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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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
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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
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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
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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).
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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
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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
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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