J-S26039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONTE JOHNSON                              :
                                               :
                       Appellant               :   No. 1716 EDA 2018

                    Appeal from the PCRA Order May 11, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008687-2010


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                             FILED JUNE 04, 2019

       Donte Johnson (Johnson) appeals pro se from the order entered by the

Court of Common Pleas of Philadelphia County (PCRA court) dismissing his

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

       We derive the following relevant facts and procedural history from the

trial court’s November 14, 2018 opinion and our independent review of the

record. On May 9, 2012, a jury convicted Johnson of one count each of first-

degree murder, rape, involuntary deviate sexual intercourse, robbery, and

burglary.1     Johnson’s conviction stems from his brutal rape and fatal


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118 Pa.C.S. §§ 2502(a), 3121(a)(1), 3123(a)(1), 3701(a)(1)(i), and 3502(a),
respectively.


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* Retired Senior Judge assigned to the Superior Court.
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strangulation of the victim, Sabina O’Donnell, in a vacant lot after he

encountered her riding her bike. Johnson was eighteen years old at the time

of his offense.     The trial court sentenced him to a mandatory term of life

imprisonment on the murder charge and a consecutive aggregate sentence of

not less than forty nor more than eighty years’ incarceration on the remaining

offenses. This Court affirmed the judgment of sentence and our Supreme

Court denied further review on April 2, 2014.          (See Commonwealth v.

Johnson, 87 A.3d 381 (Pa. Super. 2013), appeal denied, 89 A.3d 660 (Pa.

2014)).

        Johnson, acting pro se, filed this timely PCRA petition on March 18,

2015.     Appointed counsel then filed a motion for leave to withdraw and a

Turner/Finley2 no-merit letter.          After issuing Rule 907 notice,3 the PCRA

court entered its order dismissing the petition and granting counsel’s request

to withdraw. This timely appeal followed.

        On appeal, Johnson argues that his life sentence for the murder

conviction is unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460




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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3   See Pa.R.Crim.P. 907(1).




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(2012). He also raises two claims of ineffective assistance of counsel. We

begin by addressing his contention that is sentence is unconstitutional.4

       By way of background, in Miller, the United States Supreme Court held

that it is unconstitutional for states to sentence juvenile homicide defendants

to mandatory sentences of life imprisonment without the possibility of parole.

See Miller, supra at 465. In Montgomery v. Louisiana, 136 S. Ct. 718

(2016), the Court determined that its Miller holding constituted a substantive

rule of constitutional law that must be applied retroactively to cases on

collateral review. See Montgomery, supra at 736.

       Johnson acknowledges that the Miller holding does not apply directly to

him but nonetheless asserts that it should be extended to apply to defendants

under the age of twenty-one as similarly situated to juvenile offenders. (See

Johnson’s Brief, at 17-23). However, our case law is clear that “the Miller

decision applies to only those defendants who were under the age of 18 at the

time of their crimes.” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (citation omitted). This Court has squarely rejected arguments

seeking an extension of Miller to persons convicted of murder who were older

at the time of their crimes than the class of defendants subject to the Miller

holding. See id.; see also Commonwealth v. Rodriguez, 174 A.3d 1130,


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4 When reviewing issues arising from the denial of PCRA relief, we must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa.
Super. 2018).

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1147 (Pa. Super. 2017), appeal denied, 186 A.3d 941 (Pa. 2018) (rejecting

Miller claim where appellant acknowledged that he was eighteen years old at

time he committed murder but argued that his immature and/or impulsive

brain made him similar to juvenile). Accordingly, Johnson is not entitled to

PCRA relief based on his contention that Miller should be extended.

      Turning to Johnson’s ineffective assistance of counsel claims, “it is well

established that counsel is presumed to have rendered effective assistance.”

Commonwealth v. Montalvo, 2019 WL 1338433, at *7 (Pa. filed Mar. 26,

2019) (citation omitted). A court must examine “whether: (1) the underlying

claim has arguable merit; (2) counsel lacked a reasonable basis for his actions

or failure to act; and (3) the petitioner was prejudiced by counsel’s deficient

performance such that there is a reasonable probability that the result of the

proceeding would have been different absent counsel’s error or omission.” Id.

(citation omitted).   “A petitioner’s failure to satisfy any prong of the

ineffectiveness test is fatal to the claim.” Id. (citation omitted). “We are not

required to analyze the elements of an ineffectiveness claim in any particular

order; if a claim fails under any prong of the ineffectiveness test, the Court

may proceed to that element first.” Id. (citation omitted). “Moreover, counsel

cannot be deemed ineffective for failing to raise a meritless claim.”       Id.

(citation omitted).

      Johnson first maintains that trial counsel was ineffective for failing to

object to the prosecutor’s comments during closing argument that he asserts


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were prejudicial and inflammatory.         (See Johnson’s Brief, at 11-16).

However, as the PCRA court points out, Johnson did not raise this issue in his

PCRA petition. Our Supreme Court has explained: “Any claim not raised in

the PCRA petition is waived and not cognizable on appeal.” Commonwealth

v. Washington, 927 A.2d 586, 601 (Pa. 2007); see also Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”). Accordingly, because Johnson did not raise this issue

in his PCRA petition, we cannot consider it on appeal.

      Last, Johnson maintains that trial counsel was ineffective for failing to

investigate two brown hairs that were found on the victim’s body.            (See

Johnson’s Brief, at 24-28). He describes the potential DNA evidence as crucial

and exculpatory and argues that it should have been tested. (See id.).

      As the PCRA court explains, this claim lacks merit because:

            DNA evidence that was tested conclusively matched
      [Johnson]. That included DNA from vaginal and anal swabs taken
      from the decedent. (See N.T. Trial, 5/03/12, at 81-82, 86). Even
      assuming arguendo that a DNA test of hairs found on the decedent
      should show that they were not from [Johnson], that would not
      have exculpated [him] in light of the other DNA evidence in the
      case.

            Moreover, . . . the evidence at trial of [Johnson’s] guilt was
      overwhelming, including video surveillance showing him following
      the victim, conclusive evidence of his semen in the victim’s vagina
      and anus, and defendant’s full and detailed confession. There is
      no further investigation of any kind that defense counsel could
      have pursued that would have led to a reasonable probability that
      the outcome of the trial would have been different. No relief is
      due.




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(PCRA Court Opinion, 11/14/18, at 9-10) (citation formatting provided;

emphasis in original).

      After review of the record, we agree with the PCRA court’s assessment

and find Johnson’s argument regarding the lack of testing of two hairs

specious. Because counsel cannot be deemed ineffective for failing to raise a

meritless claim, Johnson’s final issue fails. See Montalvo, supra at *7.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/19




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