Com. v. Johnson (memorandum)

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J-S79006-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE SUPERIOR COURT OF PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA Appellee v. ANWAR JOHNSON, Appellant No. 2780 EDA 2011 Appeal from the PCRA Order September 15, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1101461-2005 BEFORE: OLSON, WECHT AND COLVILLE,* JJ. MEMORANDUM BY OLSON, J.: Filed: March 7, 2013 Appellant, Anwar Johnson, appeals from the order entered September 15, 2011, dismissing his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541-9546 ( PCRA ). For the following reasons, we affirm. The PCRA court summarized the applicable factual and procedural background of this matter as follows: On June 20, 2004, [Appellant] and Kareem Davis were driving through West Philadelphia to drop another friend off after leaving Steve s Bar, located at 53rd and Market Streets, when they saw a mutual acquaintance, Aki Collins, also known as Richard Allen (victim or decedent). At the time [Appellant] and Davis saw the victim, [Appellant] was driving and Davis was in the front passenger seat. Davis talked briefly with the victim through the front passenger window, at which time the victim decided to ride with them to Night on Broad, a go-go bar located at Broad and Olney Streets. The victim got into the rear passenger seat of the car and rode behind Davis. After the victim got into the car, the *Retired Senior Judge assigned to the Superior Court. J-S79006-12 three of them drove to 53rd and Media to stop by the Jute Club before proceeding to Night on Broad. When they arrived at the Jute Club, Davis and the victim waited in the car while [Appellant] went inside. After [Appellant] returned to the car, he and the victim began arguing about an incident with the police that had occurred several years earlier. The dispute arose because [Appellant] believed the victim had called the police on him. [Appellant] and the victim continued arguing while [Appellant] drove the car to 52nd and Walnut Streets, where he pulled over to point out a phone booth which he believed was the phone the victim had used to call the police regarding [Appellant]. [Appellant] then drove down the street to Hollywood Palace, located between 52nd and 53rd Streets, where [Appellant] again stopped the car. While driving to Hollywood Palace, [Appellant] and the victim continued to argue, at which time the victim said, You can go to war, whatever you want to do. You can do whatever you want to do. When they got to Hollywood Palace, the victim said, I m rapped out, I ain t got nothing more to talk about no more. [Appellant] did not say anything in response, but pulled out a gun and began shooting the victim while the car was still moving forward. Davis looked behind him and saw the victim being shot repeatedly as [Appellant] discharged all the bullets in his gun, hitting the victim in the head repeatedly.1 The car [Appellant] was driving eventually crashed into a house. Davis testified that he saw a gun on the victim s lap, but admitted that no shots were fired from the back of the car to the front.2 When the car crashed, [Appellant] told Davis to get out of the car, which he did, and ____________________________________________ 1 Twelve shots were fired, all from [Appellant s] firearm, 10 of them hitting the victim in the head. Twelve .9 millimeter Luger fired cartridge casings were recovered inside the vehicle and it was determined by a firearms expert that these cartridge casings were all fired from the same firearm. 2 Davis also never testified to telling [Appellant] that the victim had a gun; nor did he testify that [Appellant] ever said anything to him about having seen the victim with a gun. A .25 caliber semi-automatic firearm was recovered from the vehicle from underneath the front passenger seat. The firearm had one unfired cartridge in the chamber and four unfired cartridges in the magazine. The magazine could hold a total of seven (7) cartridges. No fired cartridge cases from this firearm were found. -2- J-S79006-12 Davis then ran a few blocks to Marquita Thompson s house, his girlfriend. Davis was let into the house by Marquita s father, Jeffrey Glen. Marquita s mother, Valerie Thompson, was wiping blood off Davis face in the upstairs bedroom when [Appellant] came into the house. [Appellant] instructed Davis to place all of his clothing in a bag, which Davis did, and [Appellant] gave the gun to Mr. Glen and instructed him to put it in a bag, which Mr. Glen did. Davis and [Appellant] then left Marquita Thompson s house and went to a girl s house that [Appellant] knew, after which Davis and [Appellant] went to Black Oak Park, also known as Malcolm X Park. After leaving this girl s house, [Appellant] told Davis to call Mr. Glen to get the gun back. Davis called Mr. Glen and got the gun back from him. Davis and [Appellant] then went back to the park, where they disposed of the clothes in different trash cans. Two days later, Davis went down to Homicide and provided them with a statement about the death of the victim. Upon learning a warrant had been [Appellant] took a bus to San Diego, stayed in San Diego until he happened dealing in California and was extradited trial for the murder of Aki Collins. issued for his arrest, California. [Appellant] to be arrested for drug to Philadelphia to stand PCRA Court Opinion, 3/30/2012, at 3-5 (citations omitted, footnotes in original). On February 6, 2007, after a bench trial before [the trial court], [Appellant] was found guilty of first-degree murder (F-1), carrying a firearm without a license (F-3), carrying a firearm on public streets of Philadelphia (F-3), and possessing an instrument of crime (PIC) (M-1).3 After the verdict, [Appellant] retained private counsel and, upon [Appellant s] request, sentencing was postponed. On May 2, 2007, [Appellant] was ____________________________________________ 3 18 Pa.C.S. §§ 2502(a), 6106, 6108, and 907(a), respectively. -3- J-S79006-12 sentenced to a mandatory life sentence4 for the crime of firstdegree murder.5 On May 14, 2007, [Appellant] filed timely post-sentence motions, which were denied by operation of law on September 11, 2007. On October 3, 2007 a timely counseled notice of appeal was filed in the Superior Court and, on March 2, 2009, judgment of sentence was affirmed.6 Petition for Allowance of Appeal was denied on August 19, 2009.7 On September 27, 2010, [Appellant] filed a timely counseled [PCRA] petition []. The Commonwealth responded by filing a Motion to Dismiss on February 9, 2011. On February 22, 201, [Appellant] filed a response to the Commonwealth s Motion to Dismiss. On March 22, 2011, [Appellant] filed a supplemental Memorandum addressing (1) Standard of Review Applicable to PCRA Court s Review of Errors Occurring in Non-Jury Trial Before Same Judge and (2) Additional Factors Supporting Evidentiary Hearing. On April 8, 2011, [Appellant] filed a Pre-Hearing Memorandum of Law. On April 18, 2011, [Appellant] filed a Motion to Compel Commonwealth to Provide [Appellant] with Copy of Police Report in [Appellant s] Juvenile Delinquency Matter. [Appellant] also filed Memorandum of Law Addressing Court s Inquiry Regarding Principles of Self-Defense on April 18, 2011. ____________________________________________ 4 18 Pa.C.S. § 1102(a). 5 All the remaining sentences of incarceration were ordered to run concurrent with the first degree murder charge as follows: as to the charge of carrying a firearm without a license, [Appellant] was sentenced to not more than 18 months nor less than 84 months; as to the charge of carrying a firearm on the public streets of Philadelphia, [Appellant] was sentenced to not less than 12 months nor more than 60 months; as to the PIC charge, [Appellant] was sentenced to not less than 12 months nor more than 60 months. 6 Commonwealth v. Johnson, [972 A.2d 554 (Pa. Super. 2009) (unpublished memorandum).] 7 Commonwealth v. Johnson, [986 A.2d 149 (Pa. 2009) (table)]. -4- J-S79006-12 On May 4, 2011, the Commonwealth responded to [Appellant s] Pre-Hearing Memorandum and Motion to Compel. The Commonwealth filed a Supplemental Motion to Dismiss on May 5, 2011. An evidentiary hearing took place over the course of several days: May 27, 2011; June 2, 2011; June 3, 2011; and June 14, 2011. On September 15, 2011, after due consideration [the PCRA court] entered an order dismissing [Appellant s] PCRA petition. On September 19, 2011, [Appellant] filed a Motion for Reconsideration of September 15, 2011 Decision to Deny Post-Conviction Relief. [The PCRA court] denied [Appellant s] Motion to Reconsider on September 28, 2011. [Appellant] filed a pro se notice of appeal of October 5, 2011. On October 20, 2011 Barnaby C. Wittels, Esquire was appointed to represent [Appellant] on appeal. The [PCRA court] ordered counsel to file a Statement of Matters complained of On Appeal (Statement) pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Counsel failed to timely file the Statement. On November 15, 2011, [the PCRA court] filed an Opinion finding counsel s failure to timely file the Statement constituted a waiver of all objections to the order, ruling or other matter complained of.8 On November 22, 2011, counsel filed a motion requesting [the PCRA court] to reconsider its November 15, 2011 opinion, which [the PCRA court] denied on December 1, 2011. On January 1, 2012, [Appellant s] case was remanded from the Superior Court, for the filing of a Statement and a Supplemental Opinion. [Appellant s] Statement was timely filed with the [PCRA court] on January 30, 2012. ____________________________________________ 8 [Appellant s] counsel did submit to chambers a request for extension of time to file the Statement, on November 15, 2011, five days after the Statement was due. Counsel s request for extension of time was based on his position that the Notes of Testimony from PCRA listings, and the trial were unavailable. These Notes of Testimony had been available since before counsel was appointed. -5- J-S79006-12 Trial Court Opinion, 3/30/2012 at 1-39 (footnotes in original). On March 30, 2012, the PCRA court issued its Rule 1925(a) opinion. Therefore, this appeal is ripe for our review. Appellant presents three issues for appeal: 1. Did the PCRA [c]ourt err in denying relief in this case where Appellant s evidence established that trial counsel were ineffective in their representation by failing to file and litigate a motion in limine to exclude Appellant[ s] juvenile convictions for robbery where said error prejudiced Appellant and where said error was not based on any rational legal strategy and where counsel s performance fell below the acceptance level of competence thus denying Appellant his right to the effective assistance of counsel under the Sixth Amendment of the United States Constitution and under the Constitution and laws of the Commonwealth of Pennsylvania? 2. Did the evidence adduced at the evidentiary hearings clearly establish a reasonable probability that had Appellant testified at trial and had the evidence as to the recreation of the incident possessed by trial counsel been presented at trial the outcome would have been different? 3. Did the PCRA [c]ourt err in the standard of law it applied in this case in that in this case the PCRA [c]ourt had sat as the fact finder in a non-jury trial and as such was it therefore improper for the PCRA [c]ourt to reassess or redetermine credibility? Appellant s Brief at 7. Our standard of review of a PCRA court s denial of petition for relief is well-settled. We review an order of the PCRA court to determine whether the record supports the findings of the PCRA court and whether its rulings are free from legal error. Commonwealth v. Fiore, 780 A.2d 704, 710 (Pa. Super. 2001), appeal dismissed, 813 A.2d 1080 (Pa. 2003). -6- To be J-S79006-12 eligible for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the reasons set forth in 42 Pa.C.S.A. § 9543(a)(2). In this case, Appellant alleges that his sentence resulted from ineffective assistance of counsel, as set forth at 42 Pa.C.S.A. § 9543(a)(2)(ii). In order to obtain relief under the PCRA premised upon a claim that counsel was ineffective, a petitioner must establish beyond a preponderance of the evidence that counsel's ineffectiveness so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Payne, 794 A.2d 902, 905 (Pa. Super. 2002), quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). When considering such a claim, courts presume that counsel was effective, and place upon the appellant the burden of proving otherwise. Id. at 906. Counsel cannot be found ineffective for failure to assert a baseless claim. Id. To succeed on a claim that counsel was ineffective, Appellant must demonstrate that: (1) the claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) counsel s ineffectiveness prejudiced him. Commonwealth v. Allen, 833 A.2d 800, 802 (Pa. Super. 2003). Furthermore: [t]o demonstrate prejudice, appellant must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different. When it is clear the party asserting an ineffectiveness claim has failed to meet the prejudice prong of the ineffectiveness test, the claim may be -7- J-S79006-12 dismissed on that basis alone, without a determination of whether the first two prongs have been met. Failure to meet any prong of the test will defeat an ineffectiveness claim. Counsel is not ineffective for failing to raise meritless claims Commonwealth v. Wright, 961 A.2d 119, 148-149 (Pa. 2008) (citations omitted); Commonwealth v. Albrecht, 720 A.2d 693 (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. ). After review of the applicable law, the certified record, the parties submissions, and the well-reasoned and thorough analysis set forth in the PCRA court s March 30, 2012 opinion, we agree with PCRA court s analysis and conclusions. Indeed, we agree with the PCRA court s determination that: (1) Appellant waived our consideration of trial counsel s ineffectiveness in failing to litigate a motion in limine to exclude admission of evidence regarding Appellant s juvenile convictions because Appellant failed to preserve that issue with the PCRA court (see PCRA Court Opinion, 3/30/2012, at 6-7); (2) trial counsel was not ineffective in recommending that Appellant decline to testify at trial, because such recommendation was provided as part of a reasonable trial strategy, particularly considering the -8- J-S79006-12 volume of incriminating evidence presented against Appellant9 (see id. at 711); and (3) the PCRA court did not apply the wrong standard of law in dismissing Appellant s PCRA petition as lacking merit; the credibility determinations made by the PCRA court were objectively based and supported by the record (see id. at 11-12). Consequently, we affirm the denial of Appellant s PCRA petition on the basis of the PCRA court s March 30, 2012 opinion, and adopt that opinion as our own. The parties are instructed to attach a copy of the PCRA court s March 30, 2012 opinion to all future filings regarding this appeal. Order affirmed. ____________________________________________ 9 Contrary to Appellant s assertion, at trial self-defense was a hotly contested issue, supported by evidence in Appellant s favor, even absent his testimony. Specifically, trial counsel relied upon the fact that the victim threatened Appellant, the victim was armed with his gun loaded and cocked, and Appellant crashed the car that he was driving. Considering such evidence, we agree with the PCRA court that trial counsel s recommendation that Appellant avoid the risk of testifying was part of a reasonable trial strategy. -9-

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