J-S78029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARRELL JOHNSON                            :
                                               :
                       Appellant               :   No. 358 EDA 2018

                Appeal from the PCRA Order December 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0010412-2008


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 25, 2019

        Darrell Johnson appeals from the order denying his petition filed under

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Johnson claims the

trial court’s reasonable doubt jury instruction was unconstitutional. We affirm.

        On March 16, 2010, a jury found Johnson guilty of first-degree murder,

firearms not to be carried without a license, carrying a firearm on public

streets or public property in Philadelphia, and possessing an instrument of

crime.1, 2




____________________________________________


*    Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A.§§ 2502(a), 6106, 6108, and 907, respectively.

2 For a complete recitation of the facts, please see the PCRA court opinion.
Trial Court Opinion, filed Apr. 26, 2018, at 2-4 (“1925(a) Op.”).
J-S78029-18



     At Johnson’s jury trial, the trial court gave the following instruction as

to reasonable doubt:

        Now, ladies and gentleman, the standard that the
        Commonwealth is held to is proof beyond a reasonable
        doubt. It is the highest standard in the law. There is nothing
        greater. The Commonwealth bears the burden of proving
        that . . . Johnson is guilty beyond a reasonable doubt. But
        this does not mean that the Commonwealth must prove its
        case beyond all doubt. The Commonwealth is not required
        to meet some mathematical certainty. The Commonwealth
        is not required to demonstrate the complete impossibility of
        innocence.

        A reasonable doubt is a doubt that would cause a reasonably
        careful and sensible person to pause to hesitate, to refrain
        from acting upon a matter of the highest importance to their
        own affairs, their own interests. Ladies and gentleman, a
        reasonable doubt must be a real doubt. It must be a doubt
        that arises out of the evidence or out of the lack of evidence
        presented. It may not be a doubt that is imagined. It may
        not be a doubt that is manufactured to avoid carrying out
        an unpleasant responsibility. I think about reasonable doubt
        in this way:

        Each of you has someone in your life that you love. Each
        one of you has a precious one; a spouse, a significant other,
        a sibling, a child, a grandchild. There’s someone in your life
        who is absolutely precious to you. If you were told that your
        precious one had a life-threatening condition and that the
        only appropriate protocol for that condition was surgery,
        now, ladies and gentleman, most likely you’re going to ask
        for a second opinion. You might even ask for a third opinion.
        If you’re like me, you're going to do all the research you can
        find.

        You’re going to want to know what is this condition. How is
        it treated. What is the likelihood of success. You're probably
        going to call everybody you know who has anything to do
        with medicine. Tell me. Tell me what you know about this
        condition. Tell me about the surgery. Tell me about this
        doctor who is doing the surgery.



                                    -2-
J-S78029-18


          Ladies and gentleman, at some point, however, the question
          will be called, do you go forward with the surgery or not. If
          you go forward with the surgery, it’s not because you have
          moved beyond all doubt. There are no guarantees. A
          reasonable doubt is a doubt that arises out of the evidence
          presented or out of the lack of the evidence presented with
          some respect to some element of each of the crimes
          charged. Ladies and gentleman, if you go forward, it is
          because you have moved beyond all reasonable doubt. I
          remind you again that it must be a real doubt. It may not
          be manufactured. It may not be a doubt that is created to
          avoid carrying out an unpleasant or serious responsibility.

          You may not find . . . Johnson guilty based upon a mere
          suspicion of guilt. The Commonwealth’s burden is to prove
          beyond a reasonable doubt each and every element of the
          crimes charged and that . . . Johnson is guilty of those
          crimes. If the Commonwealth has met that burden, then . .
          . Johnson is not (sic) longer presumed to be innocent and
          you must find him guilty.

          On the other hand, if the Commonwealth has not met its
          burden, then you must find him not guilty.

Trial Court Opinion, filed Apr. 26, 2018, at 6 (“1925(a) Op.”) (quoting N.T.,

3/15/10, at 51-54).3

       The trial court sentenced Johnson to life in prison for the murder

conviction.4 Johnson’s direct appeal rights were re-instated. This Court

____________________________________________


3The transcripts are not contained in the certified record. However, neither
party disputes that this was the instruction provided as to reasonable doubt
at Johnson’s jury trial.

4The court also imposed the following concurrent sentences on the remaining
convictions: three to six years imprisonment for the firearms not to be carried
without a license conviction, one to two years’ imprisonment for the carrying
a firearm on public streets in Philadelphia conviction, and six months to one
year imprisonment for the PIC conviction.




                                           -3-
J-S78029-18



affirmed the conviction on October 8, 2014, and the Pennsylvania Supreme

Court denied his petition for allowance of appeal on March 3, 2015.

       On February 22, 2016, Johnson filed a timely PCRA petition. The PCRA

court appointed counsel, who filed an amended petition alleging, among other

things, that the trial court’s reasonable doubt jury instructions were

unconstitutional.5 He relied on the decision of the United States District Court

of the Eastern District of Pennsylvania in Brooks v. Gilmore, 2017 WL

3475475 (E.D.Pa. filed Aug. 11, 2017). The PCRA court issued notice of its

intent to dismiss the petition without a hearing. On December 15, 2017, it

dismissed the petition.

       The PCRA court found that Johnson waived his claim that the reasonable

doubt jury instruction was unconstitutional because counsel did not object at

trial and Johnson could have raised the issue on direct appeal, but did not.

1925(a) Op. at 4-5.6


____________________________________________


5 Counsel filed an amended petition on February 17, 2017, and then filed two
subsequent amended petitions. In reviewing the petitions, the PCRA court
reviewed Johnson’s pro se petition, and all petitions filed by counsel. Trial
Court Opinion, filed Apr. 26, 2018, at 2.

6 The court further found that if Johnson had raised a counsel ineffectiveness
claim for failing to object to the reasonable doubt instruction, it would find the
claim meritless. The court reasoned that Pennsylvania courts are not bound
by federal district court decisions. 1925(a) Op. at 8. It further found, contrary
to the finding in Brooks, that the medical illustration included in the
instruction did not elevate the level of doubt required for a conviction. Id. at
8-9. It concluded that “[i]n the context of the entire charge, it did not alter
the burden of proof in the manner that the Brooks court concluded.” Id. at
9.

                                           -4-
J-S78029-18



      Johnson filed a timely notice of appeal, and raises the following issue:

         Did the PCRA Court err in concluding the Trial Court’s
         instruction on reasonable doubt was not constitutionally
         defective, and therefore no relief was warranted, wherein
         the Commonwealth conceded that the instruction given was
         not consistent with due process and the presumption of
         innocence?

Johnson’s Br. at 4.

      When reviewing an order dismissing a PCRA petition, this Court “must

determine whether the ruling of the PCRA court is supported by the record

and is free of legal error.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa.

2011) (citing Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008)).

      “[T]o be eligible for relief, a PCRA petitioner must establish by a

preponderance of the evidence that his conviction or sentence resulted from

one or more of the enumerated defects found in 42 Pa.C.S.[A.] § 9543(a)(2),

and that the allegation of error has not been previously litigated or waived.”

Commonwealth v. Brown, 872 A.2d 1139, 1144 (Pa. 2005); 42 Pa.C.S.[A.]

§ 9543(a)(3). A claim is previously litigated “if the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on

the merits of the issue.” Id. (citing 42 Pa.C.S.A. § 9544(a)(2)). A claim is

“waived ‘if the petitioner could have raised it but failed to do so before trial,

at trial, on appeal or in a prior state post[-]conviction proceeding.’” Id.

(quoting 42 Pa.C.S.A. § 9544(b)).

      Courts have found claims of trial court error, including claims that a trial

court’s reasonable doubt jury instruction was unconstitutional, waived where


                                      -5-
J-S78029-18



the appellant could have raised the claim on direct appeal, but did not. See,

e.g., Brown, 872 A.2d at 1145 (finding appellant waived various claims,

including claim that the trial court erred in its reasonable doubt instructions,

where he did not raise the claims on direct appeal); Commonwealth v.

Bracey, 795 A.2d 935, 940 (Pa. 2002) (finding claims of trial court error,

constitutional error, and prosecutorial misconduct waived where claims could

have been raised on direct appeal but appellant failed to do so); but see

Brown, 872 A.2d at 1145 (petitioner did not waive claim that he was

incompetent to stand trial by not raising on direct appeal, even though claim

available, because the issue of whether defendant competent to stand trial is

non-waivable).

       In his PCRA petition and on appeal Johnson claims the trial court erred

when it instructed the jury as to reasonable doubt, claiming the instruction

was unconstitutional. The PCRA court found this claim waived. This was not

error. Johnson could have raised it on direct appeal, but failed to do so.

Brown, 872 A.2d at 1144-45.

       In his PCRA petitions, Johnson did not claim that his trial counsel was

ineffective for failing to object to the reasonable doubt jury instruction or that

his appellate counsel was ineffective for failing to challenge the instruction on

direct appeal and therefore he did not discuss the Strickland/Pierce7

____________________________________________


7 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).


                                           -6-
J-S78029-18



ineffectiveness prongs and their application to his claim. See Third Amended

Petition for Post Conviction Relief, filed Sept. 12, 2017; Defendant’s Reply Br.,

filed Oct. 11, 2017. In his appellate brief, the only mention of the

ineffectiveness prongs comes in quotations to Brooks. See Johnson’s Br. at

13, 16 (quoting Brooks, 2017 WL 3475475, at *3, 6). The Pennsylvania

Supreme Court has found that claims of ineffectiveness of counsel are distinct

from the underlying claim of trial court error. See Commonwealth v.

Collins, 888 A.2d 564, 573 (Pa. 2005) (holding that an ineffectiveness claim

“raises a distinct legal ground for purposes of state PCRA review” and a PCRA

court should “review them under the three-prong ineffectiveness standard”).

Because Johnson did not raise a claim that his counsel was ineffective for

failing to object to the reasonable doubt jury instructions, we cannot review

such a claim.8
____________________________________________


8 Although Johnson claims he need not establish prejudice, he bases this claim
on Sullivan v. Louisiana, which found that on direct appeal an
unconstitutional reasonable doubt jury instruction is not subject to a harmless
error analysis. 508 U.S. 275, 279-82 (1993). Whether a PCRA petitioner
claiming ineffective assistance of counsel must establish prejudice, however,
is a different issue than whether a defendant on direct appeal must establish
prejudice after a finding of a structural defect. Weaver v. Massachusetts,
137 S.Ct. 1899, 1907, 1910 (2017); see Commonwealth v. Fisher, 813
A.2d 761, 775 (Pa. 2002) (Saylor, J., concurring) (finding no prejudice,
despite concluding that objection to hypothetical on reasonable doubt would
have had arguable merit, where other parts of instructions gave jury correct
definitions of reasonable doubt and the evidence was overwhelming). In
Weaver, the United States Supreme Court discussed structural errors on
direct appeal, where prejudice is presumed, and the prejudice prong of
ineffectiveness test where the underlying claim of alleged counsel
ineffectiveness is a structural defect. 137 S.Ct. at 1907-12. The Court



                                           -7-
J-S78029-18



       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/19




____________________________________________


concluded that for a claim that counsel was ineffective for failing to object to
the closing of the court room during voir dire, the petitioner must prove
counsel’s failure prejudiced the defendant. Id. at 1912-13. This was so even
though a claim that the court unconstitutionally closed the courtroom would
have resulted in a new trial if raised on direct appeal, without a harmless error
determination. Id. at 1908. The Court in Weaver, however, specifically noted
that it was not addressing whether a petitioner seeking post-conviction relief
for failure to object to an unconstitutional reasonable doubt jury instruction
would be required to establish prejudice. Id. at 1911-12.

                                           -8-
