J-S11027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERRY JOHNSON

                            Appellant                 No. 414 EDA 2015


                  Appeal from the PCRA Order January 16, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000792-2008


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED MARCH 09, 2016

        Terry Johnson appeals from the order entered January 16, 2015, in the

Court of Common Pleas of Philadelphia County, that dismissed, without an

evidentiary hearing, his timely filed petition, seeking relief under the

Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Johnson seeks post conviction relief from the judgment of sentence of 7½ to

15 years’ imprisonment, imposed after he was convicted by a jury of

intimidation of a witness and conspiracy.1      After a thorough review of the

record, the parties’ briefs, and the applicable law, we affirm on the basis of

the PCRA court’s opinion.



____________________________________________


1
    18 Pa.C.S. §§ 4952 and 903, respectively.
J-S11027-16



       The PCRA court has aptly summarized the facts and procedural

history2 in its Pa.R.A.P. 1925(a) opinion, and we adopt its recitation. PCRA

Court Opinion, 6/2/2015, at 1–4. Johnson contends the PCRA court erred in:

(1) denying his PCRA petition without an evidentiary hearing, and (2)

denying relief on his PCRA petition alleging counsel was ineffective.

Johnson’s Brief at 8.        Specifically, Johnson argues counsel was ineffective

for failing to (a) file a motion to reconsider sentence, (b) include the issue of

improper consolidation in the Pa.R.A.P. 1925(b) statement, and (c) include

the issue of violation of the wiretap laws in the pretrial motion.

       Preliminarily, we note:

           This Court’s standard of review regarding an order
           denying a petition under the PCRA is whether the
           determination of the PCRA court is supported by the
           evidence of record and 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.
           [T]he right to an evidentiary hearing on a post-conviction
           petition is not absolute. It is within the PCRA court’s
           discretion to decline to hold a hearing if the petitioner’s
           claim is patently frivolous and has no support either in
           the record or other evidence. It is the responsibility of the
           reviewing court on appeal to examine each issue raised in
____________________________________________


2
   This Court notes its concern with the almost two-year lapse between
Johnson’s filing of his pro se petition and amended petition. Here, Johnson’s
pro se PCRA petition was filed on April 12, 2012. Appointed counsel
entered his appearance for Johnson on March 25, 2013, and filed an
amended PCRA petition on Johnson’s behalf on January 27, 2014. Nothing
in the certified record explains the reason for the delay between the filing of
these petitions.




                                           -2-
J-S11027-16


            the PCRA petition in light of the record certified before it
            in order to determine if the PCRA court erred in its
            determination that there were no genuine issues of
            material fact in controversy and in denying relief without
            conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations

omitted).

      The PCRA judge, the Honorable Shelley Robins New, has provided a

thorough and well reasoned discussion in support of her decision to dismiss

Johnson’s PCRA petition.        See PCRA Court Opinion, 6/2/2015, at 4–8

(explaining: (1) Johnson failed to demonstrate prejudice, where the court

imposed a standard range sentence and he failed to proffer any evidence of

mitigating factors that would have persuaded the court to reconsider his

sentence,     had a motion for reconsideration been filed; (2) the case was

proper to be tried jointly among the four defendants as the jury needed to

understand the nature of the homicide (charged against one of Johnson’s co-

defendants) and needed to see and view the recanting witnesses in order to

make a reasoned determination whether or not the witnesses were

intimidated; the intimidation and conspiracy charges involved the same

evidence     against   all   four   defendants,   and   (3)   counsel’s    alleged

ineffectiveness for failure to litigate a motion to suppress and allege that the

Commonwealth violated the Wiretap Act, 18 Pa.C.S. § 5701 et seq., is

meritless, as 18 Pa.C.S. § 5704 authorizes warrantless interceptions based

on consent, and the parties expressly or implicitly consented to the


                                       -3-
J-S11027-16


interceptions where a periodic recorded message informed the parties the

calls made by Johnson’s co-defendant from prison were being monitored.).

      As we agree with the sound reasoning of the PCRA court, we adopt the

PCRA court’s opinion as dispositive of the issues raised in this appeal, and

affirm the denial of PCRA relief.

      In the event of future proceedings, the parties are directed to attach a

copy of the PCRA court’s 6/2/2015 opinion to this decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




                                    -4-
                                                                                Circulated 02/16/2016 03:37 PM



             IN THE COURT OF COMMON PLEAS OF PHILADELPHIA                     COUNTY

                                     CRIMINAL TRJAL DIVISION                                FILED
                                                                                             JUNO 2 2015
COMMONWEALTH OF PENNSYLVANIA                              cr-s 1-cR-0000192-2oos        CriminalAppeals Unit
                          v.
                                                                                      FirstJudicial District of PA
TERRY JOHNSON, Appellant                             Superior Court Docket No. 4I4EDA2015

                                    OPINION OF THE COURT

          Appellant, Terry Johnson appeals from this Court's denial of relief pursuant to the

Post Conviction Relief Act (PCRA).42 Pa. C.S.A. § 9541, et. seq. For the reasons set

forth below, no relief is due.

                                          Procedural History

          Appellant was arrested on September 23, 2007.               The arrest stemmed       from

Appellant's participation       with co-defendant, Tashan Bundy and others in an attempt to

intimidate witnesses in Bundy's upcoming trial for murder. The upcoming trial was to be

Bundy's third such trial, as the two prior trials resulted in hung juries.

          A preliminary        hearing   was held on March     14,   2008.     Prior to trial the

Commonwealth sought to consolidate all of the intimidation           cases with Bundy's murder

trial.   Appellant filed a motion in limine to preclude the admission of several recorded

phone calls between         himself and co-defendant      Bundy.     The. Honorable Teresa M.

Sarmena,     who presided       over Bundy's   first two trials, granted the Commonwealth's

motion and denied Appellant's motion. The cases were then transferred to this Court for

trial.

         Between May 29, 2008 and June 19, 2008, Appellant and his co-defendants

received a jury trial before this Court. Following the conclusion            of the trial, the jury
    found Appellant guilty of one count of criminal conspiracy                and one count of witness

    intimidation.

             On November 10, 2008, this Court sentenced Appellant to a term of not less than

seven and a half (7 12) years, and not more than fifteen (15)                        years incarceration for

criminal       conspiracy     and not less than five (5) years and not more than ten ( I 0) years

incarceration for witness intimidation.              The sentences were deemed to run concurrently.

             On November 20, 2008, Appellant filed post-sentence              motions,    seeking to vacate

his sentence, challenging               the sufficiency and weight of the evidence. The post-sentence

motions were denied.

             On March 23, 2009, Appellant filed a Notice of Appeal to the Superior Court of

Pennsylvania,           docketed at 911 EDA 2009.            On May 19, 2011,        the Superior Court of

Pennsylvania          affirmed the judgment of sentence.

            On April 12, 2012, Appellant timely filed a pro se PCRA Petition.                  Counsel was

appointed who, on January 27, 2014, filed an Amended Petition and Memorandum                             of

Law, alleging the following grounds for relief;

             J) Counsel was ineffective for failing to file a motion to reconsider sentence.

            2) Counsel was ineffective for failing to include in his 1925 (b) statement in the

                    direct appeal, the issue of improper consolidation         of his trial with Bundy's

                                   1•
                    murder trial

            3) Counsel was ineffective for failing to raise challenge            the admissibility   of the

                    recorded conversations      in a pretrial motion to suppress".



I
  On direct appeal Appellant claimed error because his case was consolidated with Bundy's. The Superior
Court found the issue waived because it was not raised in the I 925(b) statement.
2
  On direct appeal Appellant claimed error because the recorded conversations were introduced. The
Superior Court found this issue waived because no motion to suppress was filed.


                                                         2
       After reviewing the pleadings, the record and the law, and after complying with

the procedural requirements in Pa.R.Crim.       P. 907, the Court dismissed the Petition.     The

instant timely appeal raising the same three issues followed.

                                      Facts Found by the Trial Court

       On the night of December 18-19, 2004, the decedent, Robert Smith, was working

as a security guard for a rap group that was performing at the Dowling Place Club at

Broad and Thompson Streets in Philadelphia.         At approximately    2:30 a.m.,   shots were

fired outside the club. Police Lt. Steven Arch, who was patrolling a few short blocks

away heard three gunshots and arrived as the first officer on the scene. He observed the

decedent lying in the driveway suffering from gunshot wounds. While the lieutenant

remained     at the scene,   police    officer Jonathan   White    transported   the victim    to

Hahnemann Hospital where he was later pronounced dead.

       Moments after the shots were fired, several witnesses reported seeing a gray

Oldsmobile    speeding away from the scene. The vehicle           was later found at 16th and

Parish Streets by Officer Jose Nova just a few minutes after the shooting. Police Officer

Jose Nova testified that he saw Appellant inside the car approximately 3 days before the

shooting. Bundy's fingerprints were found inside the car.

       Carneal Combs was called          as a Commonwealth witness. Mr. Combs denied

knowing anyone involved in this case; denied seeing anything concerning the shooting;

denied his name and social       security number and denied giving a police statement.

However, in a verbatim police statement taken on April 28, 2005, by Detective Marino

which Mr. Combs adopted at the time, he stated that he was present at the shooting; he




                                                3
    saw three bouncers, one of whom was arguing with a group of young men that included

Bundy; he was in the fleeing car; Bundy shot the victim; Bundy then got in the car and

    they drove off. He also told police that Zazzy (Jospeh Harville) and Muscles (Robert

Gray) were with him. Detective Marino testified that he met with Combs on April 27th,

2008 and that Combs expressed concern for his safety.                      Muscles and Zazzy also gave

police statements implicating           Bundy as the shooter.        When they were called as witnesses,

they, too did not identify Bundy as the shooter.

            In addition,      the    Commonwealth            introduced   a series   of recorded     phone

conversations among Appellant and his co-defendants. The calls were initiated by Bundy

from prison to co-defendant             Joyce Harris3'       phone. Appellant and co-defendant       David

Gindraw were also heard on the recordings.                    In essence, the conversations     focused on

Bundy directing Appellant and Gindraw to visit witnesses in order to make them fail to

appear at trial and/or to recant prior statements if called to testify. In one of those

conversations        recorded on May 9th, 2007, Appellant                  can be heard       admitting   to

intimidating witness Joseph Harville not to testify at a prior proceeding.




                                    Standard of Review Under the PCRA

           In Strickland      v. Washington,        466 U.S. 668, 685, (1984)         the United States

Supreme Court set forth what must be proven to prevail on an ineffective assistance of

counsel claim. First, one must show that counsel's representation fell below an objective

standard of reasonableness.           Next, one must show a reasonable probability that but for

counsel's errors, the result would have been different.



3
    Joyce Harris was found not guilty of all charges.


                                                         4
         The Supreme Court of Pennsylvania has added; "To prevail on ineffectiveness

claim in proceedings          pursuant to a Post Conviction    Relief Act (PCRA) petition,         a

petitioner must show: (I) that underlying legal claim has arguable merit; (2) that counsel

had no reasonable basis for his or her action or omission; and (3) that petitioner suffered

prejudice as result." Commonwealth v. Bardo, I 05 A.3d 678,684 (Pa. 2014).            Counsel is

presumed effective,         and the petitioner bears the burden of proving otherwise.     Id. To

establish prejudice, "The petitioner must show that there is a reasonable probability that

the outcome of the proceeding would have been different but for counsel's              action or

inaction." Id.

        Instantly,   Appellant first alleged that counsel was ineffective for failing to file a

motion to reconsider sentence. He claimed the sentence was excessive because he was

only found guilty of one of the three intimidation      charges. He claimed that he asked his

counsel to file a motion to reconsider sentence, but it was not done, thus waiving any

sentencing issues for appeal. Id. Appellant's claim is meritless.

        Appellant has failed to demonstrate that but for counsel's      failure to file a motion

to reconsider sentence, the outcome would have been different. Appellant's          sentence of

seven and a half (7Y2) to fifteen (15)          years was within    the standard   range of the

sentencing    guidelines.     He fails to proffer any evidence of any mitigating    factors that

would have persuaded the Court to reconsider his sentence, had a motion to reconsider

been filed.      At sentencing the Court considered      all relevant factors and imposed the

appropriate sentence.       No basis to reconsider the sentence was articulated in the Amended

Petition or Memorandum of Law and no basis existed. Therefore, this claim is meritless.

See also Commonwealth           v. Jones, 571 Pa. 811   A.2d 994, l 003 (2002), in which the




                                                 5
Pennsylvania      Supreme    Court    stated,   "An undeveloped    argument,    which   fails to

meaningfully     discuss and apply the standard governing the review of ineffectiveness

claims, simply does not satisfy Petitioner's burden of establishing that he is entitled to any

relief."

           Second, Appellant claims that counsel was ineffective for failing to include the

issue of improper consolidation        in his 1925 (b) statement in the direct appeal.      We

addressed the propriety of consolidating the cases in our opinion in the direct appeal, and

we repeat it here.    We note that the motion was litigated prior to this case being assigned

to this Court for trial.    However, we agree that the case was proper to be tried jointly

among the four defendants.            Severance or consolidation    questions fall within   the

discretion of the trial court and an order denying severance or granting consolidation will

not be overturned on appeal absent an abuse of discretion.         Commonwealth v. Brown,

925 A.2d.     147 (Pa. 2007) (collecting cases).     Moreover, when conspiracy is charged a

joint trial generally is advisable.   Commonwealth v. King, 721 A.2d. 763 (Pa. 1998).        A

claim of mere hostility between defendants, or that one defendant may try to exonerate

himself at the expense of the other, however, is an insufficient basis upon which to grant

a motion to sever.    Commonwealth v. Chester, 587 A.2d. 1367 (Pa. 1991) (cert. denied.)

Instantly, the jury needed to understand the nature of the homicide and needed to see and

view the recanting witnesses in order to make a reasoned determination          whether or not

the witnesses were intimidated.       The intimidation   and conspiracy charges involved the

same evidence against all defendants and a joint trial was proper.

           Moreover, Appellant's PCRA claim simply was undeveloped.            His claim in the

Amended Petition is set forth in one sentence; "It is clear that the jury was confused in




                                                 6
this case by the consolidation in that they found Petitioner not guilty of intimidation of

two of the alleged victims but guilty of one of the alleged victims by the very same

evidence." This is insufficient evidence to support a claim of ineffective assistance of

counsel. Commonwealth      v. Roney, 79 A.3d. 595, 607 (Pa. 2013) (claim based on nothing

more than speculation,   devoid of any factual evidentiary support must fail).

        Finally, Petitioner alleges that counsel was ineffective for failing to allege in a

motion to suppress that the Commonwealth          violated the Wiretap Act, 18 Pa.C.S.A.

§570 l, et seq. This claim is frivolous as counsel can never be deemed ineffective for

failing to pursue a meritless claim. Commonwealth v. Pursell, 495 A.2d. 183, 189 (Pa.

1995)

        18 Pa.C.S.A. 5704 authorizes warrantless interceptions "where the parties to the

communication have given prior consent to the interception." In this case it is beyond

dispute that the parties to the calls either expressly or implicitly gave their consent to the

i nte~ceptions.

        Instantly, these calls were made by Bundy from prison. During the calls the

parties were informed periodically via a recorded message that the calls were being

monitored. When the parties engaged in their conversations despite the warnings, no

violation of the Wiretap Act occurred. See Commonwealth v. Baumhammers, 960 A.2d.

59, 77-79 (Pa. 2008) (no violation of the Wiretap Act occurs in intercepted prison phone

calls when an audible message gives the participants notice that the calls are being

recorded.)




                                              7
            Accordingly, for the reasons set forth above, the judgment of conviction should be

    affirmed."

                                                       BY THE COURT:




                                               /
                                                                                  ROBINS NEW, J.




4
  The Court wishes to acknowledge the involvement of Ryan Halbert, a Rutgers University law student in
the research and writing of this opinion.


                                                   8
APPENDIXB
