J-S50041-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERMALL JOHNSON, :
:
Appellant. : No. 392 WDA 2018
Appeal from the Judgment of Sentence, February 2, 2018,
in the Court of Common Pleas of Erie County,
Criminal Division at No(s): CP-25-CR-0003257-2014.
BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 18, 2018
Jermall Johnson appeals, pro se, from a judgment of sentence, following
his non-jury convictions of three firearm charges and ten summary violations
of the Vehicle Code, entered on February 2, 2018. We affirm.
On September 14, 2014, Officer Steven Deluca stopped his patrol car at
an intersection in Erie. Also stopped at the intersection, in cross traffic, was
Johnson, behind the wheel of another vehicle. The police officer knew that
Johnson had a suspended license based upon the officer’s prior interactions
with him. After following Johnson for a few blocks, the officer stopped him,
issued him a citation for driving with a suspended license, and searched the
vehicle. That search uncovered various pieces of evidence against Johnson,
including weapons and stolen property.
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This matter was originally decided via a jury trial on April 8, 2015, and
Johnson successfully appealed. This Court remanded for a new suppression
hearing, which occurred on August 16, 2017. The Court of Common Pleas of
Erie County again refused to suppress the Commonwealth’s evidence. The
trial court convicted Johnson a second time and sentenced him to a minimum
of 9 ¾ years of imprisonment. This appeal followed.
In his appellate brief, Johnson raises three issues. First, he asks
whether Officer Steven Deluca failed to comply with 75 Pa. C.S. § 1543(d), or
properly identify him as the driver of the vehicle, prior to pulling him over for
driving with a suspended license. See Johnson’s Brief at 7. Second, he
challenges the sufficiency of the evidence to sustain the Commonwealth’s
conviction of driving with a suspended license. Id. Third, Johnson claims that
the trial judge erred by allowing a witness to testify, whom the Commonwealth
did not identify in its discovery packet. Id.
Suppression of the Commonwealth’s Evidence
When, as here, police have acted without a warrant, “determinations of
reasonable suspicion and probable cause should be reviewed de novo on
appeal.” Ornelas v. United States, 517 U.S. 690, 699 (1996). But “a
reviewing court should take care both to review findings of historical fact only
for clear error and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.” Id.
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Because the Commonwealth prevailed at the suppression hearing, we
may examine “only the Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted when read in the context
of the record as a whole.” Commonwealth v. Russo, 934 A.2d 1199, 1203
(Pa. 2007) (internal quotations and citations omitted). As for the subject
matter, “our scope of review is limited to the factual findings and legal
conclusions of the suppression court.” In re L.J., 79 A.3d 1073, 1080 (Pa.
2013). Additionally, “our scope of review from a suppression ruling is limited
to the evidentiary record that was created at the suppression hearing.”
Commonwealth v. Cruz, 166 A.3d 1249, 1254 (Pa. Super. 2017), appeal
denied, 180 A.3d 1207 (Pa. 2018).
Judge Stephanie Domitrovich, who served as the suppression judge in
this case, authored an Opinion fully addressing Johnson’s claim that Officer
Deluca violated his constitutional rights when he stopped Johnson’s car,
searched it, and seized evidence against him. See Findings of Fact and
Conclusions of Law, 12/7/17. The suppression court concluded that Officer
Deluca had probable cause to pull Johnson over, because the policeman
testified that (1) he knew Deluca’s license was under suspension from prior
interactions between them and (2) the officer saw Johnson behind the wheel
of a vehicle when they were both stopped at a traffic light. After reviewing
the evidence from the suppression hearing, we agree with Judge Domitrovich’s
conclusions that the officer had probable cause to stop Johnson for driving
with a suspended license. We adopt Judge Domitrovich’s Opinion in its
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entirety as our own and determine that Johnson’s first appellate issue is
without merit.
Sufficiency of the Commonwealth’s Evidence
Next, Johnson seeks to challenge the sufficiency of the Commonwealth’s
evidence that he was driving with a suspended license.
Before we may reach the merits of that claim, we note that the trial
court ordered Johnson to file a Concise Statement of Errors Complained of on
Appeal under Pennsylvania Rule of Appellate Procedure 1925(b). That Rule
requires appellants to list the issues they seek to appeal, so the trial court can
write an opinion explaining its rulings for the appellate court. This facilitates
a meaningful appellate review. While Johnson did file a 1925(b) Statement,
he did not include a sufficiency-of-the-evidence issue.
“Issues not included in the Statement . . . are waived.” Pa.R.A.P.
1925(b)(4)(vii). Because Johnson did not say that he wanted to challenge the
sufficiency of the evidence for any of his convictions in his 1925(b) Statement,
he has waived his right to appeal that issue on his conviction for driving with
a suspended license. Therefore, we dismiss Johnson’s second appellate issue
as waived.
Disclosure of the Commonwealth’s Witness
Lastly, Johnson argues that Judge William R. Cunningham, who presided
over the retrial of this matter, erred when he allowed a Commonwealth
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witnesses to testify against Johnson, because that witness was not listed in
the discovery packet. Thus, he believes the Commonwealth violated Brady
v. Maryland, 373 U.S. 83 (1963) and Pennsylvania Rule of Criminal Procedure
573.1
Whether the trial court has properly interpreted and applied the Rules
of Criminal Procedure and the Constitution of the United States under Brady
presents the appellate court with pure questions of law. Therefore, “our scope
of review is plenary, and we review the lower courts’ legal determinations de
novo.” Commonwealth v. Muniz, 164 A.3d 1189, 1195 (Pa. 2017).
The Supreme Court of Pennsylvania has held:
[t]o establish a violation under Brady, an appellant must
demonstrate: “1) suppression by the prosecution 2) of
evidence, whether exculpatory or impeaching, favorable to
the [appellant], 3) to the prejudice of the [appellant].”
Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305
(2002) (citing Strickler v. Greene, 527 U.S. 263, 281–82,
119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). The evidence
purportedly suppressed must have been material to guilt.
Commonwealth v. Gibson, 951 A.2d 1110, 1126
(Pa.2008) (citations omitted). Evidence is material if there
is a “reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.” Commonwealth v. Burke, 566 Pa.
402, 781 A.2d 1136, 1141 (2001) (citations omitted).
Commonwealth v. Clark, 961 A.2d 80, 89 (Pa. 2008).
____________________________________________
1 Pennsylvania Rule of Criminal Procedure 573(B) provides a detailed list of
things the Commonwealth must disclose to a defendant prior to trial. Johnson
does not indicate which portion of this extensive rule he thinks the
Commonwealth violated or why.
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Judge Cunningham’s 1925(a) Opinion fully explained why there was no
Brady violation in this case. See Trial Court Opinion, 4/25/18, 3-5. As the
trial court explained, Johnson suffered no prejudice, because the witness in
question testified at his original trial. Thus, Johnson knew what testimony
that witness would provide at his retrial, and the admission of the witness
from the witness list was of no consequence. We agree with Judge
Cunningham’s analysis and conclusions and we adopt his Opinion on this issue
as our own. As such, we conclude that Johnson’s third and final appellate
issue is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2018
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Com. v. Johnson, J.
Combined Opinion