Com. v. Paverette, M.

J. S30019/16 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : ARTHUR JOHNSON, : No. 545 EDA 2015 : Appellant : Appeal from the PCRA Order, January 22, 2015, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0014152-2008 BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 06, 2016 Arthur Johnson appeals from the order entered in the Court of Common Pleas of Philadelphia County that dismissed his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm. The PCRA court set forth the following: On May 9, 2008[,] [a]ppellant was arrested and charged with [m]urder and weapons offenses[,] and on February 12, 2010, following a jury trial before this Court, he was adjudged guilty of Murder of the First Degree and Possessing Instruments of Crime. On March 26, 2010[,] [a]ppellant was sentenced to an aggregate term of life imprisonment, and on March 27, 2012[,] the Superior Court of Pennsylvania affirmed the Judgment of Sentence. Commonwealth v. [] Johnson, 949 EDA 2010. On April 20, 2012[,] [a]ppellant filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania. On J. S30019/16 November 8, 2012[,] the Petition for Allowance of Appeal was denied. Commonwealth v. [] Johnson, 200 EAL 2012. Appellant filed the instant Petition pursuant to the [PCRA] on November 13, 2013[,] and on February 12, 2014[,] he filed an Amended PCRA Petition. On April 16, 2014[,] the Commonwealth filed a Motion to Dismiss the PCRA Petition[,] and on September 24, 2014[,] the Commonwealth filed a Supplemental Motion to Dismiss. Appellant was sent Notice pursuant to Pa.R.Crim.P. 907 on December 8, 2014, and on January 22, 2015[,] the PCRA Petition was dismissed. This timely appeal followed on February 19, 2015. PCRA court opinion 6/19/15 at 1-2 (footnote omitted). Appellant raises the following issues for our review: [1.] Whether the trial court violated the confrontation clause and abused its discretion when it allowed the prosecution to introduce into evidence a statement of the non-testifying codefendant that referred to the appellant as “the other guy” in a two defendant jury trial, causing substantial harm to the appellant[?] [2.] Whether trial counsel was ineffective for failing to object to the double hearsay in non-testifying codefendant’s written statement to police, causing substantial harm and undue prejudice to the appellant[?] [3.] Whether trial counsel was ineffective for failure to strike reference to Baz Parker in the [s]tatement of non-testifying codefendant, causing substantial harm and undue prejudice to the appellant[?] [4.] Whether trial counsel was ineffective for failing to object to references to the appellant as “the other guy” in prosecutor’s closing, causing -2- J. S30019/16 substantial harm and undue prejudice to the appellant[?] [5.] Whether trial counsel was ineffective for failing to object to the trial court’s Spencer Charge, causing substantial harm and undue prejudice to the appellant[?] [6.] Whether counsel for direct appeal was ineffective for failing to raise issues to correct the errors of trial as to the double hearsay, and to codefendant’s counsel, who named the appellant as the shooter in his opening, causing substantial harm and undue prejudice to the appellant[?] Appellant’s brief at 5-6. In PCRA appeals, our scope of review “is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed in the light most favorable to the prevailing party.” Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation omitted). Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and credibility determinations supported by the record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). In contrast, we review the PCRA court’s legal conclusions de novo. Id. To be eligible for PCRA relief, a petitioner must show, among other things, that the claims of error have not been previously litigated. 42 Pa.C.S.A. § 9543(a)(3). An issue has been previously litigated if “the -3- J. S30019/16 highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” Id.; Commonwealth v. Spotz, 47 A.3d 63, 76 (Pa. 2012). In his first issue on appeal, appellant complains that the trial court abused its discretion when it permitted the prosecution to introduce a statement of a non-testifying co-defendant that referred to appellant as “the other guy.” Appellant raised this issue on direct appeal. See Commonwealth v. Johnson, No. 949 EDA 2010, unpublished memorandum (Pa.Super. filed March 27, 2012). Therefore, because this issue was previously litigated, it is not properly before us. Under the guise of ineffectiveness, appellant’s fourth issue alleging that trial counsel failed to object to a supposed Bruton1 violation is belied by the record, and the Bruton issue was previously litigated. Appellant’s four remaining issues assert claims of ineffective assistance of trial counsel and direct appeal counsel. In evaluating claims of ineffective assistance of counsel, we presume that counsel is effective. Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 441 (Pa. 1999). To overcome this presumption, Appellant must establish three factors. First, that the underlying claim has arguable merit. See Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 356 (Pa. 1995). Second, that counsel had no reasonable basis for his action or inaction. Id. In determining whether counsel’s action was reasonable, we do not question whether there were other more logical courses of action which counsel 1 Bruton v. United States, 391 U.S. 123 (1968). -4- J. S30019/16 could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis. See Rollins, 738 A.2d at 441; Commonwealth v. (Charles) Pierce, 515 Pa. 153, 527 A.2d 973, 975 (Pa. 1987). Finally, “Appellant must establish that he has been prejudiced by counsel’s ineffectiveness; in order to meet this burden, he must show that ‘but for the act or omission in question, the outcome of the proceedings would have been different.’” See Rollins, 738 A.2d at 441 (quoting Travaglia, 661 A.2d at 357). A claim of ineffectiveness may be denied by a showing that the petitioner’s evidence fails to meet any of these prongs. Commonwealth v. (Michael) Pierce, 567 Pa. 186, 786 A.2d 203, 221-22 (Pa. 2001); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 701 (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.”). In the context of a PCRA proceeding, Appellant must establish that the ineffective assistance of counsel was of the type “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.” 42 Pa.C.S. § 9543(a)(2)(ii). See also (Michael) Pierce, 786 A.2d at 221-22; Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 333 (Pa. 1999). Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007). Having determined, after careful review, that the learned Judge Gwendolyn N. Bright, in her June 19, 2015 Rule 1925(a) opinion, ably and comprehensively disposes of appellant’s issues on appeal, with -5- J. S30019/16 appropriate reference to the record and without legal error, we affirm on the basis of that opinion. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/6/2016 -6- Circulated 04/27/2016 04:40 PM FILED IN THE COURT OF COMMON PLEAS JUN 1 9 2015 FlRST .IUDlCIAL OISTRlCT Criminaf Appeals Unit PHILADELPHIA COUNTY FirstJudicia\ District of PA CRIMINAL TRIAL DIVISION COMMONWEALTH OF PENNSYLVANlA CP-5J-CR-0014152-2008 CP-Sl·CR-0014152-2008 Comm. v. JQlinson, l\llh1.r Opa'loon v. 111111111111111 Ill I 7309673651 I IIIII : SUPERIOR COURT OF PENNSYLVANIA ARTHUR JOHNSON 545 EDA 2015 OPINION BRIGHT, J. On May 9, 2008 Appellant was arrested and charged with Murder and weapons offenses, and on February 12, 2010, following a jury trial before this Court, he was adjudged guilty of Murder of the First Degree and Possessing Instruments of Crime. On March 26, 2010 Appellant was sentenced to an aggregate term of life imprisonment, and on March 27, 2012 the Superior Court of Pennsylvania affirmed the Judgment of Sentence. Commonwealth v. Arthur Johnson, 949 EDA 2010. On April 20, 2012 Appellant filed a Petition for Allowance or Appeal in the Supreme Court of Pennsylvania. On November 8. 2012 the Petition for Allowance of Appeal was denied. Commonwealth v. Arthur Johnson. 200 EAL 2012. Appellant filed the instant Petition pursuant to the Post Conviction Relief Act (hereinafter PCRA)1 on November 13, 2013 and on February 12, 2014 he filed an Amended PCRA Petition. On April l6, 2014 the Commonwealth filed a Motion to Dismiss the PCRA Petition and on ' September 24, 2014 the Commonwealth filed a Supplemental Motion to Dismiss. Appellant was 1 42 Pa.C.S.A.§9541, et seq. sent Notice pursuant to Pa R.Crim.P. 907 on December 8, 2014, and on January 22, 2015 the PCRA Petition was dismissed. This timely appeal followed on February 19, 2015. Pursuant to Pa. R .A.P. l 925(b} Appellant was instructed to file a Statement of Errors Complained Of On Appeal. Appellant responded complaining that the Court violated the confrontation clause to the Constitution of the United States when it allowed the prosecution to introduce the statement of codefendant Tyrone Wright in violation of Bruton v. United States, 391 U.S. 123 ( 196~ l; that trial counsel rendered ineffective assistance in multiple respects; and that appellate counsel rendered ineffective assistance in failing to raise the issue involving the alleged Bruton violation. FACTS The facts are summarized in the Court's 1925(a) Opinion on direct appeal and incorporated in the Opinion of the Superior Court of Pennsylvania. Commonwealth v. Arthur Johnson, No. 949 EDA 2010@ 1-3. Decedent, Donnie Skipworth, and the decedent's brother, Dion Skipworth, lived with their family at 1328 N. Newkirk Street, Philadelphia, PA. Appellant, co-defendant Tyrone Wright, and their accomplice, Abbas Parker (AKA, Baz), associated on a daily basis on nearby Hollywood Street. N.T. 2/01/2010@ 151-152, 170-17l.2 Dion Skipworth testified that from 2005 until January 2008, except for a brief period when Decedent was employed in Lancaster, PA, he and Decedent sold drugs in the 1300 block of Newkirk Street and established the area as their territory. Id. @ 161, 164-168. On May 4, 2008. approximately 12:00 AM, Decedent, Dion, and their two cousins, were selling drugs at the corner of the 1300 bJ+>ck of Newkirk Street, when Dion observed Appellant 2 "N.T.'' refers to the Notes of Testimony taken at the Motion to Suppress and jury trial before the I lonorable Gwendolyn N. Bright on January 26, 20 l O - February 9, 2010 and the Sentencing on May 13, 2010. The specific <'·11c to which reference is made follows the designation "N.T.'' walk toward them and Appellant began firing his gun al Decedent. Id.@ 172, 177. Dion testified that after the first round of gunshot he and his cousins fled and five minutes later he returned to the scene finding Decedent lying on the street with bullet holes~ in his jeans and throughout his jacket. Id.@ 181. Detective George Fetters later interviewed Aaron Taylor who testified at trial but was a reluctant witness. Taylor grew up in the same neighborhood and attended school with Decedent and the two were friends. N r. 1/28 '2010@ 81-82. Taylor explained that the murder was in retaliation for the killing of a mutual associate who he identified as Darnell. Id.@ 82. Ile stated: "He was killed for retaliation for what happened to Darnell. He was another friend of mine. We all grew up together down on Newkirk and Thompson. The word was that Donnie got him killed. This was about one and a half to two years ago on the same block. See, they was selling drugs together out there, and Iguess that Darnell got big headed and Donnie didn't like it. So the word was that he (Donnie) had somebody kill Darnell. I guess it was over the money that they were making out there. You see, Donnie was always the pretty boy type and Darnell was the muscle, and I guess they just got in each other's way." Id. @81-82. Taylor further testified that he was on Newkirk Street a few weeks after the shooting death and that he heard Appellant admit that he killed Decedent. Taylor stated: "Look, I was down there on '\;e\.\.kirk like one or two weeks after Donnie [Decedent] was killed and I heard this young boy, Art [co-defendant Johnson], talking about how he did it, he killed Donnie, and how nobody had to worry about what he (Donnie) had done to Darnell. Sec, Artie is supposed to be cousins somehow with Darnell and he said he would get Donnie for what he did to his cousin, Darnell. ... He [Appellant] from the group they call the Body Snatchers. They from 29th and Jefferson Streets. They rap, they gangbang, they on You Tube Anywhere Y,OU see the BS initials, that's them; it's all over that way." Id.@ 88. In his statement to Detective Burns co-defendant Johnson likewise acknowledged that the motive for the murder was retaliation .. N.T.213/2010 ~ 58. Dr. Sam Gulino. Chief Me