Com. v. Johnson

• Decision Date: 22 October 1990
• Docket Number: No. 120,120
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James JOHNSON, Appellant. E.D. Appeal 1989.
• Court: Pennsylvania Supreme Court

Page 1303

588 A.2d 1303

527 Pa. 118

COMMONWEALTH of Pennsylvania, Appellee, v. James JOHNSON, Appellant.

No. 120 E.D. Appeal 1989.

Supreme Court of Pennsylvania.

Oct. 22, 1990.

Decided April 4, 1991.

Reargument Denied June 3, 1991.

[527 Pa. 119] Stanley M. Shingles, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Helen Kane, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION

CAPPY, Justice.

The issue before this Court is whether trial counsel was ineffective in failing to object, during closing argument, to the prosecutor's characterization of appellant as a liar. We find that this claim of ineffectiveness is without merit and, therefore, affirm the order of the Superior Court. 382 Pa.Super. 643, 549 A.2d 1340.

Following a trial by jury, appellant was convicted of rape ¹ and criminal conspiracy ². Trial counsel filed timely post-verdict motions, however, prior to any ruling thereon, appellant filed a pro se motion alleging ineffective assistance of counsel. Trial counsel was granted leave to withdraw and new counsel was appointed who filed supplemental post-verdict motions which included claims of ineffective assistance of trial counsel. An evidentiary hearing was held, following which the trial court denied the post-verdict motions and imposed a total sentence of eight to sixteen years incarceration. The Superior Court affirmed the judgment of sentence. This appeal by allowance followed.

Appellant and the victim essentially agree on the following preliminary facts surrounding the incident: On June 19, 1982, the victim, who was then sixteen years old, left her home to meet Lena Goode with whom she planned to attend a neighborhood party. On their way to the party, the two girls met appellant, his brother, Wayne, and appellant's friend, Rick Ellis and invited them to attend the party. The five proceeded to the party together, spent the majority of the time with one another while at the party and left the party together. After leaving the party, appellant drove the group to a lounge where they stayed until approximately 2:00 a.m. Appellant next drove the group to North Philadelphia. It was the victim's testimony that appellant intentionally passed by the street where she lived because he wanted to take his brother Wayne home first. However, a few minutes later appellant stopped the van at 24th and Berks Street whereupon Lena Goode and appellant exited the van, ostensibly to go to the restroom. The victim, Mr. Ellis and Wayne remained in the van. It is at this point that appellant's version and that of the victim diverge significantly.

The victim testified that when Lena and appellant failed to return in a few minutes, she and Rick left the van to look for them. They entered a nearby house, which was later determined to be appellant's residence, where they encountered appellant who directed them to a bedroom on the second floor where he claimed they would find Lena. The victim testified that upon entering the bedroom, appellant pushed her onto a mattress and raped her while Rick Ellis stood there pointing a gun at her demanding that she let appellant do as he wished. When appellant finished, Rick Ellis also raped her.

While Rick was raping her, the victim heard Lena call her name, whereupon appellant ran from the room and Rick got off of her, told her to dress, and threatened her if she told anyone about what had just occurred. After leaving the house, she saw Lena and appellant approaching her but was unable to tell Lena what had occurred because she was crying and having trouble breathing, apparently due to a pre-existing asthma condition.

The five of them then got back into the van and drove away, but within a few minutes, Rick Ellis announced that he wanted out of the van because he was annoyed at the victim's hysterical behavior. Appellant then stopped at a restaurant, at Lena's request, to get some tissues for the victim.

After appellant exited the van, the victim saw her step-brother across the street and she and Lena ran to him. She was still unable to communicate what exactly had occurred at the house, but, did manage to tell him that it had something to do with the people in the van. Upon seeing the girls talking and pointing in his direction, appellant took off in the van. The step-brother summoned a taxi for the two girls after the victim refused his offer to take them to the police. However, upon seeing the victim's state, the cab driver stopped a police officer who was passing by, who then took the victim to a hospital.

Appellant, on the other hand, denied having any sexual contact with the victim. Rather, he maintained that he and Lena had gone into his house and engaged in consensual sex while the others remained in the van. He testified that when he and Lena returned to the van, the victim and Rick were not there so he and Lena retraced their steps to look for them. Thereafter, they saw the victim and Rick walking towards them from a nearby housing project. The victim asked appellant if she could use his bathroom and both she and Rick went into appellant's house. According to appellant's testimony, nothing remarkable happened while the victim was in his presence except that she was noticeably upset as they were driving to the restaurant.

During closing argument, the prosecutor first summarized the testimony of each of the Commonwealth's witnesses. He then addressed appellant's testimony, concluding that it did not fit with the other evidence presented and repeatedly stated that appellant had lied. Appellant argues that, in making these comments, the prosecutor improperly expressed his personal belief as to appellant's credibility and that, therefore, trial counsel was ineffective for not objecting to that portion of the Commonwealth's closing.

In reviewing a claim of ineffective assistance of counsel, we must first determine whether the issue underlying the claim has arguable merit. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Finally, appellant must show that counsel's ineffectiveness so prejudiced his case that he was denied a fair trial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

It is well settled that a prosecutor is not permitted to express a personal belief as to the defendant's guilt or innocence or as to the defendant's or other witness' credibility. Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1987). In Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985), we held that it was reversible error for the prosecutor to state, during cross-examination of a defense witness, that the witness "lied." However, in Bricker there was no basis whatsoever for the prosecutor's remarks. In other words, the evidence presented in that case did not support an inference that the witnesses had lied. Similarly, in Commonwealth v. Harvey, 514 Pa. 531, 526 A.2d 330 (1987) which was a non-jury case, we noted that had the case been tried by a jury, the prosecutor's remarks, both during cross-examination of the defendant and in the course of his closing argument, would have constituted reversible error since the remarks were completely unsupported by the record.

Here, the prosecutor's comments that appellant had lied were given in response to defense counsel's comments regarding the credibility of the victim and were supported by the evidence. During closing argument, defense counsel stated as follows:

Now, what type of facts did you hear in this case?

You heard two conflicting stories.

So how are you going to determine who's telling the truth?

Well, it's tough because when a person's on that witness stand and telling a lie, a bell doesn't go off to let you know they're lying. Just the same as when they're telling the truth, the light doesn't come out and shine upon them, so how do you determine whether someone's telling the truth or telling a lie?

You have to use your common sense. You take your everyday experiences, and that's why you were selected as jurors, because you have common sense, everyday experiences, and how to judge the witnesses.

Now, take your everyday experiences, and let's see how Deirdre Hayes testified in this case. She got on that witness stand and she was shaking. She was upset.

Use your experience. Think back, when you're trying to deceive somebody and you're being confronted with them one on one, how you feel that knot in the pit of your stomach and how it grows, and how you shake, and how you feel nauseated, and then also think of how when you have to go up on that witness stand and take an oath to tell the truth before God, and you're testifying before God, and you're testifying before a Judge such as Judge Clarke and 14 people, two attorneys, and the person that you're telling that lie about.

How are you going to feel? How would you react?

Isn't that also consistent with the way Miss Hayes acted on that witness stand? Isn't that also consistent?

You saw Miss Hayes. You saw her testify. Do you think she acted that way when she was meeting the young men?

Use your common sense. Think about it when you're going through and reviewing the testimony.

Now, I'm not going to review all of the testimony with you. I don't think it's possible to review it all or even proper because just last week is when you heard the case. It's just two days, so most of the evidence is still fresh in your mind, but there are a few facts and a few gaps, and a few failures to ring of truth, as Mr. McGettigan told...