Commonwealth v. Johnson

• Court: Pennsylvania Superior Court
• Writing for the Court: OPINION BY KUNSELMAN, J.
• Citation: Commonwealth v. Johnson, 236 A.3d 63 (Pa. Super. Ct. 2020)
• Decision Date: 23 July 2020
• Docket Number: No. 2063 EDA 2018,2063 EDA 2018
• Parties: COMMONWEALTH of Pennsylvania v. Rebecca L. JOHNSON, Appellant

236 A.3d 63

COMMONWEALTH of Pennsylvania

v.Rebecca L. JOHNSON, Appellant

No. 2063 EDA 2018

Superior Court of Pennsylvania.

Submitted: June 3, 2020

Filed: July 23, 2020

Eleanor M. Breslin, Easton, for appellant.

John M. Morganelli, Assistant District Attorney, Easton, for Commonwealth, appellee.

Rebecca J. Kulik, Assistant District Attorney, Easton, for Commonwealth, appellee.

Katharine R. Kumas, Assistant District Attorney, Easton, for Commonwealth, appellee.

Craig. R. Gottlieb, Philadelphia, for City of Philadelphia, Amicus Curiae.

BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

OPINION BY KUNSELMAN, J.:

Rebecca L. Johnson appeals from the order dismissing her first Post-Conviction Relief Act ("PCRA") petition¹ that she filed at three related trial-court docket numbers. Johnson was convicted in October 2013 of multiple crimes, including murder of the second degree, arising from the robbery and death of her grandmother, Carrie Smith. Following her direct appeal, Johnson filed a timely PCRA petition alleging ineffective assistance of trial counsel. The PCRA court denied relief, and Johnson appealed.

Johnson claims that she filed three separate notices of appeal to this Court pursuant to the Supreme Court decision in Commonwealth v. Walker , 646 Pa. 456, 185 A.3d 969 (2018) (holding that after June 1, 2018, separate notices of appeal must be filed for each lower-court docket number). However, Johnson listed all three docket numbers on each filing.

While her appeal was pending, a divided three-judge panel of this Court decided Commonwealth v. Creese , 216 A.3d 1142 (Pa. Super. 2019). In quashing the appeal under Walker , Creese stated, "a notice of appeal may contain only one docket number." Creese , 216 A.3d at 1144 (footnote omitted). Shortly thereafter, the three-judge panel that heard oral argument on Johnson's case issued a memorandum explaining that Creese compelled it to quash. A week later, that panel withdrew its memorandum sua sponte , and it requested that Johnson's case proceed before an en banc panel to determine whether Creese should control. The full Superior Court granted the panel's request. We must resolve the procedural issues first, before reaching the merits of this appeal.

I.

This Court granted en banc consideration of the following procedural issues:

1. Whether [Johnson's] inclusion of multiple court of common pleas docket numbers on her notice of appeal violates Pa.R.A.P. 341 and Walker ?

2. If so, whether such violation necessitates quashal by this Court?

Per Curiam Order of Superior Court, 10/4/19, at 2.

First, we observe that Rebecca Johnson's use of multiple case numbers on her notices of appeal is irrelevant in light of our conclusion in Commonwealth v. Jerome Johnson , ––– A.3d ––––, –––– (Pa. Super. 2020) (en banc ) (partially overruling Creese to the extent that Creese interpreted Walker as requiring Superior Court to quash appeals when appellant files multiple notices of appeal and each notice lists all of the appealed from docket numbers). The only preliminary issue we must now decide is whether Johnson complied with Walker — i.e. , whether she actually filed separate notices of appeal for each docket number of the court of common pleas.

Counsel for Rebecca Johnson claims that she filed three separate notices of appeal, one for each lower-court docket number.² Although all three notices contain the three related case numbers, counsel indicates that the clerk of courts’ time stamp is in different locations on each notice and two notices are stamped 9:54 AM while one is stamped 9:56 AM. Our review supports Johnson's claims.

The two notices with a time stamp of 9:54 AM are clearly distinct filings; one has its time stamp near counsel's signature, and the other has its time stamp at the bottom of the page. The third notice has a completely unique time stamp of 9:56 AM. In Creese , the filing clerk accepted one notice of appeal for multiple dockets, time-stamped and photocopied it, and then filed one copy at each docket number. Rebecca Johnson, by contrast, filed three separate notices for each lower-court docket number; as such, she complied with Walker and Rule 341 to perfect three appeals. Therefore, we need not quash them and proceed to the factual background and issues of her case.

II.

In January of 2012, Johnson, Roger Suero, David Bechtold, and Quadir Taylor, collaborated to rob Johnson's grandmother, Carrie Smith. Two of the conspirators broke into Ms. Smith's residence in the middle of the night, placed a pillow over her face, stole about $35,000 from a safe, and fled. Ms. Smith, who suffered from coronary artery disease, atrial fibrillation, and interstitial lung disease, had a minor heart attack during or shortly after the robbery. Approximately two months later, she died.

Based upon the autopsy results, the Commonwealth claimed Ms. Smith died from the robbery-induced heart attack. As such, it charged Johnson and her co-conspirators with murder of the second degree. A jury convicted Johnson and Suero of the felony murder³ and related charges,⁴ and the trial court sentenced Johnson to life in prison without parole.

After exhausting her direct appeal, Johnson filed a timely pro se PCRA petition. The court appointed counsel and held a pre-hearing conference. Johnson's counsel filed an amended petition, and the court granted counsel time to review Ms. Smith's medical records. A few months later, counsel requested funds to retain medical-expert witnesses to prove that trial counsel ineffectively failed to present a viable causation defense to the felony-murder charge. Given the expense of hiring such experts, the PCRA court bifurcated the proceedings to determine, initially, whether Johnson's trial counsel had a reasonable basis for the tactics that Johnson claimed were erroneous, before it approved the funds for medical experts. Both Suero's counsel and Johnson's trial counsel testified during this initial phase of the PCRA hearings.

The court concluded Johnson's trial counsel lacked a reasonable basis for failing to pursue a causation defense on behalf of his client. See PCRA Court Opinion, 9/13/17, at 3-7.⁵ Thus, the PCRA court afforded Johnson an opportunity to prove prejudice – i.e. , that but for trial counsel's errors, there probably would have been a different outcome in her trial.

At the second phase of the bifurcated PCRA hearing, Johnson intended to call three physicians, two of whom (Drs. Edward Viner and Arnold Meshkov) had already testified on causation for her accomplices (Taylor, in his criminal trial, and Suero, in his PCRA hearing). Hence, the PCRA court asked whether it could judicially notice their prior testimony. Johnson's counsel agreed, provided she could also have a pulmonologist review Ms. Smith's medical records and the expert reports from Johnson's trial. See N.T., 10/20/17, at 12. In light of Johnson's stipulation to judicial notice, the PCRA court authorized funds to retain a pulmonologist.

The second phase of Johnson's PCRA hearing convened on May 11, 2018. Dr. Wissam Abouzgheib, a board-certified pulmonologist, testified on behalf of Johnson. Afterwards, the parties briefed the PCRA court. Two weeks later, that court ruled Johnson did not prove she was prejudiced by her trial counsel's ineffectiveness and dismissed the PCRA petition as meritless. This timely appeal followed.

Johnson raises the following four issues:

1. Did the [PCRA] court err in finding [Johnson] failed to meet her burden of proof that she was prejudiced as a result of trial counsel's proven ineffectiveness?

2. Did the [PCRA] court err in disregarding material differences between the testimony of Dr. Wissam Abouzgheib[,] the pulmonologist who testified at Appellant's post-conviction hearing, and Dr. Arnold Meshkov (cardiologist) and Dr. Edward Viner (internal medicine) who were called by the defense as expert witnesses in co-conspirator, Quadir Taylor's, trial?

3. Did the [PCRA] court err in failing to consider each separate and distinct form of trial counsel's ineffectiveness ((a) failure to perform reasonable investigation into the issue of causation; (b) failure to consult with any medical expert; (c) failure to conduct any reasonable investigation with regard to the complex medical history of the deceased in order to make an informed decision as to the trial strategy; (d) failure to conduct any cross-examination or re-cross of the four expert witnesses called during trial by the Commonwealth; (e) and, failure to call an expert witness) and, instead, considering these actions and inactions as one conflated issue of "failure to pursue a causation defense"?

4. Did the [PCRA] court err in taking judicial notice of the conviction of Quadir Taylor, CP-48-CR-00587-2016 (Northampton County 2017), as well as the entire record and trial transcript of his case, and considering and/or evaluating the evidence presented during that other trial, and the verdict reached by that other jury, in determining whether Appellant met her burden of proof that she was prejudiced at her own trial as a result of her own trial counsel's proven ineffectiveness?

Johnson's Brief at 4-5 (footnote omitted).

All of Johnson's issues arise from the PCRA court's refusal to grant her a new trial, due to the alleged ineffectiveness of Johnson's trial counsel. Our scope of review of a PCRA court's decision is limited "to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party." Commonwealth v. Mason , 634 Pa. 359, 130 A.3d 601, 617 (2015). "The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions." Id.

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