J-S59044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                      v.

LYNDEL JOHNSON

                           Appellant                   No. 237 EDA 2017


                 Appeal from the PCRA Order January 13, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010310-2011

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 30, 2017

        Appellant, Lyndel Johnson, appeals from the order denying his first

timely petition for relief pursuant to the Post Conviction Relief Act.      42

Pa.C.S. §§ 9541-9546. Appellant claims the PCRA court erred in dismissing

his claims that trial counsel was ineffective for failing to (1) introduce the

crimen falsi of a witness, (2) object to the lack of a preliminary hearing on a

charge of third-degree murder, and (3) object to the Commonwealth’s

improper reference to his pretrial incarceration. We affirm.

        The pertinent facts and procedural history have been summarized as

follows:

              [S.R.], the fifteen-year-old niece of the decedent,
           [Shane McCreery,] had, shortly before the August 2,

*   Former Justice specially assigned to the Superior Court.
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       2011[,] shooting that is the subject of this case, sold
       [Appellant] a pit bull for $175, only $60 of which was paid
       up front. [S.R.] unsuccessfully brought the debt up with
       [Appellant] twice during the week prior to the shooting.

           On August 1, 2011[,] before midnight, [S.R.] and her
       friend Saleem Johnson, [Appellant’s] brother, went to the
       Chinese store, where she told Saleem about the debt,
       saying that if she did not get the money, she would have
       her uncles come and get it for her. [S.R.] and [Saleem]
       walked to 2311 W. Tioga Street and sat on the front porch
       with [Saleem’s] sister, Alexis, for approximately [thirty
       minutes].    At some point, [Saleem] went inside, saw
       [Appellant], and told him what [S.R.] had said about her
       uncles. [Appellant] came out on the porch and told [S.R.]
       that he would pistol-whip her if she did not leave the
       property.    [S.R.] left, accompanied by [Saleem], and
       walked to her house, which is one block north on Marvine
       Street. On the way there, she called [Jason] Cruz, her
       stepfather, and told him she had been threatened. Cruz
       called the decedent, who arrived at [S.R.’s] house ten
       minutes later, accompanied by his brother Isaac Mercado
       and his cousin Julio Rodriguez. Cruz arrived ten minutes
       after that.

           [S.R.], her mother, Luz Cruz, her two uncles, her cousin
       Julio Rodriguez, and [Jason] Cruz then walked south on
       Marvine Street toward the northeast corner of Marvine and
       W. Tioga Streets. [Appellant] approached the group on
       the east side of Marvine Street a little north of the
       intersection, at which point Mr. Cruz and the decedent
       confronted him about the money. [Appellant] went into
       his house at 1138 W. Tioga Street and came out with the
       money, which he gave to Cruz.           The decedent and
       [Appellant] argued briefly.         Then, Cruz punched
       [Appellant] in the head or chest[.]        [Appellant] was
       knocked back approximately ten feet.

          [Appellant] then turned back toward the group, pulled
       out a gun, and began shooting at them from about ten feet
       away, standing in the middle of the street between
       northern corners of Marvine and W. Tioga Streets. [S.R.]
       and Isaac ran east on W. Tioga Street, and Mr. Cruz, the
       decedent, and Mr. Rodriguez ran north on Marvine Street


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         toward [S.R.]’s house. [Appellant] fired shots at the latter
         group, following them up Marvine Street and fatally
         wounding the decedent. Ms. Cruz remained standing in
         the middle of Marvine Street. [S.R.] doubled back to
         Marvine Street and observed the incident from behind a
         car.    After running approximately forty-five feet up
         Marvine Street, Mr. Rodriguez pulled out a handgun and
         gave it to Mr. Cruz, who aimed it at [Appellant] and fired
         three times. When [Appellant] finished shooting, he ran
         back toward the corner of Marvine and W. Tioga and
         headed west on W. Tioga Street.

Commonwealth v. Johnson, 3119 EDA 2012, unpublished memorandum

at 1-2 (citation omitted).

      Appellant was subsequently arrested and, following a jury trial, was

convicted of third-degree murder and related offenses. On October 5, 2012,

the trial court sentenced him to an aggregate term of eighteen and one-half

to thirty-seven years of imprisonment.        After the trial court denied

Appellant’s post-sentence motion, he filed a timely appeal to this Court in

which he challenged the weight and sufficiency of the evidence supporting

his convictions. We rejected these claims and affirmed Appellant’s judgment

of sentence.       Id. at 7.   The Pennsylvania Supreme Court reinstated

Appellant’s right to file a petition of allowance of appeal, and denied the

petition on December 17, 2015.

      Appellant timely filed a pro se PCRA petition on March 28, 2016. The

PCRA court appointed counsel, and PCRA counsel filed an amended petition

on September 18, 2016, in which he raised three claims of trial counsel’s

ineffectiveness.    Thereafter, the Commonwealth filed a motion to dismiss.

On December 5, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of



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intent to dismiss Appellant’s amended petition.      Appellant did not file a

response.   By order entered January 13, 2017, the PCRA court dismissed

Appellant’s amended PCRA petition. This timely appeal follows. The PCRA

court did not require Pa.R.A.P. 1925 compliance.

      Appellant raises the following issues:

         1. Was trial counsel ineffective for conceding the
            inadmissibility of crimen falsi convictions by a witness,
            Jason Cruz, and for failing to provide notice of intent to
            introduce same?

         2. Was prior counsel ineffective for not objecting to the
            third-degree Murder conviction when Appellant was not
            properly arraigned?

         3. Was trial counsel ineffective for not objecting to
            prosecutorial misconduct wherein Appellant’s pretrial
            detention was clearly elicited?

Appellant’s Brief at 4.

      The “standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.”   Commonwealth v. Volk, 138 A.3d 659,

661 (Pa. Super. 2016) (citation omitted), appeal denied, 163 A.3d 401 (Pa.

2016).

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel’s ineffectiveness “so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.”

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (citation




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omitted).     “Generally,   counsel’s   performance    is   presumed    to   be

constitutionally adequate, and counsel will only be deemed ineffective upon

a sufficient showing by the petitioner.” Id. (citation omitted). This requires

the petitioner to demonstrate that: (1) the underlying claim is of arguable

merit; (2) counsel had no reasonable strategic basis for his or her action or

inaction; and (3) petitioner was prejudiced by counsel’s act or omission. Id.

at 533. A finding of “prejudice” requires the petitioner to show “that there is

a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”         Id. (citation and

quotation marks omitted). In assessing a claim of ineffectiveness, when it is

clear that appellant has failed to meet the prejudice prong, the court may

dispose of the claim on that basis alone, without a determination of whether

the first two prongs have been met.        Commonwealth v. Travaglia, 661

A.2d 352, 357 (Pa. 1995). “Counsel cannot be deemed ineffective for failing

to pursue a meritless claim.” Commonwealth v. Loner, 836 A.2d 125, 132

(Pa. Super. 2003) (en banc) (citation omitted).

      Appellant first claims that trial counsel was ineffective for “conceding

that [a] conviction for crimen falsi should not have been admitted in relation

to Jason Cruz.” Appellant’s Brief at 7. The PCRA court aptly summarized

the background of this claim as follows:

         In his first issue, [Appellant] claims that counsel was
         ineffective for not advocating that Jason Cruz’s prior
         adjudication for robbery should be used as crimen falsi to
         impeach the witness.        Cruz had been adjudicated
         delinquent for Robbery on October 11, 1995, sixteen years


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        before [Appellant’s] trial. [Appellant] claims that Cruz
        should have been impeached because he lied about
        possessing a gun and that his self-defense claim was not
        properly supported because the threat posed by Cruz was
        not elicited.

            On the first day of testimony, outside the jury’s
        presence, trial counsel sought permission to introduce
        Cruz’s Robbery adjudication for crimen falsi. This Court
        instructed counsel that it would make a ruling after Cruz
        testified for the Commonwealth.       The Commonwealth,
        however, never called Cruz to testify; instead, [Appellant]
        presented him as a defense witness. Before calling Cruz
        as a witness, trial counsel did not renew his request for a
        ruling on whether Cruz’s [R]obbery adjudication was
        admissible.

PCRA Ct. Op., 1/13/17, at 4-5 (citations and footnote omitted).

     Our Supreme Court has summarized the relevant law regarding the

admissibility of such convictions for impeachment purposes:

        Evidence to impeach the credibility of a witness is
        admissible so long as it is relevant to that purpose and not
        otherwise barred. Pa.R.E. 607(b). Under settled law,
        evidence that a witness has been convicted of a crimen
        falsi is generally admissible, unless the conviction (or
        release from confinement, whichever is later), is more
        than ten years old. Pa.R.E. 609(a), (b). It is only when
        the crimen falsi conviction is more than ten years old . . .
        that evidence of the conviction becomes conditioned on the
        probative value of the evidence substantially outweighing
        its potential prejudicial effect. Pa.R.E. 609(b)(1).

Commonwealth v. Hoover, 107 A.3d 723, 730-31 (Pa. 2014).

     Our Supreme Court has explained that the five factors set forth in

Commonwealth v. Randall, 528 A.2d 725 (Pa. 1987), guide the trial

court’s discretionary determination regarding the use of prior convictions

older than ten years:



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        We explained in Randall that the following factors should
        be considered by the trial court in determining whether
        previous convictions, which are outside the ten-year time
        frame, are admissible for purposes of impeachment: (1)
        the degree to which the commission of the prior offense
        reflects upon the veracity of the defendant-witness; (2)
        the likelihood, in view of the nature and extent of the prior
        record, that it would have a greater tendency to smear the
        character of the defendant and suggest a propensity to
        commit the crime for which he stands charged; (3) the age
        and circumstances of the defendant[-witness]; (4) the
        strength of the prosecution’s case and the prosecution’s
        need to resort to this evidence as compared with the
        availability to the defense of other witnesses through
        which its version of the events surrounding the incident
        can be presented; and (5) the existence of alternative
        means of attacking the defendant[-witness’s] credibility.

Commonwealth v. Rivera, 983 A.2d 1211, 1227 (Pa. 2009) (citation and

quotation marks omitted).

       Here, the PCRA court determined that Appellant’s claim lacked

arguable merit and that he could not prove prejudice:

        Because [Appellant] cannot demonstrate that this Court,
        when considering the above-referenced balancing test,
        would have permitted [him] to use Cruz’s juvenile Robbery
        adjudication, this claim lacks arguable merit. To wit, as
        the Commonwealth correctly points out, three of the above
        five factors disfavor the use of Cruz’s Robbery conviction.
        First, significant time had passed since Cruz’s adjudication.
        At the time of trial, Cruz was thirty-two years old. He was
        just sixteen when adjudicated delinquent for Robbery.

           Second, there was no need to impeach Cruz as
        compared with the availability of another witness to show
        that [Cruz] had a gun the night of the shooting. That Cruz
        possessed     a    gun     was     consistent    with    the
        [Commonwealth’s] evidence. S.R. testified that she saw
        Cruz pull a gun and hold it in a shooting position. Further,
        police recovered a revolver from the car that Cruz and
        Rodriguez used to drive the decedent to the hospital.



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                Third, there were alternative means of attacking Cruz’s
            credibility.   Trial counsel elicited testimony from Cruz
            about being on state parole supervision at the time of the
            shooting and that he was not permitted to carry a gun,
            indicating for the jury that Cruz had reason to lie about
            firing at [Appellant]. For these reasons, no relief is due.

PCRA Ct. Op. at 6 (citations omitted).

      Our review of the record supports the PCRA court’s conclusions.

Moreover, in his brief, Appellant makes bare assertions of prejudice rather

than develop an argument that the crimen falsi was admissible under the

Randall factors.      Thus, Appellant fails to establish sufficient allegations to

establish     that   the   PCRA   court   erred   in   dismissing   this   claim   of

ineffectiveness. See Commonwealth v. Pettus, 424 A.2d 1332, 1335 (Pa.

1981) (stating that a defendant may not argue ineffectiveness in a vacuum).

Likewise, Appellant fails to establish that he pleaded and proved each prong

of the tripartite test in order to prove his or her ineffectiveness claim. See

Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011) (stressing that a

defendant fails to satisfy his burden of establishing ineffectiveness when he

or she makes only boilerplate allegations of no reasonable basis and/or

prejudice). Thus, we discern no basis to disturb the PCRA court’s conclusion

that trial counsel cannot be deemed ineffective for failing to pursue this

meritless claim. See Loner, 836 A.2d at 132.

      Appellant next claims that prior counsel was ineffective for failing to

raise and/or pursue on appeal, the fact that he was convicted of third-degree

murder when he was only arraigned on the charge of first-degree murder.



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According to Appellant, “he was not on notice as to the lesser-included

offense [of third-degree murder] and trial or plea strategy was altered by

this arraignment issue.     Appellant was under the impression that the

Commonwealth was not moving on the lesser-included offense for which he

was eventually convicted.” Appellant’s Brief at 13.

      Our Supreme Court has summarized:

         Historically, the settled law in Pennsylvania has been that
         a defendant may be convicted of an offense that is a
         lesser-included offense of the crime actually charged. This
         doctrine promotes judicial economy, avoids inconsistent
         results, and enhances the quality of jury deliberations by
         assuring that factfinders, informed of the option of
         convicting of related offenses, focus their attention on the
         presence or absence of those elements that distinguish the
         greater or lesser offenses. Although Pennsylvania has
         consistently approved of the doctrine, the more difficult
         question has always been determining what constitutes a
         lesser-included offense.

Commonwealth v. Sims, 919 A.2d 931, 938 (Pa. 2007) (citations

omitted).

      The PCRA court found that the record refuted Appellant’s claim of lack

of notice.   We agree.    Appellant does not take issue with whether third-

degree murder is a lesser-included offense of first-degree murder. Rather,

he argues he had no notice that he was also charged with this crime. There

is no question that Appellant was originally charged with criminal homicide,

and that he rejected the Commonwealth’s plea offer to third-degree




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murder.1 Our review of the record further indicates that Appellant made a

motion for judgment of acquittal of first-degree murder, arguing he was

guilty of only voluntary manslaughter, and that the trial court charged the

jury on all of degrees of homicide.      See N.T., 8/22/12, at 212-16; N.T.,

8/24/12, at 24-32. Thus, Appellant’s claim of ineffectiveness fails.

      Finally, Appellant claims that prior counsel was ineffective for failing to

object to the misconduct of the prosecutor because, during Saleem’s

testimony, she elicited testimony regarding Appellant’s pretrial custody.

Appellant avers that “the prosecutor purposefully implied that [he] was

incarcerated prior to trial by pushing Saleem Johnson on when he had last

seen Appellant, knowing that Appellant was incarcerated.” Appellant’s Brief

at 15. According to Appellant, the Commonwealth

         committed misconduct and trial counsel was ineffective
         because there was no basis for allowing this line of
         questioning because Saleem Johnson was not conspiring
         with Appellant and was essentially cooperating with the
         Commonwealth. The clear implication was that Appellant
         was in pretrial detention and this undermined the
         presumption of innocence.

Appellant’s Brief at 15. Appellant’s claim entitles him to no relief.

      Read in context, the exchange at issue is as follows:

         [BY THE PROSECUTOR]:



1 Appellant argued to the PCRA court that he did not have the opportunity to
plead guilty to third-degree murder because he was only arraigned for first-
degree murder. The PCRA court found the record refuted that claim, and
Appellant has abandoned it in this appeal.



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           Q    Now, Saleem, you -- or I’ll call you Mr. Johnson.
       I just don’t want it to be unclear on the record.

          Did you have an opportunity to talk to some detectives
       pretty soon after the incident?

          A      Yes. They came to my house, I’d say about six
       o’clock in the morning,

          Q     Now, before    they     got   there,   did   you   see
       [Appellant] again?

          A     My brother?

          Q     Yes.

          A     Yes, I saw him that night.

          Q     Where did you see him?

          A     I saw him at the Myspace bar.

          Q     At the Myspace bar. Where is that?

         A      I don’t know what street it’s on; I just know
       where it’s at.

         Q     Well, how far from your house is it, roughly; how
       many blocks?

          A     About a quarter mile.

          Q     How did you get there?

          A     Walked.

          Q     And how long after this incident did you see him
       there?

          A     About twenty minutes after.

          Q     How long did you see him there?

          A     It wasn’t long, because I left back to my house.


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            Q     When did you next see [Appellant]?

           A      That was the last time I saw my brother until
         now.

            Q     All right. So let’s go back to you talking to the
         detectives. Do you remember were that was?

            A     No, ma’am.

N.T., 8/21/12, at 171-73.

      The PCRA court cites the above exchange and correctly concludes that

there was no reference to Appellant’s pre-trial incarceration. The court then

notes that “[t]he jury was free to imagine a myriad of reasons why the

witness did not see [Appellant] again until trial.” PCRA Ct. Op., 1/13/17, at

8. The court adds that, “although generally no reference may be made at

trial in a criminal case to a defendant’s arrest for a previous crime, there is

no rule in Pennsylvania which prohibits reference to a defendant’s

incarceration awaiting trial or arrest for the crimes charged.      Id. (citing

Commonwealth v. Johnson, 838 A.2d 663, 680 (Pa. 2003)).

      We agree that this claim entitles him to no relief. As seen above, the

prosecutor did not “push” Saleem to confess when he last saw Appellant.

After he answered this inquiry, the prosecutor then resumed questioning

Saleem about his interactions with the detectives.     Moreover, even if the

exchange could be read as referencing Appellant’s pretrial incarceration, we

discern no basis on which to conclude that a new trial would be required.

See Commonwealth v. Horne, 89 A.3d 277, 284 (Pa. Super. 2014)




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(explaining that the brief mention of the defendant’s incarceration did not

unduly prejudice him, as the jury could reasonably infer that he was

incarcerated prior to trial because he was accused of committing the robbery

at issue, not some previous offense).

     In sum, because all of Appellant’s ineffectiveness claims are meritless,

we affirm the order denying him post-conviction relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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