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Commonwealth v. Johnson

Superior Court of Pennsylvania

March 21, 2017


         Appeal from the Judgment of Sentence entered June 10, 2015 In the Court of Common Pleas of Erie County Criminal Division at No: CP-25-CR-0003257-2014.



          STABILE, J.

         Appellant, Jermall Johnson, pro se, appeals from the June 10, 2015 judgment of sentence entered in the Court of Common Pleas of Erie County following his convictions for, inter alia, possession of a firearm with an altered manufacturer's number, persons not to possess, firearms not to be carried without a license, resisting arrest, fleeing or attempting to elude a police officer, and driving while operating privilege is suspended or revoked.[1] Upon review, we vacate and remand for further proceedings.

         On September 13, 2014, around 11:30 p.m., Officer Steve Deluca was traveling from west to east in a marked police car as he approached a stop sign at West 4th and Chestnut Streets in the city of Erie. N.T. Jury Trial, 4/9/15, at 4-6. Officer Deluca observed Appellant driving an Oldsmobile minivan approaching the stop sign traveling north to south. Id. at 6. Officer Deluca recognized Appellant from working previous cases involving Appellant over the course of "numerous" years, and knew Appellant to be a suspended driver. Id. at 4, 7.

         Officer Deluca checked Appellant's registration via police radio. Id. at 8. Officer Deluca proceeded to follow Appellant while waiting for the registration information, which came back as belonging to a Joy or Joyce Battko at an address on the 500 block of West 8th Street. Id. at 9-10. Because the registration address for the vehicle was within a block of where they currently were, Officer Deluca decided to activate his lights and sirens and pull Appellant over for the suspended driver violation. Id. at 10.

         When Officer Deluca activated his lights and sirens, he was sitting at a traffic light shining his side spotlight on Appellant's vehicle. Id. Appellant was in the car in front of Officer Deluca, and there was another car in front of Appellant. Id. When the light turned green, Appellant immediately went around the first car, turned westbound on 9th Street, and "gunned it from that point, " traveling around 60-70 miles per hour through a 25 mile per hour neighborhood and not stopping at any stop signs. Id. at 10-12. Officer Deluca radioed in the pursuit after Appellant pulled around the car at the stop light. Id. at 11. Although there were no cars on the roadway between Officer Deluca's and Appellant's cars, there were "hundreds of cars" legally parked along the sides of the streets and a group of pedestrians had to jump out of the roadway. Id. at 11-12.

         As they approached a "T" intersection at West 9th Street and Weschler Avenue, Appellant tried to turn north, but was unable to make the turn and clipped a telephone pole. Id. at 13. Appellant then hit the houses at 836 and 834 Weschler. Id. at 13-14. Officer Deluca parked off the street, jumped out of his vehicle and drew his weapon. Id. at 14. Officer Deluca approached Appellant's vehicle from the passenger side and noticed the front two windows and sliding door window on the passenger side were smashed upon impact. Id. Officer Deluca could see an occupant in the vehicle and yelled, "Show me your hands. Show me your hands, " as he approached the vehicle. Id. Appellant attempted to get out of the driver's seat and was reaching behind the passenger seat of the vehicle. Id. Officer Deluca noticed Appellant trying to hide a firearm and yelled, "Drop the gun. Drop the gun." Appellant complied. Id. at 14, 51.

         Officer Deluca and a second officer, Sergeant Noble, took Appellant into custody after a struggle as Appellant was not complying with verbal commands. Id. at 15, 18. Officer Deluca had to strike Appellant once, and the other officer had to strike Appellant twice to get Appellant on the ground and into handcuffs. Id. at 19. Officer Deluca advised Sergeant Noble that there was a firearm in the car. Sergeant Noble then recovered the weapon before anyone else moved or entered the vehicle. Id. at 21-22. There were no shells in the chamber but there were several rounds in the magazine. Id. at 22. The serial number on the slide had been obliterated. Id. At trial, Appellant's driving record indicating his license was under suspension at the time of the incident was admitted into evidence. Id. at 29.

         On cross-examination, Officer Deluca again stated he had known Appellant for numerous years. He testified he was aware Appellant had prior motor vehicle code convictions that resulted in a suspension of Appellant's license. Id. at 36, 39-41.

         On October 6, 2014, Appellant filed an application for public defender and Nicole Sloane, Esquire, was appointed as counsel for Appellant. On November 3, 2014, Appellant sent a letter to Attorney Sloane indicating that she was not his attorney. On November 17, 2014, Appellant, in writing, waived his right to counsel at the magisterial district court.[2] Appellant, pro se, filed an omnibus pretrial motion on January 14, 2015, requesting suppression of evidence and dismissal of his case. The trial court denied Appellant's motion following a hearing. Subsequently, Appellant hired Joseph Hudak, Esquire, to represent him at trial.

         A jury trial was held over the course of two days. Following the jury's guilty verdict, the trial court deferred sentencing and ordered a presentence report. Following a sentencing hearing, the trial court sentenced Appellant to an aggregate of 186 to 384 months of incarceration plus fines, and granted Appellant's request to dismiss counsel and proceed pro se. Appellant timely appealed on June 16, 2015 and motioned for modification of his sentence, which the trial court denied. Appellant filed a Pa.R.A.P. 1925(b) concise statement as ordered by the trial court. The trial court filed a Pa.R.A.P. 1925(a) opinion on July 21, 2015.

         On August 24, 2016, this Court remanded the matter to the trial court to provide a copy of the order disposing of Appellant's application for public defender or a transcript of the Grazier hearing if Appellant decided to proceed pro se at the suppression hearing. The trial court entered a memorandum opinion on September 26, 2016, stating there was ...

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