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Commonwealth of Pennsylvania v. Kevin Johnson

August 15, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KEVIN JOHNSON APPELLANT



Appeal from the PCRA Order of July 15, 2009 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1108001-1986; November Term, 1986, No. 0800

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

J-E01007-12

BEFORE: STEVENS, P.J., BOWES, GANTMAN, PANELLA, SHOGAN, ALLEN, LAZARUS, MUNDY, AND WECHT, JJ.

OPINION BY MUNDY, J.:

Appellant, Kevin Johnson, appeals from the July 15, 2009 order dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm. The PCRA court summarized the relevant facts of this case as follows.

[On October 8, 1986, the victim], Lyndon "Cowboy" Morris, was selling cocaine from a second- floor bedroom that he rented in a home in southwest Philadelphia. He was assisted by one James Smith who would answer the door at the residence, collect money from the prospective purchasers, give the money to [Appellant] who was positioned in the second-floor bedroom, and then deliver the cocaine to the buyers who were waiting on the first floor.

The owner of the residence, Opal Nickson, arrived home that night and joined Angelo Smith, Elijah Bennett, and James Smith in another second- floor bedroom where they were all smoking marijuana and cocaine. In response to a knock on the door, James Smith went downstairs and encountered [Appellant] who was armed with a revolver and his accomplice who was carrying a sawed-off shotgun. [Appellant] demanded to see

[Morris], and when the three of them reached the second floor, [Appellant] ordered Nickson, Angelo

Smith, and Bennett to lie on the floor. Both Nickson and Bennett (along with the Smiths) identified

[Appellant] at trial, and testified that they recognized him "from the neighborhood[.]"[]

With the accomplice standing by, [Appellant] banged on [Morris'] door. When he unlatched the door and saw the shotgun, he attempted to slam the door shut. [Morris] was unsuccessful in that effort, and the accomplice fired through the open door and struck [Morris] in the lower abdomen. [Appellant] then rushed into the bedroom, fired his gun a number of times, and shot [Morris] in the chest while he was lying on the ground. After scooping up [Morris'] cash and drugs, [Appellant] and his accomplice ran out of the house and fled.

[A seven-day jury trial began on January 27, 1988. During the trial Stephen Gallagher, Esquire, (Attorney Gallagher), Appellant's] trial counsel[,] called a number of alibi witnesses, Douglas Yancy, James Lawrence, and Wanda Johnson, in his effort to establish that [Appellant] was selling clothes from the back of a car at various locations in West Philadelphia. His mother and a family member gave testimony that contradicted the Commonwealth['s] witnesses who had described what he was wearing and the vehicle in which he was riding. [Appellant] also testified at trial on his own behalf. He denied being involved in the shooting or robbery of [Morris], and recounted his actions that evening as he traveled around the neighborhood with a friend while attempting to sell clothes.

PCRA Court Opinion, 7/7/10, at 5-6.

On February 4, 1988, the jury convicted Appellant of first-degree murder. The following day, the trial judge concluded that the Commonwealth had failed to establish the aggravating circumstance of endangerment of another person, and held that it would be illegal for the jury to consider the death penalty. On July 1, 1988, Appellant was sentenced to life imprisonment.

Attorney Gallagher filed a timely notice of appeal. The trial court ordered Attorney Gallagher to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Attorney Gallagher failed to file a Rule 1925(b) statement and brief with this Court. Due to these failures, this Court dismissed the appeal. On March 11, 1991, Appellant filed a petition under the PCRA requesting restoration of his direct appeal rights nunc pro tunc. The Commonwealth did not object. On March 25, 1991, the trial court granted Appellant nunc pro tunc relief, and appointed Jaime Smarro, Esquire (Attorney Smarro) to represent him on direct appeal. On March 4, 1992, this Court affirmed the judgment of sentence. Commonwealth v. Johnson, 610 A.2d 65 (Pa. Super. 1992) (unpublished memorandum). Our Supreme Court denied Appellant's petition for allocatur on September 30, 1992.

Thereafter, Appellant filed a timely pro se PCRA petition on December 23, 1996.*fn1 Counsel was appointed to represent Appellant, but failed to file an amended PCRA petition. The trial court subsequently appointed another attorney, who filed an amended petition on June 12, 2002 averring various claims of ineffective assistance of counsel. Appellant's PCRA petition was dismissed without a hearing on January 15, 2003. On January 31, 2005, this Court reversed the PCRA court's order and remanded with instructions to conduct an evidentiary hearing on the issue of whether Attorney Gallagher was ineffective for failing to consult with Appellant prior to trial. Commonwealth v. Johnson, 873 A.2d 768 (Pa. Super. 2005) (unpublished memorandum).

On remand, the PCRA court conducted two hearings on March 6, 2006 and April 17, 2006.*fn2 The matter was transferred to the Honorable Peter Rogers because the original PCRA judge was no longer sitting on the trial bench.*fn3 On June 17, 2009, pursuant to Pennsylvania Rule of Criminal Procedure 907, the PCRA court advised Appellant that his petition was going to be denied because the PCRA court found that the issues he raised lacked merit. The PCRA court formally entered an order denying relief on July 15, 2009.

Appellant filed a timely notice of appeal on July 23, 2009.*fn4 On June 27, 2011, a divided panel of this Court reversed the PCRA court's order, vacated the judgment of sentence, and remanded the matter for a new trial.

Commonwealth v. Johnson, 2187 EDA 2009 (Pa. Super. 2011) (unpublished memorandum). The panel majority found that Attorney Gallagher had rendered ineffective assistance of counsel under Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003). The dissent argued Brooks did not control the outcome of the case, Attorney Gallagher provided Appellant with effective representation, and Appellant could not show that he was prejudiced under Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). On July 11, 2011, the Commonwealth filed a petition for reargument en banc. On August 29, 2011, this Court granted the Commonwealth's motion for reargument and withdrew the June 27, 2011 panel memorandum.

In his substituted brief on reargument, Appellant raises the following issues for our review.

1. Should reargument en banc be dismissed as improvidently granted?

2. Due to court error, prosecutorial misconduct and ineffective assistance of trial and appellate counsel, was Appellant denied a fair trial?

A. Is Appellant entitled to relief under the authority of Commonwealth v. Brooks, 839 A.2d 245 (Pa. 2003) and Strickland v. Washington, 466 U.S. 668 (1984) where counsel failed to ever meaningfully consult with his client prior to trial, and was appellate counsel ineffective for failing to raise this claim?

B. Did Appellant plead and prove that counsel's deficient performance, prosecutorial misconduct, and court error, and resulting prejudice, undermined the reliability of Appellant's conviction, entitling him to a new trial, and did the PCRA court abuse its discretion in denying, as previously agreed to, a hearing on these issues?

i. Was Appellant denied effective assistance of counsel where trial counsel failed to investigate and present good character testimony relating to Appellant's reputation as peaceful and non-violent, and appellate counsel failed to raise this issue?

ii. Was Appellant denied the effective assistance of counsel where trial counsel failed to present known alibi evidence, and appellate counsel failed to raise this issue?

iii. Was Appellant denied his rights to due process of law and confrontation by the improper introduction of hearsay statements, and were prior counsel ineffective for failing to properly preserve this issue at trial and on appeal?

iv. Was Appellant denied his constitutional rights to due process and effective assistance of counsel due to police misconduct and were prior counsel ineffective for failing to expose, and cross-examine, and pursue this issue on appeal?

v. Was Appellant denied his constitutional rights to due process and the effective assistance of counsel where trial counsel failed to argue that another suspect was culpable, and appellant counsel failed to raise this issue?

vi. Was Appellant denied his constitutional right to due process because a key witness's testimony was fabricated due to coercion by the police and were prior counsel ineffective for failing to expose and cross-examine on, this misconduct and to pursue this claim on appeal?

Appellant's Brief at 4.

Prior to addressing Appellant's substantive claims, we must first address Appellant's procedural argument. Appellant avers that the Commonwealth's petition for reargument en banc was improvidently granted, and we should reinstate the June 27, 2011 panel decision. Id. at 14. When this Court grants rehearing en banc it may do so for the following reasons. See Commonwealth v. Morris, 958 A.2d 569, 580 n.2 (Pa. Super. 2008), appeal denied, 991 A.2d 311 (Pa. 2010); accord Commonwealth v. Jacobs, 900 A.2d 368, 377 n.9 (Pa. Super. 2006), appeal denied, 917 A.2d 313 (Pa. 2007).

1. Where it appears that a decision of a panel of the court may be inconsistent with a decision of a different panel of the court;

2. Where it appears that a panel may have overlooked relevant precedent, statute, or rule of court;

3. Where it appears that a panel may have overlooked or misapprehended one or more material facts of record;

4. Where a panel relied upon relevant legal authority which has been reversed, modified, overruled, discredited or materially altered during the ...


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