J-S66015-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CARL JOHNSON :
:
Appellant : No. 4043 EDA 2017
Appeal from the PCRA Order November 20, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011742-2009
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 19, 2018
Appellant, Carl Johnson, appeals from the order entered in the
Philadelphia County Court of Common Pleas, which denied his first petition
timely filed under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
THE PCRA COURT ERRED BY NOT GRANTING [APPELLANT]
AN EVIDENTIARY HEARING. [APPELLANT’S] PCRA
PETITION RAISED MATERIAL ISSUES OF DISPUTED FACTS
REGARDING TRIAL COUNSEL’S INVESTIGATION OR LACK
THEREOF. NAMELY, [APPELLANT] ALLEGED TRIAL
COUNSEL NEVER INTERVIEWED HIS ALIBI WITNESS,
VERONICA THOMAS, BEFORE TRIAL COUNSEL ADVISED
HIM NOT TO PRESENT WITNESSES ON HIS BEHALF ONCE
J-S66015-18
THE COMMONWEALTH PRESENTED ITS CASE-IN-CHIEF.
THE RECORD, IN OTHER WORDS, WAS INADEQUATE TO
SUMMARILY REJECT [APPELLANT’S] TRIAL COUNSEL
INEFFECTIVENESS CLAIM, REQUIRING THE TRIAL COURT
TO HOLD AN EVIDENTIARY HEARING. U.S. CONST. ADMTS.
6, 14; PA. CONST. ART. I §§ 8, 9.
THE PCRA COURT ERRED WHEN IT FOUND [APPELLANT]
KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO
PRESENT VERONICA THOMAS AS AN ALIBI WITNESS BASED
ON THE ON-THE-RECORD COLLOQUY THE TRIAL COURT
HAD WITH [APPELLANT] AFTER THE COMMONWEALTH
PRESENTED ITS CASE-IN-CHIEF. TRIAL COUNSEL NEVER
INTERVIEWED VERONICA THOMAS. TRIAL COUNSEL,
THEREFORE, COULD NOT GAUGE HER CREDIBILITY AND
BELIEVABILITY. THE ABSENCE OF THIS INVESTIGATION
AND INFORMATION PREVENTED TRIAL COUNSEL FROM
INTELLIGENTLY AND EFFECTIVELY ADVISING [APPELLANT]
NOT TO PRESENT WITNESSES ON HIS BEHALF. IN OTHER
WORDS, [APPELLANT] DID NOT KNOWINGLY AND
INTELLIGENTLY WAIVE HIS RIGHT TO PRESENT VERONICA
THOMAS BASED ON TRIAL COUNSEL’S INADEQUATE AND
INEFFECTIVE PRE-TRIAL INVESTIGATION. U.S. CONST.
ADMTS. 6, 14; PA. CONST. ART. I §§ 8, 9.
(Appellant’s Brief at 3-4).
Our standard of review of the denial of a PCRA petition is limited to
examining whether the evidence of record supports the court’s determination
and whether its decision is free of legal error. Commonwealth v. Conway,
14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795
(2011). This Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings. Commonwealth v. Boyd,
923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74
(2007). We give no such deference, however, to the court’s legal conclusions.
Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012).
-2-
J-S66015-18
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Sandy L. V.
Byrd, we conclude Appellant’s issues merit no relief. The PCRA court opinion
comprehensively discusses and properly disposes of the questions presented.
(See PCRA Court Opinion, filed April 6, 2018, at 3-6) (finding: Appellant’s
ineffective assistance of counsel claim fails, where Commonwealth presented
overwhelming evidence of Appellant’s guilt, including eyewitness and motive
testimony; therefore, alleged alibi testimony would not have changed outcome
of trial; Appellant cannot demonstrate that absence of proposed alibi witness
testimony was prejudicial; further, Appellant stated during colloquy with court
at trial that he did not want to call any witnesses; even if trial counsel had not
interviewed Appellant’s proffered alibi witness, Appellant was aware of witness
and still knowingly and voluntarily waived his right to call any witnesses). The
record supports the court’s decision to deny relief without a hearing.
Accordingly, we affirm on the basis of the PCRA court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/18
-3-
)
)
Circulated 11/30/2018 11:20 AM
'
.
)
)
\,t.LED
F I . IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
j
,.
..
I
PH 2: 26 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
20,B APR -6 · TRIAL DIVISION - CRIMINAL SECTION
OFFICE Of JUO?CIAL RECORDS
CR!MlHf:,L OIVISlOfl.
f !P.ST u W;,CI [\I OIS rRtCT ·
''oF ;QQ�QNiW.EALTH OF PENNSYLVANIA CP-51-CR-00011742-2009
v.
CARL JOHNSON SUPERIOR COURT
CP-51-CR-0011742·2009 Comm. v. Johnson, Car1
Opinion
OPINION
Byrd, J. 1111111118092281601
HIIIIIIII II Ill April 6, 2018
On November 15, 2011, a jury found Carl Johnson guilty of first-degree murder and
conspiracy to commit murder. Johnson was sentenced by the Honorable Carolyn Engel Temin to
'
a term of life imprisonment without the possibility of parole on January 4, 2012. Johnson filed a
notice of appeal on January 24, 2012. Judge Temin issued an opinion on May 30, 2012. On March
12, 2013, the Superior Court affirmed the judgment of sentence. Johnson petitioned for allowance
to appeal to the Supreme Court on March 25, 2013, which was denied by the Supreme Court on
August 28, 2013. Johnson filed a prose petition under the Post Conviction Relief Act (PCRA) on
January 2, 2014. On April 7, 2017, retained counsel filed an amended PCRA petition. This court
issued a notice of intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal
Procedure 907 on September 29, 2017. The petition was formally dismissed on November 17,
2017, and petitioner filed a notice of appeal to the Superior Court on December 15, 2017. On
December 19, 2017, this court ordered petitioner to file a statement of matters complained of on
appeal. Petitioner filed his statement on January 2, 2018.
STATEMENT OF FACTS
The March 12, 2013 Superior Court opinion quoted the trial court's summary of the
evidence as follows:
On September 14, 2008, at approximately 1 :00 a.m., a car driven by [Appellant]
pulled up in front of the steps of the house where the victim, Tyleigh Perkins
("Perkins") and his friend, Tyrone Edgefield ("Edgefield"), were sitting.
[Appellant] lowered the driver's side window and leaned back in his seat at which
time another person leaned across from the passenger's seat and shot Perkins
multiple times. Edgefield was not hit. Perkins was transported to Temple Hospital
and was pronounced dead at 6:30 a.m. that morning. ··
The shooting occurred after a fight between Shawn Jacobs ("Jacobs"), [Appellant's]
brother, and Devon Edwards ("Edwards'') over the cost of a haircut. Perkins broke
up the fight and picked up Jacobs' cell phone from the ground. Perkins gave the cell
phone to a neighbor to return to Jacobs later. As Jacobs was walking away from the
fight, he threatened Perkins. Subsequent to the fight, (Appellant] drove around the
neighborhood looking for Perkins and recovered Jacobs' cell phone from the
neighbor.
The Medical Examiner testified that Perkins was hit by four gunshots, one of which
penetrated Perkins' intestine, severed his aorta, and lodged in his spine, killing him.
Commonwealth v. Johnson, 2013 WL 11274675 (Pa. Super. Mar. 12, 2013).
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
Petitioner raised the following issue in his statement of matters complained of on appeal 1:
Claim #1: The PCRA court erred by not granting Mr. Johnson an evidentiary
hearing. Mr. Johnson's PCRA petition raised material issues of disputed facts
regarding trial counsel's investigation or lack thereof. Namely, Mr. Johnson alleged
trial counsel never interviewed his alibi witness, Veronica Thomas, before trial
counsel advised him not to present witnesses on his behalf once the Commonwealth
presented its case-in-chief. The record, in other words, was inadequate to
summarily reject Mr. Johnson's trial counsel ineffectiveness claim, requiring the
trial court to hold an evidentiary hearing. U.S. Const. admts. 6, 14; Pa. Const. art.
1 §§ 8, 9.
Claim #2: The PCRA court erred when it found Mr. Johnson knowingly and
intelligently waived his right to present Veronica Thomas as an alibi witness based
on the on-the-record colloquy the trial court had with Mr. Johnson after the
Commonwealth presented its case-in-chief. Trial counsel never interviewed
Veronica Thomas. Trial counsel, therefore, could not gauge her credibility and
believability. The absence of this investigation and information prevented trial
counsel from intelligently and effectively advising Mr. Johnson not to present
witnesses on his behalf. In other words, �r. Johnson did not knowingly and
I The following is a verbatim account of petitioner's Statement.
2
intelligently waive his right to present Veronica Thomas based on trial counsel's
inadequate and ineffective pre-trial investigation. U.S. Const. admts. 6, 14; Pa.
Const. art. 1 § § 8, 9.
DISCUSSION
The Post Conviction Relief Act affords collateral relief to those individuals convicted of
crimes they did not commit and to those individuals serving illegal sentences. 42 Pa. C.S. §9542.
Claims pursuant to the PCRA are extraordinary assertions that the judicial system failed; they are
not merely direct appeal claims that are made at a later stage of the judicial proceedings.
Commonwealth v. Rivers, 567 Pa. 239, 786 A.2d 923 (2001). A petitioner is entitled to file all
PCRA petitions, including second and subsequent petitions within one (I) year from the date his
judgment of sentence becomes final. 42 Pa. C.S. §9545(b)(l); 42 Pa. C.S. §9545(b)(3). A
petitioner is eligible for relief under the PCRA if he proves by a preponderance of the evidence
that his conviction or sentence resulted from one or more of the enumerated circumstances found
at42 Pa. C.S. §9543(a)(2) (setting forth the eligibility requirements of the PCRA). Commonwealth
v, Ligons, 601 Pa. 103, 971 A.2d 1125 (2009).
A petitioner may be entitled to relief under the PCRA ifhe is able to plead and prove that
a conviction or sentence resulted from ineffective assistance of counsel 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). It is the
ineffectiveness claim, not the underlying error at trial, which is reviewed. See Commonwealth v.
Clayton, 572 Pa. 395, ·816 A.2d 217 (2002). Under the PCRA, an allegation of ineffective
assistance of counsel amounts to constitutional malpractice where counsel's incompetence
deprived a defendant of his Sixth Amendment right to counsel. See Strickland v. Washington, 466
U.S. 668 (1984); Commonwealth v. Williams, 566 Pa. 553, 782 A.2d 517 (200 l).
3
The law presumes that counsel was effective, and the petitioner carries the burden of
proving otherwise. Commonwealth v. Baker, 531 Pa. 541, 562, 614 A.2d 633, 673 ( 1992). To
prevail on an ineffective assistance of counsel claim, a three-pronged test must be satisfied: (I) the
underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or
her action or inaction; and, (3) but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different. Commonwealth v.
Pierce, 515 Pa. 153, 158-59, 527 A.2d 973, 975 (1987). Furthermore, counsel's choices cannot
be evaluated in hindsight, but rather should be examined in light of the circumstances at that time.
See Commonwealth v. Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997). Even if there was no
reasonable basis for counsel's course of conduct, a petitioner is not entitled to relief if he fails to
demonstrate prejudice. See Commonwealth v. Douglas, 537 Pa. 588, 645 A.2d 226 (1994).
As the court held in Commonwealth v. Fisher, 5 72 Pa. l 05, 116, 813 A.2d 76 l, 767 (2002),
"[sjpeculation by hindsight that a different strategy might possibly have been successful is not the
test which establishes ineffectiveness of counsel." In Strickland v. Washington, 466 U.S. 668, 689
(1984), the United States Supreme Court instructed that "[a] fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time."
Additionally, "where matters of strategy and tactics are concerned, counsel's assistance is
deemed constitutiona11y effective if he chose a particular course that had some reasonable basis
designed to effectuate his client's interests." Commonwealth v. Howard, 533 Pa. 266, 274, 719
A.2d 233, 237 (1998). The Court has further declared that "[a] chosen strategy will not be found
to have lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a
4
potential for success substantially greater than the course actually pursued.?' Commonwealth v.
Williams, 587 Pa. 304, 312, 899 A.2d 1060, 1064 (2006) (quoting Howard, 533 Pa. at 274, 719
A.2d at 23 7). Indeed, "a claim of ineffectiveness will not succeed by comparing, in hindsight, the
trial strategy trial counsel actually employed with the alternatives foregone." Commonwealth v.
Miller, 605 Pa. 1, 27, 987 A.2d 638, 653 (2009).
Petitioner contends that counsel was ineffective for failure to interview Veronica Thomas,
an allege alibi witness, and that counsel advised him not to call witnesses. In order to obtain relief,
petitioner must have demonstrated: ( 1) that the witnesses existed; (2) that the witnesses were
available; (3) that counsel was informed of the existence of the witnesses or should have known
of their existence; ( 4) that the witnesses were available and prepared to cooperate and testify on
petitioner's behalf; and, (5) that the absence of the testimony prejudiced petitioner. Commonwealth
v. Lawson, 762 A.2d 753, 756 (Pa. Super. 2000) (citations omitted). Petitioner did not comply
with these requirements, because the absence of the testimony did not cause prejudice to petitioner.
The evidence against petitioner was overwhelming, there was substantive eyewitness and motive
testimony, and the alleged alibi testimony would not have changed the outcome. The claim for
ineffective assistance of counsel is therefore meritless.
Additionally, petitioner stated in a colloquy that there were no witnesses he wished to call.
N.T., 11/14/2011, at 12� 14. A "defendant who voluntarily waives his right to call witnesses during
a colloquy cannot later claim ineffectiveness and purport that he was coerced by counsel." Lawson
762 A.2d at 756. Petitioner's contention that the waiver was not done knowingly and intelligently
is spurious. Even if trial counsel had not interviewed Ms. Thomas, petitioner was aware of her.
Judge Temin explicitly explained to petitioner that he had a right to call any witnesses on his
5
behalf, and he indicated that he understood and still did not wish to present any witnesses. N.T.,
11/14/2011, at 12-14.
Finally, petitioner's argument that he is entitled to an evidentiary hearing to adjudicate his
ineffective assistance of counsel claims is baseless. A PCRA petitioner is not entitled to an
evidentiary hearing as a matter of right, and only receives one if there are genuine issues of
arguable merit. Commonwealth v Keaton, 45 A.3d 1050, 1094 (Pa. 2012); see also Pa.R.Crim.P.
Rule 907 ("If the judge is satisfied from this review that there are no genuine issues concerning
any material fact and that the defendant is not entitled to post-conviction collateral relief, and no
purpose would be served by any further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice the reasons for the dismissal.")
Accordingly, for the foregoing reasons, the dismissal of petitioner's PCRA petition should
be AFFIRMED.
BY THE COURT:
6