J-S45022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ARMONI M. JOHNSON                          :
                                               :
                       Appellant               :   No. 160 MDA 2018

                  Appeal from the PCRA Order January 4, 2018
                In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002713-2011


BEFORE:      PANELLA, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                                 FILED AUGUST 27, 2018

        Armoni M. Johnson appeals pro se1 from the order entered January 4,

2018, in the Court of Common Pleas of Luzerne County, that denied, after a

hearing his timely, first petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Johnson seeks relief

from the judgment of sentence to serve an aggregate term of 5½ to 13 years’

imprisonment, followed by 5 years’ probation, imposed after he was found

guilty by a jury of two counts of aggravated assault.2 While it is difficult to

discern Johnson’s claims, we are able to glean two issues, namely, (1)
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 The PCRA court conducted a Grazier hearing and allowed Johnson to
proceed pro se. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

2   18 Pa.C.S. § 2702(a)(1), (a)(4).
J-S45022-18



ineffectiveness of counsel/conflict of interest, and (2) ineffectiveness of

counsel/Brady violation/prosecutorial misconduct. Both claims are related to

the fact that Justin Barna, the victim in this case, was the confidential

informant in an unrelated case against Johnson (Docket No. 2553-2012).3

Based upon the following, we affirm.

       The facts and procedural history of this case are set forth in the PCRA

court’s opinion, and there is no need to restate the background of this case

herein. See PCRA Court Opinion, 1/4/2018. We simply state that the charges

against Johnson stemmed from the August 7, 2011, stabbing of victim, Justin

Barna, who had previously purchased drugs from Johnson.

       Our standard of review of the denial of PCRA relief is well settled: “For

the claims on which a hearing was held, we consider whether the PCRA court’s

findings    are   supported      by    the     record   and   free   of   legal   error.”

Commonwealth v. Baumhammers, 92 A.3d 708, 714 (Pa. 2014).

       At the outset, we stress that appellate briefs are required to “conform

in all material respects” with the briefing requirements set forth in the

Pennsylvania Rules of Appellate Procedure, and this Court may quash or

dismiss an appeal if the defects in the brief are substantial. Pa.R.A.P. 2101;

Commonwealth v. Adams, 882 A.2d 496, 497-498 (Pa. Super. 2005) (“This

Court may quash or dismiss an appeal if the appellant fails to conform to the

____________________________________________


3 The unrebutted testimony at the PCRA hearing was Justin Barna became a
confidential informant against Johnson after Johnson had already assaulted
him. See N.T. (PCRA Hearing), 12/1/2017, at 50-51.

                                             -2-
J-S45022-18



requirements set forth in the Pennsylvania Rules of Appellate Procedure.”).

Furthermore, an appellant’s pro se status does not excuse his failure to comply

with the rules of appellate practice. See id. at 498 (“Although this Court is

willing to liberally construe materials filed by a pro se litigant, pro se status

confers no special benefit upon the appellant.”); Commonwealth v. Rivera,

685 A.2d 1011, 1013 (Pa. Super. 1996) (“While this Court is willing to liberally

construe materials filed by pro se litigants, ... appellant is not entitled to any

particular advantage because [he] lacks legal training.”) (citation omitted).

Here, Johnson’s pro se brief fails to conform to our Appellate Rules and it is

difficult to decipher his arguments.    Nevertheless, because we are able to

glean the nature of two claims from the brief, we will proceed to examine the

merits of his claims.

      The PCRA court has provided a thorough opinion that fully addresses the

issues raised in this appeal. See PCRA Court Opinion, 1/4/2018 (finding: (1)

Johnson’s claim that trial counsel’s withdrawal in the unrelated matter pending

against Johnson (Docket No. 2553-2012) adversely affected this case lacked

arguable merit and there was no ineffectiveness prejudice, and (2) Johnson’s

claim that the Commonwealth did not disclose that Justin Barna, the victim in

this case, was the confidential informant in the case pending against him at

Docket No. 2533-2012 failed as Johnson’s evidence did not establish the

elements of a Brady violation and there was no ineffectiveness prejudice).

Based on our review, we find the PCRA court’s rationale is correct and there




                                       -3-
J-S45022-18



is no basis upon which to disturb the decision of the PCRA court. Accordingly,

we affirm on the basis of the PCRA court’s opinion.4

       Order affirmed. All outstanding motions dismissed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2018




____________________________________________


4In the event of further proceedings, the parties are directed to attach a copy
of the PCRA court’s January 4, 2018, opinion to this memorandum.

                                           -4-
                                                                                            Circulated 08/09/2018 11:16 AM

 f:
.J7":.


  e              COMMONWEALTH OF PENNSYLVANIA                       : IN THE COURT OF COMMON PLEAS
                                                                            OF LUZERNE COUNTY
                            v.                                                 - CRIMINAL-
                 ARMONI JOHNSON                                     : NO.    2713   OF     2011

                            Defendant                                        2092   MDA    2016


                                                        OPINION

                 FACTUAL HISTORY



                           . On August 7, 2011, the victim, Justin Barna, was a resident in the Capital

                 HUI Apartments, Mountaintop, Pennsylvania. In the past, Justin Barna was a

                 regular user of heroin and had purchased drugs from Defendant, hereinafter

                "Johnson", in particular, heroin. Approximately one week prior to the date of the

                 incident, the victim purchased four (4) bags of heroin from Johnson. On August 5,

                2011, Johnson contacted the victim and accused him of robbing him of his drugs

                and Informing him that he was coming to his home to retrieve the same.

                            On August 7, 2011, the victim had been with his neighbor, Jeffery Petry,
                     tr».
           �         0             >-
           31 a ving tra.\reled to a pawn shop in the Wilkes-Barte, area and then returning to
          a         ::t:      c:   :::l
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                                 r::)


          �he\r resJi�ive apartments. On that date, the victim heard a knock at the door.
         x::       z         ��
         rx:       �         :-..:_:;�
         �As�e '-<� slightly opened his door, Johnson pushed the door open and
         (..)      Q             .....J
                   c....
                commenced stabbing him. Johnson repeatedly stabbed the victim In the victim's

                                                               1
•.   apartment and again in the hallway causing the victim to fall through his

     neighbor's, Jeffery Petry's door. The victim was transported to the hospital where

     he spent five (5) days and underwent three (3) separate surgeries. Johnson

     stabbed the victim in the stomach, under the arm, and in the back.


           The Commonwealth called Jeffery Petry as a witness who was a neighbor of

     the victim, Justin Barna, at the Capital Hill Apartments. Mr. Petry testified that

     after the victim left his apartment on August 7, 2011, he heard noises, including a

     voice saying "You're stabbing me!" ... He further testified that he observed a knife

     in Justin Barna's apartment with blood on it.


           The Commonwealth called Sergeant Scott Rozitski from the Wright

     Township Police Department who testified that when he arrived at the scene on

     August 7, 2011, he witnessed the victim standing on the sidewalk holding his

     stomach. He also described blood on Barna's shirt, blood on the ground near the

     victim, and the fatty tissue coming out of the wounds that were inflicted.


           sergeant Rozitski also testified that there were no weapons on the victim,

     and the victim told him that Johnson had stabbed him.


     Trial Court Opinion ("T.C.O"), 1/23/2014, at 3-4 (record citations omitted and

     nomenclature modified).


                                               2
�-



             The Trial Court related the procedural history as follows:


             The Commonwealth of Pennsylvania brought the following charges against

      Armoni Johnson:


             Count 1-Aggravated Assault, 18 Pa.C.S. §(a)(l}; Count 2.-Criminal

      Conspiracy 18 Pa.C.S. §903; Count 3-Burglary 18 Pa.C.S. §3502 (a); Count 4-

      Aggravated Assault 18 Pa.C.S.§ 2702 (a}(4); Count 5-Criminal Conspiracy 18

      Pa.C.S.§903. T.C.O. 1.


             On or about August 6, 2012, Johnson tendered a guilty plea. However, in a

      document entered on October 12, 2012, the Trial Court granted Johnson's

      request to withdraw his guilty plea.


             Prior to the commencement of trial, the Commonwealth withdrew Count 2

      -Criminal Conspiracy and Count 5-Criminal Conspiracy. On July 15, 2013,

     . Johnson presented a motion for dismissal pursuant to Pa.R. Crim. P. 600. 'On that

      date, the Commonwealth similarly presented a Pa.R.E. 404 (b) motion seeking to

      admit specific prior bad acts. Johnson's Rule 600 motion was denied and the

      Commonwealth's Rule 404 (b) motion was granted.


            On Tuesday, July 16, 2013, a jury trial was commenced. At the.conclusion

      of the trial, the jury rendered a verdict as follows:

                            "· .   ,_:           3
                             '
    ..,
    .,
.   .            Count 1-Aggravated Assault-Guilty; Count 2-Aggravated Assault-Guilty;

          Count 3- Burglary-Not Guilty.


                On October 11, 2013, the trial court sentenced Johnson as follows:


                County 1-Aggravated Assault-sixty-six (66) month minimum to a one

          hundred fifty-six (156) month maximum in a state correctional institution

          followed by sixty (60) months special probation; Count 2 -Aggravated Assault -


            .
          Fifteen (15) months minimum to sixty (60) months maximum concurrent to


          Count 1.


                On November 13, 2013, Defendant filed an appeal with the Superior Court

          of Pennsvlvanla. On July 30, 2015, the Superior Court of Pennsylvania affirmed

          the Trial Court. (No. 2119 MDA 2013).


                Defendant filed a Petition for Allowance of Appeal to the Supreme Court of

          Pennsylvania which was denied. (No. 661 MAL 2015).


                Defendant filed a petition under the Post Conviction Relief Act on April 12,

          2016. The Court appointed Attorney JeffreyYelen as counsel for Johnson.

          Attorney Yelen filed a Turner/Finley letter with the Court and sought permission

          to withdraw as counsel for Johnson indicating no-merit. The Court scheduled a

          hearing on October 31, 2016 regarding the Motion to Withdraw and PCRA. At

                                                  4
    that time the Court granted the Motion to withdraw and denied the. PCRA.

Johnson filed a Notice of Appeal with the Superior Court and on August 1, 2017

Superior Court issued an order vacating the order and remanding for proceedings

    consistent with the Superior Court Memorandum. (2092 MDA 2016).1


          In accordance with the Order of Superior Court, the Trial Court upon

remand appointed Attorney Paul Galante as counsel for Defendant. Johnson

requested to proceed prose and as such, the Court conducted a Grazier Hearing

on August 16, 2017wherein Defendant voluntarily, knowingly and intelligently

waived his right to court appointed counsel. However, the Court appointed

Attorney Mary Deady as stand-by counsel for the Instant PCRA proceeding.

(Transcript August 1, 2017).


         A PCRA hearing was held on December 1, 2017. Johnson offered testimony

and also called trial counsel Attorney Allyson Kacmarski. Johnson also noted he

filed a Petition
         . . for Extraordinary Relief of Record on September 1, 2017 prior to
the commencement of the PCRA and as such, the Court conducted a full PCRA

hearing.



                                                                                                                          t
1
 Superior Court Indicated that no transcript of the October 31, 2016 PmA hearing was induded In the certified
record. The Trial Court determined that the stenographer had failed to file the transcript although, a copy of same
was provided to the Trial Court on November 23, 2016. Prior to the commencement of the instant PCRA hearing
                                                                                                                      I   i



                                                                                                                      I
the Court directed the filing of the official transcript of the PmA hearing held on October 31, 2016.

                                                         5


                                                                                                                      I
                                                                                                                      I
                                                                                                                      l
                                                                                                                      i
ISSUES PR_ESENTED


      In the April 12, 2016, PCRA petition Johnson contends verbatim:


      Ground #1- "Complete miscarriage of justice has occurred from

      prosecutorial misconduct which deprived petitioner of a fair trial,

     · ineffectiveness of counsel, equal protection of law and due process."


      Ground #2- "Ineffective. assistance of counsel."
                          ;




                              .•
      Ground #3- "Issues raised .is similar to Ground #1 and Ground #2 and now

      Ground #3.


LEGAL DISCUSSION


      In an attempt to simplify, comprehend and intelligently address the issues

presented by Johnson which he states as Prosecutorial Misconduct/ Outrageous

Government Conduct /Brady /Ineffective Assistance of Counsel Niolation of

Constitutional Rights, the court has determined Johnson's argument centers

around two main issues.


      First, Johnson was charged in unrelated Information #2553-2012 with

violations of the Drug Act that were alleged to have occurred on May 31, 2012


                                        6
                  ...




wherein Justin Barna was the confidential informant for the Commonwealth.

Attorney Allyson Kachmarski was allowed to withdraw her appearance for the

Defendant in Information# 2553-2012 and Attorney Mark Bufalino was appointed

by the Court on June 24, 2013 to. represent Johnson in that case. The withdrawal

of appearance ifl Information# 2553-2012 was granted as Attorney Kacmarski

indicated to the court that she had represented Ramon Aziz Leonard at his
    '

preliminary hearing who had been charged with similar offenses under

Information# 2550-2012 and was consolidated for trial with Mr. Johnson under

Information# 2553-2012. Johnson argued that this withdrawal under Information

# 25?3-2012 may have prejudiced his trial under the above Information# 2713-

2012 as Attorney Kacmarski was trial counsel therein. (N.T, 7-8).


        Second, Johnson contends that Attorney Kacmarski was ineffective as he

was denied proper representation in tnformation #2713-2012 as Commonwealth

did not disclose under Brady,2 and his other contentions that Justin Barna, the

victim in Information #2713-2012, was the confidential informant in Information#

2553-2012.3




2
  Brady v. Maryiand, 373 US. 83, 83 S.Ct. 1194 (1963).
s The Commonwealth nolle pressed the charges In Information# 2553-2012 on March 14, 2016. The Incident date
in Information# 2553-2012 was May 3, 2012. Attorney Kacmarskl was aiiowed to withdraw as counsel on June 25,
2013. Attorney Bufallno was appointed counsel on June 25, 2013.

                                                     7
      As to Johnson' first issue that Attorney Kacmarski was allowed to withdraw

representation under Information# 2553-2012 and continue representing him at

jury trial on instant Information# 2713-2011 the court finds no arguable merit

cognizable under the PCRA statute. Although Attorney Kacmarski indicated that

she had a conflict under Information# 2553-2012 as Johnson was joined for trial

with Ramone Leonard, an individual whom Attorney Kacmarski represented at the

preliminary hearing and identified a conflict of interest, Attorney Kacmarski did

indicate that she had no conflict or impediment from zealously representing

Johnson at trial in Information # 2713-2011 . (N.T. 21). The court finds no

ineffective assistance of counsel provided by the representation of Attorney

Kacmarski under the instant Information and further finds that as there was a

vaJid basis to allow her withdrawal under lnforrnatlon # 2553-2012 which cause

did not cause any adverse effect on trial of the instant information. Johnson has

not developed any purported rational argument regarding this contention.


      The court finds no merit in Johnson's claim that his defense and

representation was prejudiced by Attorney Kacmarski's withdrawal from

representation in an unrelated matter pending against Johnson. Commonwealth



                                         8
..
 v. Buehl. 508 a.2d 1167 {PA 1986). Having presided at the trial the court is aware

 that counsel vigorously represented Johnson at trial. Commonwealth v. King, 57

A.3d 607 (Pa. 2012).


       Johnsons' second issue concerns his allegation that the Commonwealth did

 not disclose the identity of confidential informant (Justin Barna) in Information#

2553-2012 to trial counsel under the instant PCRA information. Johnson was

represented by court appolnted counsel in Information


# 2553-2012.


      To prove a Brady violation as stated in Commonwealth v. Bomar, 104 A.3d

1179 (Pa. 2014),: Appellant must demonstrate that: (1) the prosecution

concealed evidence; (2) which evidence was either exculpatory or impeachment

evidence favorable to him and; (3)he was prejudiced by the concealment.

Commonwealth v. Paddy, 800 A.2d 294(2002); Strickler v. Greene. 527 U.S.

263(1999). In order to prove prejudice, Appellant must show a "reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different." Commonwealth v. Burke. 781 A.2d 1136

(2001). Stated differently, the undisclosed evidence must be "material to guilt or

punishment." Paddy, 800 A.2d at 305. Further, impeachment evidence which



                                         9
goes to the credibility of a primary witness against the accused is critical evidence

and it is material to the case whether that evidence is merely a promise or an

understanding between the prosecution and the witness." Commonwealth v.

Strong, 761 A.2d 1167 (2000). Mere conjecture as to an agreement between the

prosecution and witness is insufficient to establish a Brady violation.

Commonwealth v. Chmiel, 30 A.3d 1111(2011). Finally, we note that "there is no

Brady violation when the appellant knew, or with reasonable diligence, could

have uncovered the evidence in question." Commonwealth v. Paddy, 15 A.3d 431

(2011).


      At the PCRA hearing Johnson asked Attorney Kacmarski if she was aware

that the alleged victim in the instant case worked as a confidential informant in

another case against him.


            The Witness: I think the answer would be based upon discussions
            that myself and Mr. Johnson had as counsel, I mean, nothing as far as
            the disclosure of Mr. Barna being the CI came from the
            Commonwealth. And, like I said, I didn't file any disclosure of Cl
            because I wasn't representing him on that case, and that particular
            part would not have been relevant in the trial. To be quite honest, it
            would have been - - it wouldn't have been to Mr. Johnson's benefit
            to talk about another prior alleged drug interaction. It could have
            caused the jury to hold - - it could have caused the jury to be
            prejudicial in the case.

                   So maybe from my discussions with Mr. Johnson I was aware
            of individuals and actions in other cases, but legally speaking there

                                         10
     w�s no actual filing of a motion to disclose Cl, nor was that hearing
     held. Because, one, it wasn't relevant to the trial and, two, it wasn't
     - - I was not the attorney of record on that case at this point in time.
     (N.T. 27- 28).


BY THE DEFENDANT:
     Q.    Now, Ms. Allyson Kacmarski, would you think that with this
    mindset right here of withholding evidence changes all credibility,
    would it not have been a better alternative to attack the alleged
    victim's credibility of him displaying prosecutorial misconduct
    working against me and showing that it's some type of dishonesty
    with this person in which the District Attorney's Office did withhold
    his identity·from another case in which you was not aware of?
    A.      My concern would have been for you that if the jury heard
    about another interaction where you allegedly sold drugs to Mr.
    Barna after the assault, I think that that's not good for you in the
                                                                                    i
    eyes of the jury and that it would have caused them to find you
    guilty, I mean, even though they did find you guilty, but I don't - - as
    far as your defense going forward, it wouldn't have been beneficial
                                                                                    II
    to talk about another drug case interaction with you and Mr. Barna.         I
    Ultimately, that happened after the assault, so it's not relevant to the
    trial.                                                                      I
                                                                                I;
    Q.     Okay. If you were representing me to the best of your ability,       I
    aren't you supposed to do what I ask you to do?
                                                                                l
    A.    No. I'm supposed to do what's in your best interest. I don't do       I
    everything you tell me to do.
    Q.    Well, if I wanted you to do something and you don't do it, is
    that not ineffective assistance of counsel?
    A.    No.
    The Witness: No, it's not ineffective assistance of counsel. My
    job-you as the Defendant have the decision to go to trial or plead
    guilty, and then you have the decision during the trial to testify or
    not testify. As to your defense and what would be beneficial to

                                 11
l


          seeking a not guilty conviction, those are decisions that I would
          make. Just because you want something, it may not be beneficial to
          you and it could cause you to get convicted. So as to how the
          Defense would proceed during trial are decisions that I would make
          that would be to your benefit.


    BY THE DEFENDANT:
          Q.     Okay, No.w my question is, if you are aware of any
          prosecutorial misconduct or mis-character(sic) of justice that had
          occurred in the case, wouldn't it be fair in all due respect of
          effectively representing me to report it to the courts?
          A.    If there was prosecutorial misconduct going on, I would have
          reported it to the Court, but there wasn't in th is - - in this particular
          docket trial.


    At the PCRA hearing, the Assistant District Attorney further queried.

    BY MR. SCOTT:


         As trial counsel, is it your testimony that bringing up the Cl would not
    have materially positively affected Mr. Johnson's case?
         The Witness: Correct. My recollection of the defense was,
         obviously, that Mr. Johnson did not stab Mr. Barna. That it could
         have been someone else. Showing that after the alleged assault they
         continued to have contact or that Mr. Johnson allegedly continued to
         sell drugs would not have looked good for him because it would have
         looked in the eyes of the jury that Mr. Johnson was a drug dealer.
         And It would have furthered the Commonwealth's case more than it
         would have helped Mr. Johnson.
               So bringing up anything about subsequent drug sales with Mr.
         Barna would have prejudiced Mr. Johnson and could have ultimately
         added on to the guilty conviction.


                                       12
i


                So In my opinion, since the defense was he did not do it- - and
         I don't recall exactly what I said as to whether they knew each other
         or didn't, I'd have to review the transcript, but ultimately to further
         the defense that Mr. Johnson was innocent, it would not have been
         good to bring up any other alleged drug dealing matters. (N.T. 36-37).


    BY THE DEFENDANT:
         Q.    Your proposition today is that you could not have used this to
         discredit the alleged victim in the case?
         A.    My recollection of the defense was that - - like I said, I have not
         reviewed the trial transcript, but my recollection is that you didn't
         know Mr. Barna, so then you couldn't have stabbed him, that
         somebody else stabbed him. So using documents that would show .
         the two of you had a relationship would have furthered the
         Commonwealth's argument that he recognized you because he was
         buying drugs from you.
         Q.    Is that a defense that you - -
        A.     The Commonwealth's prosecution.
         Q.   Is that a defense that you spoke to me about or a defense that
        you came up with by yourself?
        A:      No, we spoke about It, because initially when you had, I
        believe, Attorney Webby, you were going to proceed under an alibi
        defense. We had spoken about that none of your alleged alibi
        witnesses were going to come in and testify. Because that was
        initially what was going to go further, was that you weren't there
        that day.
               1 think the ultimate concern Is the Commonwealth, from my
        recollection, was that you were a drug dealer and you were selling
        drugs to Mr. Barna. So that's not good. So our defense was that you
        didn't know Mr. Barna and that somebody else could have stabbed
        him. So anything that ties you and Mr. Barna together that you're
        selling him drugs Is not going to be good for you at trial.


                                     13                                                I

                                                                                     - i
_i


     BY THE DEFENDANT:
          Q.     So your proposition today is, it was better - - in my best
          interest to keep concealed what happened to me, what the alleged
          victim did in Case No. 2553-2012, in the midst of the litigation.


          The Witness: Yes. The concern is that we wouldn't want the jury to
          think that you were a drug dealer and then wrongfully convict you
          because they think you're out selling drugs. We don't want any
          other crimes other than the allegation that the Commonwealth has
          to prove coming in to the trial so that the jury doesn't use other facts·
          to determine you guilty. That they just look at what the
          Commonwealth has alleged you did, and in that case it was that you
          stabbed Mr. Barna. We don't want other matters, that maybe you're
          out selling drugs, coming into to the case.


     BY THE DEFENDANT:
          Q.     Okay. Now my question is, before trial even took place, could
          you have brought this prosecutorial misconduct to the judge's
          attention before it even reached to the jury or trial started as
          outrageous government misconduct?
         A.     Well, I think- - Mr. Barna was not a confidential informant in
         the trial case. His identity was disclosed. Whether or not they
         disclosed it in 2553-2012 would be a different matter because in that
         case he was deemed a Cl. So it's two different cases.
                So in the case that I represented you on, his identity was that
         he was the victim. In the other case he was considered a Cl, and if
         they didn't disclose it in that case that's a different argument. But
         that's not for the case that you went to trial on.
         Q.     Wouldn't it be relevant for his identity to be disclosed at the
         other case so that you could know if any prosecutorial misconduct
         have occurred during the midst of litigation so that you could bring it
         to the Court's attention?


                                      14
(




                 A.     Well, in that case I wasn't - - I didn't - - I didn't continue to
                 represent you on that case. So that's a different matter. That's not
                 for purpose of today. Because we knew who Mr. Barna was, he was
                 the victim. (N.T. 39 -43).


           In sum, there are three necessary components to demonstrate a Brady_

    violation:

          The evidence at issue must be favorable to the accused, either because it is

    exculpatory or because it is impeaching; that evidence must have been

    suppressed by the state, either willfully, or inadvertently; and prejudice must

    have ensued. Commonwealth v. Causey, 833 A.2d 165 (Pa. Super. 2003) citing,

    Strickler v. Greene, 527 U.S. 263 (1999). Johnson has not substantiated a

    violation nor has he been prejudiced.

          The Pennsylvania test for ineffectiveness of counsel ls, in substance the

    same as the two part performance and prejudice standard set forth by the United

    States Supreme Court, see Strickland v. Washington. 466 U.S. 668 (1984) although
                                                                                 .
    this court has divided the performance element into two sub-parts dealing with

    arguable merit and reasonable strategy. Thus, to succeed on an ineffectiveness

    claim,.a petitioner must establish that the underlying legal claim has arguable

    merit; counsel had no reasonable basis for her action or inaction; and the

    petitioner suffered prejudice as a result. See Commonwealth v. Pierce, 527 a.2d

                                             15
. �   .
      973 (1987). To demonstrate prejudice the petitioner must show that there Is a

      reasonable probability that but for counsel's professional errors, the result of the

      proceeding would have been different. A reasonable probability is a probability

      sufficient to undermine confidence in the outcome of the proceeding. See

      Commonwealth v. Ali, 10 A_.3d 282 (2010). As cited in Commonwealth v. King. 57

      A.3d 607 (Pa. 2012).

            Because counsel is presumed to be competent, it is ordinarily the

      defendant's burden to demonstrate that a constitutional violation has occurred.

      King, Supra.

            Counsel provided effective representation at trial.



                               END OF OPIINION

            ORDER ATTACHED AS-PAGE 17




                                              16
 ..L     A




          CO:M::M:ONWEALTH OF PENNSYLVANIA: IN THE COURT OF COMM:ON
          PLEAS
                                                                                   OF LUZERNE COUNTY
                         v.                                                           -CRIMINAL-


          ARMON! JOHNSON                                                   : NO.     2713 OF        2011
                         Defendant                                                   2092 1vIDA 2016




                                                                 ORDER
                                                   $y

                         AND NOW, this                       of January, 2018, it is hereby ORDERED,

         ADJUDGED AND DECREED:


                                       1. Defendant's PCRA Petition is DENIED AND DISMISSED.

                                       2. The Clerk of Courts of Luzerne County is ORDERED AND

                                            DIRECTED to serve a copy of this Order and Opinion on all

                                            Counsel of Record and Defendant pursuant to Pennsylvania Rule

                                    >- of Criminal Procedure No. 114.
                  -..
                  lD
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                  D

   -     n:::                     ··-
                              :;-.. z
         ::>
         C)      :c           F. �- The Clerk of Courts of Luzerne County is ORDERED AND
         u       CL
                              =:       »


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        C)
                   I          .-.:z         DIRECTED to docket this Order and Opinion and to forthwith
        :ic:                  �c=:.
        r..:::   .q            -:- u..J .
        w                      ·:-N
        -l
        (..)     =
                 �
                              ...., :::>
                                   ...J     transmit same to the Superior Court of Pennsylvania .
                 c--J




                                                                    17
Cc: Luzerne County District Attorney's Office

   Mary Deady, Esq,

    Armoni Johnson, Pro Se
    SCI Dallas
   LG7394
   1000 Follies Road
   Dallas PA 18602




                                      18
