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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LONNELLE M. JOHNSON, JR., :
:
Appellant : No. 1429 WDA 2015
Appeal from the PCRA Order August 11, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division No(s): CP-02-CR-0011414-2009
BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 21, 2016
Appellant, Lonnelle M. Johnson, Jr., appeals the PCRA court’s Order
dismissing without a hearing his first Petition under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541, et seq. For the reasons that follow,
we affirm.
The trial court previously summarized the factual history of this case
as follows:
Thomas Nguyen testified that he and his brother, Hoang, were in
the Hill District of Pittsburgh at approximately noon on June 26,
2009, dropping his brother’s baby off to the mother. Hoang[]
was driving and Thomas was in the passenger’s seat while the
vehicle was stopped on Bedford Avenue. As they were stopped
there, a group of people, which included [Appellant], waved
toward Hoang. Hoang pulled the vehicle to the side of the road
to talk to those individuals. One of the individuals, later
identified by [Thomas] as “Woozy” [a/k/a Daniel Williams], was
speaking with [Hoang] through the driver’s side window. Two
other individuals were also present outside the vehicle. While
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[Hoang] was talking with Woozy, another individual, later
identified as [Appellant], jumped into the backseat of the car on
the driver’s side, pointed a gun at Hoang and told him to “give it
up.” Thomas took that to mean that he wanted them to give
him anything of value that he and [Hoang] had.
At this point, however, Hoang put the car into drive and began
to drive away. When he did this, [Appellant] said, “Don’t try it.
I’ll shoot you.” Hoang stepped on the gas pedal. As soon as the
car started moving, [Appellant] started shooting. Thomas heard
at least three gunshots. The vehicle then crashed into a tree.
Thomas blacked out for a few seconds. When he awoke, he did
not see [Hoang] in the driver’s seat any longer. He tried to get
out, but his door would not open. He indicated that he noticed
that he had been shot in the leg. He still saw the individual
identified as Woozy standing near a building but did not see the
individual who had shot him.
While he was at the hospital, the police came and showed him
photographs. He stated that he was able to speak to the police
and was not under the influence of drugs at that point. He
recalls the conversation he had with the police. He was shown
several sets of photographs. He identified Woozy from one set
and [Appellant] from another set of photographs. Thomas
identified [Appellant] in the [c]ourtroom and identified him as
the individual who jumped into the back seat of the car, pointed
the gun at him and [Hoang] and shot them.
Daniel Williams (“Woozy”), also testified. He stated that he saw
[] Hoang, drive up and wave[] at him to speak with him.
[Williams] spoke with [Hoang] through the driver’s side door and
noticed that [Hoang’s] brother was in the passenger seat.
[Williams] stated that he talked to [Hoang] for a few minutes.
While standing next to the driver’s window, [Williams] saw
someone holding a gun jump into the back seat of the car and
say something to the two victims. [Williams] testified that
[Hoang] drove off with the individual still in the backseat. The
car travelled a short distance and then struck a tree. …
[Williams] said that the individual in the car got out and ran. He
then saw [Hoang] get out of the car, put his hand to his head
and fall to the ground. Williams stated that he stayed at the
scene and was placed under arrest when the police showed up.
He stated that he provided a description of the individual he saw
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but could not provide the name of the person. He admitted that
he told them that he was afraid to identify that person.
On cross[-]examination, Williams testified that he knew
[Appellant], and had known him for years. He stated that
[Appellant] was not the individual who was in the backseat of
the vehicle.
Detective Bonzale Boose, with the City of Pittsburgh Homicide
Division, testified that he interviewed Williams and that Williams
told him that while he was standing at the driver’s window
talking with [Hoang], an individual walked up to his right side,
opened the rear door on the driver’s side, and got in with a
handgun pointed at the driver. He said the car pulled away and
he heard several shots. The car then accelerated a few feet,
turned and struck the tree, where it came to rest. He said he
saw the individual get out of the car and run into the projects.
He also said he saw the driver get out of the car and collapse to
the ground. When Detective Boose asked him if he could
identify the person he saw enter the car[], [Williams], according
to Detective Boose, said “He could ID that individual, but he will
not ID an individual under any circumstances out of safety for
himself and his family.”
The Commonwealth also presented fingerprint evidence. Latent
prints were obtained from [the] rear driver’s door and door
frame, which was where both the surviving victim and Williams
said the assailant had entered the vehicle. Of the total of nine
latent prints of value obtained from the [] vehicle, three were
matched to [Appellant]. Two from the rear door matched
[Appellant’s] left little finger and one matched his left middle
finger.
In addition, the Commonwealth presented testimony from Walter
Lorenz, a forensic scientist from the Allegheny County Medical
Examiner’s Division of Laboratories. Dr. Lorenz testified that
DNA samples were obtained from the exterior and interior
handles from the rear driver’s side door. Samples were also
obtained from [Appellant] and the victim, Hoang Nguyen. The
comparison between the sample from the interior door handle
and the samples from [Appellant] and the victim resulted in Dr.
Lorenz excluding both as significant contributors to the DNA
material obtained from the interior door handle. The comparison
between the DNA material obtained from the exterior handle and
that from the victim and [Appellant], however, resulted in the
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exclusion of the victim as being a possible contributor and the
determination that the DNA from the door handle and from
[Appellant] matched. The probability of such a match was one
in 1.3 billion among African-Americans.
Trial Court Opinion, filed 11/18/11, at 4-9 (citations to the record omitted).
Appellant was convicted after a jury trial of first-degree murder,
aggravated assault, carrying a firearm without a license, and two counts of
robbery. On October 25, 2010, the court sentenced him to a mandatory
term of life imprisonment for the murder conviction, as well as a concurrent,
aggregate term of 20 to 60 years’ incarceration for the remaining
convictions. On July 11, 2012, this Court affirmed Appellant’s convictions,
but vacated his Judgment of Sentence and remanded for resentencing based
upon the trial court’s failure to grant Appellant credit for time served.
Commonwealth v. Johnson, No. 1937 WDA 2010, unpublished
memorandum (Pa. Super. filed July 11, 2012). Appellant was re-sentenced
on May 5, 2013.
On August 26, 2013, Appellant filed a timely pro se PCRA Petition. The
PCRA court appointed counsel, who filed a Motion to Withdraw as Counsel
with a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). Shortly thereafter, PCRA counsel filed a Motion to
Supplement Previous Motion to Withdraw.
On June 30, 2014, the PCRA court filed a Notice of Intent to Dismiss
Appellant’s PCRA Petition without a hearing pursuant to Pennsylvania Rule of
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Criminal Procedure 907. In response, Appellant filed an amended PCRA
Petition pro se. On August 11, 2015, after reviewing Appellant’s amended
pro se Petition, the PCRA court filed a Memorandum Opinion and Amended
Rule 907 Notice.
On September 2, 2015, Appellant filed a timely appeal to this Court.
The PCRA court did not direct Appellant to file a Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did
not do so of his own accord. The PCRA court did not file an Opinion
pursuant to Pa.R.A.P. 1925(a).
In his Brief to this Court, Appellant provides the following “Statement
of Questions Presented”:
1. Whether the PCRA court erred in dismissing Appellant’s PCRA
Petition without holding an evidentiary hearing to determine
whether trial counsel was ineffective?
2. Whether trial counsel provided and serviced Appellant
ineffective assistance when trial counsel failed to investigate and
interview potential alibi exculpatory witnesses in support of
Appellant’s actual innocence?
3. Whether [the] PCRA court erred in permitting PCRA counsel to
withdraw when the language it used shows that PCRA counsel’s
‘no-merit’ lettered petition reveals that PCRA counsel had limited
its investigation and interview to just ‘one’ lonely witness where
PCRA counsel’s investigation was solely based and relied upon
review of previous transcripts of witness’s testimony that witness
could not positively identified Appellant as the actual suspect?
Appellant’s Brief at iv.
We note at the outset that Appellant’s pro se Brief is comprised of a
repetitive and rambling assertion of errors that does not comply with
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Pa.R.A.P. 2118-2119.1 Despite its significant flaws, we are able to discern
from the discussion portion of the Brief two distinct issues: (i) ineffective
assistance of trial counsel for failing to investigate and present four
witnesses at trial; and (ii) a challenge to the denial of the PCRA Petition
without a hearing.
When reviewing the propriety of an order granting or denying PCRA
relief, this Court is limited to determining whether the evidence of record
supports the determination of the PCRA court, and whether the ruling is free
of legal error. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.
2007). We grant great deference to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support in the
certified record. Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.
Super. 2003). When the PCRA court denies a petition without an evidentiary
hearing, we “examine each issue raised in 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.”
1
The argument section of Appellant’s Brief contains three subsections with
headings that do not match or otherwise correspond with the questions
presented in the Statement of Questions Presented. See Appellant’s Brief at
3, 13, 16. Moreover, our review of Appellant’s Brief reveals that the
headings, which subdivide his argument sections, bear little relation to the
arguments developed thereunder.
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Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004)
(citation omitted).
Trial Counsel’s Failure to Call Potential Witnesses
In his first issue, Appellant avers that trial counsel was ineffective for
failing to investigate, interview, and call four witnesses at trial.
In analyzing claims of ineffective assistance of counsel, we presume
that trial counsel was effective unless the PCRA petitioner proves otherwise.
Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). In order to
succeed on a claim of ineffective assistance of counsel, Appellant must
demonstrate (1) that the underlying claim is of arguable merit; (2) that
counsel’s performance lacked a reasonable basis; and (3) that the
ineffectiveness of counsel caused the appellant prejudice. Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant bears the burden of
proving each of these elements, and his “failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness.”
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
It is well settled that a PCRA petitioner cannot prevail on a claim of
trial counsel’s ineffectiveness for failure to call a witness unless the
petitioner shows that: “(1) the witness existed; (2) the witness was available
to testify for the defense; (3) counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing to testify for the
defense; and (5) the absence of the testimony of the witness was so
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prejudicial as to have denied the defendant a fair trial.” Commonwealth v.
Washington, 927 A.2d 586, 599 (Pa. 2007). To satisfy the prejudice prong
of this analysis, a PCRA petitioner “must show how the uncalled witnesses’
testimony would have been beneficial under the circumstances of the case.”
Commonwealth v. Gibson, 951 A.2d 1110, 1134 (Pa. 2008) (citations
omitted).
Witness Andrew Davis
Appellant avers that trial counsel was ineffective for failing to
investigate and interview Andrew Davis (“Davis”).2 This argument is without
merit because, as explained by the PCRA court, trial counsel did interview
Davis and discovered that Davis’ testimony would not have aided in
Appellant’s defense:
First, trial counsel did, in fact, secure an interview of Andrew
Davis through his private investigator. The report from that
interview was attached to the defendant's Motion to Supplement
Previous Motion to Withdraw. Second, the report of that
interview reveals that Mr. Davis would not have offered
testimony favorable to the defendant. He told the investigator
that he could not identify any of the three individuals he saw,
including the person who shot the victim. His inability to identify
the assailants could not possibly have aided Mr. Johnson in his
trial.
...
Nowhere in this statement is Andrew Davis reported to have said
anything that would have been exculpatory to the defendant. It
was the defendant's burden to proffer, in his Petition, facts
2
Davis was the only witness mentioned by Appellant in his initial pro se
Petition.
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which, if proven at a hearing, would establish his right to relief.
Here, as he is alleging that trial counsel was ineffective for failing
to present testimony from Andrew Davis, it was his burden to
establish what Andrew Davis would have said if called as a
witness and how that testimony would have changed the
outcome of the trial. He failed to meet that burden because all
that Andrew Davis could have said is that he could not identify
any of the men. He did not say, as the defendant seems to
suggest, that the defendant was not present. He said he could
not identify any of the men present. Because Andrew Davis
would not have offered any testimony helpful to the defendant,
counsel was not ineffective in failing to present him as a witness.
Trial Court Memorandum Opinion and Amended Notice of Intention to
Dismiss, filed 8/11/15, at 1-3.
Our review of the record supports the PCRA court’s analysis.
Accordingly, we conclude that the PCRA court did not err in determining that
there were no genuine issues of material fact in controversy, and that
Appellant is not entitled to relief on this claim.
Witnesses George Lyle and Daniel Williams
Appellant next avers that trial counsel was ineffective for failing to call
witness George Lyle (“Lyle”), who “if [he] had been called upon, would have
testified truthfully that Appellant was with him on the day and at the time of
the alleged shooting incident for which [Appellant] was wrongfully accused
of” and failing to call Daniel Williams (“Williams”). Appellant’s Brief at 8, 5.
Contrary to Appellant’s assertion, both Lyle and Williams testified at
trial. Lyle, who testified on Appellant’s behalf, told the jury that Appellant
was with him at the time of the murder. N.T., 7/28/10, at 249-66.
Williams, called as a witness for the Commonwealth, testified to seeing a
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man with a gun enter the victim’s vehicle, threaten him, and run from scene
following the crash. N.T., 7/27/10, at 84-87. On cross-examination by trial
counsel, Williams testified that he knew Appellant and that Appellant was not
the man he saw running from the vehicle. Id. at 92. Accordingly,
Appellant’s contention fails: trial counsel can hardly be deemed ineffective
for failing to call witnesses who did, in fact, testify.
Witness Marcel Green
Finally, Appellant avers that trial counsel was ineffective for failing to
call Marcel Green (“Green”) as a witness at trial. Appellant did not mention
Green in his initial pro se PCRA Petition, or in his counseled amended PCRA
Petition. Moreover, his Brief to this Court contains no information regarding
what testimony Appellant believes Green might have given had he been
called at trial, or any of the other elements required under Washington,
927 A.2d at 599. Instead, Appellant’s only reference to, and entire
argument regarding, Green is the following single sentence: “The dispositive
issue is whether trial counsel’s ineffectiveness for failure to investigate other
potential exculpatory witnesses [sic]; Daniel Williams, Andrew Davis, and
Marcel Green.” Appellant’s Brief at 5. Therefore, Appellant waived all claims
regarding Green by failing to raise this claim below or develop it in his Brief
to this Court. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”); Harkins v.
Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992) (noting that
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issues raised but not developed the argument section of a brief will be
deemed waived).
Denial of PCRA Petition Without a Hearing
In his second and third argument sections, Appellant avers, in
substance, that the PCRA court erred in dismissing his Petition without a
hearing.3 We disagree. There is no absolute right to an evidentiary hearing
on a PCRA petition, and the PCRA court may decline to hold a hearing if the
claims are patently frivolous and without a trace of support in the record.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001).
In the instant case, as discussed supra, the claims raised by Appellant
were either patently frivolous or never raised before the PCRA court. PCRA
counsel, in a Motion to Supplement Previous Motion to Withdraw, provided
the PCRA court with a copy of trial counsel’s witness interview report for
Davis. Motion to Supplement Previous Motion to Withdraw, Exhibit A, filed
3
We note that the headings for these argument sections purport to raise
other claims of error by the PCRA court and ineffectiveness by trial counsel.
None of these claims are developed in the argument that follows, however,
and in substance both arguments aver that the PCRA court erred in
dismissing Appellant’s claim without a hearing. To properly develop an issue
for our review, Appellant bore the burden of ensuring that his argument
section included citations to pertinent authorities as well as discussion and
analysis of the authorities. See Pa.R.A.P. 2119(a); Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“[I]t is an appellant’s duty to
present arguments that are sufficiently developed for our review. The brief
must support the claims with pertinent discussion, with references to the
record and with citations to legal authorities.” (citations omitted)).
Therefore, Appellant waived any claims suggested in his headings, where he
failed to discuss them or develop them in the arguments that follow.
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6/16/14. That statement made it clear that counsel did, in fact, interview
Davis and discovered that he had no exculpatory testimony to offer. For
Lyle and Williams, a review of the trial record was sufficient to show that
both witnesses did in fact testify at trial. Therefore, a hearing was not
needed to further develop any of Appellant’s meritless claims regarding
these witnesses.
Based on all of the foregoing, we conclude that the PCRA court did not
err in dismissing Appellant’s Petition without a hearing. Accordingly, we
affirm the PCRA court’s denial of Appellant’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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Com. v. Johnson, L.
Combined Opinion