J-A08025-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 AQUIL JOHNSON                           :
                                         :
                   Appellant             :   No. 1556 EDA 2019


            Appeal from the PCRA Order Entered May 20, 2019,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division at No(s): CP-51-CR-0005617-2009.


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED MAY 01, 2020

     Aquil Johnson appeals pro se from the order that denied his first petition

filed pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A. §§ 9541-

46. We affirm.

     This case returns to us following a remand for an evidentiary hearing.

We previously summarized the pertinent facts as follows:

           [Johnson] was charged with aggravated assault and
        possession of an instrument of crime in connection with the
        May 13, 2008 shooting of Kamal Murray (“the victim”). On
        the day in question, the victim was sitting in passenger seat
        of his friend Bryon Walker’s car, when an individual walked
        up to the vehicle and shot the victim three times. Shortly
        after Walker rushed the victim to the emergency room,
        doctors were able to stabilize the victim, who had bullet
        wounds in his arms and minor wound to his chest. The
        victim was given a low dose of morphine to ease the pain.

           Once the victim’s condition was stabilized, he spoke with
        Officer Earl Bonner an [another officer] and gave them a
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        detailed description of the shooter.       Based on this
        information, [they] prepared an incident report describing
        the perpetrator as an “eighteen-year-old black male, 5/11,
        190 pounds, medium build, white thermal, blues jeans,
        possibly named Quil” as well as noting that the perpetrator
        had protruding front teeth.

           Shortly thereafter, Detective Joseph Murray and
        Detective Omar Jenkins, went to the hospital to present the
        victim with a photo array, from which the victim identified
        [Johnson] as the shooter. The victim indicated that “Quil”
        shot him after the two men had a fight regarding Quil’s
        disrespect of the victim’s girlfriend. The victim admitted
        that he knew [Johnson] “all his life.” Once the victim’s
        interview was reduced to a written statement, the victim
        adopted the statement by writing his initials at the bottom
        of each page.

           However, at [Johnson’s] trial, the victim recanted his
        identification of [Johnson] and denied making any
        statement to police naming [Johnson] as the shooter.
        Defense counsel presented four witnesses: alibi witness
        Talia McNeil, character witnesses Mckieya Cook and Lorena
        Ebo, and [Johnson] himself. [Johnson] vehemently denied
        shooting the victim, but admitted that his nickname was
        “Quil” and that he has protruding front teeth.

Commonwealth v. Johnson, 174 A.3d 112 (Pa. Super. 2017), unpublished

memorandum at 1-3 (citations to record and footnote omitted).

     At the conclusion of his trial, the jury convicted Johnson of aggravated

assault and possession of an instrument of crime. On September 17, 2010,

the trial court sentenced him to an aggregate term of 12½ to 25 years of

imprisonment. On July 27, 2012, this Court affirmed Johnson’s judgment of

sentence.   Commonwealth v. Johnson, 55 A.2d 148 (Pa. Super. 2012)

(unpublished memorandum).




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      We have previously summarized Johnson’s pursuit of post-conviction

relief as follows:

            On May 13, 2013, [Johnson] filed a pro se PCRA petition.
         The PCRA court appointed [PCRA counsel], who
         subsequently filed a no-merit letter and a petition to
         withdraw. On July 24, 2015, [Johnson] filed an amended
         pro se petition, raising claims of PCRA counsel’s
         ineffectiveness for inter alia, failing to investigate the issues
         [Johnson] desired to appeal. On November 19, 2015,
         [Johnson] filed a letter to the PCRA court, pointing out that
         counsel failed to address several issues he wished to raise
         on collateral review.

            On January 31, 2016, [PCRA counsel] filed a
         supplemental amended petition, claiming several of
         [Johnson’s] claims had arguable merit. On February 5,
         2016, the PCRA court notified [Johnson] of its intent to
         dismiss the petition without a hearing pursuant to
         Pa.R.Crim.P. 907. On February 23, 2016, [Johnson] filed a
         pro se response. On March 4, 2016, the PCRA court
         dismissed [Johnson’s] petition.

            On March 10, 2016, [Johnson] filed a notice of appeal.
         This Court remanded the case for a Grazier hearing to
         determine if [Johnson] was intelligently, knowingly, and
         voluntarily waiving his right to counsel on collateral appeal.
         On May 3, 2016, the PCRA court entered an order permitting
         [Johnson] to proceed with pro se representation.

Johnson, supra, unpublished memorandum at 3-4.

      Although Johnson raised ten issues on appeal, only the following two

issues are pertinent to the present appeal: First, Johnson claimed that the

PCRA court erred in failing to grant him an evidentiary hearing regarding his

claim trial counsel was ineffective for failing to call Byron Walker, and

Kieyanna Joyner, an alibi witness. As to both of these witnesses, Johnson

claimed alternatively, that trial counsel was ineffective for not requesting a

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brief adjournment of the proceedings so that counsel could secure their

presence. Second, Johnson claimed that the PCRA court erred in failing to

hold an evidentiary hearing regarding his claim of newly discovered evidence

from Orrin Jones, who submitted a notarized affidavit in which he averred that

he was an eyewitness to the crime and that Johnson was not the person he

saw shoot the victim.

      As noted above, the PCRA court found no merit to these claims and

dismissed Johnson’s PCRA petition without a hearing. This Court found the

record did not support the PCRA court’s conclusions as to either claim. As to

the first issue regarding the failure to call Walker and Joyner,we determined

that, after reviewing the record, Johnson had “carried his burden of showing

a sufficient factual issue to warrant a hearing.” Johnson, supra, unpublished

memorandum at 16. As to the second issue, this Court found that Johnson

“alleged sufficient facts to warrant an evidentiary hearing to evaluate his claim

further.” Id. at 17. We stated, “If found to be credible, Mr. Jones’s testimony

that someone other than [Johnson] was the shooter would certainly have

changed the outcome of the case.” Id. (citation omitted).

      Thus, in Johnson, supra, this Court concluded that the PCRA court

erred in dismissing Johnson’s amended PCRA petition without a hearing. We

therefore vacated the PCRA court’s order and remanded for an evidentiary

hearing on these two claims. Id. at 30.

      On February 2, 2019, the PCRA court held an evidentiary hearing at

which Orrin Jones, Kieyanna Joyner, and trial counsel testified. Byron Walker

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failed to appear even though he had been subpoenaed. On March 28, 2019,

the court held another hearing to give Walker another opportunity to appear.

Although arriving late, Walker appeared and testified. On May 20, 2019, the

PCRA court dismissed Johnson’s PCRA petition. In doing so, the PCRA court

specifically stated that it found Jones, Walker and Joyner were not credible.

The court further found that Walker and Joyner were unavailable to testify at

Johnson’s jury trial, and that their testimony would have been cumulative.

     Following this dismissal, the PCRA court held another Grazier hearing,

and, thereafter, permitted Johnson to proceed pro se on appeal. This timely

appeal followed.   Both Johnson and the PCRA court have complied with

Pa.R.A.P. 1925.

     Johnson now raises the following eight issues, which we have

reproduced verbatim, but renumbered for ease of disposition:

        I.     Did the PCRA court commit an error of law and fact in
               violation of [Johnson’s] U.S. and Pa. Constitutional
               Rights by ruling that defense witness Orrin Jones was
               not credible simply because he had a conviction for
               robbery where, that conviction did not involve giving
               false testimony or an act of deception? And, Where,
               nothing in his testimony was inconsistent or
               contradictory will all the other witnesses or evidence
               and would have probably produced an acquittal at a
               re-trial?

        II.    Did the PCRA court commit an error of law and fact
               and make an unreasonable determination in violation
               of [Johnson’s] U.S. and Pa. Constitutional Rights when
               it ruled that witness Byron Walker was not available
               and that his testimony was cumulative?

        III.   Did the PCRA court commit an error of law and fact
               and make an unreasonable determination in violation

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              of [Johnson’s] U.S. and Pa. Constitutional Rights when
              it ruled that Kieyanna Joyner was not available and
              that her testimony was cumulative?

       IV.    Did the PCRA court commit an error of law in violation
              of [Johnson’s] U.S. and Pa. Constitutional Rights by
              reviewing the credibility of the witness Walker, for his
              [Strickland v. Washington, 466 U.S. 668 (1984)]
              claim, under a “more likely than not” standard
              applicable to newly discovered evidence claims,
              instead of using a reasonable probability standard as
              directed    by   the     PA.    Supreme     Court     in
              [Commonwealth v. Johnson, 966 A.2d 523 (Pa.
              2009], and the U.S. Supreme Court in [Strickland]
              where, the “more likely” standard raised [Johnson’s]
              burden when establishing prejudice dealing with the
              witness’s credibility? And, does using the wrong
              standard deprive the [PCRA] court of deference?

       V.     Did the PCRA court commit an error of law and fact
              and make an unreasonable determination in violation
              of [Johnson’s] U.S. and Pa. Constitutional Rights when
              it ruled that witness Byron Walker was not credible
              without considering how this witness’s testimony
              would have affected [Johnson’s] decision to testify,
              the impact of his testimony in light of the lack of
              inculpatory evidence and the time lapse between trial
              and the PCRA evidentiary hearing?

       VI.    Did the PCRA court commit an error of law and fact
              and make an unreasonable determination in violation
              of [Johnson’s] U.S. and Pa. Constitutional Rights when
              it ruled that witness Kieyanna Joyner was incredible
              simply because [the court] believed her testimony did
              not have the ring of truth where the Supreme Court’s
              rule regarding alibi witnesses is that their testimony
              need not be “wholly believed” to “raise a reasonable
              doubt”?

       VII.   Did the PCRA court commit an error of law and fact
              and make an unreasonable determination in violation
              of [Johnson’s] U.S. and Pa. Constitutional Rights when
              it failed to address the cumulative prejudicial effect of
              [trial] counsel’s failures and failed to consider the
              specific question that was certified to it by this [C]ourt


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               on remand where, the court never answered the
               question of whether trial counsel was ineffective for
               failing to request a brief adjournment to obtain the
               witnesses Joyner and Walker[‘s] attendance?

         VIII. Would remanding back to the PCRA court instead of
               awarding a new trial cause a manifest injustice in
               violation of [Johnson’s] U.S. and Pa. Constitutional
               Rights where the totality of the evidence and
               circumstances clearly established [Johnson] is entitled
               to a new trial?

Johnson’s Brief at 5-6.

      Our scope and standard of review is well settled:

         In PCRA appeals, our scope of review is limited to the
         findings of the PCRA court and the evidence on the record
         of the PCRA court's hearing, viewed in the light most
         favorable to the prevailing party. Because most PCRA
         appeals involve questions of fact and law, we employ a
         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted). On appeal, the PCRA court’s credibility determinations, if

supported by the record, are binding on this Court.       Commonwealth v.

Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014).                   See also See

Commonwealth v. Martin, 1 A.3d 868, 888 (Pa. 2010) (stating that the

factual findings of a PCRA court, “which hears evidence and passes on

credibility of witnesses, should be given great deference,” especially where

“the PCRA court judge also served as the trial court judge”).




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      In his first issue, Johnson essentially challenges the PCRA court’s

assessment of Jones’ credibility. To address this claim, we first note the test

applied to after-discovered evidence. When discussing the test in the context

of a PCRA appeal, our Supreme Court recently summarized:

             [W]e have viewed this analysis in criminal cases as
         comprising four distinct requirements, each of which, if
         unproven by the petitioner, is fatal to the request for a new
         trial. As stated, the four-part test requires the petitioner to
         demonstrate the new evidence: (1) could not have been
         obtained prior to the conclusion of trial by the exercise of
         reasonable diligence; (2) is not merely corroborative or
         cumulative; (3) will not be used solely to impeach the
         credibility of a witness; and (4) would likely result in a
         different verdict if a new trial were granted. The test applies
         with full force to claims arising under Section 9543(a)(2)(vi)
         of the PCRA. In addition, we have held the proposed new
         evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).

      Credibility determinations are an integral part of determining whether a

PCRA petitioner has presented after-discovered evidence that would entitle

him to a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding for the

PCRA court to make relevant credibility determinations).         We have stated,

prior to granting a new trial based on after-discovered evidence, “a court must

assess whether the alleged after-discovered evidence is of such a nature and

character that it would likely compel a different verdict if a new trial is granted.

Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super. 2010).                  “In

making this determination, a court should consider the integrity of the alleged




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after-discovered evidence, the motive of those offering the evidence, and the

overall strength of the evidence supporting the conviction.” Id.

     Here, the PCRA court summarized Jones’ testimony from the evidentiary

hearing and explained why the court found it to be unworthy of belief:

           Orrin Jones testified that on May 13, 2008, he witnessed
        the shooting of [the victim], a man known to him from the
        neighborhood, but that he never came forward to be
        interviewed by police in their investigation. He also stated
        that he knew the shooter, a man known as Reds or Redbone,
        whose real first name is also Aquil. When asked by defense
        counsel if [Johnson] was the shooter he answered in the
        negative.

           Jones further testified that sometime in 2014, while
        housed in the same prison as [Johnson], another inmate,
        Hakeem, pointed at [Johnson] and stated “that’s the young
        bull who got booked for [the victim],” meaning Johnson had
        been convicted in that shooting. Interesting enough, Jones
        did not provide any context as to why, of all the men in the
        facility, Hakeem drew his attention to [Johnson]. At any
        rate, Jones testified that in response he told his friend that
        he was a witness to this six year old shooting. Although he
        never went to police to assist in getting justice for [the
        victim], he volunteered, after speaking with Johnson, to sign
        an affidavit which exculpates [Johnson], a man who was a
        stranger to him.

            The above alleged factual scenario, that is[,] a prisoner
        encounter with someone unjustly serving time for a crime
        that the affiant witnessed years before, coming from a
        credible witness may well carry the day. However, Jones, a
        man with multiple [crimen falsi] convictions for robbery, was
        not a credible witness. Thus, this court finds that his
        testimony is not of such nature and character that a
        different will likely result if a new trial is granted.

PCRA Court Opinion, 5/20/19, at 1-2. Our review of Jones’ testimony at the

evidentiary hearing supports the PCRA court’s conclusion.


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       In arguing to the contrary, Johnson asserts that the PCRA court

“committed error by disregarding Jones’s testimony simply because he has a

conviction for robbery and, the PCRA court’s determination of a lack of

credibility is not supported by the record where nothing in Jones’s testimony

was inconsistent or contradictory with all the other witnesses or evidence and

would have probably compell[ed] an acquittal at a re-trial.” Johnson’s Brief

at 12. In addition, Johnson claims “Jones’s conviction, although classified as

a [crimen falsi] offense, is in actuality not a [crimen falsi] offense at all

because robbery does not involve deceit.” Id. at 22.

       Johnson’s claims are meritless. Initially, we note that Jones admitted

that he was convicted of three to four robberies, rather than one as Johnson

suggests. See N.T., 2/22/19, at 18.     Moreover, the crime of robbery is a

crimen falsi offense, which is admissible to impeach a witness’ credibility.

See,    Commonwealth       v.   Jackson,     585   A.2d   1001   (Pa.   1991);

Commonwealth v. Harris, 884 A.2d 920 (Pa. Super. 2005). Johnson cites

no authority for his assertion that robbery does not involve deceit. Indeed,

when discussing the crime of robbery, this Court has characterized it as “a

crime involving serious moral turpitude” and “indicates [a] propensity for

dishonesty on [a] defendant’s part.” Commonwealth v. Jones, 378 A.2d

471, 476 (Pa. Super. 1977). At the evidentiary hearing Jones conceded that,

in the past, he has lied when he was in trouble, and gave false names to the

police. See N.T., 2/22/19, at 19-21. The PCRA court properly considered

Jones’ prior robbery convictions when assessing his credibility.    Thus, the

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PCRA court did not err in concluding that Jones’s proffered testimony was not

of such a nature and character that it would compel a different result.

Padillas, supra. Johnson’s first issue fails.

          In issues two through six, Johnson raises claims regarding the PCRA

court’s determination regarding trial counsel’s failure to call Walker and Joyner

at his trial. Our standard or review is well settled:

                To be entitled to relief on a claim of ineffectiveness for
            failure to call a witness, an appellant must demonstrate:
            the witness existed, was available, and willing to cooperate;
            counsel knew, or should have known of the witness; and the
            absence of the witness’s testimony prejudiced [the]
            appellant. A PCRA petitioner cannot succeed on such a clam
            if the proposed witness’ testimony would not have
            materially aided him. In such a case, the underlying-merit
            and prejudice prongs of the [ineffective assistance of
            counsel] test logically overlap. To show prejudice, the
            [PCRA] petitioner demonstrate that, but for counsel’s
            allegedly unprofessional conduct, the result of the
            proceedings would have been different.          A reasonable
            probability is a probability sufficient to undermine
            confidence in the outcome.

Commonwealth v. Johnson, 139 A.3d 1257, 1284 (Pa. 2016) (citations

omitted).

          In his second and third issues, Johnson asserts that the PCRA court

erred by concluding that both Walker and Joyner were unavailable for his jury

trial.1     The PCRA court expressly made this ruling after hearing their

____________________________________________


1 Although as part of these issues Johnson also challenges the PCRA
determination that proffered testimony of Walker and Joyner was cumulative,



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testimony, which the court disbelieved, in comparison to trial counsel’s

testimony. See N.T., 2/22/19, at 11 (determining that both witnesses made

themselves unavailable for trial). In its Rule 1925(a) opinion, the PCRA court

further explained its ruling: “First, both Walker and Joyner made themselves

unavailable when their testimony was required. Walker because he simply

left the courtroom and never returned. Joyner because she was scheduled to

work the following day.” PCRA Court Opinion, 5/20/19, at 5.

       At the February 22, 2019, evidentiary hearing trial counsel testified that

both witnesses were subpoenaed to appear at Johnson’s trial and, therefore

were required to appear until they were dismissed. N.T., 2/22/19, at 84. As

a matter of credibility, the PCRA court believed trial counsel’s version of the

contested facts. We cannot disturb this determination. See Commonwealth

v. Harmon, 738 A.2d 1023, 1025 (Pa. Super. 1999) (explaining that when a

PCRA court’s determination of credibility is supported by the record, it cannot

be disturbed on appeal).

       Given the PCRA court’s conclusion regarding the credibility and

availability of Walker and Joyner, Johnson’s claim that trial counsel was

ineffective for failing to request a short recess to secure their presence has no

merit. Thus, Johnson’s second and third issues entitle him to no relief.



____________________________________________


we will address these claims as part of our discussion of the PCRA court’s
conclusions regarding their credibility. See infra.


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      In issues four and five, Johnson essentially challenges the PCRA court’s

assessment of Walker’s credibility. We first note the PCRA court’s summary

of Walker’s testimony at the March 28, 2019 hearing, in comparison to the

contents of his 2012 affidavit:

             Walker testified at the evidentiary hearing in this case on
         March 28, 2019, having failed to appear, despite good
         service at the February 22, 2019 hearing, wherein both
         Joyner and Jones testified. Walker had been subpoenaed to
         appear as a trial witness in this case. He appeared, but left
         before the defense case commenced and failed to return to
         court to testify. Despite being an eyewitness to the shooting
         of his friend, Walker never gave a statement to police in this
         case, and as stated above, he never returned to court to
         testify at the trial. At the evidentiary hearing, Walker stated
         that he was excused as a trial witness by the prosecutor in
         the case. However, in his affidavit, he stated that it was the
         defense attorney, [trial counsel], who excused him to
         testify. In that same affidavit he described the shooter as
         a tall light skinned guy with braids who was staring at him
         as he left the Chinese store. He further stated in the
         affidavit that the man then pulled out a gun and started
         firing in his direction as he was getting into his car. Nowhere
         in the affidavit does he mention the whereabouts of [the
         victim] during the shooting. Nor does he mention, as [the
         victim] did in his statement, that there was a verbal
         exchange between the victim and the shooter before the
         shots were fired. In addition, during his testimony, Walker
         denied that he ever signed the affidavit. In describing the
         shooter at the hearing [Walker] never mentioned braids but
         stated the man was wearing a baseball cap. Further,
         contrary to his statement in the affidavit, Walker testified
         that he never spoke to [trial counsel] on the day he
         appeared at Johnson’s trial. He also stated, during his
         testimony, that he did not know on whose behalf he would
         be called as a witness. Walker also stated that [the victim]
         was shot while standing outside the car, whereas in his
         statement to police, [the victim] said he was seated inside
         the car when shot by Johnson.




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             Further, Walker stated at the hearing that he simply
         dropped [the victim] off at the hospital and left without
         speaking to police, making no effort to assist in bringing his
         friend’s assailant to justice. He also stated at the hearing
         that he had known Johnson since [Johnson] was 5 or 6 years
         old, yet he failed to follow up as a witness who could have,
         arguably, exonerated [Johnson] at trial. Not only did Walker
         fail to follow up by returning to court as a witness at trial,
         he failed to appear at the evidentiary hearing on February
         22, 2019. It was only after a bench warrant was issued for
         his arrest, and a weekend in jail, that he appeared at the
         hearing on March 28, 2019. Then he appeared late.

PCRA Court Opinion, 5/20/19, at 3-4.

      Based on these findings, the PCRA court then reached the following

conclusion:

            As the foregoing makes abundantly clear, [Walker] was
         not credible witness. Thus, his testimony is not of such
         nature and character that a different verdict would likely
         result if a new trial was granted.

Id., at 4.

      In his fourth issue, Johnson asserts that the PCRA court applied the

wrong standard to judge Walker’s credibility. According to Johnson, the test

used by the PCRA court was incorrect as the court should have applied the

“reasonable probability” standard required by Strickland’s general test of

prejudice in reviewing ineffectiveness of counsel claims.         According to

Johnson, the PCRA court “incorrectly applied the prejudice standard applicable

to newly discovered evidence claims,” a standard Johnson claims is “too high”

when considering his ineffectiveness of counsel claims. Johnson’s Brief at 15.

We cannot agree.


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      In making his argument, Johnson misinterprets our Supreme Court’s

decision in Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009). In that

case, the appellant, who was convicted of first-degree murder and was

sentenced to death, filed a PCRA petition in which he raised several claims of

trial counsel’s ineffectiveness for failing to interview witnesses to the crime,

as well as a claim of after-discovered evidence based on a witness’s

recantation of his trial testimony. The PCRA court held an evidentiary hearing.

The new witnesses proffered testimony consistent with the trial witness’s

recantation. The PCRA court found the appellant proved prejudice based on

trial counsel’s ineffectiveness, and for that reason, granted him a new trial.

Although the PCRA court expressly discredited the trial witness’s recantation

testimony, the court concluded that it did not need to determine the new

witnesses’ credibility, because that role was for the jury once the appellant’s

new trial was held.

      The Commonwealth appealed to our Supreme Court and raised

numerous claims, including PCRA court error in failing to assess the credibility

of the new witnesses proffered by Johnson. According to the Commonwealth,

in order to grant a new trial based upon trial counsel’s ineffectiveness, “the

PCRA court must necessarily find that if the evidence presented at the PCRA

hearing had been presented at trial, it would have been found to be credible

by the jury and would have resulted in [Johnson’s] acquittal.” Johnson, 966

A.2d at 541 (citation omitted).




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       In a unanimous decision, our Supreme Court found that “[s]uch a high

burden, it seems to us, does not comport” with the Strickland2 prejudice

standard for proving ineffectiveness. Johnson, 966 A.2d at 541. Rather, the

high    court   stated   “[a]fter-discovered       evidence   cases    premised   upon

recantation     testimony     are    instructive    in   explicating   the   credibility

assessment.” Id. Our Supreme cited the Small test cited above, and noted

that the Court “has remanded after-discovered evidence cases and specifically

directed the trial or PCRA court to make credibility determinations on the

recantation testimony with an eye to the relevant prejudice standard.” Id.

       The Johnson court then discussed several of these cases, and

concluded, “the after-discovered evidence cases tie the court’s credibility

determination to the governing prejudice standard.” Id. at 542. The high

court thus vacated the order granting the appellant a new trial and remanded

the case so that the PCRA court could properly assess the new witness’s

credibility.3 In doing so, our Supreme Court explained:

          In assessing credibility on remand in the case sub judice,
          the question for the PCRA court is not whether the jury in
          fact would have credited [Johnson’s] new evidence[.]
          Instead, the question is whether the nature and the quality
          of the evidence is such that the jury would have credited it
          and rendered a more favorable verdict. That assessment
          must include a recognition of the impeachability of the
____________________________________________


2   Strickland v. Washington, 466 U.S. 668 (1984).

3The PCRA court also concluded that Johnson received ineffective assistance
during the penalty phase of his case. Given its remand, our Supreme Court
declined to reach that issue. Johnson, 966 A.2d at 543.


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         witnesses, and not merely a viewing of their testimony in a
         most favorable light. Some witnesses may display a
         demeanor, or be subject to such strong impeachment []
         that the court is convinced that no reasonable jury would
         believe them. On the other hand, some witnesses may
         conduct themselves, or be of such repute, that the PCRA
         judge would credit them.

Johnson, 966 A.2d at 542 (emphasis added).

      Summarizing Johnson, our Supreme Court concluded that the

Strickland prejudice standard for claims of ineffectiveness of counsel aligned

with the prejudice standard in the fourth prong of the test for after-discovered

evidence, i.e., that the new witnesses’ testimony would “would likely result in

a different verdict if a new trial were granted.” Small, supra. Therefore, in

each situation the PCRA court must considered the credibility of the new

evidence proffered when determining if the petitioner established the requisite

prejudice before granting post-conviction relief.

      Here, contrary to Johnson’s assertion that the PCRA court applied the

wrong standard, the prejudice test applied to both after-discovered evidence

claims and ineffectiveness claims is the same. Moreover, when announcing

its findings of fact and conclusions of law in open court, the PCRA court cited

the correct standard in determining that Johnson did not establish the

requisite Strickland standard of prejudice with regard to Johnson’s

ineffectiveness claim involving Walker. See N.T., 5/20/19, at 11. In its Rule

1925(a) opinion the PCRA court reiterated the proper standard when assessing

the testimony of both Walker and Joyner:




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         In addition, to show prejudice [Johnson] must demonstrate
         that there is a reasonable probability that, but for counsel’s
         allegedly unprofessional conduct, the result of the trial
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome of the trial. It is clear that the evidence . . . Walker
         would have presented to the jury, if called, was cumulative
         of the testimony already in the record. . . . [Johnson]
         himself testified that he was not the shooter. Hence, there
         is no prejudice to Johnson by virtue of the fact that . . .
         Walker [was not] called as [a witness]. Consequently, even
         if Johnson could satisfy the other elements of the failure to
         call a witness test, he cannot demonstrate, on this record,
         that the outcome of the trial would have been different had
         [Walker] testified before the jury.

PCRA Court’s Opinion, 5/20/19, at 5.

      We cannot disturb this determination as it is supported by our review of

Walker’s testimony. Medina, supra. Thus, Johnson’s fourth issue is without

merit.

      In his fifth issue, Johnson challenges the “PCRA court’s determination

[that Walker’s] testimony, an undisputed eyewitness to the crime, was not

credible, was unreasonable” because the PCRA court “failed to consider how

[Walker’s] testimony would have affected [Johnson’s] decision to testify, the

impact of his testimony in light of the lack of inculpatory evidence and the

time lapse between the incident, trial and the PCRA evidentiary hearing.”

Johnson’s Brief at 12-13. In support of this issue, Johnson complains about

the PCRA court’s delay in resolving his post-conviction claim and that Walker

“did not get a chance to give his testimony until over a decade after the crime




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and seven years after he made his affidavit.” Johnson’s Brief at 29. Johnson

asserts that this delay constitutes a “manifest injustice.” Id. at 30.

      Finally, Johnson claims that the PCRA court failed to consider the

“totality of the circumstances.” Id. According to Johnson:

            The PCRA court completely failed in this regard. The
         court simply claimed that the evidence was cumulative
         because [Johnson] testified that he wasn’t the shooter.
         There was no discussion of the lack of evidence of guilt or
         how if [Walker] was called, [Johnson] would not have taken
         the stand.

            There was no discussion of how this evidence would have
         impacted the jury’s consideration in light of the
         overwhelming evidence of innocence. Surely, five people
         including the victim testified that [Johnson] was innocent.

Johnson’s Brief at 31.

      Johnson’s fifth issue warrants no relief.     Initially, Johnson cites no

relevant authority for his claim that the delay in holding the PCRA hearings

caused him “manifest injustice.” See Commonwealth v. Tielsch, 934 A.2d

81, 93 (Pa. Super. 2007) (holding that undeveloped claims will not be

considered on appeal). Moreover, because Johnson did not testify at either

PCRA hearing, the PCRA court had no basis upon which to consider the impact

of Johnson’s decision to testify, had Walker been called as a witness. The

same is true of his challenge to the PCRA court’s conclusion that Walker’s

testimony would have been cumulative to Johnson’s trial testimony. Indeed,

Walker’s testimony, as summarized by the PCRA court above, actually

conflicted with the victim’s statement to police and the victim’s trial testimony


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J-A08025-20


regarding the circumstances surrounding the shooting. See N.T, 8/3/10, at

85-103.

       Finally, Johnson’s characterization of the evidence presented at trial is

self-serving, and does not comport with the appellate review of sufficiency

claims. See generally Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.

Super. 2011). At trial, the victim’s initial statement to police, in which he

identified Johnson as the man who shot him, was introduced through

testimony from law enforcement. Although at trial the victim recanted his

identification of Johnson, his prior statement remained substantive evidence

for the jury’s consideration.4 In fact, as this Court previously explained:

             Our Supreme Court has recognized that a witness’s prior
          inconsistent statement is admissible as substantive
          evidence if “the statement is given under oath at a formal
          legal proceeding; or the statement had been reduced to a
          writing signed and adopted by the witness, or a statement
          that is a contemporaneous verbatim recording of the
          witness’s statements.” Commonwealth v. Lively, 530 Pa.
          464, 610 A.2d 7, 10 (1992) (citing Commonwealth v.
          Brady, 510 Pa. 123, 507 A.2d 66 (1986)).

             [Johnson] fails to explain why the jury could not consider
          the evidence. On the night of the shooting, the victim gave
          a statement to police identifying [Johnson] as the shooter.
          After the statement was reduced to writing, it was signed by
          the victim. At trial, the victim recanted this identification,
____________________________________________


4 Johnson notes that this Court previously determined that the evidence
presented against him was not overwhelming. See Johnson’s Brief at 25.
While we did make such a statement, it was not made as part of a sufficiency
determination. Rather, we we rejected the PCRA court’s consideration of
Johnson’s ineffectiveness claim in which it employed a harmless error analysis
for failing to call these witnesses. See Johnson, unpublished memorandum
at 15-16.


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J-A08025-20


         claimed he did not remember giving the statement to police,
         and denied signing anything. In response, the prosecutor
         presented the victim with a copy of his signed statement.
         Again, the victim denied making the statement.          The
         Commonwealth then called Detective Murray who testified
         that he witnessed the victim making this identification.
         Detective Murray opined that the victim was not intoxicated
         while giving the statement as he was “lucid and “able to
         communicate in a coherent manner.” N.T., 8/3/16, at 133.
         [I]t was proper for the jury to consider the victim’s prior
         inconsistent statement as substantive evidence[.]

Johnson, unpublished memorandum at 21-22. Thus, for all of these reasons,

Johnson’s fifth issue fails.

      In his sixth issue, Johnson challenges the PCRA court’s rejection of

Joyner’s testimony as incredible and cumulative. This claim is meritless.

      We first note the PCRA court’s summary of Joyner’s testimony:

            The third person who was the subject of the Superior
         Court order is Kieyanna Joyner, [Johnson’s] aunt. Joyner
         was listed by Johnson as an alibi witness. She, like Walker,
         appeared in court on the first day of trial, but never returned
         to testify. Indeed, she testified at the evidentiary hearing
         that she was not available the second day because of a
         conflict with her job. She testified at the evidentiary hearing
         that she remembered the day of the shooting because she
         had a cookout at her home on May 13, 2008, starting at
         2:00 pm and ending around 2:00 am the following morning.
         Johnson, she testified, was present at her home the entire
         time and could not have committed the shooting, although
         people on the street had accused [Johnson] shortly after the
         crime was committed. When asked why she had a [cookout]
         at her home on a Tuesday she replied that there was no
         special occasion. Finally, in her testimony, Joyner listed a
         number of persons at her cookout, the one person she did
         not name as the alibi witness called at trial, Tayla McNeil.
         In the final analysis, [Joyner’s] alibi testimony did not have
         the ring of truth to it.



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J-A08025-20



PCRA Court Opinion, 5/20/19, at 4.

       In support of his claim, Johnson asserts that the PCRA court’s

“determination that Joyner was not credible because her testimony did not

have a ring of truth to it is not supported by the record where her testimony

was not contradictory or inconsistent with the other alibi witnesses and the

Superior Court has already made a determination that the alibi is valid.”

Johnson’s Brief at 13. In addition, Johnson claims Joyner’s testimony was not

cumulative because “it comes from a perspective that was not presented at

trial, ” id. at 38, and the court “failed to consider the fact that the alibi witness

that testified a trial messed up her alibi by mixing up the dates.” Id. at 39.5

       Johnson’s claims are meritless.         Initially, we note that, contrary to

Johnson’s claim, our review of the record supports the PCRA court’s conclusion

that, even if believed, Joyner’s testimony would have been cumulative of

McNeil’s alibi testimony at trial.      Johnson does not adequately develop how

Joyner’s testimony provided a different “perspective” from McNeil’s as both

women testified that Johnson was with them at a barbecue on the day of the

shooting.    Tielsch, supra.        Moreover, our review of the testimony from

Johnson’s trial reveals that it was trial counsel, rather than Joyner, who

misspoke regarding the date of the barbecue. Indeed, in rejecting Johnson’s

____________________________________________


5 As part of Johnson’s statement of this issue, he asserts that our Supreme
Court has held alibi testimony “need not be ‘wholly believed’ to ‘raise a
reasonable doubt.’” Id. at 5; 36-37. Because Johnson does not adequately
develop this claim, we find the issue waived. See Tielsch, supra.


                                          - 22 -
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claim that trial counsel was ineffective for asking McNeil about a wrong date

regarding her alibi testimony, this Court explained:

            [Trial counsel] did not present a false alibi defense, but
         misspoke in questioning witness Talia [sic] McNeil about
         [Johnson’s] whereabouts on May 30, 2009, when the
         shooting occurred on May 13, 2008. When counsel realized
         the error, he corrected the mistake and repeated his line of
         questioning to Ms. McNeill so that she could testify as to her
         knowledge of [Johnson’s] whereabouts on the correct date.
         Ms. McNeil confirmed that she knew counsel meant to ask
         her about her account of May 13, 2008, as it was a day she
         “wouldn’t forget” being with [Johnson]. N.T., 8/4/10, at 26.
         Ms. McNeil then testified that she recalled the day of the
         shooting because her phone “started blowing up” with
         messages from people accusing [Johnson] of the shooting
         that had just occurred while she was with [Johnson] at a
         barbecue. N.T., 8/4/10, at 25.

             Although counsel did not have a reasonable basis for
         questioning Ms. McNeil about the wrong date, [Johnson]
         failed to show he was unfairly prejudiced by [trial] counsel’s
         inadvertent reference that was corrected. Despite counsel’s
         error, alibi witness Ms. McNeil repeatedly confirmed that she
         remembered that she was with [Johnson] at the exact time
         the shooting occurred.

Johnson, unpublished memorandum at 8-9. Thus, for the above reasons,

Johnson’s sixth issue fails.

      In his final issues, seven and eight, Johnson argues the cumulative

prejudicial effect of his preceding claims, and argues that we should grant him

a new trial rather than remand for further determinations by the PCRA Court.

Because we have concluded his six other issues warrant no relief, we need not

address these issues further.




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J-A08025-20



          In sum, our review of the record supports the PCRA court’s conclusion

that all of Johnson’s claims are without merit and do not warrant the award of

a new trial. Thus, we affirm the PCRA court’s order denying post-conviction

relief.

          Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2020




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