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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

March 6, 2014



Appeal from the PCRA Order September 10, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1111552-2002




Appellant, Tyrone Johnson, appeals from the order entered in the Philadelphia County Court of Common Pleas, dismissing his petition brought pursuant to the Post Conviction Relief Act ("PCRA").[1] We affirm.

The PCRA court opinion fully sets forth the relevant facts and procedural history pertaining to this appeal as follows:

On June 12, 2002, the police arrested [A]ppellant for three separate robberies. The first occurred at a state liquor store located at 5101 Lancaster Avenue in Philadelphia on May 3, 2002. The second occurred at the same store on June 12, 2002. The third occurred at a state store on the 4900 block of Baltimore Avenue on June 4, 2002. The court consolidated the May 3rd and June 12th robberies.
On April 5, 2004, Judge Overton initially declared a mistrial when the jury could not reach a verdict. On January 31, 2005, the Commonwealth retried Appellant. However, although the jury acquitted [Appellant] of all charges relating to the May 3, 2002 robbery, it could not reach a verdict involving the June 12, 2002 robbery case.
On March 26, 2007, the Commonwealth retried Appellant a third time for the June 12th robbery. This time a jury found Appellant guilty of five counts of Robbery (F-1) and (F-2), one count of Criminal Conspiracy, and Possession of an Instrument of Crime. On May 17, 2007, the court sentenced the Appellant to 10-20 years concurrent incarceration for five counts of Robbery (F-1) followed by 10 years consecutive probation imposed for the criminal conspiracy. The court imposed no further penalty on the five counts of Robbery (F-2) or Possession of an Instrument of Crime. On April 16, 2009, the Superior Court affirmed the trial court, and Appellant filed a Petition for Allowance of Appeal to the Supreme Court on May 15, 2009.
On October 1, 2009, the Supreme Court denied Appellant's Petition. On July 21, 2010, Appellant filed a [PCRA] Petition…. This petition was amended by Appellant's appointed counsel on January 5, 2012. In his PCRA petition, Appellant claims:
1. that trial counsel was ineffective for failing to file a motion to dismiss the charges against the appellant where there were two prior trials for the same charges which ended in a mistrial.
2. that trial counsel was ineffective in failing to file a motion to suppress a search of his house.
3. that trial counsel was ineffective for failing to object to the Commonwealth's improper references to his previous trials in his closing arguments.

(PCRA Court Opinion, 12/7/12, at 1-2). Appellant filed a notice of appeal on August 24, 2012. Subsequently, on September 10, 2012, the trial court entered its order, dismissing Appellant's petition for post-conviction relief.[2] Appellant's notice of appeal relates forward to September 10, 2012, the date the order was entered and copies were distributed to all the appropriate parties. See Pa.R.A.P. 905(a). The court did not order Appellant to file a concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b), and Appellant filed none.

On appeal, Appellant raises the following issues for our review:


(Appellant's Brief at 5).

Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We owe no such deference, however, to the court's legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.

The law presumes counsel has rendered effective assistance. Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When asserting a claim of ineffective assistance of counsel, the petitioner is required to demonstrate that: (1) the underlying claim is of arguable merit; (2)counsel had no reasonable strategic basis for his action or inaction; and, (3) 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. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).

"The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit…." Commonwealth v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). "Counsel cannot be found ineffective for failing to pursue a baseless or meritless claim." Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

Once this threshold is met we apply the "reasonable basis" test to determine whether counsel's chosen course was designed to effectuate his client's interests. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel's assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [a defendant] demonstrates that counsel's chosen course of action had an adverse effect on the outcome of the proceedings. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002) (internal citations and quotation marks omitted). The failure to satisfy any prong of the test for ineffectiveness will cause the claim to fail. Williams, supra.

For purposes of the PCRA, an issue was "previously litigated" if "the highest appellate court in which the petitioner was entitled to review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S.A. § 9544(a)(2). "A claim previously litigated in a direct appeal is not cognizable under the PCRA." Commonwealth v. Hutchins, 760 A.2d 50, 55 (Pa.Super. 2000). Nevertheless,

[I]neffectiveness claims are distinct from those claims that are raised on direct appeal. The former claims challenge the adequacy of representation rather than the conviction of the defendant. Accordingly, …a Sixth Amendment claim of ineffectiveness raises a distinct legal ground for purposes of state PCRA review under [Section] 9544(a)(2). Ultimately, the claim may fail on the arguable merit or prejudice prong for the reasons discussed on direct appeal, but a Sixth Amendment claim raises a distinct issue for purposes of the PCRA and must be treated as such.

Commonwealth v. Collins, 585 Pa. 45, 60-61, 888 A.2d 564, 573 (2005). Thus, ineffective assistance of counsel claims may be brought in post-conviction proceedings, regardless of whether the core claims were previously litigated. Id. A petitioner has waived an ineffectiveness of counsel claim only after the petitioner "has had the opportunity to raise that claim on collateral review and has failed to avail himself of that opportunity." Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002).

In Appellant's first issue, he argues trial counsel was ineffective for failing to file a motion to dismiss the charges on the basis of double jeopardy, following the two mistrials. Appellant asserts the Commonwealth's prosecution was based on "shaky identifications, " in bad faith, and presented "[w]ith such uncertainty, the Commonwealth should not have been given three bites at the apple." (Appellant's Brief at 12). Appellant asserts trial counsel failed to file a motion to dismiss "where [trial counsel] believed an exception should have been carved out for a case that was based on shaky identifications." (Id. at 11). Additionally, Appellant asserts he suffered prejudice in having to prepare for three separate trials. Appellant concludes his convictions should be reversed as a result of counsel's ineffectiveness. We disagree.

Pennsylvania Rule of Criminal Procedure 605 governs mistrials and provides in pertinent part:

Rule 605. Mistrial
* * *
(B) When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial court may declare a mistrial only for reasons of manifest necessity.

Pa.R.Crim.P. 605(B). Pursuant to this rule, a court must "exercise sound discretion in declaring a mistrial by considering those factors contributing to the trial problem as well as possible remedies less drastic than a mistrial." Commonwealth v. Leister, 712 A.2d 332, 335 (Pa.Super. 1998), appeal denied, 557 Pa. 627, 732 A.2d 613 (1998) (internal quotation marks omitted).

Our supreme court has intentionally avoided establishing a catalog of situations in which a mistrial is dictated by manifest necessity, and has instead stated that each case "must turn on the particular facts." However, the most frequently encountered circumstance constituting manifest necessity, and thus justifying discharging a jury without placing the defendant twice in jeopardy, is the inability of the jury to agree on a verdict such that the jury is hopelessly deadlocked. In such cases a mistrial is the natural result of the practical inability of the original tribunal to complete the trial.

Commonwealth v. Balog, 576 A.2d 1092, 1095 (Pa.Super. 1990) (internal citations omitted) (emphasis added). More recently, the United States Supreme Court reasoned:

Our cases have recognized that the [Double Jeopardy] Clause embodies two vitally important interests. The first is the "deeply ingrained" principle that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. The second interest is the preservation of the "finality of judgments."
The first interest is implicated whenever the State seeks a second trial after its first attempt to obtain a conviction results in a mistrial because the jury has failed to reach a verdict. In these circumstances, however, while the defendant has an interest in avoiding multiple trials, the Clause does not prevent the Government from seeking to reprosecute. Despite the argument's textual appeal, we have held that the second trial does not place the defendant in jeopardy "twice." Instead, a jury's inability to reach a decision is the kind of "manifest necessity" that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled. The "interest in giving the prosecution one complete opportunity to convict those who have violated its laws" justifies treating the jury's inability to reach a verdict as a nonevent that does not bar retrial.

Yeager v. United States, 557 U.S. 110, 117-18, 129 S.Ct. 2360, 2366, 174 L.Ed.2d 78, __ (2009) (internal citations and some quotation marks omitted) (emphasis added).

Instantly, the two mistrials in this case resulted from hung juries. The juries' inability to reach a verdict on certain charges meant a continuation of the initial jeopardy, as those undecided charges, that commenced when a jury was first impaneled. See Yeager, supra. Because jeopardy continued as to the undecided charges, we see no issue of "double" jeopardy arising from Appellant's subsequent trials. Therefore, trial counsel cannot be deemed ineffective for failing to pursue a baseless claim of double jeopardy on the facts of this case. See Balog, supra; Poplawski, supra. Accordingly, Appellant's first issue lacks arguable merit.

In Appellant's second issue, he argues the police obtained a search warrant after the robbery at issue, searched Appellant's house, and recovered a bottle of gin and money. Appellant claims trial counsel was ineffective because counsel did not properly litigate a motion to suppress the items recovered from his house pursuant to a defective warrant. Appellant seems to concede trial counsel did file a motion to suppress but suggests he was denied effective assistance of counsel by virtue of the way in which counsel pursued suppression, stating the search warrant was "not properly challenged on the basis that the search warrant was not supported by probable cause." (Appellant's Brief at 14). Appellant is equally unhappy that counsel did not challenge the basis of the search warrant on direct appeal, "thus waiving any further challenges to it in future litigation."[3] (Id.) Appellant summarily concludes his conviction(s) should be reversed as a result of prior counsel's "waiving" this significant legal issue.[4] We disagree.

As a prefatory matter, "[T]o succeed on an allegation of…counsel's ineffectiveness…a post-conviction petitioner must, at a minimum, present argumentation relative to each layer of ineffective assistance, on all three prongs of the ineffectiveness standard…." Commonwealth v. D'Amato, 579 Pa. 490, 500, 856 A.2d 806, 812 (2004) (internal citations omitted). "[A] petitioner does not preserve a…claim of ineffectiveness merely by focusing his attention on whether…counsel was ineffective. Rather, the petitioner must also present argument as to how the second and third prongs of the Pierce test are met with regard to the…claim." Commonwealth v. Santiago, 579 Pa. 46, 69, 855 A.2d 682, 696 (2004). "[A]n undeveloped argument, which fails to meaningfully discuss and apply the standard governing the review of ineffectiveness claims, simply does not satisfy [the petitioner's] burden of establishing that he is entitled to any relief." Commonwealth v. Bracey, 568 Pa. 264, 273 n.4, 795 A.2d 935, 940 n.4 (2001).

Instantly, Appellant presents his second issue on appeal in a most generic form, without appropriate discussion of each element of the Pierce test. Given the blunt assertion of counsel's ineffectiveness, in blatant disregard for the applicable three-prong ineffectiveness standard, we conclude Appellant's second issue is waived on this basis as well.[5] See D'Amato, supra; Santiago, supra; Bracey, supra. Accordingly, we affirm the order denying PCRA relief.

Order affirmed.

Judgment Entered.

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