J-S26039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONTE JOHNSON :
:
Appellant : No. 1716 EDA 2018
Appeal from the PCRA Order May 11, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008687-2010
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 04, 2019
Donte Johnson (Johnson) appeals pro se from the order entered by the
Court of Common Pleas of Philadelphia County (PCRA court) dismissing his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
We derive the following relevant facts and procedural history from the
trial court’s November 14, 2018 opinion and our independent review of the
record. On May 9, 2012, a jury convicted Johnson of one count each of first-
degree murder, rape, involuntary deviate sexual intercourse, robbery, and
burglary.1 Johnson’s conviction stems from his brutal rape and fatal
____________________________________________
118 Pa.C.S. §§ 2502(a), 3121(a)(1), 3123(a)(1), 3701(a)(1)(i), and 3502(a),
respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26039-19
strangulation of the victim, Sabina O’Donnell, in a vacant lot after he
encountered her riding her bike. Johnson was eighteen years old at the time
of his offense. The trial court sentenced him to a mandatory term of life
imprisonment on the murder charge and a consecutive aggregate sentence of
not less than forty nor more than eighty years’ incarceration on the remaining
offenses. This Court affirmed the judgment of sentence and our Supreme
Court denied further review on April 2, 2014. (See Commonwealth v.
Johnson, 87 A.3d 381 (Pa. Super. 2013), appeal denied, 89 A.3d 660 (Pa.
2014)).
Johnson, acting pro se, filed this timely PCRA petition on March 18,
2015. Appointed counsel then filed a motion for leave to withdraw and a
Turner/Finley2 no-merit letter. After issuing Rule 907 notice,3 the PCRA
court entered its order dismissing the petition and granting counsel’s request
to withdraw. This timely appeal followed.
On appeal, Johnson argues that his life sentence for the murder
conviction is unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460
____________________________________________
2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3 See Pa.R.Crim.P. 907(1).
-2-
J-S26039-19
(2012). He also raises two claims of ineffective assistance of counsel. We
begin by addressing his contention that is sentence is unconstitutional.4
By way of background, in Miller, the United States Supreme Court held
that it is unconstitutional for states to sentence juvenile homicide defendants
to mandatory sentences of life imprisonment without the possibility of parole.
See Miller, supra at 465. In Montgomery v. Louisiana, 136 S. Ct. 718
(2016), the Court determined that its Miller holding constituted a substantive
rule of constitutional law that must be applied retroactively to cases on
collateral review. See Montgomery, supra at 736.
Johnson acknowledges that the Miller holding does not apply directly to
him but nonetheless asserts that it should be extended to apply to defendants
under the age of twenty-one as similarly situated to juvenile offenders. (See
Johnson’s Brief, at 17-23). However, our case law is clear that “the Miller
decision applies to only those defendants who were under the age of 18 at the
time of their crimes.” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.
Super. 2016) (citation omitted). This Court has squarely rejected arguments
seeking an extension of Miller to persons convicted of murder who were older
at the time of their crimes than the class of defendants subject to the Miller
holding. See id.; see also Commonwealth v. Rodriguez, 174 A.3d 1130,
____________________________________________
4 When reviewing issues arising from the denial of PCRA relief, we must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa.
Super. 2018).
-3-
J-S26039-19
1147 (Pa. Super. 2017), appeal denied, 186 A.3d 941 (Pa. 2018) (rejecting
Miller claim where appellant acknowledged that he was eighteen years old at
time he committed murder but argued that his immature and/or impulsive
brain made him similar to juvenile). Accordingly, Johnson is not entitled to
PCRA relief based on his contention that Miller should be extended.
Turning to Johnson’s ineffective assistance of counsel claims, “it is well
established that counsel is presumed to have rendered effective assistance.”
Commonwealth v. Montalvo, 2019 WL 1338433, at *7 (Pa. filed Mar. 26,
2019) (citation omitted). A court must examine “whether: (1) the underlying
claim has arguable merit; (2) counsel lacked a reasonable basis for his actions
or failure to act; and (3) the petitioner was prejudiced by counsel’s deficient
performance such that there is a reasonable probability that the result of the
proceeding would have been different absent counsel’s error or omission.” Id.
(citation omitted). “A petitioner’s failure to satisfy any prong of the
ineffectiveness test is fatal to the claim.” Id. (citation omitted). “We are not
required to analyze the elements of an ineffectiveness claim in any particular
order; if a claim fails under any prong of the ineffectiveness test, the Court
may proceed to that element first.” Id. (citation omitted). “Moreover, counsel
cannot be deemed ineffective for failing to raise a meritless claim.” Id.
(citation omitted).
Johnson first maintains that trial counsel was ineffective for failing to
object to the prosecutor’s comments during closing argument that he asserts
-4-
J-S26039-19
were prejudicial and inflammatory. (See Johnson’s Brief, at 11-16).
However, as the PCRA court points out, Johnson did not raise this issue in his
PCRA petition. Our Supreme Court has explained: “Any claim not raised in
the PCRA petition is waived and not cognizable on appeal.” Commonwealth
v. Washington, 927 A.2d 586, 601 (Pa. 2007); see also 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.”). Accordingly, because Johnson did not raise this issue
in his PCRA petition, we cannot consider it on appeal.
Last, Johnson maintains that trial counsel was ineffective for failing to
investigate two brown hairs that were found on the victim’s body. (See
Johnson’s Brief, at 24-28). He describes the potential DNA evidence as crucial
and exculpatory and argues that it should have been tested. (See id.).
As the PCRA court explains, this claim lacks merit because:
DNA evidence that was tested conclusively matched
[Johnson]. That included DNA from vaginal and anal swabs taken
from the decedent. (See N.T. Trial, 5/03/12, at 81-82, 86). Even
assuming arguendo that a DNA test of hairs found on the decedent
should show that they were not from [Johnson], that would not
have exculpated [him] in light of the other DNA evidence in the
case.
Moreover, . . . the evidence at trial of [Johnson’s] guilt was
overwhelming, including video surveillance showing him following
the victim, conclusive evidence of his semen in the victim’s vagina
and anus, and defendant’s full and detailed confession. There is
no further investigation of any kind that defense counsel could
have pursued that would have led to a reasonable probability that
the outcome of the trial would have been different. No relief is
due.
-5-
J-S26039-19
(PCRA Court Opinion, 11/14/18, at 9-10) (citation formatting provided;
emphasis in original).
After review of the record, we agree with the PCRA court’s assessment
and find Johnson’s argument regarding the lack of testing of two hairs
specious. Because counsel cannot be deemed ineffective for failing to raise a
meritless claim, Johnson’s final issue fails. See Montalvo, supra at *7.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/4/19
-6-