J-S04019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE JOHNSON,
Appellant No. 122 WDA 2015
Appeal from the PCRA Order of January 2, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011193-2007
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 09, 2016
Appellant, Terrence Johnson, appeals from the order entered on
January 2, 2015, dismissing his petition filed under the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The able and distinguished PCRA court previously explained the
underlying facts of this case:
On May 10, 2007, [I.W.] accused [Appellant] of raping her.
In the days that followed [I.W.’s] rape allegation, tensions
had increased between [Appellant’s and I.W.’s] relatives
and friends. Lamar George[] (hereinafter referred to as
“George”), [] was a friend of [I.W.’s] mother[. George] got
into a fight with [Appellant] over [the rape] allegations and
the animosity between [Appellant] and George continued.
At approximately 2:40 a.m. on May 16, 2007, [Appellant]
was looking for George to once again confront him about
th[e] rape allegation. [Appellant] went to George’s
residence with two of his friends. [Appellant] called George
outside to meet him; however, when George saw that
[Appellant] and his friends were armed with weapons, he
*Retired Senior Judge assigned to the Superior Court.
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refused to come out. In an effort to get George out of his
residence, [Appellant] went to the residence of James
Windsor[] (hereinafter referred to as [“the Victim”]), who
was a close friend of [I.W.] and George. [Appellant]
persuaded [the Victim] to leave his residence and go to
George’s residence and ask him to come out of that
residence[,] assuring George that it was safe for him to do
so. When George refused [to leave his residence],
[Appellant] shot [the Victim] in the back of his head, killing
him instantly.
Trial Court Opinion, 10/13/10, at 2-3.
On December 22, 2008, a jury found Appellant guilty of first degree
murder and carrying a firearm without a license.1, 2 On June 11, 2009, the
trial court sentenced Appellant to serve an aggregate term of life
imprisonment, followed by three-and-a-half to seven years in prison, for his
convictions.
This Court affirmed Appellant’s judgment of sentence on February 29,
2012 and, on August 15, 2012, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Johnson,
46 A.3d 831 (Pa. Super. 2012) (unpublished memorandum) at 1-6, affirmed
by 50 A.3d 125 (Pa. 2012).
On June 17, 2013, Appellant filed a timely, pro se PCRA petition.
Counsel was appointed and, in the amended PCRA petition, Appellant
claimed that his trial counsel was ineffective for failing to: 1) “cross
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a) and 6106(a)(1), respectively.
2
The trial court also found Appellant guilty of persons not to possess
firearms. N.T. Trial, 12/22/08, at 471; 18 Pa.C.S.A. § 6105(c)(1).
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examine or impeach two witnesses in this matter, William McClain and
Charles Clayton George[,] regarding crimen falsi convictions” and 2) “move
for a mistrial after the outburst in open court by Richard Windsor.”
Amended PCRA Petition, 5/21/14, at ¶¶ 34-53. Following a hearing, the
PCRA court denied Appellant relief. PCRA Court Order, 1/2/15, at 1.
Appellant filed a timely notice of appeal; Appellant raises two claims to
this Court:
[1.] Did the PCRA[] Court err or abuse its discretion in
failing to grant Appellant a new trial based on a properly
pled, preserved and supported [ineffective assistance of
counsel (“IAC”)] claim involving trial counsel’s failure to
cross examine or impeach two witnesses in this matter,
William McClain and Charles Clayton George, regarding
crimen falsi convictions?
[2.] Did the PCRA[] Court err or abuse its discretion in
failing to grant Appellant a new trial based on a properly
pled, preserved and supported IAC claim involving trial
counsel’s failure to move for a mistrial, ask for a curative
instruction, or ask that the jurors be questioned regarding
an outburst/misconduct in open court by Richard Windsor, a
relative of the [Victim], said outburst/misconduct being
grossly inappropriate, going unaddressed to the jury and
their ability to remain partial, thereby prejudicing Appellant?
Appellant’s Brief at 5.
As we have stated:
[t]his Court’s standard of review regarding an order
dismissing a petition under the PCRA is whether the
determination of the PCRA court is supported by evidence of
record and is free of legal error. In evaluating a PCRA
court’s decision, our scope of review is limited to the
findings of the PCRA court and the evidence of record,
viewed in the light most favorable to the prevailing party at
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the trial level. We may affirm a PCRA court’s decision on
any grounds if it is supported by the record.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010) (internal
citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness 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.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.
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We reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able PCRA court
judge, the Honorable David R. Cashman. We conclude that there has been
no error in this case and that Judge Cashman’s opinion, entered on January
27, 2015, meticulously and accurately disposes of Appellant’s issues on
appeal. Therefore, we affirm on the basis of Judge Cashman’s opinion and
adopt it as our own. In any future filings with this or any other court
addressing this ruling, the filing party shall attach a copy of the PCRA court
opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2016
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Com. v. Johnson, T.
Combined Opinion