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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JUSTIN JUAN JOHNSON, :
:
Appellant : No. 1605 WDA 2016
Appeal from the PCRA Order September 26, 2016
in the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0001512-2011
BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 16, 2017
Justin Juan Johnson (Appellant) appeals from the order entered on
September 26, 2016, which denied his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
We provide the following relevant background based upon the
testimony from Appellant’s three-day jury trial. On the evening of August
10, 2011, the victim in this matter, Regan Pierre, along with his girlfriend,
Jill Murphy, drove from Pittsburgh to New Castle in Murphy’s black Saturn.
Pierre dropped off Murphy at her home then went to the Westside Mini Mart.
He encountered Appellant1 and Marquise Wise2 at the store. According to
Pierre, prior to this encounter, he and Wise “got into a little fight or
1
Appellant is also known as Mr. Muddles.
2
Wise is also known as Boo Boo.
* Retired Senior Judge assigned to the Superior Court.
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whatever” over a girlfriend and the two did not like “each other after that.”
N.T., 9/11/2012, at 46. Pierre testified that Appellant and Wise had arrived
at the Westside Mini Mart in a “burgundy [Oldsmobile] Alero” with an Ohio
license plate. Id. at 47.
Pierre left the Westside Mini Mart in the Saturn, and Appellant and
Wise began to follow him. Id. Subsequently, the Oldsmobile passed Pierre
when Pierre turned. Eventually Pierre encountered the Oldsmobile stopped
near the corner of Lincoln and Shenango Streets in the middle of the road
halfway up a hill with both doors open. When Pierre looked to the left, he
saw Appellant. Appellant then “stepped forward from the bushes and …
opened fire on [Pierre].” Id. at 52.
After Pierre was shot, he called Murphy and “and told her that Muddles
shot [him].” Id. at 70. Pierre then drove to Murphy’s house, and Murphy
drove Pierre to the hospital. Sergeant David Cumo of the New Castle Police
Department arrived at the hospital looking for a gunshot victim based upon
reports of hearing gunshots. He saw a black Saturn with bullet holes and a
broken window in the parking lot. Sergeant Cumo then went into the
hospital in an attempt to find the victim. After identifying Pierre as the
victim and as connected to the Saturn, Pierre told Sergeant Cumo that “he
was shot by Muddles.” N.T., 9/12/2012, at 53.
Appellant was arrested and charged with numerous crimes as a result
of this incident. Following a jury trial, Appellant was convicted of attempted
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criminal homicide, aggravated assault, and aggravated assault with a deadly
weapon. Appellant was sentenced to an aggregate term of twenty to forty
years of incarceration.
On July 17, 2013, this Court affirmed Appellant’s judgment of
sentence. Commonwealth v. Johnson, 82 A.3d 1069 (Pa. Super. 2013)
(unpublished memorandum). No petition for allowance of appeal to our
Supreme Court was filed.
Appellant filed timely a PCRA petition seeking, inter alia, the
reinstatement of his direct appeal rights. Following a hearing, the PCRA
court entered an order reinstating Appellant’s direct appeal rights in the form
of allowing him to file a petition for allowance of appeal nunc pro tunc to the
Supreme Court of Pennsylvania and dismissing “[a]ll other requests for
relief” stated in the original and amended PCRA petitions. Order, 5/11/2015,
at 2.
Appellant filed a notice of appeal to this Court. By memorandum filed
December 22, 2015, this Court affirmed “that portion of the PCRA court’s
order that granted Appellant leave to file nunc pro tunc a petition for
allowance of appeal to our Supreme Court, and vacate[d] that portion of the
order that disposed of Appellant’s remaining PCRA claims.” Commonwealth
v. Johnson, 133 A.3d 665 (Pa. Super. 2015) (unpublished memorandum at
4). Appellant then filed his nunc pro tunc petition for allowance of appeal to
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our Supreme Court, which was denied on May 11, 2016. Commonwealth v.
Johnson, 138 A.3d 3 (Pa. 2016).
On June 1, 2016, Appellant timely filed the instant PCRA petition
raising claims of, inter alia, ineffective assistance of counsel. Relevant at
this juncture, Appellant asserted that trial counsel was ineffective by failing
1) to object to Murphy’s testimony, and 2) to object properly to Sergeant
Cumo’s testimony, and 3) to raise all meritorious issues in Appellant’s direct
appeal. A hearing was held on September 2, 2016.3 On September 26,
2016, the PCRA court filed an opinion and order denying Appellant PCRA
relief. Appellant filed timely a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925.
On appeal, Appellant sets forth two issues for our review.
I. Whether the PCRA court committed an error of law by
not finding ineffective assistance of counsel for trial counsel’s
failure to object to, properly object to and/or otherwise preserve
the issue of cumulative use of a prior consistent statement of
[victim], used as substantive evidence and not for rehabilitative
purposes; and by not granting [Appellant] a new trial as a result.
II. Whether the PCRA court committed an error of law by
not finding ineffective assistance of appellate counsel for
appellate counsel’s failure to consult with [Appellant] prior to
filing the appeal, by deviating substantially from [Appellant’s]
concise statement of errors and raising only one issue on appeal,
for improperly raising and/or waiving viable issues in said appeal
as enumerated herein, and by not restoring [Appellant’s] direct
appeal rights, nunc pro tunc as a result.
3
That hearing incorporated the notes of testimony from Appellant’s first
PCRA hearing on May 1, 2015.
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Appellant’s Brief at 4.4
In reviewing an appeal from the denial of PCRA relief, “[w]e must
examine whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination 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.” Commonwealth v. Mikell, 968 A.2d 779,
780 (Pa. Super. 2009) (quoting Commonwealth v. Lawrence, 960 A.2d
473, 476 (Pa. Super. 2008) (citations omitted)). Since Appellant’s claims
concern the ineffective assistance of counsel, the following principles apply.
It is well-established that counsel is presumed to have
provided effective representation unless the PCRA
petitioner pleads and proves all of the following: (1) the
underlying legal claim is of arguable merit; (2) counsel’s
action or inaction lacked any objectively reasonable basis
designed to effectuate his client’s interest; and (3)
prejudice, to the effect that there was a reasonable
probability of a different outcome if not for counsel’s error.
The PCRA court may deny an ineffectiveness claim if the
petitioner’s evidence fails to meet a single one of these prongs.
Moreover, a PCRA petitioner bears the burden of demonstrating
counsel’s ineffectiveness.
Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)
(internal citations omitted).
Appellant’s first issue concerns the ineffectiveness of trial counsel’s
representation at trial. See Appellant’s Brief at 12-22. Appellant argues
that trial counsel should have objected to Murphy’s testimony where she
4
We point out with disapproval that not only has the Commonwealth failed
to file a brief in this appeal, but the Commonwealth also neglected to file a
brief in the last appeal to this Court.
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testified that Pierre told her that Appellant shot Pierre. Appellant’s Brief at 13
(citing N.T., 9/11/2012 vol. 2, at 30). Appellant suggests this was
inadmissible hearsay.
Hearsay is a statement that “the declarant does not make while
testifying at the current trial or hearing” and “a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).
There can be no doubt that Murphy’s testimony was hearsay. However,
hearsay is admissible if it satisfies an exception. One such exception is an
excited utterance. An excited utterance is defined as “[a] statement relating
to a startling event or condition, made while the declarant was under the
stress of excitement that it caused.” Pa.R.E. 803(2).
Here, Pierre testified that shortly after he was shot, he called Murphy
and told her that “Muddles shot” him. N.T., 9/11/2012, at 70. Thus,
Murphy’s testimony confirming this sequence of events was admissible
pursuant to Pa.R.E. 803(3). See Commonwealth v. Manley, 985 A.2d 256
(Pa. Super. 2009) (holding victim’s statements to police which were made
within ten minutes after being shot and while victim was in a panicked state
satisfied the requirements of an excited utterance exception to the hearsay
rule).
Accordingly, the underlying claim fails the arguable merit prong of the
ineffective-assistance-of-counsel test, and Appellant is not entitled to relief
on this basis. See Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011)
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(holding that an appellant fails to satisfy the arguable merit prong of the
ineffective-assistance-of-counsel test where the objection would have been
overruled).5
We now turn to Appellant’s issues with Sergeant Cumo’s testimony
about what Pierre told Sergeant Cumo at the hospital. Appellant’s Brief at
13-14. Sergeant Cumo offered the following narrative during his testimony
at trial.
[Pierre] said that he was at the Westside Mini Mart and he saw
Muddles, in a maroon or burgundy, I believe he said an Aurora
and he said nothing. No words were exchanged or anything.
When he left the store, he was traveling towards Grant Street
before you come to Falls Street by pass area. He said they came
to a four-way stop sign. At that point, [Appellant], the vehicle
he was driving, got behind him and began to follow him onto
Grant Street. He said as he drove down Grant Street, he made a
left-hand turn onto Locust Street and when he was turning the
car, he said it appeared that [Appellant] accelerated his vehicle,
went around him on Grant Street, continuing eastbound on
Grant Street. He turned left onto Locust and proceeded up the
hill there. He said he got up the hill, drove through the West
Lincoln projects and when he got to the intersection of West
Lincoln and Shenango Street, he viewed [Appellant’s] vehicle
parked in the roadway, the driver’s door opened and at [sic]
moments later he saw [Appellant], Muddles, come out from the
bushes, shrub area and began shooting the gun at him.
N.T., 9/12/2012, at 53-54.
At trial, counsel for Appellant objected to this testimony as being
inadmissible hearsay, and the trial court overruled the objection. Id. at 54-
55. In its opinion, the trial court opined that it did not err in admitting
5
Moreover, even if the statements were admitted improperly, Pierre was
available to testify about the statements he made to Murphy.
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Sergeant Cumo’s testimony because it was admissible as a prior consistent
statement pursuant to Pa.R.E. 613(c).6 On direct appeal, this Court agreed
with the trial court and concluded that the trial court did not err in admitting
“Sergeant Cumo’s testimony regarding Pierre’s prior consistent statements.”
Commonwealth v. Johnson, 133 A.3d 665 (Pa. Super. 2015) (unpublished
memorandum at 4). “The trial court recognized that [Appellant] had
challenged Pierre’s credibility and memory on cross-examination, and that
Sergeant Cumo’s testimony was admissible, as it constituted a prior
consistent statement concerning the identity of the individual responsible for
shooting the firearm.” Id.
At this juncture, to the extent Appellant is arguing that counsel was
ineffective for failing to argue that this testimony was inadmissible pursuant
6
That rule provides the following.
(c) Witness’s Prior Consistent Statement to Rehabilitate.
Evidence of a witness’s prior consistent statement is admissible
to rehabilitate the witness’s credibility if the opposing party is
given an opportunity to cross-examine the witness about the
statement and the statement is offered to rebut an express or
implied charge of:
(1) fabrication, bias, improper influence or motive, or
faulty memory and the statement was made before
that which has been charged existed or arose; or
(2) having made a prior inconsistent statement,
which the witness has denied or explained, and the
consistent statement supports the witness's denial or
explanation.
Pa.R.E. 613.
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to Pa.R.E. 613 because it was being introduced as substantive evidence,
Appellant is not entitled to relief. Appellant’s Brief at 17. This Court decided
on direct appeal that this evidence was admissible under this exception.
Thus, there is no arguable merit to Appellant’s contention that counsel was
ineffective for failing to object on this basis.
Appellant also argues that trial counsel was ineffective for failing to
object at trial on the basis that this testimony violated Pa.R.E. 403, which
provides that “[t]he court may exclude relevant evidence if its probative
value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Specifically, Appellant
suggests that this testimony was “cumulative.” Appellant’s Brief at 18.
“Evidence that bolsters, or strengthens, existing evidence is not
cumulative evidence, but rather is corroborative evidence.” Commonwealth
v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. 2007). Here, Officer Cumo’s
testimony corroborated Pierre’s testimony; therefore, any objection would
have been overruled, and Appellant is not entitled to relief. See
Hutchinson, 25 A.3d at 277.
For his final allegation of error, Appellant argues that trial counsel was
ineffective in the way he handled Appellant’s direct appeal. Specifically,
Appellant argues that trial counsel was ineffective because he failed to
consult with Appellant about what issues he intended to raise on appeal.
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Appellant also argues that trial counsel should have raised additional
meritorious issues, and his failure to do so was prejudicial. See Appellant’s
Brief at 22-35. Additionally, Appellant contends that his deprivation of a full
direct appeal entitles him to relief for “presumed or per se prejudice.” Id. at
32.
It is well-settled that an accused who is deprived entirely
of his right of direct appeal by counsel’s failure to perfect an
appeal is per se without the effective assistance of counsel, and
is entitled to reinstatement of his direct appellate rights.
***
However, it is also well-settled that the reinstatement of
direct appeal rights is not the proper remedy when appellate
counsel perfected a direct appeal but simply failed to raise
certain claims. Where a petitioner was not entirely denied his
right to a direct appeal and only some of the issues the
petitioner wished to pursue were waived, the reinstatement of
the petitioner’s direct appeal rights is not a proper remedy. In
such circumstances, the appellant must proceed under the
auspices of the PCRA, and the PCRA court should apply the
traditional three-prong test for determining whether appellate
counsel was ineffective.
Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. 2006)
(internal citations and quotation marks omitted).
Here, Appellant was not deprived entirely of his right to a direct
appeal. “It is well settled that appellate counsel is entitled, as a matter of
strategy, to forego even meritorious issues in favor of issues he believes
pose a greater likelihood of success.” Commonwealth v. Jette, 23 A.3d
1032, 1043 (Pa. 2011). “To establish [] prejudice in the appellate
representation context, the petitioner must show that there is a reasonable
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probability that the outcome of the direct appeal proceeding would have
been different but for counsel’s deficient performance.” Commonwealth v.
Blakeney, 108 A.3d 739, 750 (Pa. 2014).
Appellant argues that trial counsel was ineffective for failing to raise
two issues in Appellant’s direct appeal. With respect to the first, we provide
the following background.
Officer John George of the New Castle Police Department found the
Oldsmobile Aurora driven by Appellant and Wise. He towed it to the police
station and obtained consent to search the vehicle from Tashayla Reese, its
owner. Officer George testified that he “found in the vehicle four plastic
baggies and a digital scale.” N.T., 9/12/2012, at 21. Counsel objected to
this testimony, arguing at a side bar that this testimony was prejudicial as
these items are clearly drug-related. Thus, counsel asked for a mistrial.
The trial court denied the motion for mistrial and, over trial counsel’s
objection, offered a cautionary instruction. See N.T., 9/12/2012, at 71-74.
Specifically, the trial court told the jury the following.
Officer George was on the stand. While he was on the
stand, he offered some testimony regarding items confiscated
from the vehicle that he had searched…. You’re directed that
that is irrelevant to this case. That anything confiscated is not a
part of this case. You are not to consider that part of his
testimony in any manner in regard to this case. I trust you will
follow that instruction.
Id. at 74.
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Appellant now argues that trial counsel was ineffective for failing to
challenge on appeal the trial court’s denial of his motion for a mistrial.
Appellant’s Brief at 32.
The standard of review for determining whether the trial
court erred in denying a motion for a mistrial is as follows:
The trial court is in the best position to assess the effect of
an allegedly prejudicial statement on the jury, and as such, the
grant or denial of a mistrial will not be overturned absent an
abuse of discretion. A mistrial may be granted only where the
incident upon which the motion is based is of such a nature that
its unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.
Likewise, a mistrial is not necessary where cautionary
instructions are adequate to overcome any possible prejudice.
A mistrial is warranted when a juror could reasonably infer
from the facts presented that the accused had engaged in prior
criminal activity. When the statement at issue relates to a
reference to past criminal behavior, [t]he nature of the reference
and whether the remark was intentionally elicited by the
Commonwealth are considerations relevant to the determination
of whether a mistrial is required. A singular, passing reference
to prior criminal activity is usually not sufficient to show that the
trial court abused its discretion in denying the defendant’s
motion for a mistrial. When the trial court provides cautionary
instructions to the jury in the event the defense raises a motion
for mistrial, [t]he law presumes that the jury will follow the
instructions of the court.
Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (internal
citations and quotation marks omitted).
Here, Officer George’s reference to plastic baggies and a digital scale
was clearly unnecessary and prejudicial. However, Appellant was neither on
trial for drug-related charges nor the owner of the car. In addition, the
primary issue in this case was not whether Pierre was shot, but whether it
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was Appellant or Wise who shot Pierre. The drug testimony applied equally
to Appellant and Wise. See N.T., 9/11/2012, at 38. Moreover, the trial
court offered a clear cautionary instruction,7 and “[t]he law presumes that
the jury will follow the instructions of the court.” Commonwealth v.
Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). Therefore, we conclude Appellant
would not have prevailed had trial counsel raised this issue on direct appeal,
and Appellant is not entitled to relief at this juncture.
In his next claim, Appellant argues that trial counsel was ineffective by
failing to raise an issue related to Officer Cumo’s testimony. Appellant’s Brief
at 32. When asked about his training and experience, the Commonwealth
asked if Officer Cumo had been trained in “polygraph.” N.T., 9/12/2012, at
48. Counsel objected and it was overruled. Appellant now argues that trial
counsel should have challenged on direct appeal the trial court’s decision to
overrule that objection.
7
The trial court stated the following.
Before counsel proceeds, let me just briefly give you one of
those things that I said could happen. It’s a cautionary
instruction. Officer George was on the stand. While he was on
the stand, he offered some testimony regarding items
confiscated from that vehicle that he had searched…. You’ve
directed that that is irrelevant to this case. That anything
confiscated is not part of this case. You are not to consider that
part of his testimony in any manner in any regard to this case. I
trust you will follow that instruction.
N.T., 9/12/2012, at 74.
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It is well settled that “any reference to a [polygraph test] which raises
an inference concerning the guilt or innocence of a defendant is
inadmissible.” Commonwealth v. Hetzel, 822 A.2d 747, 767 (Pa. Super.
2003) (emphasis omitted). Here, Officer Cumo was asked about training,
and at no point in his testimony was there any reference made to any
polygraph test given or taken by anyone involved in this case. Moreover,
the testimony was not elicited with any reference to Appellant’s guilt or
innocence. Thus, even if trial counsel raised this issue on appeal, he would
not have prevailed. Accordingly, we hold counsel was not ineffective for
failing to do so.
Having concluded that Appellant has presented this Court with no issue
worthy of relief, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2017
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