J-S13039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ZAHIR BODDY-JOHNSON

                               Appellant              No. 3029 EDA 2015


               Appeal from the PCRA Order September 17, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0004485-2008

BEFORE: BENDER, LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 20, 2017

        Appellant, Zahir Boddy-Johnson, appeals from the order entered in the

Philadelphia County Court of Common Pleas denying his petition for relief

filed pursuant to the Post Conviction Relief Act1 (“PCRA”).           Appellant

contends trial counsel was ineffective for failing to request a jury instruction

explaining the purpose for which they were to consider evidence of other

crimes. We affirm.

        We adopt the facts as set forth by the trial court and relied upon by

this Court on direct appeal.

              On February 17, 2008 Philadelphia Housing Authority
           Police Officer Craig Kelley was on duty monitoring the
           entrance to the public housing residence located at 301
           Queen Lane, Philadelphia, PA when he heard a knock on
           the steel door leading into the patrol booth where he was

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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           stationed situated in the lobby area of the residence.
           Officer Kelley testified that when he opened the door to the
           patrol booth he found a male wearing a scarf partially
           covering his face standing in front of him with the muzzle
           of a rifle pointed at his face. The male’s finger was on the
           trigger of the rifle and the male stated “Don’t move.” The
           assailant then began shooting Officer Kell[e]y, whereupon
           Kell[e]y closed the door to the booth and he was spun
           around by the rifle fire and knocked to the floor. The male
           continued to fire his weapon at Kell[e]y while he lay on the
           floor beneath the window at his duty station as glass and
           debris sprayed over him.        Rifle bullets penetrated his
           protective vest and struck Kell[e]y’s left torso.

              In spite of his injuries, Officer Kelley was able to access
           his radio and relay that he was down, needed assistance,
           and required a medic.        Kell[e]y was unable to get a
           response however he was then able to get to a nearby
           telephone and he called the Housing Authority radio room
           for help. Philadelphia police officers responded shortly
           thereafter and Kell[e]y was immediately transported to
           Temple University Hospital.

              Dr. Amy Goldberg testified that she was called to attend
           to Officer Kell[e]y at Temple University Hospital and that
           she found him with a large wound to the left side of his
           chest and abdomen. Kell[e]y was treated and admitted to
           the hospital where he remained for three days. Upon his
           release from the hospital, Kell[e]y was prescribed pain
           medication and was further treated at Temple Wound
           Clinic and required the services of a home care nurse three
           times a week for approximately two months. He continues
           to receive physical therapy and continues on pain
           medicines.[2]

              Philadelphia Police Officer Robert Lee responded to the
           police radio call that Officer Kelley had been shot. Lee
           began patrolling the area near the crime scene whereupon
           Appellant was observed wearing clothing that fit the
           description relayed over the radio. Appellant was stopped
           and [sic] Appellant where he was coming from. Appellant

2
    We note that the trial court’s opinion is dated April 30, 2010.



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          responded that he was coming from 301 Queen Lane
          where his aunt lived. Lee testified that his next question
          to Appellant was whether Appellant knew that a police
          officer had been shot, whereupon Appellant responded,
          “No, I did not know a police officer had got shot a[t] 301
          Queen Lane, but I heard the gunshots.” Lee had not
          identified the location of the shooting of Officer Kell[e]y
          before Appellant’s response. Lee advised police radio that
          he had a potential suspect and he was then instructed to
          transport Appellant to Temple University Hospital. Upon
          arriving at the hospital, Lee was able to meet with Officer
          Kelley to attempt to make an identification and was further
          instructed to transport Appellant to the homicide unit at
          police headquarters.

             Detective George Pirrone arrived at the scene shortly
          after the shooting and determined that video surveillance
          had been taken of the area from a camera at the Hung
          Hing Restaurant located a block away. The video, which
          was introduced into evidence, revealed a male running
          past the restaurant carrying a rifle in his right hand while
          bystanders entered the restaurant and hid behind a
          counter.

             In the area of Appellant’s arrest, and near the location
          shown in the video, an Erinco SK assault rifle, a black
          nylon bag containing live rounds of ammunition along with
          other contraband was recovered. A bank card found at the
          scene was traced to Appellant. Other ballistics and DNA
          evidence linked Appellant to the shooting of Officer
          Kell[e]y.

             Shortly after Appellant was transported to police
          headquarters, Detective Patrick Mangold and Detective
          McNamee conducted an interview with him.3 Appellant
          was first provided Miranda[4] warnings and he signed the
          standard form indicating that he had been read his rights,

3
 The trial court inadvertently indicates the date of the testimony as June 8,
2009. Detective Mangold testified on June 9, 2009.
4
    Miranda v. Arizona, 384 U.S. 436 (1966).




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        that he understood them, and that he was voluntarily
        offering his statement. Thereafter, Appellant admitted
        that he shot Officer Kelley, giving a detailed explanation.
        Appellant signed the statement at the end of the
        interview.[5] Detective Mangold testified that after the


5
  Appellant moved to suppress his statement to Detective Mangold.      The
following sidebar discussion was held regarding the statement:

        [Defense counsel]: Your Honor, the portion where it refers
        to restitution─

           [Appellant] states “Pay restitution for my stolen car
        case,” Your Honor, I would just submit that, obviously, this
        would be something that would be a prior bad act. For
        that to be brought in, the Commonwealth would have to
        make that known to the [c]ourt and make it known to me
        in writing prior to it actually being offered. That being
        said, it hasn’t been. There has been nothing to indicate
        that a Motion was filed to bring in that prior bad act. That
        being said, I would just ask that one portion to be
        redacted.

        The Court: Commonwealth?

        [The Commonwealth]: Your Honor, I would submit to the
        [c]ourt that this goes to the essence of [Appellant’s]
        motive.    And as it stands, there can be a curative
        instruction as to that, as in any case where a defendant’s
        involvement in another crime comes out.

           This is a case where [Appellant] is charged with
        attempted murder and aggravated assault. Him saying
        that he had a prior car case is certainly not going to make
        the jury believe that because he had a car case, he is
        somehow guilty, or should be seen as someone who would
        be more likely to commit an aggravated assault. What it
        does is─

           What he says is, “I needed to get money for restitution
        for my stolen car case.”




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        interview was completed, Appellant’s aunt, Miriam Davis,
        arrived and came into the interview room and that she
        read over the statement with Appellant and then she also
        signed if [sic] Appellant’s statement.

        The defense offered evidence of Appellant[’s] reputation
        for being peaceful, truthful, and law-abiding. The defense
        also offered testimony that the glass enclosure of Kelley’s
        patrol booth had been previously damaged with bullet
        holes from prior occasions.

Boddy-Johnson, 2910 EDA 2009 (unpublished memorandum adopting Trial

Ct. Op., 4/30/10, at 2-4) (references to the record omitted).

     At trial, Detective Mangold testified, in pertinent part, as follows,

reading from Appellant’s statement:

        Question: Were you present when Officer Kelley was shot
        tonight while he was working inside of the security booth
        at 301 Queen Lane?

        A: Yes.

        Q: Can you tell me who shot him?

        Answer: I did.

        Question: Can you tell me why you shot him?




N.T., 6/9/09, at 43-44. The court denied defense counsel’s motion. On
direct appeal, Appellant argued he was entitled to a new trial as a result of
the denial of the motion to suppress his statement or to redact from his
statement his reference to an unrelated stolen car case.                See
Commonwealth v. Boddy-Johnson, 2910 EDA 2009 (unpublished
memorandum at 2) (Pa. Super. Sept. 29, 2010). This Court opined: The
“portion of Appellant’s statement referencing Appellant’s need for money to
make restitution in separate stolen vehicle case was relevant to show
motive[.]” Id. at 3.




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       Answer: I was going to rob him. When he opened the
       door to the booth, I shot the gun one time and he closed
       the door. Then I shot two more times while he was inside
       of the booth. I was shooting through the glass, but I
       don’t─

       The bullets went through. I was just shooting.

       Question: Can you explain to me exactly what happened?

       Answer: I went to the door of the booth and I knocked on
       the door. As soon as he opened the door, I pointed the
       gun at him. After I pointed the gun at him, he tried to
       close the door and that is when I shot. The gun went off.

       Page three, continued.

       He got the door closed and I just shot at the booth
       because I thought he was going to shoot at me.

       [Defense counsel]: Your Honor, I ask him to finish the
       whole statement.

       [The Commonwealth]: He said he got the door closed.
       And what did he say after that?

       A: And I just shot at the booth because I thought he was
       going to shoot at me. I ran out of the building and onto
       Queen Lane. I dropped the bag that I had the gun in on
       Queen Lane. I kept on moving and I dropped the gun at
       the corner of the next block, I think at Morris and Queen.
       I went up the block and I just tried to chill. Then while I
       was still on the block, the cops stopped me and brought
       me here.

                           *    *    *

       Question: When you told me that you were going to rob
       the officer, what were you going to take form him?

       Answer: I was going to take the laptop that was in there,
       and I was going to try to take his gun.




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        Question: What were you going to do with the things that
        you took from the officer?

        Answer: I was going to sell them and spend the money for
        restitution for my stolen car case.

        Question: When did you decide to do this?

        Answer: I saw him in there last Sunday, but I really didn’t
        think about it. Then today I saw him again and I just
        decided to do it.

        Question: What kind of gun did you have today and how
        long have you had it?

        Answer: It’s an SKS, a rifle. I had it about a month.

                               *    *     *

        Question: Do you know the officer that was shot today?

        Answer: No, I don’t.

N.T., 6/9/09, at 55-59.

     On June 12, 2009, following a jury trial, Appellant was found guilty of

attempted murder, aggravated assault, weapons and related charges.         On

September 15, 2009, he was sentenced to twenty-three and one-half to

forty-seven years’ imprisonment. On September 18, 2009, his sentence for

voluntary use of a firearm was amended to two and one-half to five years’

imprisonment, for an aggregate sentence of twenty-two and one-half to

forty-seven years’ imprisonment.        Appellant’s judgment of sentence was

affirmed by this Court.   See id.       On October 14, 2010, Appellant filed a

petition for allowance of appeal.   The Pennsylvania Supreme Court denied

the petition on February 8, 2011.


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      Appellant filed a pro se PCRA petition on April 17, 2012.6 Counsel was

appointed and filed an amended PCRA petition on April 17, 2015.             On

September 17, 2015, the PCRA petition was dismissed without a hearing.

This timely appeal followed.7     Appellant filed a court-ordered Pa.R.A.P.

1925(b) statement of errors complained of on appeal.8 The PCRA court filed

a responsive opinion.


6
   Appellant’s judgment of sentence became final on May 9, 2011, ninety
days after the Pennsylvania Supreme Court denied his petition for allowance
of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review[ ]”). Appellant had until
May 9, 2012, to file his PCRA petition. See 42 Pa.C.S. § 9545(b)(1)
(providing PCRA petition must be filed within one year of the date the
judgment becomes final). His pro se PCRA petition was was docketed on
April 17, 2012. Therefore, it was timely.
7
  The notice of appeal was filed by Gary Sanford Server, Esq. The Pa.R.A.P.
1925(b) statement of errors complained of on appeal was filed by Lawrence
J. Bozzelli, Esq. On June 29, 2016, this Court entered a per curiam order
remanding the case to the trial court for a determination as to which court
appointed attorney, Gary Sanford Server, Esq., or Lawrence J. Bozzelli, Esq.,
represented Appellant. On August 30, 2016, the trial court entered an order
allowing Lawrence Bozzelli, Esq. to withdraw from the instant case. Present
counsel filed the amended PCRA petition.
8
  We note that Appellant suggests that the Commonwealth may argue the
issue raised in this appeal is waived because it was not in the Rule 1925(b)
statement filed by Mr. Bozzelli. Appellants Brief at 17. In the Rule 1925(b)
statement, it is averred “[t]he trial court committed error when it permitted
the Commonwealth to introduce evidence of [A]ppellant’s prior bad act as
well as reading a related jury charge to the jury.” Appellant’s 1925(b)
Statement, 2/12/16, at 1. Appellant refers to the notes of testimony where
defense counsel asks the trial court if it intends to give a judgment
instruction for prior bad acts. See N.T., 6/10/09, at 8. The trial court
responded as follows: “My law clerk is going to pull the chart. I will go



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      Appellant raises the following issue for our review: “Was trial counsel

ineffective where they [sic] failed to request a jury instruction explaining to

the jury the purpose for which they were to consider evidence of other

crimes?”9    Appellant’s Brief at 6.   Appellant contends that “[t]rial counsel

had no reasonable basis for not . . . requesting an appropriate instruction

during the Court’s closing charge.” Id. at 15. He argues that “[a]ppellate

courts have previously held that when bad acts evidence is admitted at trial

an instruction is necessary to explain the limited purpose for which the

evidence was admitted[.]”      Id.     He asserts Appellant was prejudiced by

counsel’s failure to request the instruction. Id. at 16.

      Our standard of review from the denial of relief under the PCRA is well-

settled:

           [A]n appellate court reviews the PCRA court’s findings to
           see if they are supported by the record and free from legal

through it and I will talk to Counsel about it later . . . .” Id. Prior to
charging the jury, the issue of a curative instruction regarding prior bad acts
was raised. See infra. Rule 1925(b) provides, in pertinent part, that
“[e]ach error identified in the Statement will be deemed to include every
subsidiary issue contained therein which was raised in the trial court.”
Pa.R.A.P. 1925(b)(iv)(5). See also Commonwealth v. Laboy, 936 A.2d
1058, 1059-60 (Pa. 2007) (holding Superior Court erred in finding vague
Rule 1925(b) sufficiency of the evidence claim waived in straight forward
drug case where trial court addressed issue). The Commonwealth did not
argue that the issue was waived.
9
  Appellant’s Rule 1925(b) statement also contains issues that are not raised
on appeal. See Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288 n. 11
(Pa. Super. 2015) (issues raised in Rule 1925(b) and not addressed in the
statement of questions or body of brief held abandoned on appeal).




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         error.   This Court’s 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.

Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008) (quotation marks

and citations omitted).

             To be eligible for PCRA relief, [a]ppellant must prove by
         a preponderance of the evidence that his conviction or
         sentence resulted from one or more of the enumerated
         circumstances found at 42 Pa.C.S. § 9543(a)(2) (listing,
         inter alia, the ineffective assistance of counsel and the
         unavailability at the time of trial of exculpatory evidence,
         which would have changed the outcome of the trial had it
         been introduced). Further, [a]ppellant must demonstrate
         that the issues raised in his PCRA petition have not been
         previously litigated or waived. Id. § 9543(a)(3). . . . A
         PCRA claim is waived “if the petitioner could have raised it
         but failed to do so before trial, at trial, during unitary
         review, on appeal or in a prior state post[-]conviction
         proceeding.” Id. § 9544(b). . . .

            It is well-established that counsel is presumed effective,
         and to rebut that presumption, the PCRA petitioner must
         demonstrate that counsel’s performance was deficient and
         that such deficiency prejudiced him.          Strickland v.
         Washington, [ ] 104 S. Ct. 2052, [ ] (1984). This Court
         has characterized the Strickland standard as tripartite, by
         dividing the performance element into two distinct parts.
         Commonwealth v. Pierce, [ ] 527 A.2d 973, 975 ([Pa.]
         1987). Thus, to prove counsel ineffective, [a]ppellant
         must demonstrate that: (1) the underlying legal issue has
         arguable merit; (2) counsel’s actions lacked an objective
         reasonable basis; and (3) [a]ppellant was prejudiced by
         counsel’s act or omission. Id. at 975.

            Relating to the reasonable basis prong, “[g]enerally,
         where matters of strategy and tactics are concerned,
         counsel’s assistance is deemed constitutionally effective if
         he chose a particular course that had some reasonable
         basis designed to effectuate his client’s interests.” Courts
         should not deem counsel’s strategy or tactic unreasonable


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         “unless it can be concluded that an alternative not chosen
         offered a potential for success substantially greater than
         the course actually pursued.” Id. Also “[a]s a general
         rule, a lawyer should not be held ineffective without first
         having an opportunity to address the accusation in some
         fashion. . . . The ultimate focus of an ineffectiveness
         inquiry is always upon counsel, and not upon an alleged
         deficiency in the abstract.”

             Relating to the prejudice prong of the ineffectiveness
         test, the PCRA petitioner must demonstrate “that there is a
         reasonable probability that, but for counsel’s error or
         omission, the result of the proceeding would have been
         different.” Particularly relevant herein, it is well-settled
         that “a court is not required to analyze the elements of an
         ineffectiveness claim in any particular order of priority;
         instead, if a claim fails under any necessary element of the
         Strickland test, the court may proceed to that element
         first.”

Commonwealth v. Koehler, 36 A.3d 121, 131-32 (Pa. 2012) (some

citations omitted).10


10
   Appellant cites Commonwealth v. Buehl, 658 A.2d 771 (Pa. 1985) in
support of the claim that counsel was ineffective in the instant case. In
Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001),
the Pennsylvania Supreme Court opined:

         this Court has retreated from the view expressed in
         Commonwealth v. Buehl . . . that Section 9543(a)(2)(ii)
         of the PCRA places a higher burden on a petitioner to show
         ineffective assistance of counsel than that required by the
         Sixth Amendment as defined by Strickland v.
         Washington, [ ] 104 S.Ct. 2052, [ ] (1984).              In
         Commonwealth v. Kimball, [ ] 724 A.2d 326 ([Pa.]
         1999), we disapproved of Buehl and held that Section
         9543(a)(2)(ii) does not place a more stringent standard for
         collateral review of claims of ineffective assistance of
         counsel than the Sixth Amendment standard applicable to
         ineffectiveness claims raised on direct appeal.         We
         interpreted the language from Section 9543(a)(2)(ii)



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             In reviewing the propriety of an order denying PCRA
         relief, this Court is limited to examining whether the
         evidence of record supports the determination of the PCRA
         court, and whether the ruling is free of legal error. Great
         deference is given to the findings of the PCRA court, which
         may be disturbed only when they have no support in the
         certified record.

Commonwealth v. Perry, 959 A.2d 932, 934-35 (Pa. Super. 2008)

(citations omitted).

      In Commonwealth v. Spotz, 870 A.2d 822 (Pa. 2005), our

Pennsylvania Supreme Court opined: “Objections sometimes highlight the

issue for the jury, and curative instructions always do.” Id. at 832; accord

Commonwealth v. Washington, 927 A.2d 586, 606 (Pa. 2007).

      In the case sub judice, the trial court opined:

         [T]he [c]ourt offered Appellant the opportunity to have the
         jury instructed that it could not consider his prior
         conviction as evidence of his guilt. After conferring with

         requiring proof that counsel’s ineffectiveness “so
         undermined the truth-determining process that no reliable
         adjudication of guilt or innocence could have taken place”
         as embodying the prejudice element of the Sixth
         Amendment standard for ineffectiveness claims articulated
         in Strickland. Accordingly, we held that the standard of
         review, pursuant to Section 9543(a)(2)(ii), of an
         ineffectiveness claim raised in a PCRA petition is the
         Strickland standard, as followed by this Court in
         Commonwealth v. Pierce, [ ] 527 A.2d 973 ([Pa.]
         1987). See Kimball, 724 A.2d at 333.

Id. at 129 (footnote omitted).




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        counsel, Appellant declined to request the jury instruction.
        . . . There was a reasonable basis for declining to request
        a cautionary instruction regarding his prior conviction.
        Such an instruction would serve only to highlight what was
        otherwise minimally significant evidence.         Moreover,
        Appellant failed to plead and prove that any prejudice
        redounded to his detriment from counsel’s decision not to
        request a cautionary instruction.     Appellant’s claim of
        ineffective assistance is without merit and error was not
        committed.

Trial Ct. Op., 3/4/16, at 6 (emphasis added). We agree no relief is due.

     The court recessed the jury and stated as follows:

        The Court: Counsel, basically what I am going to read is:
        There was evidence tending to prove that the defendant
        has a prior criminal matter involving car theft. That was
        referenced in defendant’s statement to police.        This
        evidence is not evidence of the defendant’s guilt and you
        must not infer guilt from the evidence of a prior criminal
        matter. This evidence may be considered by you for one
        purpose only: That is, to help you judge whether or not
        there was potential for commission of the crime for which
        the defendant is currently on trial.

           That’s basically what I am going to read.

        [Defense counsel]: Your Honor, I would just ask that it not
        be read in general, just in terms of confusion.

        The Court: So you don’t want the instruction at all?

        [Defense counsel]: Your Honor, it’s a situation where, once
        again, it’s not a conviction. It’s not something─

        The Court: I understand. Do you want an instruction or
        you do not want an instruction, or we can cut it off?

           There was evidence tending to prove that [Appellant]
        has a prior criminal matter involving car theft. That was
        referenced in [Appellant’s] statement to police.      This
        evidence is not evidence of [Appellant’s] guilt and you



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           must not infer guilt from the evidence of a prior criminal
           matter.

             Then the only purpose would be to help them assess
           motive. We could leave that part out or─

           [Defense counsel]: Let me just confer with my client.

           The Court: Yes. Go ahead.

           [Defense counsel]: Thank you, Your Honor. Your Honor, I
           ask that it not be given.

           The Court: Very well.

           Commonwealth, you concur?        You concur?   They do not
           wish to have this instruction.

           [The Commonwealth]: It’s up to him.          It’s totally his
           decision.

           The Court: Very well.

N.T., 6/10/09, at 26-28.

         We discern no error by the PCRA court. Appellant has not satisfied the

prejudice prong of the ineffective assistance of counsel test. See Koehler,

36 A.3d at 131-32. He has not shown that but for counsel’s action the result

of the proceedings would have been different. See id. The record supports

the determination of the PCRA court.           See Perry, 959 A.2d at 934-35.

Therefore, his ineffective assistance of counsel claim is without merit. See

Koehler, 36 A.3d at 131-32. Accordingly, we affirm the order of the PCRA

court.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/20/2017




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