J-S05007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIE DANIEL JOHNSON, III                 :
                                               :
                       Appellant               :   No. 799 WDA 2018

                  Appeal from the PCRA Order January 8, 2016
                 In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0001031-2013


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 14, 2019

        Willie Daniel Johnson, III, appeals from the order entered in the Mercer

County Court of Common Pleas, denying his petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. Appellant contends

the PCRA court erred in concluding his claim of ineffective assistance of trial

counsel was meritless. We affirm.

        On September 9, 2013, Appellant was charged with aggravated assault,

assault by prisoner, simple assault and harassment. These charges arose

following an attack on Appellant’s cellmate, Rashod M. Brown, at State

Correctional Institution – Mercer (“SCI-Mercer”).

        Appellant proceeded to a jury trial in July of 2014. At trial, the

Commonwealth first presented the testimony of the security captain of SCI-

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*   Retired Senior Judge assigned to the Superior Court.
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Mercer, Christopher Meure. Meure provided the jury with an overview of the

layout of C-block, the minimum security housing unit where Appellant and

Brown were housed. See N.T., 6/18/14 and 6/19/14, at 22-28. C-Block is

housed within a two-floor building and each floor in the unit consists of 13-16

prison cells, showers, and a day room. See id., at 22-23. Further, while the

inmates on C-block each have keys to their own cells and are free to wander

about the unit, they are generally not permitted to leave C-block without prior

permission. See id., at 23, 27-28.

      The Commonwealth’s next witness, Brown, testified that on June 9,

2013, he was sleeping in his prison cell located on the upper floor of C-block.

At approximately eight in the morning he woke to Appellant, his cellmate,

dousing him with a pitcher of hot water. See id., at 50, 61. When Brown pulled

a cover over his head to protect himself, Appellant struck him in the chest and

stomach with a closed fist. See id., at 51-52. After Appellant ceased his

attack, Brown ran to the prison infirmary. See id., at 54.

      Vista Johnson, a registered nurse at SCI-Mercer, was working in the

prison infirmary on the morning of June 9, 2013. At approximately 8:30,

Brown came into the infirmary with second-degree burns on his face, neck

and shoulder. See id., at 96, 98. Though initially reluctant to provide any

information, Brown eventually told the nursing staff that his “cellie [threw]

water on [him].” Id., at 95.

      Finally, Appellant testified on his own behalf. Appellant claimed that on

the morning of the attack, he left his cell to go to breakfast between 7:30 and

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7:40 a.m. See id., at 127. After spending approximately 4 – 5 minutes at

breakfast, Appellant returned to C-block where he proceeded to the upstairs

day room. See id., at 128-129. Appellant claimed he spent approximately an

hour in the dayroom and only went back to his cell at 8:30-8:40 when the unit

was locked down following the attack on Brown. See id., at 131. Therefore,

Appellant argued he could not have been responsible for the attack on Brown.

See id., at 136.

       Following closing arguments, the jury convicted Appellant of all four

charged offenses. On August 14, 2014, the trial court sentenced Appellant to

an aggregate sentence of 6 to 12 years’ imprisonment. Appellant filed a direct

appeal, but discontinued it prior to disposition.

       On November 4, 2014, Appellant filed a timely pro se PCRA petition

alleging ineffectiveness of trial counsel. Specifically, Appellant claimed trial

counsel was ineffective for failing to request an alibi jury instruction and for

failing to object to the trial court’s failure to include the alibi instruction in its

charge to the jury.1 See PCRA Petition, 11/4/14. Counsel was appointed, and

trial court held an evidentiary hearing on these issues on December 18, 2015.

       Appellant’s trial counsel, Lowell T Williams, Esq., testified at the

evidentiary hearing. Attorney Williams confirmed he did not present any alibi

witnesses on Appellant’s behalf. See N.T., PCRA Hearing, 12/18/15, at 4.

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1 Appellant also claimed trial counsel was ineffective for failing to investigate
his claimed alibi witnesses prior to trial. See PCRA Petition, 11/4/14. However,
Appellant appears to have abandoned this claim on appeal.

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Further, Attorney Williams testified that he did not recall making any request

that the trial court include the alibi jury instruction in its charge to the jury.

See id., at 13.

      Following the hearing, the PCRA court denied Appellant’s petition,

determining that Appellant had failed to demonstrate any prejudice from

Attorney Williams’ purported failures. This appeal follows the nunc pro tunc

reinstatement of Appellant’s appellate rights as to the denial of PCRA relief.

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

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

whether that decision 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.”

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

      On appeal, Johnson contends the PCRA court erred in failing to find

Attorney Williams ineffective for failing to request an alibi jury instruction. See

Appellant’s Brief, at 6. “It is well-established that counsel is presumed

effective, and a PCRA petitioner bears the burden of proving ineffectiveness.”

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779-780 (Pa. Super.

2015) (brackets and citations omitted). To obtain relief on an ineffectiveness

claim, a petitioner must plead and prove by a preponderance of the evidence,

“[i]neffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no reliable




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adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. §

9543(a)(2)(ii).

      To prove ineffectiveness, a petitioner must establish: his underlying

claim has arguable merit, no reasonable basis existed for counsel’s action or

failure to act, and he suffered prejudice as a result of counsel’s error. See

Commonwealth v. VanDivner, 178 A.3d 108, 114 (Pa. 2018). A failure to

plead or prove any prong will defeat an ineffectiveness claim. See

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017).

      “A claim has arguable merit where the factual averments, if accurate,

could establish cause for relief.” Commonwealth v. Stewart, 84 A.3d 701,

707 (Pa. Super. 2013) (en banc) (citation omitted). “Whether the facts rise to

the level of arguable merit is a legal determination.” Id. (citation and internal

quotation marks omitted). Further, “[c]ounsel will not be deemed ineffective

for failing to raise a meritless claim.” Commonwealth v. Spotz, 896 A.2d

1191, 1210 (Pa. 2006) (citation omitted). In order to determine whether

Appellant’s claim is of arguable merit, we must consider whether an alibi

instruction was warranted.

      “An alibi is a defense that places a defendant at the relevant time at a

different place than the crime scene and sufficiently removed from that

location such that it was impossible for him to be the perpetrator.”

Commonwealth v. Sileo, 32 A.3d 753, 767 (Pa. Super. 2011) (citation

omitted). “Where [alibi] evidence has been introduced, a defendant is entitled

to an alibi instruction to alleviate the danger that the jurors might

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impermissibly view a failure to prove the defense as a sign of the defendant’s

guilt.” Commonwealth v. Bryant, 855 A.2d 726, 741 (Pa. 2004) (citation

omitted).

      However, we note that this instruction “is required only in cases where

a defendant’s explanation places him at the relevant time at a different place

than the scene involved and so far removed therefrom as to render it

impossible for him to be the guilty party.” Commonwealth v. Collins, 702

A.2d 540, 545 (Pa. 1997) (citation omitted). Therefore, no alibi instruction is

required “[w]here a defendant’s own testimony places him close enough to

the scene that it would not have been impossible for him to have committed”

the crime. Id. (citations omitted).

      Here, Appellant points to his testimony that he was not in his prison cell

at the time of Brown’s attack as definitive proof that he presented an alibi

defense at trial and was therefore entitled to the alibi instruction. However,

by his own testimony, Appellant was on the same floor of C-Block as Brown

when he was attacked. See N.T., Jury Trial, 6/18/14 and 6/19/14, at 128-

129, 131. As each floor of C-Block consists of only a day room, showers, and

13-16 prison cells, we do not find that Appellant has presented evidence that

he was sufficiently removed from his prison cell at the relevant time to make

it impossible for him to have committed the attack on Brown. No alibi

instruction was required. As counsel cannot be faulted for failing to raise a

meritless claim, Appellant’s sole ineffectiveness claim on appeal fails.




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       Order affirmed.2



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2019




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2We recognize that the trial court dismissed Appellant’s petition on a different
basis. However, “[i]t is well-settled that this Court may affirm on any basis.”
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).

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