Opinion
J-S95024-16 No. 2893 EDA 2015
04-11-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. RANDY JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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. That same date, following a stipulated bench trial, the trial court found Johnson guilty of persons not to possess firearms. 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. 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.
18 Pa.C.S. §§ 2502(c), 907(a), and 6106(a)(1), respectively.
The conviction for firearms not to be carried without a license merged for sentencing purposes.
On December 2, 2013, Johnson filed a timely pro se PCRA petition. The PCRA court appointed counsel, who filed a Turner/Finley 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 to Pennsylvania Rule of Criminal Procedure 907. Johnson filed a response. The PCRA court dismissed the PCRA petition on July 17, 2015. Johnson filed a timely notice of appeal.
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.
Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc).
Also on July 17, 2015, a docket entry indicates counsel was permitted to withdraw.
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.
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.
Johnson's Br. at 2.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 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 Kloiber instruction; failing to request a competency hearing for two child witnesses; and failing to object to prosecutorial misconduct.
Commonwealth v. Kloiber , 106 A.2d 820 (Pa. 1954).
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 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 instruction for both Benene and Smith. He argues a Kloiber 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.
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)).
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. 1925(a) 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.
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. 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.
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.
PCRA counsel raised additional trial counsel ineffectiveness claims in his Turner/Finley letter. Johnson, however, does not argue these claims on appeal.
Accordingly, we conclude that the PCRA court did not err when it dismissed Johnson's PCRA petition.
Johnson also argues that his PCRA counsel was ineffective for filing a Turner/Finley letter stating Johnson's claims were meritless. 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.
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). --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/11/2017
Image materials not available for display.