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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
MICHAEL LEVANT JOHNSON,                     :           No. 824 EDA 2013
                                            :
                          Appellant         :


                Appeal from the PCRA Order, February 20, 2013,
                in the Court of Common Pleas of Chester County
               Criminal Division at Nos. CP-15-CR-0003533-2006,
                            CP-15-CR-0003572-2006


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                          FILED JULY 08, 2015

      Appellant brings this appeal challenging the order denying his second

petition   filed   pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A.§§ 9541-9546. Finding no error, we affirm.

      On January 11, 2008, appellant pleaded guilty to third degree murder

and flight to avoid apprehension in connection with an August 12, 2006

stabbing death in Coatesville.        Following the plea, the court imposed the

negotiated sentence of 23 to 46 years’ imprisonment, plus restitution for the

victim’s medical and burial expenses. On June 25, 2009, this court affirmed

the judgment of sentence, and on August 31, 2010, our supreme court
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denied appeal.1     Commonwealth v. Johnson, 981 A.2d 314 (Pa.Super.

2009) (unpublished memorandum), appeal denied, 4 A.3d 157 (Pa. 2010).

       On August 5, 2011, appellant filed the instant PCRA petition pro se.

Counsel was appointed, and on November 16, 2012, an amended petition

was filed which adopted the issues stated in the pro se petition as well as

raising new issues. A hearing was held on January 22, 2013, and as noted,

relief was denied by order entered February 20, 2013. PCRA counsel was

permitted to withdraw on March 4, 2013. New counsel was appointed, but

while on appeal, appellant filed a petition to proceed pro se. Consequently,

on August 30, 2012, this court remanded the case to the PCRA court to

conduct a Grazier colloquy.2      The PCRA court conducted the hearing and

appellant was permitted to proceed pro se.

       Appellant raises the following issues on appeal:

             I.     Did the Trial Court Judge abuse his discretion
                    and erred [sic] as a matter of law by
                    participation in the guilty plea which amounted
                    to improper interference with plea negotiations
                    which challenges the validity of the guilty plea?

             II.    Did the Trial Court abuse it’s [sic] discretion
                    when it ordered DNA evidence taken prior to
                    being convicted?

             III.   Whether defense counsel was ineffective for
                    sitting by silent at the motion to withdraw
                    guilty plea?

1
  Appellant’s right to petition the supreme court for allowance of appeal was
reinstated nunc pro tunc pursuant to his first PCRA petition.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


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          IV.    Whether defense counsel was ineffective for
                 failing to object to the denial of Petitioner’s
                 verbal continuance or in the alternative
                 request a continuance himself?

          V.     Whether defense counsel was ineffective for
                 failing to object to the verbal guilty plea
                 colloquy where the defects appear on the
                 record rendering the plea uncounseled as to
                 the key element of MALICE?

          VI.    Whether defense counsel was ineffective for
                 failing to object to the defective written guilty
                 plea colloquy form where no definition of
                 MALICE appears nor any mention of MALICE
                 which       distinguishes      Murder       from
                 Manslaughter[?]

          VII.   Did the Trial Court fail to give the mandatory
                 required six questions afforded to Petitioner
                 pursuant to Pa. R. Crim. P. 590 (A)(1)-(C)(1-7)
                 which is a requirement?

          VIII. Whether defense counsel was ineffective for
                failing to object to the Trial Court’s failure in
                establishing voluntariness without questioning
                Petitioner with the mandatory questioning
                pursuant to Pa. R. Crim. P. 590 (A)(1)-(C)(1-7)
                which is a requirement?

          IX.    Whether appeal counsel was ineffective for
                 failing to preserve and raise in Petitioner’s
                 1925 (b) statement that the trial court abused
                 it’s [sic] discretion and erred as a matter of
                 law by not reproducing and including the
                 record of the in court verbal colloquy to the
                 Superior court?

          X.     Whether the Trial Court violated Petitioner’s
                 rights when it amended the charges at the
                 guilty plea hearing with a[n] eleventh hour
                 amendment or a trial by ambush?



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          XI.    Whether defense counsel was ineffective for
                 failing to object to the eleventh hour
                 amendment without adequate notice of the
                 charges?

          XII.   Was defense counsel ineffective for failing to
                 have the preliminary hearing transcripts
                 included in the record for impeachment and to
                 prepare a [sic] adequate defense and/or a
                 meaningful investigation of the evidence used
                 against Petitioner prior to coercing petitioner
                 into a[n] uncounseled guilty plea?

          XIII. Was defense counsel ineffective for failing to
                petition    for  dismissal    for   WANT     OF
                JURISDICTION for the failure to establish
                Prima Facie against petitioner, no evidence was
                entered of record of either case against
                petitioner from his preliminary hearing?

          XIV. Whether defense counsel was ineffective for
               failing to file the correct pre-trial motions, trial
               counsel should have filed for a FRANKS
               HEARING, challenging the fact no Prima Facie
               or probable cause was established?

          XV.    Was PCRA counsel ineffective for failing to
                 raise and preserve direct appeal counsel’s
                 ineffectiveness for failing to raise the defective
                 guilty plea colloquy the written and verbal
                 colloquy where no definition of MALICE exists
                 on direct appeal and for the first time on PCRA,
                 and for failing to raise Trial counsel’s
                 ineffectiveness for not objecting to the
                 defective written and verbal colloquy where no
                 mention of MALICE exists.           Direct appeal
                 counsel also failed to raise and preserve the
                 abuse of discretion on trial court for failing to
                 include the record of the verbal colloquy to the
                 Superior Court for an adequate review? PCRA
                 counsel also failed to raise and preserve this
                 claim on the amended PCRA.




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          XVI. Was     PCRA    counsel   Laurence    Harmelin
               ineffective for failing to raise and preserve
               issues in Petitioner’s pro-se PCRA petition,
               counsel gave no reason why he failed to raise
               the remaining issues nor did he give a Finley or
               Turner or Anders letter concerning the
               remaining claims that were left out?

          XVII. Did the Trial Court abuse it’s [sic] discretion
                and commit an error of law by denying
                Petitioner’s PCRA? There was no mention of
                MALICE given to Petitioner at the verbal
                colloquy, nor was there any definition or
                mention of MALICE on the written colloquy
                form this lack of definition challenges the
                validity of the guilty plea.

          XVIII.Was defense counsel ineffective for adding a
                restitution amount in Petitioner’s guilty plea?

          XIX. Was defense counsel ineffective for failing to
               raise and preserve evidence had against
               petitioner in the bill of particulars or his failure
               to do any investigation before coercing
               petitioner     into    a[n]     unknowing       and
               unintelligent plea, so petitioner could prepare
               an adequate defence [sic] to the charges?

          XX.   Whether the trial court had jurisdiction over
                petitioner’s case, Petitioner is charged on a
                [sic] invalid information it states no charge it
                states no valid statute governed by the general
                assembly[?]

          XXI. Was the trial court abusing it’s [sic] discretion
               when it sentenced petitioner in accordance
               with the guilty plea where no saving clause
               exists in the present form for any punishment
               because no Constitutional authorization is in
               place because of the unlawful radification [sic]
               of the 1968 Constitution?

          XXII. Whether the trial court, the DA, all prior
                counsel’s [sic] were ineffective for not


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                  correcting the record with the proper
                  information that was offered at the guilty plea
                  colloquy hearing?

Appellant’s brief at 1-3.

      Our standard of review for an order denying post-conviction relief is

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.    Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      Moreover, as some of appellant’s issues on appeal are stated in terms

of ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).        The failure to satisfy any

prong of this test will cause the entire claim to fail.   Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).               We will

address appellant’s issues seriatim.



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      In Issue I, appellant cites trial court error in participating in the guilty

plea. This issue is waived as it could have been raised on direct appeal but

was not. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(b).

      In Issue II, appellant cites trial court error in ordering DNA evidence to

be taken prior to trial. This issue is waived as it could have been raised on

direct appeal but was not. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(b).

      In Issue III, appellant asserts that trial counsel was ineffective in

sitting silent at the motion to withdraw appellant’s guilty plea. We disagree.

The motion to withdraw his guilty plea was a pro se motion. At the hearing

on appellant’s motion, it was appellant’s choice to argue the motion himself

and essentially have counsel act as stand-by counsel. (Notes of testimony,

1/24/08 at 2-5.)     Nonetheless, appellant did confer with counsel at the

hearing and had the benefit of his advice.       Appellant cannot be heard to

complain now about his own choice to proceed pro se at the hearing.

      In Issue IV, appellant claims that counsel was ineffective in failing to

object to the denial of a continuance at a hearing on January 11, 2008. At

the beginning of the hearing, appellant made a pro se motion for a

continuance so that he could find a new lawyer to represent him because he

was unhappy with present counsels’ representation. The trial court denied

that aspect of appellant’s motion seeking to discharge his present attorneys,

but specifically allowed that if appellant found a new lawyer to represent




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him, the court would reconsider the motion for a continuance. 3        (Notes of

testimony, 1/11/08 at 4-5.)     We find no ineffectiveness because the trial

court effectively held its ruling on the motion for a continuance in abeyance

pending appellant’s retaining new counsel.

      In Issues V, VI, XV, and XVII, appellant essentially argues that

defense counsel was ineffective in failing to insure that appellant understood

the meaning of malice.     At the PCRA hearing, appellant’s defense counsel

testified that appellant was fully aware of the element of malice and that it

was covered many times. (Notes of testimony, 1/22/13 at 39-40.) Counsel

also testified that he defined malice to appellant four, five, or six times. (Id.

at 48.) The trial court made a specific on-the-record determination that it

found defense counsel to be credible and appellant to be incredible. (Order,

2/20/13 (dated 2/19/13) at 3 n.1.)          We are bound by the credibility

determinations of the court where they are supported by the record.

Commonwealth v. Stewart, 84 A.3d 701, 711 (Pa.Super. 2013), appeal

denied, 93 A.3d 463 (Pa. 2014). Thus, we find that counsel fully informed

appellant as to the nature of malice and was not ineffective.

      In Issue VII, appellant contends that the trial court conducted an

inadequate guilty plea colloquy.     This issue was raised on direct appeal;




3
 We note that appellant still had not obtained new counsel 11 days later
when he pleaded guilty.


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consequently, it was previously litigated and is ineligible for review under the

PCRA. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(a)(2).

      In Issue VIII, appellant complains that counsel was ineffective in

failing to object to the inadequate guilty plea colloquy.     As the court on

direct appeal found the colloquy to be proper, there is no merit to the issue

underlying this claim of ineffectiveness.

      In Issue IX, appellant claims that counsel failed to preserve the

defective plea colloquy issue for direct appeal.   This is plainly incorrect as

the plea colloquy issue was addressed on direct appeal.

      In Issue X, appellant asserts that the trial court erred in allowing an

eleventh hour amendment to the criminal charges. This issue is waived as it

could have been raised on direct appeal but was not.              42 Pa.C.S.A.

§§ 9543(a)(3); 9544(b).

      In Issue XI, appellant claims trial counsel was ineffective in failing to

object to the eleventh hour amendment to the criminal charges and that said

amendment induced appellant to plead guilty. There is no merit here. The

criminal information was amended after appellant agreed to plead guilty and

could not have influenced his decision to plead guilty. In point of fact, the

criminal information was amended to reflect the plea.         The information

originally charged appellant with second degree murder. It was amended to

charge third degree murder in order to align with appellant’s plea. (Notes of

testimony, 1/11/08 at 22-23.) Moreover, because the criminal information



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was amended to reduce the criminal liability of appellant, we find no

prejudice.

       In Issue XII, appellant argues that trial counsel was ineffective in

failing to have a transcript of his preliminary hearing prepared so that it

could have been used for impeachment purposes at trial.      First, appellant

never indicates what testimony at the preliminary hearing could have been

used for impeachment.     Second, appellant’s assertion of ineffectiveness is

purely anticipatory. Because appellant pleaded guilty, there was no reason

for counsel to obtain a transcript for impeachment. Had appellant chosen to

go to trial, counsel may have at that point obtained a transcript.    At the

juncture of the guilty plea, counsel cannot yet be considered ineffective on

this basis.

       In Issues XIII and XIV, appellant posits that trial counsel was

ineffective for failing to file a petition to dismiss the charges or other

pre-trial motions based on lack of jurisdiction for failure to establish a

prima facie case at the preliminary hearing. At the guilty plea hearing, the

Commonwealth stated what evidence would have been introduced.            The

Commonwealth had an eyewitness, Marilyn Wright, who would testify that

she was present when appellant stabbed the victim in his heart. (Notes of

testimony, 1/11/08 at 18.)      Also, police recovered appellant’s bloody

clothing at his home, and the DNA of the blood matched the victim. (Id. at

21.)    Clearly, the Commonwealth had adduced evidence establishing a



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prima facie case, and there was no basis for dismissal of charges.

Moreover, as appellant does not claim that counsel’s alleged error induced

his plea, appellant’s guilty plea effectively waived any failure to establish a

prima facie case.

      In Issue XVI, appellant contends that PCRA counsel was ineffective in

failing to raise and preserve the issues raised in appellant’s pro se PCRA

petition.4 There is simply no truth to appellant’s accusation. PCRA counsel

specifically adopted all the issues in the pro se petition in the amended

PCRA petition:

            15.   Petitioner hereby incorporates his pro se
                  petition by reference and makes same a part
                  hereof. Said pro se petition is attached hereto
                  as Exhibit “E”.

Amended PCRA Petition, 11/16/12 at paragraph 15.

      In Issue XVIII, appellant argues that trial counsel was ineffective in

adding a restitution term to the plea agreement.         During the guilty plea

hearing, trial counsel called the court’s attention to the fact that a restitution

amount was supposed to be included in the plea agreement.              (Notes of

testimony, 1/11/08 at 35.)         Thereafter, the court accepted the plea

agreement and imposed the negotiated sentence including the restitution



4
  Appellant raised the ineffectiveness of PCRA counsel at the PCRA hearing.
(Notes of testimony, 1/22/13 at 24.) Therefore, the Commonwealth’s
reliance on Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009), and its
argument that this issue is being raised for the first time on appeal, are
misplaced.


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term. When asked if appellant understood the sentence, appellant merely

replied, “Yes, your Honor.”    (Id. at 36.)   Appellant clearly accepted the

restitution term without objection at the plea hearing and cannot now attack

counsel’s effectiveness on this basis.

       In Issue XIX, appellant asserts that trial counsel was ineffective in

failing to investigate his case and prepare an adequate defense. Appellant

argues that counsel failed to uncover exculpatory evidence. First, appellant

does not reveal what exculpatory evidence there was that counsel failed to

uncover.    Trial counsel is simply not a magician capable of producing

exculpatory evidence where none exists. Unless appellant can demonstrate

that there was exculpatory evidence that counsel unreasonably failed to

discover, he cannot maintain an ineffectiveness claim on this basis.

       Second, at the plea colloquy appellant was asked if he was satisfied

with the representation of his attorney and he replied affirmatively. (Id. at

16.) In fact, appellant even thanked counsel for all that had been done for

him.   (Id. at 33.)   “A person who elects to plead guilty is bound by the

statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Commonwealth v. Turetsky, 925 A.2d 876,

881 (Pa.Super. 2007), appeal denied, 940 A.2d 365 (Pa. 2007), quoting

Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa.Super. 2003) (citations




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omitted).      Appellant   cannot   now   be   heard   to   denigrate   counsel’s

representation after stating his satisfaction at the plea colloquy.

      In Issue XX, appellant complains that the trial court did not have

jurisdiction over his case. This issue is waived as it could have been raised

on direct appeal but was not and, in any event, is frivolous. 42 Pa.C.S.A.

§§ 9543(a)(3); 9544(b).

      In Issue XXI, appellant asserts that the trial court abused its discretion

in sentencing him.    This issue is waived as it could have been raised on

direct appeal but was not. 42 Pa.C.S.A. §§ 9543(a)(3); 9544(b). Moreover,

the discretionary aspects of sentence are not cognizable under the PCRA.

Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa.Super. 2007) (relief

with respect to discretionary aspects of sentence not cognizable in PCRA

proceedings).

      In Issue XXII, appellant contends that the trial court, the district

attorney, and all prior counsel were ineffective in failing to correct the record

compiled at the guilty plea hearing to the effect that appellant entered the

victim’s house. To the extent that appellant’s issue implicates the trial court

or the district attorney, we note that the issue is waived as it could have

been raised on direct appeal but was not.        42 Pa.C.S.A. §§ 9543(a)(3);

9544(b).    As for all prior counsel, there is no ineffectiveness.      When the

district attorney was relating the facts at the guilty plea hearing, she

described the crime scene as follows:



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            After the stabbing the defendant then fled the scene,
            running. It’s an outdoor porch area where furniture
            is located, but yet it’s outside the home.

Notes of testimony, 1/11/08 at 18.

      Thus, the record does not need correcting in the manner suggested by

appellant because the district attorney did not state that appellant entered

the victim’s house; the allegation plainly was that the crime occurred

outside. There is no ineffectiveness of counsel here.

      Accordingly, having found no merit in the issues on appeal, we will

affirm the order below.

      Finally, we note that appellant has three outstanding motions pending

before this court.   On December 24, 2014, appellant filed two separate

motions asking this court to provide appellant with, respectively, a copy of

his appellate brief and a complete docket entry list. These motions will be

denied. Appellant should seek these items directly through the prothonotary

of this court. On April 16, 2015, appellant filed a motion asking this court to

order the lower court to provide him with a certificate of transmittal of the

record to ensure appellant that this court received the notes of testimony

from appellant’s guilty plea and sentencing. We note that these items were

included in the record and that appellant will receive notice of that fact by

receipt of this memorandum; consequently, we will deny appellant’s motion

as moot.




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      Order affirmed. Motion for this court to provide appellant with a copy

of his appellate brief is denied.   Motion for this court to provide appellant

with a complete docket entry list is denied.    Motion to order certificate of

transmittal of record is denied as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




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