mental health report, the sentencing memorandum filed on behalf of the Commonwealth, the letters given to the court on Appellant's behalf, and listened very carefully to the evidence presented to it during the hearing. N.T. at 21. Only then did the court acknowledge what it viewed as exacerbating circumstances, namely, that Appellant knew not only the victim but also his family, still decided to bring a handgun to a fistfight against an 18 year-old, fatally shot him in the back as he was running away, and caused grief to a large part of their community in the process. N.T. at 21-23.
We, therefore, find no arguable merit to Appellant's claim of ineffective assistance of defense counsel, for he cites to nothing in the record to support the position that the court failed to consider all pertinent sentencing factors in imposing a standard range sentence under the Deadly Weapons Enhanced/Used matrix. Accordingly, we reject Appellant's final ineffectiveness claim.
Order is Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/14/2016
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