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Benjamin Clayton Johnson, Fh-5409 v. Gerald Rozum et al

December 27, 2011

BENJAMIN CLAYTON JOHNSON, FH-5409, PETITIONER,
v.
GERALD ROZUM ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.:

MEMORANDUM and ORDER

Benjamin Clayton Johnson an inmate at the State Correctional Institution at Somerset, by his counsel,*fn1 has presented a petition for a writ of habeas corpus. For the reasons set forth below the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Johnson is presently serving a twenty-six to fifty-two year sentence imposed following his conviction by a jury of attempted homicide, aggravated assault, carrying a firearm without a license, recklessly endangering another person and resisting arrest at Nos. CC 17842, 17833, 17834 and 17908 of 2000 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on March 31, 2003.*fn2 A timely appeal to the Superior Court was filed in which the issues presented were:

I. May the lower court violate Mr. Johnson's state and federal constitutional protections against double jeopardy by imposing consecutive sentences for aggravated assault and attempted murder when they were based upon one act and when this Court and the Supreme Court have said that these charges must merge?

II. Did the admission of irrelevant and prejudicial weaponry unrelated to the shooting and prejudicial journal entries seized from Mr. Johnson's bedroom deprive him of a fair trial?

III(A). May the Commonwealth deprive Mr. Johnson of a fair trial by urging the jury to "get mad" at him as it deliberates and thus, based its verdict on emotion rather than reason?

III(B). Is it plain error for the Commonwealth to ask the jury to "get mad" at Mr. Johnson and may this plain error be reviewed on direct appeal?

III(C). Was counsel ineffective for failing to object when the Commonwealth urged the jury to "get mad" at Mr. Johnson?

III(D). Can this ineffectiveness issue be raised on direct appeal especially when the lower court addressed the issue in its opinion and the ineffectiveness is apparent on the record?*fn3

On April 4, 2005, the Superior Court affirmed the conviction on the issues not alleging ineffective counsel but declining to address the latter issues prior to post-conviction proceedings.*fn4 Reargument was denied on June 9, 2005*fn5 and an application for allowance of appeal to the Pennsylvania Supreme Court was filed in which the issues presented were:

I. In this issue of first impression for this Court, may the trial court violate Mr. Johnson's state and federal constitutional protections against double jeopardy by imposing consecutive sentences for aggravated assault and attempted murder when they were based upon one act?

II. (A) May the Commonwealth deprive Mr. Johnson of a fair trial by urging the jury to "get mad" at him as it deliberates and, thus, base its verdict on emotion rather than reason?

(B) As this error is apparent on the record, should it be capable of review on direct appeal either through a resurrected plain error analysis or through the ineffectiveness construct?

III. Did the admission of irrelevant and prejudicial weaponry unrelated to the shooting and prejudicial journal entries seized from Mr. Johnson's ...


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