J-S26039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
MARVIN O. JOHNSON,                        :
                                          :
                 Appellant                :     No. 531 EDA 2015

                Appeal from the PCRA Order January 30, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0603361-2006

BEFORE:     OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MAY 16, 2016

      Marvin O. Johnson (Appellant) appeals from the January 30, 2015

order that denied his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court offered the following summary of the facts underlying

Appellant’s conviction.

            On May 25, 2006, in the city and county of Philadelphia,
      the victim, Randall Boyd, went out for dinner and decided to stop
      at a convenience store on 13th and Spruce Streets. As he
      proceeded towards it on South Camac Street, [Appellant]
      approached the victim near the intersection of Manning and
      South Camac Street. [Appellant] asked him, “Do you want to
      suck some cock, baby?” The victim glanced back and replied,
      “No, thank you, sir.” As the victim was walking away from the
      convenience store, [Appellant] grabbed him from behind and
      said, “Let’s see how much cash you have on you.” [Appellant]
      placed his left arm underneath the victim’s left arm and covered
      the victim’s eyes and mouth. [Appellant] placed his right arm
      under the victim’s right arm so that both of the victim’s arms


*Retired Senior Judge assigned to the Superior Court.
J-S26039-16


     were in the air. While the victim was restrained by [Appellant],
     two other people punched the victim five to seven times between
     his eyes, searched his pockets, and they all fled. The victim
     collected himself and then ran to a nearby hotel, so that he could
     clean his wounds and contact the police. The victim left to call
     the police at a nearby pay phone. On his way to the phone, he
     saw a police car coming down Camac Street, which he flagged
     down.

           Philadelphia Police Officer Beverly Duncan received a radio
     call alerting her to the area around the 200 block of South
     Camac Street. Upon arrival, the victim gave Officer Duncan a
     description of the person who grabbed him, and Officer Duncan
     relayed that description over the police radio. Together, the
     victim, Officer Duncan and her partner Officer Gary Burrell drove
     to examine the scene of the incident on the 200 block of South
     Camac Street.      Meanwhile, Officer Craig Sweeney received
     information from Officer Duncan about the robbery and went to
     survey the area. Officer Sweeney observed [Appellant] together
     with the two other individuals on the corner of 13th and
     Lombard Streets. He stopped all three individuals at the 1200
     block of Kater Street, but [Appellant] ran northbound on 12th
     Street while his two co-conspirators fled eastbound on Kater
     Street. Officers Kramer and Brenda McLaughlin responded to
     Officer Sweeney’s radio alert of the foot chase and apprehended
     [Appellant] on 12th Street. Officers located and apprehended
     the two co-conspirators in a parking lot on the 1100 block of
     Kater Street. Officers Duncan and Burrell escorted the victim to
     12th and South Street, where the victim identified [Appellant].

                                   ***

            On May 26, 2008, after a seven day jury trial, the
     Honorable Amanda Cooperman of the Court of Common Pleas
     declared a mistrial and [Appellant]’s case was scheduled to be
     re-tried. On May 1, 2009, a jury sitting in front of the Honorable
     Denis P. Cohen found [Appellant] guilty of robbery-inflicting
     bodily   injury,   simple   assault,   and     conspiracy-robbery.
     [Appellant] was represented by [Alex] Turner, Esq. On June 23,
     2009, [Appellant] was sentenced to nine years and four months
     to eighteen years and eight months imprisonment. [Appellant]
     filed a Notice of Appeal on July 15, 2009. On August 11, 2010,
     the Superior Court remanded the case to [the trial court] for


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       resentencing. On May 20, 2011, [the trial court] imposed a new
       sentence of fifty to one hundred months imprisonment for
       robbery-inflicting bodily injury and fifty to one hundred months
       imprisonment for conspiracy-robbery, with both sentences to run
       consecutive to each other for a total sentence of one hundred to
       two hundred months [of] incarceration.

             On May 27, 2011, the defendant filed a [PCRA] petition.
       On November 28, 2011, David Rudenstein, Esq., was appointed
       to represent [Appellant]. On August 21, 2012, [Appellant] filed
       a motion to proceed pro se. On September 28, 2012, Mr.
       Rudenstein filed an amended PCRA petition. On February 28,
       2014, [the PCRA court] held a Grazier[1] hearing, at which
       [Appellant] decided to allow Mr. Rudenstein to continue
       representing [him]. On January 30, 2015, [the PCRA court]
       formally dismissed [Appellant]’s PCRA petition. On February 23,
       2015, [Appellant] filed a notice of appeal.

PCRA     Court   Opinion,   6/30/2015,   at   3-5,   1-2   (citations,   footnotes,

unnecessary capitalization, and repetition of amounts in numeral form

omitted). Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       On appeal, Appellant claims that the PCRA court erred in failing to hold

an evidentiary hearing, and to grant PCRA relief in the form of a new trial,

on the following four claims:

       a.    Ineffectiveness of counsel where counsel actually and
             deliberately failed to meet with [Appellant] prior to trial
             because it was going to be too much trouble and where
             the attorney was completely unprepared to provide a
             defense for [Appellant] and where [Appellant] was
             constructively denied counsel.

       b.    Ineffective assistance of counsel wherein counsel
             completely confused [Appellant] (and anyone else
             listening) when he attempted to explain to [Appellant] that


1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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             [Appellant] had a right to a “no adverse inference” charge
             regarding his choice not to testify; the advice given to
             [Appellant] on the record by defense counsel was
             incomprehensible.

       c.    Trial counsel was ineffective when he failed to ask for a
             Kloiber[2] [i]nstruction.

       d.    Trial counsel was ineffective by inexplicably resting in front
             of the jury prior to consulting with his client and prior to
             [Appellant] being questioned by the [trial court] as to his
             decision regarding giving testimony and where the
             announcement of counsel all but precluded [Appellant]
             from testifying.

Appellant’s Brief at 11 (reordered for ease of disposition).

              The standard of review for an order denying post-
       conviction relief is limited to whether the record supports the
       PCRA court’s determination, and whether that decision is free of
       legal error. The PCRA court’s findings will not be disturbed
       unless there is no support for the findings in the certified record.
       Furthermore, a petitioner is not entitled to a PCRA hearing as a
       matter of right; the PCRA court can decline to hold a hearing if
       there is no genuine issue concerning any material fact and the
       petitioner is not entitled to post-conviction collateral relief, and
       no purpose would be served by any further proceedings.

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super. 2007)

(citations omitted).

             [I]n order to obtain relief based on [an ineffective
             assistance of counsel] claim, a petitioner must
             establish: (1) the underlying claim has arguable
             merit; (2) no reasonable basis existed for counsel’s
             actions or failure to act; and (3) petitioner suffered
             prejudice as a result of counsel’s error such that
             there is a reasonable probability that the result of
             the proceeding would have been different absent
             such error.


2
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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      Trial counsel is presumed to be effective, and a PCRA petitioner
      bears the burden of pleading and proving each of the three
      factors by a preponderance of the evidence.

Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)

(internal citations omitted).

      Appellant first contends that counsel was ineffective in failing to meet

with him before trial.   Appellant’s Brief at 12.   Appellant’s argument is as

follows:

            On April 15, 2009, Alex Turner, Esquire, Assistant
      Defender wrote to [Appellant], who was housed at SCI
      Graterford[,] and in pertinent part stated: “I regret that I will not
      be able to meet with you prior to your trial, but if there is
      anything you want to tell me that is not included in your file or
      any prior correspondence with The Defender Association - all of
      which I have reviewed - then please feel free to write me at the
      above address.”

             It is sometimes difficult to meet with clients. However, Mr.
      Turner had the benefit of not being a sole practitioner but
      working with an organization that employs dozens and dozens of
      attorneys, not to mention a large paralegal staff and private
      investigators. It is almost inconceivable that no attorney from
      The Defender Association could have met with [Appellant] prior
      to trial. It is simply inconceivable. …

                                     ***

      … [Appellant] basically walked into a Courtroom, met his trial
      attorney and then went to trial. This simply cannot be tolerated.
      For instance, and even if no one from The Defenders had the
      time to go to Graterford, a phone call could have been arranged
      by and between Mr. Turner and a Prison Counselor, so that
      [Appellant] could have “met” with his attorney, discussed the
      case and have been prepared for trial.

Id. at 12-13.



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      This argument utterly ignores that Appellant in fact did have extensive

contact with another attorney from the Defender Association before the trial

at issue, including during the seven days of his initial trial.         As the

Commonwealth aptly summarized: “The circumstances here showed that

[Appellant] at a minimum had prior meetings with the attorney from his first

trial, that [Mr. Turner] was aware of the events from [Appellant’s] first trial,

and that [Mr. Turner] was willing to consider any new ideas that [Appellant]

could communicate in correspondence.”            Commonwealth’s Brief at 9.

Appellant offers no explanation how Mr. Turner’s method gathering of

information was any less effective than Appellant’s suggested alternative of

another attorney from the office meeting with Appellant before the retrial

and relaying the gleaned information to Mr. Turner in some fashion.

      Moreover, Appellant gives no indication of how he was prejudiced; he

fails to identify any information Mr. Turner or Appellant would have obtained

from a pre-retrial meeting that would have changed the outcome of the

proceedings. Rather, he “urges this Court to presume prejudice as the result

of the total denial of counsel….”    Appellant’s Brief at 13.   This Court has

rejected   a    presumption     of   prejudice     in   these   circumstances.

Commonwealth v. Britt, 83 A.3d 198, 203 (Pa. Super. 2013) (noting that

a petitioner seeking to establish counsel was ineffective in failing to meet

with him or her must show actual prejudice). Without even an allegation of




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prejudice before it, the PCRA court properly determined that Appellant’s first

claim warranted no relief.

      Appellant next complains of Mr. Turner’s counselling concerning

whether to ask for the no-adverse-inference instruction regarding Appellant’s

choice not to testify.3 Appellant’s argument consists of his taking issue with

Mr. Turner’s diction and posing rhetorical questions. Appellant’s Brief at 14-

16. Assuming for the sake of argument that Mr. Turner’s explanation was

deficient, Appellant’s claim fails for lack of prejudice.

      Although Appellant asserts that, had the instruction been explained to

him better, he would have requested that it be given to the jury, notably

absent from Appellant’s argument is any discussion of how the outcome of

the trial would have been different.      Accordingly, the PCRA court properly

rejected Appellant’s claim. Commonwealth v. Howard, 719 A.2d 233, 241

(Pa. 1998) (rejecting for lack of actual prejudice claim that counsel was



3
      This “no-adverse-inference” instruction, so called, is contained in
      the Pennsylvania Suggested Standard Criminal Jury Instructions
      and provides as follows:

            3.10A (Crim) DEFENDANT’S FAILURE                   TO
            TESTIFY NOT EVIDENCE OF GUILT

            It is entirely up to the defendant in every criminal
            trial whether or not to testify. He has an absolute
            right founded on the Constitution to remain silent.
            You must not draw any inference of guilt from the
            fact that the defendant did not testify.

Commonwealth v. Lewis, 598 A.2d 975, 978 n.4 (Pa. 1991).

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ineffective   in   failing   to   request   the   no-adverse-inference   charge);

Commonwealth v. Howard, 645 A.2d 1300, 1308 (Pa. 1994) (same).

      Next, Appellant contends that Mr. Turner was ineffective for failing to

request a Kloiber instruction. “A Kloiber instruction informs the jury that

an eyewitness identification should be viewed with caution when either the

witness did not have an opportunity to view the defendant clearly,

equivocated on the identification of the defendant, or has had difficulties

identifying the defendant on prior occasions.” Commonwealth v. Sanders,

42 A.3d 325, 332 (Pa. Super. 2012). Appellant argues that the victim in the

instant case “could not possibly have had a good opportunity to observe his

assailant as he was approached from behind, bloodied, punched, and never

gave a description of the person other than he was a black male with a red

shirt.” Appellant’s Brief at 18.

      The PCRA court disagreed, finding that a Kloiber charge was not

warranted by the facts at hand:

      In the instant case, the victim stated during both direct and
      cross examination that immediately prior to the attack, he
      turned to his right and looked at [Appellant]. The victim never
      wavered in his consistent identification of [Appellant], and in fact
      positively identified [Appellant] at trial and during a post-incident
      identification after the robbery.

PCRA Court Opinion, 6/30/2015, at 9-10 (citations and footnotes omitted).

      The PCRA court’s finding is supported by the record. See, e.g., N.T.,

4/29/2009, at 68 (“I turned to the right and I saw his face and I saw him.”);



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id. at 68-69 (“He was wearing a red and white jersey and he had a very

large beard and clean shaven head on the top.”); id. at 90-91 (same

testimony on cross-examination). Because the victim testified that he was

able to see his attacker clearly, and he never wavered in his identification of

Appellant, the PCRA court properly determined that Appellant’s Kloiber-

based claim lacks arguable merit.

      Finally, Appellant claims that Mr. Turner provided ineffective assistance

of counsel in indicating that the defense rested before the court held an on-

the-record colloquy regarding Appellant’s decision not to testify. He argues

as follows:

             If [Appellant] had wished to testify, he certainly was put in
      a more than awkward position after both his attorney and the
      [trial c]ourt had closed the case. If he had then chosen to
      testify, [Appellant] would have then been in the position of the
      [c]ourt having to instruct the jury that [Appellant] now wished to
      testify even though the case was closed! What would the jury
      then have thought? This is simply not the way that it should
      have been handled. Did this prejudice [Appellant]? Of course it
      did. [Appellant] was put in the position of giving up his right to
      testify because it was foreclosed by his very own attorney and
      then, perhaps inadvertently, followed up on by the [trial c]ourt.
      [Appellant] never had a full and fair opportunity to decide
      whether he wished to testify.

Appellant’s Brief at 20.

      Appellant’s claim is utterly devoid of merit.       As the PCRA court

explained:

      “[T]here is no express requirement that a trial court conduct a
      colloquy with regards to [a] defendant’s right to testify.”
      Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super.


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      2003). The colloquy, though not necessary, was requested by
      the [trial c]ourt, in an abundance of caution, to ensure that
      [Appellant] was fully aware of his right not to testify.
      [Appellant] made it clear that Mr. Turner had already advised
      him of his right and he had time to consider if he wished to
      testify. Had [Appellant] expressed a desire to testify during the
      colloquy, [the trial c]ourt would have allowed [Appellant] to
      reopen his case. In any event, [Appellant] has not alleged that
      he was prejudiced by having the colloquy after the defense
      rested. Indeed, as [Appellant] has not even asserted that he
      wanted to testify, let alone explain what his testimony would
      have been, he cannot establish that but for counsel’s alleged
      error, the outcome of the trial would have been any different.
      As such, [Appellant’s] claim is meritless.

PCRA Court Opinion, 6/30/2015, at 9.              We discern no error or abuse of

discretion in the PCRA court’s analysis.

      Because it was evident from the record that Appellant was not entitled

to PCRA relief on any of his claims, and no purpose would have been served

by any further proceedings, the PCRA court did not err in denying Appellant’s

petition without a hearing. Taylor, 933 A.2d at 1040.           Thus, Appellant is

entitled to no relief from this Court.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/16/2016




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