J-S11027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY JOHNSON
Appellant No. 414 EDA 2015
Appeal from the PCRA Order January 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000792-2008
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MARCH 09, 2016
Terry Johnson appeals from the order entered January 16, 2015, in the
Court of Common Pleas of Philadelphia County, that dismissed, without an
evidentiary hearing, his timely filed petition, seeking relief under the
Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
Johnson seeks post conviction relief from the judgment of sentence of 7½ to
15 years’ imprisonment, imposed after he was convicted by a jury of
intimidation of a witness and conspiracy.1 After a thorough review of the
record, the parties’ briefs, and the applicable law, we affirm on the basis of
the PCRA court’s opinion.
____________________________________________
1
18 Pa.C.S. §§ 4952 and 903, respectively.
J-S11027-16
The PCRA court has aptly summarized the facts and procedural
history2 in its Pa.R.A.P. 1925(a) opinion, and we adopt its recitation. PCRA
Court Opinion, 6/2/2015, at 1–4. Johnson contends the PCRA court erred in:
(1) denying his PCRA petition without an evidentiary hearing, and (2)
denying relief on his PCRA petition alleging counsel was ineffective.
Johnson’s Brief at 8. Specifically, Johnson argues counsel was ineffective
for failing to (a) file a motion to reconsider sentence, (b) include the issue of
improper consolidation in the Pa.R.A.P. 1925(b) statement, and (c) include
the issue of violation of the wiretap laws in the pretrial motion.
Preliminarily, we note:
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
[T]he right to an evidentiary hearing on a post-conviction
petition is not absolute. 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. It is the responsibility of the
reviewing court on appeal to examine each issue raised in
____________________________________________
2
This Court notes its concern with the almost two-year lapse between
Johnson’s filing of his pro se petition and amended petition. Here, Johnson’s
pro se PCRA petition was filed on April 12, 2012. Appointed counsel
entered his appearance for Johnson on March 25, 2013, and filed an
amended PCRA petition on Johnson’s behalf on January 27, 2014. Nothing
in the certified record explains the reason for the delay between the filing of
these petitions.
-2-
J-S11027-16
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. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations
omitted).
The PCRA judge, the Honorable Shelley Robins New, has provided a
thorough and well reasoned discussion in support of her decision to dismiss
Johnson’s PCRA petition. See PCRA Court Opinion, 6/2/2015, at 4–8
(explaining: (1) Johnson failed to demonstrate prejudice, where the court
imposed a standard range sentence and he failed to proffer any evidence of
mitigating factors that would have persuaded the court to reconsider his
sentence, had a motion for reconsideration been filed; (2) the case was
proper to be tried jointly among the four defendants as the jury needed to
understand the nature of the homicide (charged against one of Johnson’s co-
defendants) and needed to see and view the recanting witnesses in order to
make a reasoned determination whether or not the witnesses were
intimidated; the intimidation and conspiracy charges involved the same
evidence against all four defendants, and (3) counsel’s alleged
ineffectiveness for failure to litigate a motion to suppress and allege that the
Commonwealth violated the Wiretap Act, 18 Pa.C.S. § 5701 et seq., is
meritless, as 18 Pa.C.S. § 5704 authorizes warrantless interceptions based
on consent, and the parties expressly or implicitly consented to the
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J-S11027-16
interceptions where a periodic recorded message informed the parties the
calls made by Johnson’s co-defendant from prison were being monitored.).
As we agree with the sound reasoning of the PCRA court, we adopt the
PCRA court’s opinion as dispositive of the issues raised in this appeal, and
affirm the denial of PCRA relief.
In the event of future proceedings, the parties are directed to attach a
copy of the PCRA court’s 6/2/2015 opinion to this decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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Circulated 02/16/2016 03:37 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRJAL DIVISION FILED
JUNO 2 2015
COMMONWEALTH OF PENNSYLVANIA cr-s 1-cR-0000192-2oos CriminalAppeals Unit
v.
FirstJudicial District of PA
TERRY JOHNSON, Appellant Superior Court Docket No. 4I4EDA2015
OPINION OF THE COURT
Appellant, Terry Johnson appeals from this Court's denial of relief pursuant to the
Post Conviction Relief Act (PCRA).42 Pa. C.S.A. § 9541, et. seq. For the reasons set
forth below, no relief is due.
Procedural History
Appellant was arrested on September 23, 2007. The arrest stemmed from
Appellant's participation with co-defendant, Tashan Bundy and others in an attempt to
intimidate witnesses in Bundy's upcoming trial for murder. The upcoming trial was to be
Bundy's third such trial, as the two prior trials resulted in hung juries.
A preliminary hearing was held on March 14, 2008. Prior to trial the
Commonwealth sought to consolidate all of the intimidation cases with Bundy's murder
trial. Appellant filed a motion in limine to preclude the admission of several recorded
phone calls between himself and co-defendant Bundy. The. Honorable Teresa M.
Sarmena, who presided over Bundy's first two trials, granted the Commonwealth's
motion and denied Appellant's motion. The cases were then transferred to this Court for
trial.
Between May 29, 2008 and June 19, 2008, Appellant and his co-defendants
received a jury trial before this Court. Following the conclusion of the trial, the jury
found Appellant guilty of one count of criminal conspiracy and one count of witness
intimidation.
On November 10, 2008, this Court sentenced Appellant to a term of not less than
seven and a half (7 12) years, and not more than fifteen (15) years incarceration for
criminal conspiracy and not less than five (5) years and not more than ten ( I 0) years
incarceration for witness intimidation. The sentences were deemed to run concurrently.
On November 20, 2008, Appellant filed post-sentence motions, seeking to vacate
his sentence, challenging the sufficiency and weight of the evidence. The post-sentence
motions were denied.
On March 23, 2009, Appellant filed a Notice of Appeal to the Superior Court of
Pennsylvania, docketed at 911 EDA 2009. On May 19, 2011, the Superior Court of
Pennsylvania affirmed the judgment of sentence.
On April 12, 2012, Appellant timely filed a pro se PCRA Petition. Counsel was
appointed who, on January 27, 2014, filed an Amended Petition and Memorandum of
Law, alleging the following grounds for relief;
J) Counsel was ineffective for failing to file a motion to reconsider sentence.
2) Counsel was ineffective for failing to include in his 1925 (b) statement in the
direct appeal, the issue of improper consolidation of his trial with Bundy's
1•
murder trial
3) Counsel was ineffective for failing to raise challenge the admissibility of the
recorded conversations in a pretrial motion to suppress".
I
On direct appeal Appellant claimed error because his case was consolidated with Bundy's. The Superior
Court found the issue waived because it was not raised in the I 925(b) statement.
2
On direct appeal Appellant claimed error because the recorded conversations were introduced. The
Superior Court found this issue waived because no motion to suppress was filed.
2
After reviewing the pleadings, the record and the law, and after complying with
the procedural requirements in Pa.R.Crim. P. 907, the Court dismissed the Petition. The
instant timely appeal raising the same three issues followed.
Facts Found by the Trial Court
On the night of December 18-19, 2004, the decedent, Robert Smith, was working
as a security guard for a rap group that was performing at the Dowling Place Club at
Broad and Thompson Streets in Philadelphia. At approximately 2:30 a.m., shots were
fired outside the club. Police Lt. Steven Arch, who was patrolling a few short blocks
away heard three gunshots and arrived as the first officer on the scene. He observed the
decedent lying in the driveway suffering from gunshot wounds. While the lieutenant
remained at the scene, police officer Jonathan White transported the victim to
Hahnemann Hospital where he was later pronounced dead.
Moments after the shots were fired, several witnesses reported seeing a gray
Oldsmobile speeding away from the scene. The vehicle was later found at 16th and
Parish Streets by Officer Jose Nova just a few minutes after the shooting. Police Officer
Jose Nova testified that he saw Appellant inside the car approximately 3 days before the
shooting. Bundy's fingerprints were found inside the car.
Carneal Combs was called as a Commonwealth witness. Mr. Combs denied
knowing anyone involved in this case; denied seeing anything concerning the shooting;
denied his name and social security number and denied giving a police statement.
However, in a verbatim police statement taken on April 28, 2005, by Detective Marino
which Mr. Combs adopted at the time, he stated that he was present at the shooting; he
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saw three bouncers, one of whom was arguing with a group of young men that included
Bundy; he was in the fleeing car; Bundy shot the victim; Bundy then got in the car and
they drove off. He also told police that Zazzy (Jospeh Harville) and Muscles (Robert
Gray) were with him. Detective Marino testified that he met with Combs on April 27th,
2008 and that Combs expressed concern for his safety. Muscles and Zazzy also gave
police statements implicating Bundy as the shooter. When they were called as witnesses,
they, too did not identify Bundy as the shooter.
In addition, the Commonwealth introduced a series of recorded phone
conversations among Appellant and his co-defendants. The calls were initiated by Bundy
from prison to co-defendant Joyce Harris3' phone. Appellant and co-defendant David
Gindraw were also heard on the recordings. In essence, the conversations focused on
Bundy directing Appellant and Gindraw to visit witnesses in order to make them fail to
appear at trial and/or to recant prior statements if called to testify. In one of those
conversations recorded on May 9th, 2007, Appellant can be heard admitting to
intimidating witness Joseph Harville not to testify at a prior proceeding.
Standard of Review Under the PCRA
In Strickland v. Washington, 466 U.S. 668, 685, (1984) the United States
Supreme Court set forth what must be proven to prevail on an ineffective assistance of
counsel claim. First, one must show that counsel's representation fell below an objective
standard of reasonableness. Next, one must show a reasonable probability that but for
counsel's errors, the result would have been different.
3
Joyce Harris was found not guilty of all charges.
4
The Supreme Court of Pennsylvania has added; "To prevail on ineffectiveness
claim in proceedings pursuant to a Post Conviction Relief Act (PCRA) petition, a
petitioner must show: (I) that underlying legal claim has arguable merit; (2) that counsel
had no reasonable basis for his or her action or omission; and (3) that petitioner suffered
prejudice as result." Commonwealth v. Bardo, I 05 A.3d 678,684 (Pa. 2014). Counsel is
presumed effective, and the petitioner bears the burden of proving otherwise. Id. To
establish prejudice, "The petitioner must show that there is a reasonable probability that
the outcome of the proceeding would have been different but for counsel's action or
inaction." Id.
Instantly, Appellant first alleged that counsel was ineffective for failing to file a
motion to reconsider sentence. He claimed the sentence was excessive because he was
only found guilty of one of the three intimidation charges. He claimed that he asked his
counsel to file a motion to reconsider sentence, but it was not done, thus waiving any
sentencing issues for appeal. Id. Appellant's claim is meritless.
Appellant has failed to demonstrate that but for counsel's failure to file a motion
to reconsider sentence, the outcome would have been different. Appellant's sentence of
seven and a half (7Y2) to fifteen (15) years was within the standard range of the
sentencing guidelines. He fails to proffer any evidence of any mitigating factors that
would have persuaded the Court to reconsider his sentence, had a motion to reconsider
been filed. At sentencing the Court considered all relevant factors and imposed the
appropriate sentence. No basis to reconsider the sentence was articulated in the Amended
Petition or Memorandum of Law and no basis existed. Therefore, this claim is meritless.
See also Commonwealth v. Jones, 571 Pa. 811 A.2d 994, l 003 (2002), in which the
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Pennsylvania Supreme Court stated, "An undeveloped argument, which fails to
meaningfully discuss and apply the standard governing the review of ineffectiveness
claims, simply does not satisfy Petitioner's burden of establishing that he is entitled to any
relief."
Second, Appellant claims that counsel was ineffective for failing to include the
issue of improper consolidation in his 1925 (b) statement in the direct appeal. We
addressed the propriety of consolidating the cases in our opinion in the direct appeal, and
we repeat it here. We note that the motion was litigated prior to this case being assigned
to this Court for trial. However, we agree that the case was proper to be tried jointly
among the four defendants. Severance or consolidation questions fall within the
discretion of the trial court and an order denying severance or granting consolidation will
not be overturned on appeal absent an abuse of discretion. Commonwealth v. Brown,
925 A.2d. 147 (Pa. 2007) (collecting cases). Moreover, when conspiracy is charged a
joint trial generally is advisable. Commonwealth v. King, 721 A.2d. 763 (Pa. 1998). A
claim of mere hostility between defendants, or that one defendant may try to exonerate
himself at the expense of the other, however, is an insufficient basis upon which to grant
a motion to sever. Commonwealth v. Chester, 587 A.2d. 1367 (Pa. 1991) (cert. denied.)
Instantly, the jury needed to understand the nature of the homicide and needed to see and
view the recanting witnesses in order to make a reasoned determination whether or not
the witnesses were intimidated. The intimidation and conspiracy charges involved the
same evidence against all defendants and a joint trial was proper.
Moreover, Appellant's PCRA claim simply was undeveloped. His claim in the
Amended Petition is set forth in one sentence; "It is clear that the jury was confused in
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this case by the consolidation in that they found Petitioner not guilty of intimidation of
two of the alleged victims but guilty of one of the alleged victims by the very same
evidence." This is insufficient evidence to support a claim of ineffective assistance of
counsel. Commonwealth v. Roney, 79 A.3d. 595, 607 (Pa. 2013) (claim based on nothing
more than speculation, devoid of any factual evidentiary support must fail).
Finally, Petitioner alleges that counsel was ineffective for failing to allege in a
motion to suppress that the Commonwealth violated the Wiretap Act, 18 Pa.C.S.A.
§570 l, et seq. This claim is frivolous as counsel can never be deemed ineffective for
failing to pursue a meritless claim. Commonwealth v. Pursell, 495 A.2d. 183, 189 (Pa.
1995)
18 Pa.C.S.A. 5704 authorizes warrantless interceptions "where the parties to the
communication have given prior consent to the interception." In this case it is beyond
dispute that the parties to the calls either expressly or implicitly gave their consent to the
i nte~ceptions.
Instantly, these calls were made by Bundy from prison. During the calls the
parties were informed periodically via a recorded message that the calls were being
monitored. When the parties engaged in their conversations despite the warnings, no
violation of the Wiretap Act occurred. See Commonwealth v. Baumhammers, 960 A.2d.
59, 77-79 (Pa. 2008) (no violation of the Wiretap Act occurs in intercepted prison phone
calls when an audible message gives the participants notice that the calls are being
recorded.)
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Accordingly, for the reasons set forth above, the judgment of conviction should be
affirmed."
BY THE COURT:
/
ROBINS NEW, J.
4
The Court wishes to acknowledge the involvement of Ryan Halbert, a Rutgers University law student in
the research and writing of this opinion.
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APPENDIXB