J-S62021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                   v.

KARLTON JOHNSON,

                          Appellant                 No. 3148 EDA 2013


         Appeal from the Judgment of Sentence of August 7, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0011564-2012


BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                  FILED NOVEMBER 18, 2014

     Appellant, Karlton Johnson, appeals from the judgment of sentence

entered on August 7, 2013, as made final by the denial of Appellant’s post-

sentence motion on August 12, 2013. We affirm.

     The trial court has ably explained the facts and procedural posture

underlying this appeal:

        On the night of September 11, 2012, around 9:45 [p.m.],
        [Philadelphia] Police Officer Daniel Loesch and his partner,
        Police Officer Rodney Cottrell, were patrolling the area of
        6001 Algon Avenue in Philadelphia on marked bicycles.
        During their patrol, the two officers saw [25] to [30]
        individuals in a crowd on the street. Because there had
        been a shooting in the area a few days earlier, the officers
        approached the group of individuals.        The individuals
        dispersed upon noticing the officers. When [Appellant] saw
        the officers, he grabbed his waistband and ran away to the
        west.

        Officer Loesch pursued [Appellant] on bicycle while his
        partner rode in the opposite direction to cut off [Appellant].
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       Officer Loesch observed [Appellant] run around a building
       and then saw him hiding in a bush. Officer Loesch saw a
       black gun with a brown grip in [Appellant’s] waistband while
       [Appellant] crouched down in the bush.

       [Appellant] then began to flee from the bush.             As
       [Appellant] started to run away, Officer Loesch, from [15]
       feet away, and Officer [Cottrell], from the southeast corner
       of a nearby building, observed [Appellant] throw a handgun
       into a blue recycling bin. [Appellant] then continued to run
       around the building.

       [Appellant] next tried to enter the back door of a residence,
       but the occupants would not let him in. Officer Loesch and
       Officer Cottrell came up to [Appellant] and arrested
       [Appellant].

       While coming towards [Appellant], Officer Cottrell passed
       the recycling bin and observed a weapon inside.

       After the police officers arrested [Appellant], Detective John
       Hopkins of Northeast Detectives arrived and took
       photographs and recovered the discarded handgun from the
       recycling bin. There was ample lighting in the area from
       street lights – so much so that Detective Hopkins did not
       need to use the flash on his camera.

       Detective Hopkins was later able to determine that the
       recovered gun was registered to a Brian Kemper, who had
       reported [the gun] stolen in a burglary in May [2012].

       Detective Hopkins inspected the weapon and discovered
       rounds in the magazine and a bullet in the chamber. Ann
       Marie Barnes, a firearms examiner with the Philadelphia
       Police Department’s Firearms Identification Unit, identified
       the firearm as a Polish semiautomatic [9-millimeter]
       Marakov.     She also concluded that there were six [9-
       millimeter] Marakov rounds and one Remington .380 caliber
       round in the gun. Ms. Barnes also found gunshot residue
       and lint in the barrel, and she concluded that the gun was
       operable.

                                    ...


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        Following a trial on August 6, 2013, the jury found that
        [Appellant] possessed a firearm without a license and [that
        Appellant was, therefore, guilty of violating 18 Pa.C.S.A.
        § 6106].

        Subsequent to the jury verdict, [Appellant] waived his right
        to a jury trial on the remaining charge, and the trial court
        convicted [Appellant] of [violating 18 Pa.C.S.A. § 6105,]
        because [Appellant] was ineligible to possess a firearm as a
        result of prior felony convictions.

        [On August 7, 2013, t]he trial court sentenced [Appellant]
        to [serve a term of] five to ten years [in prison] on the
        [Section] 6105 [conviction] and [to serve] a consecutive
        term of five years of reporting probation on the [Section]
        6106 [conviction].

Trial Court Opinion, 1/23/14, at 1-3 (internal citations omitted).

      After the trial court denied Appellant’s timely post-sentence motion,

Appellant filed a timely notice of appeal. The trial court ordered Appellant to

file a concise statement of errors complained of on appeal, pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b). Appellant complied and

raised the following claims in his Rule 1925(b) statement:

        1. The [trial c]ourt erred by not giving the jury cautionary
        instructions   after   testimony   was    elicited  by   the
        Commonwealth about a shooting in the area two days
        before [Appellant] was arrested.

        2. [Appellant] was not connected to the shooting and any
        testimony about the shooting was overly prejudicial.

Appellant’s Rule 1925(b) Statement, 11/20/13, at 1.

      Appellant now raises the following claim to this Court:

        Is [Appellant] entitled to a new trial based on the
        ineffectiveness of his trial counsel in failing to object to
        testimony elicited by the Commonwealth regarding a recent
        shooting in the area, in which [Appellant] was arrested, and

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J-S62021-14


          for not requesting a cautionary instruction be given to the
          jury?

Appellant’s Brief at 3.

      Appellant’s ineffective assistance of counsel claim is waived on appeal,

as Appellant did not raise the claim in his court-ordered Rule 1925(b)

statement.    Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule

1925(b) s]tatement . . . are waived”); Commonwealth v. Collins, 888

A.2d 564, 572 (Pa. 2005) (holding that an ineffective assistance of counsel

claim is distinct from the underlying claim of trial court error).

      Further, even if Appellant had preserved his ineffective assistance of

counsel    claim,   the   claim   would    be   unreviewable   on    direct   appeal.

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general

rule, a [defendant] should wait to raise claims of ineffective assistance of

trial counsel until collateral review”); Commonwealth v. Holmes, 79 A.3d

562, 620 (Pa. 2013) (“absent [certain, specified] circumstances [(that are

inapplicable to the case at bar)] claims of ineffective assistance of counsel

are to be deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal”).




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J-S62021-14



     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




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