Opinion
J. S70008/18 No. 1778 EDA 2018
01-07-2019
COMMONWEALTH OF PENNSYLVANIA v. ANTON JOHNSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered May 23, 2018, in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0006415-2011 BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Anton Johnson appeals from the May 23, 2018 order dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. For the following reasons, we affirm.
The PCRA court set forth the extensive factual history of this case in its August 3, 2018 opinion and we need not reiterate it here. ( See PCRA court opinion, 8/3/18 at 1-5, ¶¶ 1-144.) In sum, a jury found appellant guilty of one count of aggravated assault after he attempted to strike Radnor Township Police Officer Steven Bannar with his vehicle during a traffic stop. (Notes of testimony, 3/27/12 at 179, 183.) Following his convictions, the trial court sentenced appellant to 120 to 240 months' imprisonment. Appellant was represented by Jeffrey Bauer, Esq., prior to his jury trial and by Lacy Wheeler, Esq., during his jury trial.
18 Pa.C.S.A. § 2702(a)(2). The record reflects that appellant was also charged with criminal attempt (homicide), recklessly endangering another person, and resisting arrest. Appellant was only tried on the assault and criminal attempt (homicide) charges; the remaining charges were withdrawn prior to trial. The jury acquitted appellant of the attempted homicide charge.
On January 24, 2013, a panel of this court affirmed appellant's judgment of sentence, and our supreme court denied allowance of appeal on August 21, 2014. Commonwealth v. Johnson , 64 A.3d 287 (Pa.Super. 2013), appeal denied , 97 A.3d 743 (Pa. 2014). Appellant did not seek review with the United States Supreme Court. On January 29, 2015, appellant filed a pro se PCRA petition, and Stephen Molineux, Esq. ("PCRA counsel"), was appointed to represent him. On February 1, 2016, PCRA counsel filed an amended PCRA petition on appellant's behalf. The PCRA court ultimately conducted evidentiary hearings on appellant's amended petition on July 14 and August 10, 2017. Thereafter, on May 23, 2018, the PCRA court entered an order denying appellant's petition. This timely appeal followed on June 14, 2018. That same day, appellant filed a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). The PCRA court filed its Rule 1925(a) opinion on August 3, 2018.
Appellant raises the following claims for our review:
1. Whether the PCRA Court erred in denying [a]ppellant's PCRA petition where the record showed that trial counsel was ineffective for
failing to file a motion to suppress the arrest for lack of probable cause?Appellant's brief at 5-6.
2. Whether the PCRA Court erred in denying [a]ppellant's PCRA petition where the record clearly showed that trial counsel was ineffective in failing to seek a jury instruction regarding "justification" where the defense was that [a]ppellant was justified in moving his car because he was in fear for his life after the police opened fire on him?
3. Whether the PCRA Court erred in denying [a]ppellant's PCRA petition where the record clearly showed that trial counsel was ineffective for failing to object to inferences by Commonwealth witnesses that [a]ppellant was involved in criminal activity and was under investigation by the East Goshen Police?
4. Whether the PCRA Court erred in denying [a]ppellant's PCRA petition where the record clearly showed that trial counsel was ineffective in failing to properly advise [a]ppellant regarding the plea offer?
Proper appellate review of a PCRA court's dismissal of a PCRA petition is limited to the examination of "whether the PCRA court's determination is supported by the record and free of legal error." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). "This Court grants great deference to the findings of the PCRA court, and we will not disturb those findings merely because the record could support a contrary holding." Commonwealth v. Hickman , 799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). In order to be eligible for PCRA relief, a defendant must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). Further, these issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3).
All of appellant's claims concern the effectiveness of his counsel. To prevail on a claim of ineffective assistance of counsel under the PCRA, a petitioner must establish the following three factors: "first[,] the underlying claim has arguable merit; second, that counsel had no reasonable basis for his action or inaction; and third, that Appellant was prejudiced." Commonwealth v. Charleston , 94 A.3d 1012, 1020 (Pa.Super. 2014) (citation omitted), appeal denied , 104 A.3d 523 (Pa. 2014).
[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the [i]neffective assistance 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.Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014) (internal quotation marks omitted; some brackets in original), citing 42 Pa.C.S.A. § 9543(a)(2)(ii).
"[C]ounsel is presumed to be effective and the burden of demonstrating ineffectiveness rests on appellant." Commonwealth v. Ousley , 21 A.3d 1238, 1242 (Pa.Super. 2011) (citation omitted), appeal denied , 30 A.3d 487 (Pa. 2011). Additionally, counsel is not ineffective for failing to raise a claim that is devoid of merit. Commonwealth v. Ligons , 971 A.2d 1125, 1146 (Pa. 2009).
In the instant matter, the PCRA court authored a comprehensive, 29-page opinion wherein it concluded that appellant's claims of ineffective assistance of counsel were meritless and dismissed appellant's petition. ( See PCRA court opinion, 8/3/18, at 18-29.) We have reviewed the record in its entirety and have considered the merit of appellant's claims. Following our careful consideration of the record, the briefs of the parties, and the applicable case law, we find that the PCRA court's conclusions, as set forth on page 18 of the PCRA court's Rule 1925(a) opinion, are supported by competent evidence and are clearly free of legal error. We, therefore, adopt the well-reasoned, August 3, 2018 opinion of the Honorable John P. Capuzzi, Sr., as our own for purposes of further appellate review. Accordingly, we affirm the May 23, 2018 order of the PCRA court dismissing appellant's petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/7/19
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