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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

July 17, 2013

COMMONWEALTH OF PENNSYLVANIA
v.
DARNELL LOVELL JOHNSON III, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
DARNELL LOVELL JOHNSON, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
DARNELL LOVELL JOHNSON, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, April 2, 2012, in the Court of Common Pleas of Lycoming County Criminal Division at No. CP-41-CR-0000349-2006

Appeal from the Order Entered March 30, 2012, in the Court of Common Pleas of Lycoming County Criminal Division at No. CP-41-CR-0000551-2006

Appeal from the PCRA Order, April 2, 2012, in the Court of Common Pleas of Lycoming County Criminal Division at No. CP-41-CR-0000552-2006

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM

FORD ELLIOTT, P.J.E.

In these consolidated appeals, appellant appeals the order denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546.[1] Finding no merit, we affirm.

These appeals arise from charges brought against appellant at three separate trial court docket numbers. Although three separate criminal incidents occurred, they were tried together because they involved similar robberies that occurred in the same general time frame in the same neighborhood of Williamsport.

On October 26, 2005, Richard Picozzi answered a knock at his apartment door located on Memorial Avenue. Appellant and two accomplices forced their way in and then robbed him at gunpoint. This is the appeal listed at trial court docket number CP-41-CR-0000551-2006 (1477 MDA 2012). On December 1, 2005, Shane Eichinger answered a knock at his apartment door located on Memorial Avenue. Appellant and an accomplice forced their way in and robbed Eichinger and five others at gunpoint. This is the appeal listed at trial court docket number CP-41-CR-0000552-2006 (1478 MDA 2012). On January 9, 2006, Matthew Jackson was accosted by appellant and an accomplice as he was getting out of his car on Maple Street. He was then robbed at gunpoint. This is the appeal listed at trial court docket number CP-41-CR-0000349-2006 (1476 MDA 2012).

During the investigation of this last crime, which was apparently the first crime resolved and charged by authorities, witnesses Crystal McQuade and Andrea Wheeler were separately presented with photo array line-ups after appellant had been arrested. Appellant was improperly not provided with counseled representation at the line-ups. Witnesses as to the other two crimes were also presented with photo array line-ups without counsel for appellant being present after appellant's arrest for the January 9, 2006 incident, but before his arrest for either of the other two crimes.

On December 15, 2006, a jury found appellant guilty of numerous counts of robbery, as well as burglary, criminal trespass, criminal conspiracy, theft by unlawful taking or disposition, receiving stolen property, and possessing an instrument of crime. On February 6, 2007, appellant was sentenced to an aggregate term of 15 to 30 years' imprisonment with a consecutive 15 years' probation.

Appellant filed a direct appeal, but this appeal was dismissed on March 31, 2008 for failure to file a brief. On May 7, 2008, appellant filed a petition to reinstate his appeal which the trial court treated as a PCRA petition. The court restored appellant's direct appeal rights by order dated May 28, 2008, but not entered until October 20, 2008. On May 27, 2009, this court affirmed appellant's judgment of sentence. Commonwealth v. Johnson, 976 A.2d 1208 (Pa.Super. 2009) (unpublished memorandum).

Appellant filed the instant PCRA petition pro se on October 15, 2009. Counsel was appointed and amended petitions were filed on August 27, 2010 and December 20, 2010. A hearing was held on January 6, 2012 as to only one of the issues raised in the petition: whether counsel was ineffective in not challenging the identification procedures where photo array line-ups were used without the presence of counsel for appellant after appellant had been arrested. On March 7, 2012, the PCRA court issued an opinion and notice resolving the photo array line-up identification issue against appellant and informing appellant that the court intended to deny the petition as to his remaining issues without hearing, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A. On April 2, 2012, the court denied appellant's petition and this timely appeal ensued.

Appellant raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ERRED [WHEN] IT DETERMINED THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE A PRETRIAL MOTION CHALLENGING THE IDENTIFICATION PROCEDURES UTILIZED BY THE POLICE IN THE THREE CASES?
II. WHETHER THE TRIAL COURT ERRED WHEN IT DETERMINED THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE LATE DISCLOSURE OF HANDWRITTEN CRIMINAL HISTORIES OF THE COMMONWEALTH WITNESSES PREPARED BY THE DISTRICT ATTORNEY'S OFFICE, WHERE SUCH RECORDS WERE NOT ONLY UNTIMELY, BUT WERE NOT AUTHENTIC COMPUTERIZED CRIMINAL HISTORIES THEREBY DENYING MR. JOHNSON OF HIS RIGHT TO EFFECTIVE CROSS-EXAMINATION?
III. WHETHER THE TRIAL COURT ERRED WHEN IT DETERMINED THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE HIGHLY PREJUDICIAL CLOSING ARGUMENTS OF THE PROSECUTOR WHERE HE, AMONG OTHER THINGS, MADE A DELIBERATE APPEAL TO THE JUROR'S CONCERN FOR PERSONAL SAFETY IN THE COMMUNITY AND IMPROPERLY SUGGESTED THAT THE COMMUNITY DEMANDED A PARTICULAR VERDICT?
IV. WHETHER THE CUMULATIVE EFFECT OF TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE WARRANTS A NEW TRIAL?
V. WHETHER THE TRIAL COURT ERRED WHEN IT DETERMINED THAT APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON DIRECT APPEAL?
VI. WHETHER THE TRIAL COURT ERRED WHEN IT SUMMARILY DENIED ALL BUT ONE OF THE ISSUES RAISED IN THE PCRA PETIITON [sic] WITHOUT AN EVIDENTIARY HEARING?

Appellant's brief at 9.

We will address these matters in the order presented and we begin our analysis with our standard of review. Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.

Moreover, as appellant's issues on appeal are stated in terms of ineffective assistance of counsel, we also note that appellant is required to make the following showing in order to succeed with such a claim: (1) that the underlying claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, 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. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010). The failure to satisfy any prong of this test will cause the entire claim to fail. Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed to be effective, and appellant has the burden of proving otherwise. Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

In his first issue, appellant argues that counsel was ineffective in not seeking the suppression of certain in-court identifications that may have been tainted by prior uncounseled and flawed photo array line-ups. Appellant is correct that he is entitled to have counsel present for photo array line-ups where he has already been arrested for the offense engendering the line-up:

Appellant first argues that photographic identifications made by three Commonwealth witnesses should have been suppressed because counsel was not present at the time the police showed the photo arrays including his picture to those witnesses. Under Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed.2d 159 (1970), and its progeny, the accused's Sixth Amendment right to counsel is triggered by his arrest. Appellant concedes that he was not arrested on the homicide, robbery and burglary charges until June 2, 1983; the identifications took place on April 6 and 11, 1983. Appellant argues, however, that he was "in essence" under arrest on the homicide charges because the police revealed to one of the witnesses who identified appellant that they had a suspect, and that he was therefore entitled to have counsel present during the identification procedures. We disagree.
The Whiting standard, which is more favorable to the accused than the federal standard, see United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), recognized that a suspect is entitled to the protection afforded by the presence of counsel once the government has made a commitment to prosecute. This Court determined that in Pennsylvania such a decision was established by the arrest of the accused.

Commonwealth v. DeHart, 512 Pa. 235, 253, 516 A.2d 656, 665 (1986).

A criminal defendant is not entitled to counsel at a photo array where the array is being conducted to investigate charges other than those for which the criminal defendant has been arrested. Commonwealth v. Blassingale, 581 A.2d 183, 190 (Pa.Super. 1990). Of the various witnesses in this case who were shown photo array line-ups, only two participated after appellant had already been arrested on the charges related to those witness' photo array line-up. These witnesses were Crystal McQuade and Andrea Wheeler. We first find that the in-court identification by McQuade was not necessarily subject to suppression where a basis independent of the corrupted photo array line-up existed:

[E]ven assuming the illegality of an arrest or a suggestive out-of-court identification, the eyewitness identifications of Appellant are not necessarily required to be suppressed. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). We recently held that in-court identifications, despite impermissibly suggestive pre-trial procedures, are admissible if there exists an independent basis for the identifications. In Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61 (1994), we set forth the analysis to be used when considering the issue of an impermissibly suggestive identification. To allow an in-court identification following a suggestive pre-trial identification, the Commonwealth must establish, by clear and convincing evidence, that the identification was not a product of the events occurring between the time of the crime and the in-court identification. Carter, 537 Pa. at 253, 643 A.2d at 71. Therefore, an in-court identification will be permitted if, considering the totality of the circumstances, the in-court identification "had an origin sufficiently distinguishable to be purged of the primary taint."

Id.

In determining whether an independent basis exists for the identification, the factors to be considered in this determination are: "(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation." Id., at 253–54, 643 A.2d at 71.

Commonwealth v. Abdul-Salaam, 544 Pa. 514, 529, 678 A.2d 342, 349 (1996), cert. denied, Abdul-Salaam v. Pennsylvania, 520 U.S. 1157 (1997).

Instantly, an independent basis existed for McQuade's in-court identification. McQuade testified in reference to the January 9, 2006 robbery of Matthew Jackson as he was getting out of his car. McQuade and Wheeler were present at McQuade's house on Maple Street at the time of the robbery. (Notes of testimony, 12/11/06 at 82-83.) McQuade testified that she recognized appellant because he and another individual had been in her house two nights earlier. (Id. at 83-84.) At that time, at appellant's request, McQuade telephoned the victim Jackson and then gave the telephone to appellant and the other man to speak to Jackson. (Id. at 84-85.) On the day of the robbery, McQuade witnessed Jackson park his car on the street and saw appellant and another man approach Jackson's car and get into the vehicle. (Id. at 86.) At that point, McQuade saw the other man produce a gun and hold it to Jackson's head. (Id.) Thus, we find that a basis existed for McQuade's in-court identification independent of the photo array line-up.

As for Wheeler, Wheeler did not make an in-court identification of appellant as the robber. Wheeler testified that she recognized appellant from having driven him in her taxi. (Id. at 95.) However, Wheeler specifically testified that she did not see appellant on the day of the robbery. (Id. at 96.) Wheeler apparently went into McQuade's house before appellant arrived. (Id. at 96.) Thus, since Wheeler made no in-court identification of appellant as the robber, there was nothing to suppress.

In sum, we find that trial counsel was not ineffective in failing to seek suppression of any in-court identification. An independent basis existed for permitting McQuade to identify appellant in court and her testimony was not subject to suppression. Thus, there is no underlying merit to appellant's suppression claim. Further, Wheeler made no in-court identification of appellant as the robber; therefore, there was no prejudice to appellant. In either case, the assertion of ineffectiveness fails.

Finally, to the extent that appellant also argues that the photo array line-up itself was flawed, independent of the lack of counsel, and may have inappropriately influenced other witnesses, we find no merit. For instance, appellant complains that the array bore the inscription "Pennsylvania Justice Network JNET, " was not comprised of individual pictures but on one page of eight pictures, and that only appellant's picture portrayed an individual with a scar or tattoo on his face. We see no possibility that the inscription or the fact that eight pictures were contained on one page could influence a witness to misidentify an individual.

As for the fact that only appellant's picture portrayed an individual bearing a scar or tattoo on his face, we observe that it would be virtually impossible to construct a photo array line-up in which each individual had a nearly identical scar or tattoo on his face.[2] If appellant has the misfortune to have a distinctive mark on his face, there is no possible line-up that could be constructed to neutralize its possible influence on a witness.

In his second issue on appeal, appellant complains that he received handwritten criminal histories for the Commonwealth's witnesses rather than computerized versions. Appellant further protests that the documents were unsigned, did not state who prepared them, and did not reveal where the information was obtained and whether it was accurate. Appellant also objects that the histories were received only a few days prior to trial. Appellant argues that trial counsel was ineffective in failing to object to the criminal histories.

We find no merit to appellant's argument because he has failed to identify the prejudice necessary to support that prong of an ineffectiveness argument. We find no prejudice whatsoever in the mere fact that the histories were handwritten rather than computer generated, were not signed, did not state who prepared them, and did not reveal where the information was obtained and whether it was accurate. Appellant needed to identify a particular witness who was not properly impeached because of an inaccurate criminal history and explain why. Likewise, appellant has not indicated how the receipt of the histories a few days before trial harmed him. Appellant's wholly inadequate argument simply does not address all of the aspects germane to an ineffectiveness assessment. There is no merit here.

Appellant next contends that counsel was ineffective in failing to object to alleged prosecutorial misconduct during closing remarks. The specific remarks to which appellant objects are as follows:

Everybody's done their job. I don't want robbers out on the streets, and you don't want people with guns out on the streets. Don't put them there. Don't make the efforts, the actions of those seven people that were scared, they told you, don't make them be for nothing.

Notes of testimony (Excerpts – Openings and Closings) 12/15/06 at 49.

Appellant contends that this language amounted to prosecutorial misconduct because "[t]he prosecutor's arguments during closing attempted to link the verdict in this case to an appeal to the juror's [sic] concern for public safety and the social consequences of their verdict." (Appellant's brief at 21.) Appellant argues that trial counsel was ineffective in failing to object to these remarks.

It is well settled that a prosecutor has considerable latitude during closing arguments and his or her statements are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence.
Commonwealth v. Holley, 945 A.2d 241, 250 (Pa.Super.2008) (citation omitted). "Further, prosecutorial misconduct does not take place unless the 'unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict.' " Id. (quoting Commonwealth v. Paddy, 569 Pa. 47, 82–83, 800 A.2d 294, 316 (2002)). Moreover, a prosecutor can fairly respond to attacks on a witness's credibility. Id. (citation omitted). In reviewing a claim of improper prosecutorial comments, our standard of review is whether the trial court abused its discretion. Commonwealth v. Hall, 549 Pa. 269, 285, 701 A.2d 190, 198 (1997) (citation omitted). When considering such a claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one, because not every inappropriate remark by a prosecutor constitutes reversible error. Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa.Super.2012) (citation and quotation marks omitted). "A prosecutor's statements to a jury do not occur in a vacuum, and we must view them in context." Id. (citation omitted).

Commonwealth v. Noel, 53 A.3d 848, 858 (Pa.Super. 2012), appeal granted in part, 65 A.3d 385 (2013).

Prosecutorial exhortations to enforce public safety can, indeed, arise to such misconduct that a new trial is required. As in all such matters, however, there are levels of degree. Many years ago, this court examined some of the more extreme calls to enforce the public safety:

Appellant's second assertion of prosecutorial misconduct also addresses itself to the prosecutor's closing argument. At the conclusion of his summation the district attorney told the jury:
"The question is no longer what the verdict is, the question is how long are you, as twelve people, going to tolerate this type of activity? . . . Come back, in a clear voice and say to this community that you no longer will stand for this activity. . . ."
This comment by the prosecutor went unobjected to by trial counsel and was not argued by post-verdict motions counsel. The case law of this Commonwealth consistently condemns such argument. In Commonwealth v. Long, 258 Pa.Super. 332, 392 A.2d 810 (1978), we held a prosecutor's remark that the jury consider "the larger issue" of public safety to be improper. In Commonwealth v. Mayberry, 479 Pa. 23, 387 A.2d 815 (1978), our Supreme Court held erroneous a summation which included a plea "to bring back a verdict so that the good citizens of this community will know that we are not going to stand for this senseless tragic gang killing . . . ." Similarly, in Commonwealth v. Harvell, 458 Pa. 406, 327 A.2d 27 (1974), our Supreme Court characterized argument including statements such as "Men are afraid to walk the streets themselves" as "ill-concealed attempts to divert the inquiry from the pursuit of truth and an invitation to give vent to visceral and unreasoned responses." See also, Commonwealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974).
In the instant case we are presented with what is, fortunately, a rarity: an unequivocal exhortation to the jury to disregard the duty they had sworn to perform. The prosecutor expressly told the jury that "(t)he question is no longer what the verdict is . . . ." The prosecutor's argument in the instant case was an appeal to the viscera, a prayer for vengeance, an invitation to lynch law. It was egregious error which makes farcical a judicial system which condones it. We do not.
There can have been no reasonable basis for trial and post-verdict motions counsel to have failed to preserve this issue for our review.

Commonwealth v. Sample, 410 A.2d 889, 894 (Pa.Super. 1979).[3]

While the prosecution remarks here were ill-advised, we find that they were not the concluding statements, which would receive more emphasis, nor were they so extreme that the unavoidable effect would be to prejudice the jurors with a fixed bias against appellant. We find that counsel was not ineffective in failing to object to these remarks because the remarks did not merit a new trial.

In his third issue, appellant argues that while the individual prejudice of each allegation of ineffectiveness may not merit relief, the cumulative prejudice does. Appellant cites case law in support of this proposition:

Appellant merely cites Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009), and Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 670–71 (2008), for the principle that a claim of error based on cumulative prejudice may be viable. The PCRA court denied Appellant's claim of cumulative effect based on its findings that none of Appellant's individual claims warrant relief. PCRA Court Opinion at 25, 58.
We have often held that "no number of failed [ ] claims may collectively warrant relief if they fail to do so individually." Johnson, supra at 532 (quoting Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 617 (2007)). However, we have clarified that this principle applies to claims that fail because of lack of merit or arguable merit. Sattazahn, supra at 671. When the failure of individual claims is grounded in lack of prejudice, then the cumulative prejudice from those individual claims may properly be assessed. Id.; Johnson, supra at 532 (citing Commonwealth v. Perry, 537 Pa. 385, 644 A.2d 705, 709 (1994), for the principle that a new trial may be awarded due to cumulative prejudice accrued through multiple instances of trial counsel's ineffective representation).

Commonwealth v. Spotz, 610 Pa. 17, 146, 18 A.3d 244, 320-321 (2011).

We rejected appellant's first assertion of ineffectiveness, pertaining to trial counsel's failure to object to witness identification tainted by uncounseled photo array line-ups, on the basis of no underlying merit. Thus, there was no finding of inadequate prejudice there. We rejected appellant's second assertion of ineffectiveness, pertaining to counsel's failure to object to allegedly inadequate criminal histories, on the basis of lack of prejudice. However, our rejection of appellant's claim was not because there was some, but not enough, prejudice; rather, our decision was based upon the fact that there was no prejudice whatsoever. There is simply nothing left there to aggregate. This leaves appellant only with the prejudice arising from the prosecution's closing remarks. We have already found that this prejudice was inadequate to rise to a finding of ineffectiveness. Thus, we find no merit in appellant's cumulation argument.

Appellant's fifth argument is merely a layered assertion that trial counsel was ineffective for failing to raise the prior errors on direct appeal. These issues all regard ineffective assistance of counsel claims. As such, they may not be raised on direct appeal, but must await resolution by collateral appeal. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). Consequently, counsel cannot be found ineffective for failing to raise on direct appeal issues that are not permitted to be raised on direct appeal. There is no merit here.

Finally, in his sixth issue, appellant argues that the PCRA court erred in limiting the evidentiary hearing to the single issue pertaining to counsel's failure to object to witness identifications following tainted photo array line-ups. We find no merit here.

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.Super.2001). It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. Id. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542–543 (1997). Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012), quoting Commonwealth v. Turetsky, 925 A.2d 876, 882 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007).

Appellant contends that an evidentiary hearing was necessary as to all of his issues of ineffective assistance because that was the only way to determine if counsel's failure to act was an oversight or some kind of tactical decision. Appellant's argument ignores the fact that the test for ineffective assistance is a three pronged test and that the failure to meet every prong results in a finding of no ineffectiveness. The PCRA court did not need to hold an evidentiary hearing on the ineffectiveness claims pertaining to handwritten criminal histories and prosecutorial misconduct during closing remarks because it was able to determine without taking evidence that appellant had failed to satisfy the prejudice prong in each situation. Upon review, we agree with that analysis. No evidentiary hearing was needed for appellant's other ineffectiveness claims. There is no error here.

Accordingly, having found no error on appeal, we will affirm the order below.

Order affirmed.

Judgment Entered.


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