J-S13001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LESTER JAMAL JOHNSON

                            Appellant                 No. 1881 WDA 2013


                 Appeal from the PCRA Order November 6, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011740-2004,
              CP-02-CR-0012721-2004, CP-02-CR-0012723-2004,
                            CP-02-CR-0014023-2004


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                                FILED MAY 6, 2016

        Lester Jamal Johnson appeals, pro se, from the order of the court of

Common Pleas of Allegheny County denying his petition for relief under the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”).      After our

review, we affirm.

        A jury convicted Johnson of two counts of first-degree murder. After

the jury could not reach a unanimous verdict on the death penalty, the court

sentenced Johnson to two consecutive terms of life imprisonment, plus 35 to




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*
    Former Justice specially assigned to the Superior Court.
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70 years’ incarceration on other counts.1        Johnson filed a direct appeal on

January 15, 2010. This Court affirmed Johnson’s judgment of sentence and

the Pennsylvania Supreme Court denied his petition for allowance of appeal.

On September 24, 2012, Johnson filed a timely PCRA petition, 2 pro se, and

the court appointed counsel.         Counsel filed an amended petition, and the

court scheduled a hearing. Following the hearing, the PCRA court granted

relief in part, amending Johnson’s sentence on the unlawful restraint

convictions, and dismissed Johnson’s remaining claims as meritless.

       Johnson filed a notice of appeal. On December 30, 2013, counsel filed

a concise statement of errors complained of on appeal pursuant Pa.R.A.P.

1925(b). Thereafter, on September 18, 2014, Johnson filed a petition with

this Court for leave to proceed pro se. On September 19, 2014, this Court

directed the trial court to hold a Grazier3 hearing. See Per Curiam Order,

9/19/14.


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1
 Johnson was also charged with two counts each of kidnapping, 18 Pa.C.S.
§ 2901(a), unlawful restraint, 18 Pa.C.S. § 2901, and criminal conspiracy,
18 Pa.C.S. § 903.
2
 On November 20, 2012, Johnson’s judgment of sentence became final after
our Supreme Court denied allowance of appeal on August 22, 2012, and the
90-day period for filing a petition for writ of certiorari to the United States
Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S. Supreme Court
Rule 13. Accordingly, Johnson had until November 20, 2013 to file a timely
PCRA petition.
3
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).



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        Following the Grazier hearing, the trial court concluded that Johnson

had knowingly, intelligently and voluntarily waived his right to counsel. The

court permitted counsel to withdraw, and granted Johnson leave to file a pro

se Rule 1925(b) Statement. See Order, 9/19/14.

        On July 27, 2015, Johnson filed his appellate brief.     That same date

Johnson filed an application for relief, seeking to strike the filed brief and file

a new appellant’s brief, and requested an extension of time to file the brief.

This Court, in a per curiam order, granted Johnson’s request. Johnson filed

his appellate brief on September 4, 2015, raising the following issues for our

review:

        1. Did the PCRA court abuse its discretion when it denied
           Johnson’s claim that direct-review counsel was ineffective for
           not challenging the suppression ruling on appeal?

        2. Did the PCRA court abuse its discretion when it denied
           Johnson’s claim that the Commonwealth violated Brady[4] by
           withholding the DEA [Drug Enforcement Agency] report?

        3. Did the PCRA court abuse its discretion when it denied
           Johnson’s claim that trial counsel was ineffective for not
           requesting Judge Sasinoski to recuse himself?

        4. Did the PCRA court abuse its discretion when it denied
           Johnson’s claim that trial counsel was ineffective for not
           subpoenaing Dale Jones to trial?

        When reviewing a PCRA court’s findings, we are limited to determining

whether the court’s findings are supported by the record and whether its

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4
    Brady v. Maryland, 373 U.S. 83 (1963).



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decision is free from legal error.   See Commonwealth v. Lane, 81 A.3d

974 (Pa. Super. 2013). Further, to obtain relief on a claim of ineffective

assistance of counsel, Johnson must show that there is merit to the

underlying claim; that counsel had no reasonable basis for his course of

conduct; and finally, that there is a reasonable probability that but for the

act or omission in question, the outcome of the proceeding would have been

different.   Commonwealth v. Fletcher, 750 A.2d 261, 273–74 (Pa. 2000);

Commonwealth v. Pierce, 527 A.2d 973, 974 (Pa. 1987).            In reviewing

any particular claim of ineffectiveness, we need not determine whether the

first two prongs of this standard are met if the record shows that Johnson

has not met the prejudice prong. Commonwealth v. Travaglia, 661 A.2d

352, 357 (Pa. 1995).

      First, Johnson claims that direct appeal counsel was ineffective for not

challenging the trial court’s order denying his motion to suppress the

photographic identifications made by two eyewitnesses, Donna Peoples and

Samuel Walter.    He claims the photo array was suggestive because Johnson

was the only “light-skinned” Black male on the array.

      Peoples testified she was driving along Lincoln Avenue and stopped at

a traffic light at the intersection of Lincoln Avenue and Lemington Avenue.

She looked out her driver’s-side window and saw a shirtless man lean on a

pole near the corner, then slide down the pole and fall over. The man’s shirt

was wrapped around his hands, and he was bleeding. When the light turned

green, she went through the intersection and pulled over to the curb. She

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called 9-1-1 and then got out of her car and walked toward the injured man.

At this point, she saw a white four-door Toyota traveling down Lemington

Avenue, stopping at the intersection.      A slender, light-skinned African

American male got out of the car and approached the man.         At first she

thought the man’s friends were helping him, and would take him to the

hospital; she even told 9-1-1 that assistance was no longer needed. Peoples

was close enough to see the man strike the victim in the face and take

something from his pockets; she realized that the men were not there to

help, and saw them stuffing him in the back of the Toyota.        N.T. Trial,

4/20/09, at 205-10.   Peoples screamed for them to stop, but the car pulled

away. Peoples was close enough to get the license plate number.       Id. at

214, 216.

      Later, when police arrived, Peoples was taken to the police station for

an interview.   The next day, Peoples was shown a photo array and

immediately selected a picture of Johnson as the man she had seen trying to

put the injured man into the Toyota. She stated that her identification was a

“9” on a scale of 1 to 10.    Id. at 220-22, 273, 241, 1187, 1194, 1203.

Peoples also made a subsequent in-court identification of Johnson.    Id. at

213-14, 238.

     Another eyewitness, Samuel Walter, a paramedic, was driving an

ambulance, and as he approached the intersection of Lincoln and Lemington,

he saw the victim lying on the corner with his feet out in the street. Id. at

296-97. Walter also saw the white Toyota pull up and, through his driver’s

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side mirror, observed Johnson and another black male loading the victim

into the car. Id. at 318-20, 333, 374.

      The next night, the victim was found, shirtless and with his pants and

boxer shorts pulled down past his buttocks, in the backseat of the Toyota

Camry. He had suffered three gunshot wounds, one in the left side of his

back, which cut his left renal artery and vein, one through the back of his

left forearm, and one in his left leg. The Allegheny County Medical Examiner

concluded that the victim had died as a result of these gunshot wounds. Id.

at 62-72.

      A few days later, Shawnte Betts, the daughter of the woman in whose

name the Toyota was registered, was also found dead about one-quarter

mile from where Jones’ body was found in the Toyota. Betts was killed by

one gunshot wound to the forehead.            Betts’ mother stated that the two

victims had been in a relationship for about six months. Id. at 558-60, 564,

568, 570-71.

      On December 30, 2013, Scott Coffey, Esquire, filed a Rule 1925(b)

Statement on behalf of Johnson, raising thirteen errors, the last of which

was whether direct appeal counsel, Matthew Debbis, Esquire, was ineffective

for not challenging the trial court’s order denying suppression of Peoples’

and Walter’s pretrial identification.    After Johnson was granted leave to

proceed pro se, Attorney Coffey was permitted to withdraw and the court

granted Johnson’s oral request to file an amended Rule 1925(b) statement.

Johnson filed his pro se Rule 1925(b) statement and presented the issue of

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direct appeal counsel’s ineffectiveness for not challenging the denial of his

request to suppress the pretrial identification as his first claim of error. See

Pro Se Concise Statement of Errors, 1/23/15. In its Rule 1925(a) opinion,

the court stated the pretrial procedure was not suggestive, that both

witnesses had an opportunity to observe Johnson and were able to make

independent in-court identifications, and the reliability of the eyewitnesses’

identifications was subjected to cross-examination.            See PCRA Court

Opinion, 2/17/2015, at 4.

      In order to establish that counsel was ineffective for not challenging

the court’s order denying his motion to suppress the photographic

identifications made by Peoples and Walter, Johnson must show that the

totality of the circumstances indicate that the identifications were unreliable.

Commonwealth v. Baker, 614 A.2d 663, 668 (Pa. 1993). Specific factors

to be taken into account include, inter alia, the witness' ability “to observe

the   criminal act;   the   accuracy of    photo    array selection and other

descriptions; the lapse of time between the act and any line-up; and any

failure to identify the defendant on prior occasions.” Id.        In other words,

the issue here, where Johnson claims the array was unduly suggestive

because he was the only light-complexioned Black male in the photo-array,

is whether the challenged identification has “sufficient indicia of reliability” to

warrant its admission even though the procedure was allegedly suggestive.

Commonwealth v. Thompkins, 457 A.2d 925 (Pa. Super. 1983).




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      “A photographic identification is unduly suggestive when the procedure

creates a substantial likelihood of misidentification.” Commonwealth v.

Fisher, 769 A.2d 1116, 1126 (Pa. 2001). “Photographs used in line-ups are

not unduly suggestive if the suspect’s picture does not stand out more than

the others, and the people depicted all exhibit similar facial characteristics.”

Id.   Here, the photo array included pictures of eight Black males, all of

whom had similar features, hair (short cropped) and facial hair (thin

mustache and slight beard).      Peoples described Johnson to police at the

scene as a “light-skinned” Black male, and of the group, one male is the

lightest complexioned.    Arguably, Johnson’s photograph, in that respect,

stands out more than the others.

      When an out-of-court identification is alleged to be tainted, an in-court

identification may still stand if, considering the totality of the circumstances,

the identification “had an origin sufficiently distinguishable to be purged of

the primary taint.” Commonwealth v. Abdul–Salaam, 678 A.2d 342 (Pa.

1996); see also Commonwealth v. James, 486 A.2d 376 (Pa. 1985). The

factors a court should consider in determining whether there was an

independent basis for the identification include: (1) the opportunity of the

witness to view the criminal at the time of the crime; (2) the witness’s

degree of attention; (3) the accuracy of the witness’s prior description of the

criminal; (4) the level of certainty demonstrated by the witness during the

confrontation; and (5) the length of time between the crime and the

confrontation. Id. at 380.

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       Here, both Peoples and Walter directly observed Johnson loading the

victim into the back seat of the Toyota.         In light of the unusual situation,

both eyewitnesses were directly focused on the scene.            Peoples identified

Johnson the day after the crime, and Walter identified Johnson, as well as

Johnson’s co-conspirator, two days after the crime.           Walter testified that

while he initially recognized the actors in both arrays, he did not tell the

detectives right away because he was frightened about getting involved and

did not want to be a witness. N.T. Trial, 4/20/09, at 315-17, 321, 328, 376.

Both witnesses testified that they had a clear view of Johnson as he was

trying to force the victim into the car, in the daylight, and both were able to

identify Johnson in court.       Id. at 95-101, 212-224. Further, both Peoples

and   Walter     were    extensively     cross-examined   with   respect   to   their

identifications, id. at 101-20, 227-54, and the jury was free to credit

Peoples’ and Walker’s in-court identifications.5      Based on the totality of the

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5
   We note that two other eyewitnesses also testified. Dorian Perry and
Tavon Howze, who lived in the neighborhood where the crime occurred, also
identified Johnson as the man who put the victim in the car. Charles Scott,
who knew Johnson from the neighborhood, saw Johnson and the victim a
short time before the victim’s collapse. Scott testified that Johnson was
ordering the victim to get into the car, the victim refused, and Johnson shot
him in the leg. N.T. Trial, supra at 268. The victim attempted to get away,
limping down the street, and Johnson fired three or four more times in the
direction of the victim’s back. Id. at 269, 285. Scott saw the victim
collapse; he also saw the ambulance, driven by Walters, pull over. Id. at
271, 287. He then saw Johnson pick the victim up, look up at him (Scott),
and then put the victim in the car. Id. at 273.




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circumstances, we conclude that there was sufficient indicia of reliability and

a basis independent from the pre-trial photo array that would support

admission of Peoples’ and Walter’s in-court identification.           Therefore, we

cannot conclude that Johnson was prejudiced by counsel’s failure to raise

this issue on direct appeal.       Pierce, supra; see also Commonwealth v.

Albrecht, 720 A.2d 693, 701 (Pa. 1998) (when it is clear petitioner’s

ineffective   assistance   claim    has    failed   to   meet   prejudice   prong   of

ineffectiveness test, claim may be dismissed on that basis alone).

      Next, Johnson claims the PCRA court erred in denying relief on his

Brady claim.     He claims that the victim was an informant for the Drug

Enforcement Agency (DEA) at the time of his death, and that the report

implicated others in the victim’s murder. We find no error.

      To establish a Brady violation, an appellant must prove three

elements: (1) the evidence at issue was favorable to the accused, either

because it is exculpatory or because it impeaches; (2) the evidence was

suppressed by the prosecution, either willfully or inadvertently; and (3)

prejudice ensued. Commonwealth v. Hutchinson, 25 A.3d 277, 310 (Pa.

2011).   As the PCRA court points out, the DEA report to which Johnson

refers was “not exculpatory in the least.” PCRA Court Opinion, 2/17/15, at

7.   In fact, the report implicated Johnson               and his co-defendant as

responsible for kidnapping and shooting Jones (identified in the report as

CS1). See Amended PCRA Petition, 5/30/2013, Exhibits Three (A)-(G), ¶¶

59-63. Accordingly, we find no error. Hutchinson, supra.

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         In his third issue, Johnson claims that the PCRA court erred in denying

his claim that trial counsel, Wendy Williams, Esquire, was ineffective for not

seeking the trial judge’s recusal. In his PCRA petition, Johnson claimed the

trial judge, the Honorable Kevin G. Sasinoski, “showed high favor towards

victim James Jones in a hearing . . . only one month prior to his death[,] by

removing him from house arrest . . . so Jones [could] work effectively as an

informant for the D.E.A.” Amended PCRA Petition, at 35-36. Johnson baldly

claims that this was a conflict of interest because had the court not put

Jones “back on the street, Jones . . . would still be alive.” Appellant’s Brief,

at 25.

         A judge should recuse himself “whenever there is substantial doubt as

to his ability to preside impartially. The burden to show prejudice, however,

is on the party seeking recusal.”       Commonwealth v. Lewis, 460 A.2d

1149, 1151–52 (Pa. Super. 1983).         At the PCRA hearing, Johnson did not

question Attorney Williams regarding her reasons for not filing a motion to

recuse.      See N.T. PCRA Hearing, 10/8/13, at 5-21.       Beyond his blanket

statement that Judge Sasinoski had a conflict of interest because he had let

Jones out on bond, Johnson presented no evidence of bias, prejudice or

unfairness. As such, Johnson has failed to establish how he was prejudiced

by counsel failure to seek recusal.     See    Commonwealth v. Jones, 811

A.2d     994,   1003   (Pa.   2002)   (where   defendant   does   not   develop

ineffectiveness claim in meaningful manner, it is insufficient to warrant




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relief).   Therefore, Johnson’s claim of ineffectiveness must fail.        Pierce,

supra.

       Finally, Johnson claims the PCRA court erred in denying relief on his

claim that trial counsel was ineffective for failing to subpoena witness Dale

Jones.

       Where a defendant claims that counsel was ineffective for failing
       to call a particular witness, we require proof of that witness’s
       availability to testify, as well [as] an adequate assertion that the
       substance of the purported testimony would make a difference in
       the case. Generally, we require a defendant to demonstrate
       that:

           (1)   the witness existed; (2) the witness was available to
                 testify for the defense; (3) counsel knew of, or
                 should have known of, the existence of the witness;
                 (4) the witness was willing to testify for the defense;
                 and (5) the absence of the testimony of the witness
                 was so prejudicial as to have denied the defendant a
                 fair trial.

Commonwealth v. Clark, 961 A.2d 80, 90 (Pa. 2008) (citation omitted).

       At the October 8, 2013 hearing, Attorney Williams testified she was

aware of the existence of Dale Jones and others as potential witnesses.

However, she stated, “They wouldn’t talk to us. There were no meaningful

interviews or information gleaned . . .” N.T. PCRA Hearing, 10/8/13, at 10.

Further, at the PCRA hearing, Attorney Williams was not questioned

specifically with respect to Dale Jones. Thus, Johnson did not establish that

Dale Jones was willing to testify for the defense. Clark, supra. Moreover,

in light of the hearing testimony, there is no indication that counsel’s failure

to call Dale Jones either prejudiced Johnson or denied him a fair trial.

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Therefore, Johnson’s claim of ineffectiveness must fail.   See Pierce, supra;

see also Commonwealth v. Cox, 983 A.2d 666 (Pa. 2009).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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