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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NON-PRECEDENTIAL DECISION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 ...

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