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[U] Commonwealth v. Johnson

Superior Court of Pennsylvania

March 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ERIC JOHNSON Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order March 28, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009273-2008

BEFORE: FORD ELLIOTT, P.J.E., BOWES, J., and OTT, J.

MEMORANDUM

OTT, J.

Eric Johnson appeals the order entered March 28, 2013, in the Philadelphia County Court of Common Pleas denying him relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. On October 22, 2009, Johnson was sentenced to an aggregate term of eight to 16 years' imprisonment, following his conviction of aggravated assault[1] and related offenses. On appeal, Johnson argues the PCRA court erred in determining that the trial court possessed jurisdiction to convict and sentence him.[2] Specifically, he asserts the magistrate who presided over his preliminary hearing did not explicitly and publicly hold him for court on any of the charges. For the reasons set forth below, we affirm.

The facts underlying Johnson's arrest were aptly summarized by the PCRA court as follows:

On April 28, 2008, at approximately 11:00 p.m., Philadelphia Police Officers Charles Bondiskey and Anthony Comitalo were patrolling the area of Summerville Avenue and Broad Street when they noticed a GMC Safari with a broken brake light. Officer Bondiskey ran the car's license plate through the DMV computer system, which indicated that the car had been stolen. As the officer watched, the car pulled over on the side of Broad Street. The officers then activated their lights and sirens to indicate to the car's occupants that they were approaching the vehicle. As he moved towards the vehicle on foot, Officer Bondiskey approached [Johnson], who was in the passenger seat, and asked him to exit the vehicle with his hands up. [Johnson] did so, but when Officer Bondiskey attempted to place [Johnson's] hands on the side of the vehicle, [Johnson] ran. Officer Bondiskey caught [Johnson], who began punching Officer Bondiskey repeatedly. Officer Bondiskey was able to wrestle [Johnson] to the ground, at which point [Johnson] pulled out a black Beretta handgun. Officer Bondiskey and Officer Comitalo wrestled the gun away from [Johnson] as [Johnson] continued to fight both officers. [Johnson] was placed under arrest. The gun contained one round in the chamber and one in the magazine. A later examination of the gun by ballistics expert Officer Norman DeFields revealed that the gun was operable.

PCRA Court Opinion, 6/18/2013, at 2-3 (record citations omitted).

Johnson was subsequently charged with aggravated assault, simple assault, recklessly endangering another person (REAP), and three violations of the Uniform Firearms Act.[3] A preliminary hearing was conducted on July 21, 2008. After the Commonwealth rested its case-in-chief, the municipal court asked defense counsel if he had anything to present. The following exchange took place:

[Defense Counsel]: … On the aggravated assault, the officer testified he suffered no injuries. He was able to finish his shift. Those injuries do not rise to the level of an aggravated assault . So for that charge, and that charge only, I believe should be dismissed.
THE COURT: Commonwealth, what degree are you asking for on aggravated assault?
[Prosecutor]: Your Honor, I would submit that's an attempt to cause bodily injury with a deadly weapon. Which would be – the court's brief indulgence. A felony of the second degree.
THE COURT: You think it's a felony of the second degree?
[Prosecutor]: Well, your Honor, I would also note that with struggling over a firearm with one loaded in the chamber and one in the magazine, that was also intent to cause serious bodily injury.
[Defense Counsel]: Your Honor, it's just as likely he was trying to get rid of the gun.
THE COURT: So you are asking for a felony of the first degree?
[Prosecutor]: Yes, your Honor.
THE COURT: It's a felony of the first degree. You have to argue it at the trial.
[Defense Counsel]: Very well.
THE COURT: It's a trial issue. …

N.T., 7/21/2008, at 12-14 (emphasis supplied). The trial court then set the date for his arraignment.

The case proceeded to a bench trial on September 14, 2009. Prior to the start of trial, Johnson entered a no contest plea to the three firearms charges. The parties then stipulated to a ballistics report, and incorporated the notes of testimony from a May 1, 2009, suppression hearing.[4]Thereafter, the trial court found Johnson guilty of the charges of aggravated assault, simple assault and REAP. Johnson was sentenced on October 22, 2009, to an aggregate term of eight to 16 years' imprisonment.[5] No direct appeal was filed.

On August 23, 2010, Johnson filed a pro se PCRA petition, challenging the trial court's lack of jurisdiction. After several counsel changes, present counsel filed an amended petition on September 6, 2012. On January 11, 2013, the PCRA court issued notice of its intent, pursuant to Pa.R.Crim.P. 907, to dismiss the petition without first conducting an evidentiary hearing. Johnson did not respond to the PCRA court's Rule 907 notice, and thereafter, on March 28, 2013, the court entered an order denying Johnson's PCRA petition. This timely appeal followed.[6]

When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Robinson, ___A.3d___, 2013 WL 6822831, *4 (Pa. December 27, 2013) (citation omitted). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted).

Johnson's sole issue on appeal is that the trial court had no jurisdiction over his case because the municipal court judge failed to "publicly" hold him for court on any of the charges at the conclusion of his preliminary hearing. He emphasizes that "the words, 'hold or held for court' do not appear in the notes of testimony." Johnson's Brief at 10. Accordingly, he contends, "[a]bsent a finding of a prima facie case, publicly made, by a Municipal Court judge, a Common Pleas Court lacks jurisdiction to try the accused on charges on which he was not held for court." Id. at 11.

Pennsylvania Rule of Criminal Procedure 543 provides, in relevant part:

(A) At the conclusion of the preliminary hearing, the decision of the issuing authority shall be publicly pronounced.
(B) If the issuing authority finds that the Commonwealth has established a prima facie case that an offense has been committed and the defendant has committed it, the issuing authority shall hold the defendant for court on the offense(s) on which the Commonwealth established a prima facie case. If there is no offense for which a prima facie case has been established, the issuing authority shall discharge the defendant.

Pa.R.Crim.P. 543 (A)-(B) (emphasis supplied). Johnson assserts that because the municipal court judge did not explicitly state that Johnson was "held for court" on the charges, the subsequent criminal information prepared by the Commonwealth was "without effect." Johnson's Brief at 11. We disagree.

First, we note that Rule 543 does not require the municipal court judge to use the precise language "held for court" to maintain jurisdiction over a defendant. When concluding the Commonwealth has put forward a prima facie case, the municipal court judge is only required to "publicly pronounce[]" his decision. Here, our review of the preliminary hearing transcript reveals the municipal court judge publicly held Johnson for court on all the charges. Johnson's defense attorney conceded the Commonwealth had presented a prima facie case on all the charges, with the exception of aggravated assault. See N.T., 7/21/2008, at 12-13 ("Those injuries do not rise to the level of an aggravated assault, so for that charge, and that charge only, I believe should be dismissed.") (emphasis supplied). Further, after the parties briefly discussed the grading of the aggravated assault charge, the municipal court judge stated, "It's a felony of the first degree." Id. at 13. He then set a date for Johnson's arraignment. Id. at 14. Therefore, the municipal court judge clearly held Johnson for court on all the charges.

Second, even if we were to conclude that the municipal court judge did not explicitly and publicly pronounce that Johnson was held for court on the charges, he would still be entitled to no relief. Johnson claims the purported error during the preliminary hearing divested the Common Pleas Court of subject matter jurisdiction. However, there are two requirements for subject matter jurisdiction in a criminal case:

the competency of the court to hear the case, and the provision of formal notice to the defendant of the crimes charged in compliance with the Sixth Amendment of the United States Constitution and Article I, Section 9, of the Pennsylvania Constitution.

Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007). Here, there is no dispute that (1) the Philadelphia Court of Common Pleas was competent to hear Johnson's criminal case, and (2) Johnson had notice of the crimes charged. Accordingly, the requirements for subject matter jurisdiction were satisfied. See id., 929 A.2d at 211 ("The existence of a procedural mistake in and of itself, however, does not divest the trial court of subject matter jurisdiction.").

Furthermore, it is well established that "once a defendant has gone to trial and has been found guilty of the crime or crimes charged, any defect in the preliminary hearing is rendered immaterial." Commonwealth v. Sanchez, ___A.3d___, ____, 2013 WL 6619130, *34 (Pa. December 17, 2013). See also Jones, supra, 929 A.2d at 212 (all nonjurisdictional procedural defects are waived after tender of guilty plea). Therefore, even if, in fact, Johnson had not been formally "held for court, " his subsequent no contest plea and guilty verdict rendered that issue moot.

Finally, we note that to the extent Johnson asserts on appeal the ineffective assistance of counsel for failing to challenge the preliminary hearing, that issue is waived, as well as meritless. Johnson failed to raise an ineffectiveness claim in either his pro se or amended PCRA petition, or his concise statement of errors complained of on appeal. Even in his appellate brief, the issue is raised only in his standard of review and summary of the argument sections; it is not included in his argument section. For all these reasons, it is waived. See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (claims not raised in PCRA petition are waived); Commonwealth v. Diamond, ___A.3d____, 2013 WL 6831851, *14 (Pa. December 27, 2013) (issues not raised in Pa.R.A.P. 1925(b) statement are waived); Bolcik v. Commonwealth, 69 A.3d 1267, 1269 (Pa. Super. 2013) (failure to present argument in support of issue constitutes waiver). Furthermore, this Court has held that "[c]laims relating to trial counsel's stewardship at a preliminary hearing are not cognizable [under the PCRA] since the truth-determining process is not implicated." Commonwealth v. Lassen, 659 A.2d 999, 1007 (Pa. Super. 1995).

Accordingly, for all of the foregoing reasons, we conclude that Johnson is entitled to no relief, and the PCRA court properly denied his petition.

Order affirmed.

Judgment Entered.


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