Com. v. Johnson, D. (memorandum)

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J-S21036-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DANNY JOHNSON Appellant No. 2126 EDA 2012 Appeal from the PCRA Order July 20, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001458-2008 BEFORE: BENDER, J., BOWES, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J. FILED MAY 06, 2013 Danny Johnson appeals pro se from the trial court s order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA). 1 In 2009, Johnson was convicted by a jury of first-degree murder and related offenses and ordered to serve a life sentence. Two eyewitnesses, standing less than five feet way from Johnson, observed him lift up his shirt, pull out a gun, aim the gun at the center of the victim s body and shoot the victim multiple times at point-blank range. After careful review, we affirm the dismissal of Johnson s PCRA petition based upon the opinion authored by the Honorable Glenn B. Bronson. ____________________________________________ 1 42 Pa.C.S.A. ยงยง 9541-46. J-S21036-13 In reviewing the denial of a PCRA petition, this Court is limited to determining whether the PCRA court s findings are supported by the record and whether the order is free of legal error. Commonwealth v. Van Horn, 797 A.2d 983, 986 (Pa. Super. 2002). On appeal, Johnson raises the following claims: (1) Whether the PCRA court erred by issuing a 907 notice that did not explain the reasons that appellant s claims were meritless, which denied the appellant the ability to adequately respond to the 907 notice. (2) Whether the PCRA court erred by not giving the appellant additional time to respond to the 907 notice after PCRA counsel was removed and appellant was permitted to proceed pro se. (3) Whether trial counsel was ineffective for failure to object and remind the trial court to give a cautionary instruction to the jury after the detective commented on the appellant s post-arrest silence. (4) Whether trial counsel was ineffective for failure to request an alibi jury instruction. (5) Whether trial counsel was ineffective for failure to object to hearsay testimony. (6) Whether trial counsel was ineffective for failure to inform the appellant that he also represent[s] one of the Commonwealth witness['s] co-defendant[s] in federal court at the time the appellant retained him. (7) Whether trial counsel was ineffective for failure to obtain the appellant s school records to impeach the testimony of two alleged Commonwealth witnesses. After reviewing the parties briefs, relevant case law and the record on appeal, we conclude that the PCRA court s findings are supported by the record and lack legal error: (1) no Pa.R.Crim.P. 907 violation where court -2- J-S21036-13 explained that no PCRA petition claims had merit at status listing and granted defense counsel additional time to brief one of claims raised in amended petition and to supplement legal memorandum; (2) no legal error where Johnson s petition was not dismissed for 50 days following Rule 907 notice, and where Rule permits the defendant to respond to notice to dismiss within 20 days, whether or not a defendant is represented by counsel; (3) no error in admitting evidence of defendant s post-arrest silence where counsel s objection or request for curative instruction would not have affected outcome of Johnson s trial due to overwhelming evidence of guilt; (4) where Johnson s testimony did not show that he was at home precisely at time of shooting and where defendant s own testimony actually placed himself in close proximity to shooting, counsel was not ineffective for failing to request alibi instruction; (5) counsel could not be ineffective for failing to object to witness s hearsay testimony that Johnson was referred to as Poppy, where such testimony was merely cumulative of other witnesses testimony regarding defendant s nickname; (6) where counsel represented Commonwealth witness s co-defendant in federal court on unrelated charges, there was no conflict of interest because federal client had pled guilty to charges and there could be no joint defense that would provide a motive for counsel to avoid impeaching testimony of witness in defendant s trial; (7) records showing that Commonwealth witnesses did not attend same school as defendant would have been irrelevant for impeachment -3- J-S21036-13 purposes where court clarified that witnesses did not testify that they attended same school as Johnson.2 We instruct the parties to attach a copy of Judge Bronson s opinion in the event of further proceedings in the matter. Order affirmed. Judgment Entered. Prothonotary Date: 5/6/2013 ____________________________________________ 2 In his Pa.R.A.P. 1925(b) statement, Johnson raised an issue regarding counsel s ineffectiveness for failing to object to the prosecutor s reference of Johnson s pre-arrest silence. Johnson has abandoned this issue on appeal by failing to include it in his appellate brief. However, even if it were preserved for our review, we agree with the trial court that because Johnson testified at own trial that he had no involvement in the victim s shooting (and in fact tried to break up the altercation involving the victim), the prosecutor properly impeached defendant s credibility by referencing his prearrest silence and lack of cooperation in the police investigation. -4-

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