Commonwealth v. Johnson

• Decision Date: 11 April 2023
• Docket Number: 2235 EDA 2021,2236 EDA 2021,2237 EDA 2021,2238 EDA 2021,J-S04007-23
• Parties: COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant COMMONWEALTH OF PENNSYLVANIA v. JEROME JOHNSON Appellant

Nos. 2235 EDA 2021, 2236 EDA 2021, 2237 EDA 2021, 2238 EDA 2021

No. J-S04007-23

Superior Court of Pennsylvania

April 11, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered October 7, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at CP-51-CR-0005331-2014, CP-51-CR-0005332-2014 CP-51-CR-0009453-2014, CP-51-CR-0012063-2015

BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

MURRAY, J.

In these consolidated appeals, Jerome Johnson (Appellant) pro se appeals from the order dismissing his first timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

This Court previously summarized the underlying facts as follows:

The first case arose from a robbery and murder at the New Diamond Chinese Store. On January 26, 2014, Marquise Kemp [(Kemp)] and Kyleaf Gordon [(Gordon)] were selling drugs out of the store. [Appellant] and his two co-conspirators, Shafik Lamback [(Lamback)] and Mychal Cassel [(Cassel)], went to the store looking for drugs. [Appellant] pointed a gun at Kemp, said "Don't move or I'm going to kill you," and demanded Kemp give him everything. Kemp gave [Appellant] his black Armani Exchange "bubble" jacket, which had money, drugs, and a phone in it. Kemp followed the three robbers out of the store and yelled to Gordon, who was across the street, "They robbed me." Gordon started shooting at the men; Cassel fired back, hitting Gordon. Kemp and Gordon ran, but Gordon, who was bleeding from his nose and mouth, fell to the ground. Kemp called the police. Kemp's robbers sped off, and later they divided up the proceeds from the robbery. Gordon laid in the street and died shortly thereafter.

[Appellant's] three other cases arose from another robbery at the Norman Blumberg Apartments [(the apartment building)]. On January 27, 2014, the day after the Chinese Store robbery and murder, [Appellant], Lamback, and Cassel went to the [apartment building] looking for pills. [Appellant] and Cassel carried the same firearms that they had with them the night before. Failing to find any pills, Lamback left, but [Appellant] and Cassel stayed at the apartment building.

Derek Fernandes [(Fernandes)] was leaving the apartment building when he saw [] two unfamiliar men. [Appellant] pulled out a gun, pointed it at Fernandes' face, and said "Don't move." [Appellant] grabbed twenty dollars that Fernandes was holding in his hand. As Johnson and Cassel left the [apartment] building, [Appellant] warned Fernandes not to follow them or he would shoot.

Fernandes followed them out of the [apartment] building; shots were fired. Fernandes told two housing police officers that he was robbed. The officers saw [Appellant] and Cassel walking away, told them to stop, but they [fled]. The police chased them on foot for several blocks. An FBI agent joined the chase in his vehicle. Eventually, the three officers trapped [Appellant] in a fenced-in lot. The officers directed [Appellant] to drop his weapon, but he refused. Instead, [Appellant] raised his gun and pointed it directly at the officers. The officers shot at [Appellant], and he fell to the ground. [Appellant] was arrested and charged.

Commonwealth v. Johnson, 236 A.3d 1141, 1148-49 (Pa. Super. 2020) (en banc).

The Commonwealth charged Appellant with robbery and related offenses for the January 27, 2014 incident, at dockets 5331-2014 (No. 5331-2014) and 5332-2014 (No. 5332-2014). The Commonwealth later charged Appellant with second-degree murder and related offenses for the January 26, 2014 incident, at dockets 9453-2014 (No. 9453-2014) and 12063-2015 (No. 12063-2015).

The Commonwealth subsequently filed an unopposed motion to consolidate the cases for trial, which the trial court granted.

The matter proceeded to a jury trial in May 2018. Michael N. Huff, Esquire (Trial Counsel), represented Appellant. Prior to deliberations, the trial court charged the jury as to second-degree murder:

If you find that the Commonwealth has proven all of the elements beyond a reasonable doubt, you must find the Defendant guilty. … If you find that the Defendant^[1] has not proven all the elements beyond a reasonable doubt, then you must find the Defendant not guilty.

N.T., 5/10/18, at 146 (emphasis and footnote added). Notably, Trial Counsel did not object or request a curative instruction.

On May 10, 2018, at No. 5331-2014, the jury convicted Appellant of robbery, aggravated assault, and firearms offenses. At No. 5332-2014, the jury convicted Appellant of aggravated assault. At No. 9453-2014, the jury convicted Appellant of two counts of aggravated assault. Finally, at No. 12063-2015, the jury convicted Appellant of second-degree murder, robbery, and related offenses. On May 11, 2018, the trial court sentenced Appellant to an aggregate term of life in prison. Appellant filed post-sentence motions, which the trial court denied.

Appellant filed a direct appeal through Trial Counsel. Appellant claimed trial court error for, inter alia, denying Appellant's post-sentence motions challenging the jury's verdicts as against the weight and sufficiency of the evidence. Johnson, 236 A.3d at 1149. This Court affirmed. See id. at 1151-53. Appellant petitioned for allowance of appeal, which the Supreme Court of Pennsylvania denied. Commonwealth v. Johnson, 242 A.3d 304 (Pa. 2020). Appellant did not seek review with the United States Supreme Court.

On August 23, 2021, Appellant pro se filed the instant, timely PCRA petition,^[2] his first. The PCRA court appointed counsel, George S. Yacoubian, Esquire (PCRA Counsel). On September 8, 2021, PCRA Counsel filed a thorough no-merit letter and petition to withdraw, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). The no-merit letter presented two claims: (1) Trial Counsel was ineffective for failing to preserve Appellant's challenge to the weight of the evidence on direct appeal; and (2) Trial Counsel was ineffective for failing to present trial testimony from a potential alibi witness. See Turner/Finley Letter, 9/8/21, at 6-8.

On September 10, 2021, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's petition without an evidentiary hearing after concluding Appellant's claims lacked merit. Appellant did not respond.

The PCRA court dismissed Appellant's PCRA petition on October 7, 2021. The court also granted PCRA Counsel's request to withdraw pursuant to Turner/Finley. Appellant timely filed separate notices of appeal at each docket.^[3] The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors, as it had issued an opinion on October 7, 2021. On May 10, 2022, this Court consolidated the appeals sua sponte.

Appellant presents the following issues for review:

I. Whether PCRA [C]ounsel rendered ineffective assistance for failing to raise in the initial collateral review petition that [T]rial [C]ounsel was ineffective for failing to object when the trial court provided a faulty reasonable doubt second-degree murder instruction as such shifted the burden to the Appellant and relieved the Commonwealth of their duty to prove each and every element beyond a reasonable doubt, violating Appellant's due process right?

Sub issue: Whether PCRA [C]ounsel rendered ineffective assistance for failing to raise in the initial collateral review petition that [T]rial [C]ounsel was ineffective for failing to object when the trial court erroneously instructed the jury on the charge of first-degree murder when in fact, Appellant was not charged with first-degree murder?

II. Whether PCRA [C]ounsel rendered ineffective assistance for failing to raise in the initial collateral petition that [T]rial [C]ounsel was ineffective for failing to argue that Appellant's right to a speedy trial w[as] violated?

Appellant's Brief at 4.

We are mindful of our standard of review: "When reviewing the denial of a PCRA petition, an appellate court must determine whether the PCRA court's order is supported by the record and free of legal error." Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (citation, quotations, and footnote omitted).

Preliminarily, we recognize that in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), our Supreme Court held "a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal." Id. at 401. The Supreme Court recently expanded on Bradley, stating:

We recognized that the structure of appeal and collateral review "places great importance on the competency of initial PCRA counsel," and reasoned that "it is essential that a petitioner possess a meaningful method by which to realize his right to effective PCRA counsel." Bradley, 261 A.3d at 401. We stated that "this approach best recognizes a petitioner's right to effective PCRA counsel while advancing equally legitimate concerns that criminal matters be efficiently and timely concluded." Id. at 405. We further explained:

In some instances, the record before the appellate court will be sufficient to allow for disposition of any newly-raised ineffectiveness claims. Commonwealth v. Holmes, 79 A.3d 562, 577 (Pa. 2013). However, in other cases, the appellate court may need to remand to the PCRA court for further development of the record and for the PCRA court to consider

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