J-S19024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

TONI JOHNSON,

                            Appellee                  No. 1287 MDA 2016


              Appeal from the PCRA Order Entered June 28, 2016
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001312-2009

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 02, 2017

        The Commonwealth appeals from the post-conviction court’s June 28,

2016 order granting Toni Johnson’s petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we vacate

the court’s order and remand for an evidentiary hearing.

        Briefly, in July of 2009, Appellee was arrested and charged with

burglary and related offenses after he and a cohort, Kelly Marie Golding,

conspired to steal a television from the home of an elderly man.          The

television was subsequently found in Appellee’s apartment. In May of 2010,

a jury convicted Appellee of burglary, conspiracy to commit burglary, theft

by unlawful taking, and receiving stolen property. On May 13, 2010, he was

sentenced to an aggregate term of 7½ to 15 years’ incarceration.
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*
    Former Justice specially assigned to the Superior Court.
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      Appellee’s trial counsel, Tami Fees, Esq., filed post-sentence motions

on his behalf, which were denied.        Attorney Fees then filed an untimely

notice of appeal with this Court, and she also failed to complete a docketing

statement as mandated by Pa.R.A.P. 3517.           Accordingly, on February 24,

2011, this Court issued an order dismissing Appellee’s appeal. See Order,

2/24/11 (docketed at 16 MDA 2011).

      Appellee subsequently filed a pro se petition seeking the reinstatement

of his direct appeal rights, arguing that Attorney Fees had acted ineffectively

in handling his direct appeal.    Without appointing counsel, the trial court

denied Appellee’s petition. Then, on May 7, 2012, Appellee filed the pro se

PCRA petition that underlies the present appeal. Steven Trialonas, Esq., was

appointed to represent Appellee, and he filed an amended PCRA petition on

May 27, 2014. Therein, Attorney Trialonas argued that Attorney Fees had

acted ineffectively in handling Appellee’s direct appeal, and that she had also

acted ineffectively at trial by not objecting to the Commonwealth’s calling

Appellee’s   co-defendant,   Kelly     Marie   Golding,   to    testify,     when    the

Commonwealth     knew    that    Ms.   Golding   planned       to   assert   her    Fifth

Amendment right to not incriminate herself.

      On August 29, 2014, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellee’s petition as being untimely filed.              While

Attorney Trialonas filed a response, the PCRA court issued an order denying

Appellee’s petition as untimely. Appellee filed a timely notice of appeal, and

a prior panel of this Court ultimately concluded, for reasons not pertinent to

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the present appeal, that the PCRA court had erred by denying Appellee’s

petition as untimely.    See Commonwealth v. Johnson, No. 623 MDA

2015, unpublished memorandum at 1-4 (Pa. Super. filed January 20, 2016).

Accordingly, we vacated the PCRA court’s order denying Appellee’s May 7,

2012 petition and remanded for the court to assess the merits of Appellee’s

ineffectiveness claims regarding Attorney Fees. Id.

      Upon remand, on March 31, 2016, the PCRA court issued an order

directing the Commonwealth to file a response to Appellee’s amended

petition, which the Commonwealth did on June 16, 2016.                 Without

conducting an evidentiary hearing, the PCRA court issued an order and

opinion on June 29, 2016, granting Appellee’s petition and awarding him a

new trial.    The Commonwealth then filed the present, timely appeal, and

also timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.              Herein, the

Commonwealth presents one issue for our review: “Whether the [PCRA]

court erred in granting [Appellee’s] Amended Petition for Post-Conviction

Relief, without a hearing, finding that trial counsel did not have a reasonable

basis for failure to object to testimony by a co-defendant.” Commonwealth’s

Brief at 4.

      We begin by noting that, “[t]his Court’s standard of review from the

grant or denial of post-conviction relief is limited to examining whether the

lower court’s determination is supported by the evidence of record and

whether it is free of legal error.”   Commonwealth v. Morales, 701 A.2d

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516, 520 (Pa. 1997) (citing Commonwealth v. Travaglia, 661 A.2d 352,

356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received

ineffective assistance of counsel (“IAC”), our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.”
      Generally, counsel’s performance is presumed to be
      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain
      relief, a petitioner must demonstrate that counsel’s performance
      was deficient and that the deficiency prejudiced the petitioner. A
      petitioner establishes prejudice when he demonstrates “that
      there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceeding would have
      been different.” … [A] properly pled claim of ineffectiveness
      posits that: (1) the underlying legal issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice befell the petitioner from counsel’s act or
      omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      In this case, Appellee averred in his amended PCRA petition that

Attorney Fees acted ineffectively by failing to object to the Commonwealth’s

calling Appellee’s co-defendant, Ms. Golding, to the stand at trial. By way of

background, when the Commonwealth called Ms. Golding to the stand, the

court held a sidebar conference with counsel, during which the following

exchange occurred:

      [Ms. Golding’s Counsel]: I represent Ms. Golding and she has
      open charges in this case. I’ve advised [the Commonwealth]

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     that she will be taking the Fifth today. I don’t know why [the
     Commonwealth] is doing this, especially in front of a jury. So
     I’m kind of at a loss. I’m asking him to either reconsider or do
     this outside the hearing of the jury. I just thought it was
     appropriate for the court to know that since I’ve given that
     advice to Ms. Golding in terms of taking the Fifth Amendment
     and exercising her rights under the Fifth Amendment.

     The Court: Thank you. [Commonwealth]?

     [The Commonwealth]: I went over that this morning, if that’s
     what she’s going to do that’s what she’s going to do. Obviously,
     but she must assert that right in open court, in front of the
     judge, because the Fifth Amendment applies to certain questions
     but not other questions, and the court needs to make [a]
     decision as to whether or not it applies to the question I’m
     asking.

     The Court: Okay. Thank you.

N.T. Trial, 3/22/10, at 124-25 (unnecessary capitalization omitted).

     The sidebar discussion then concluded, without any comment or

objection from Attorney Fees.     The court did not explicitly rule on the

objection by Ms. Golding’s counsel, but essentially denied it because it

permitted   the   Commonwealth    to   proceed   with   the   following   direct

examination of Ms. Golding:

     [The Commonwealth]: Ms. Golding, how old are you?

     [Ms. Golding]: Twenty-three.

     [The Commonwealth]: Do you know the defendant in this case,
     Toni Johnson?

     [Ms. Golding]: I was advised by my attorney to plead -- to
     exercise my right to plead the 5th.

     …

     [The Commonwealth]: Judge, I believe that Ms. Golding has a
     right to the Fifth Amendment privilege against testifying against


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       herself and incriminating herself in this matter. Therefore, I do
       not have any further questions for Ms. Golding.

Id. at 126 (unnecessary capitalization omitted).

       In Appellee’s amended PCRA petition, he contended that Attorney Fees

acted ineffectively by not objecting when the Commonwealth called Ms.

Golding to the stand while knowing she would “exercise her rights under the

Fifth Amendment to the United States Constitution….”        Amended Petition,

5/27/14, at 4.    Appellee maintained that the Commonwealth’s calling her

was error under Commonwealth v. DuVal, 307 A.2d 229, 235 (Pa. 1973),

where our Supreme Court held,

       that the prosecution, once informed that a witness intends to
       claim a privilege against self-incrimination, commits error in
       calling that witness to the stand before the jury where the
       witness is a person (co-defendant, accomplice, associate, etc.)
       likely to be thought by the jury to be associated with the
       defendant in the incident or transaction out of which the criminal
       charges arose. Whether or not the prosecution has a good faith
       belief that the assertion of privilege is legally invalid is
       irrelevant; that matter can be settled outside the hearing of the
       jury.

Id. at 234-35 (footnote omitted).     Thus, Appellee asserted that Attorney

Fees’s failure to object to Ms. Golding’s being called to the stand constituted

IAC.

       In the Commonwealth’s response to Appellee’s petition, the thrust of

its argument was that Attorney Fees could have had a reasonable basis for

not objecting to Ms. Golding’s being called to the stand.      In support, the

Commonwealth relied on Commonwealth v. Greene, 285 A.2d 865 (Pa.

1971), explaining:


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            In Greene, the defendant wished to call a co-defendant to
      the stand knowing that the co-defendant would plead the Fifth
      Amendment. The defendant claimed that the co-defendant was
      the guilty party and desired the jury to hear the co-defendant
      plead the Fifth Amendment. The defendant in Greene wanted
      to call the co-defendant knowing that he would invoke his Fifth
      Amendment right and use the inference to the jury that the co-
      defendant was actually the guilty party. Therefore, as in the
      case sub judice, there is arguably a reasonable basis for allowing
      the co-defendant in a criminal case to invoke the Fifth
      Amendment right as a trial strategy.

See Commonwealth’s Response, 6/16/16, at 5 ¶ 15(b).           Accordingly, the

Commonwealth maintained that Appellee had failed to demonstrate that

Attorney Fees acted ineffectively and, therefore, no evidentiary hearing was

warranted. Id. at 6-7 ¶ 19; see also id. at 12 ¶¶ 18-20 (Commonwealth’s

moving for the dismissal of Appellee’s petition and arguing that no genuine

issue of material fact existed to warrant an evidentiary hearing).

      On June 29, 2016, the PCRA court issued an order and opinion

granting Appellee’s petition and awarding him a new trial. Preliminarily, the

court explained why it did not conduct a hearing, stating: “In reviewing the

trial transcript and filings of the parties, and applying the [appropriate]

standard of review to the pertinent actions of Attorney Fees, this [c]ourt

finds [Appellee] has proven his claim for the ineffective assistance of counsel

and relief may be granted without a hearing.” PCRA Court Opinion (PCO),

7/29/16, at 3.   The court then discussed how Appellee’s claims met each

prong of the test for demonstrating IAC, and concluded that Appellee was

entitled to a new trial. Id. 3-8. Relevant to the present appeal, the court




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determined that Attorney Fees had no reasonable basis for not objecting to

Ms. Golding’s testimony, explaining:

            The Commonwealth relies on … Greene for the proposition
     that there is a reasonable basis for allowing a co-defendant to
     invoke their Fifth Amendment right as a trial strategy. In
     Greene, defense counsel’s strategy involved shifting criminal
     responsibility from the defendant to the co-defendant. Here,
     [Attorney Fees] did not attempt to shift guilt to Ms. Golding in
     the opening or closing statement, or when questioning the
     witnesses. The defense theory of the case was not to place guilt
     on Ms. Golding; rather, [Appellee’s] position was that he had the
     television in his possession because he innocently purchased it
     from another resident in his apartment complex. Therefore,
     even if the Greene strategy is reasonable, such strategy was
     not utilized in this case.

           Further, the co-defendant in Greene was questioned
     outside the presence of the jury. [Greene, 285 A.2d] at 866.
     The [C]ourt explained:

        Reviewing the principle that the jury may not draw any
        inference from a witness’[s] exercise of his constitutional
        rights whether the inference be favorable to the
        prosecution [o]r the defense, the court applied the
        corollary to this rule that a witness should not be placed on
        the stand for the purpose of having him exercise his
        privilege before the jury.

     Greene, 285 A.2d at 867. Even pursuant to Greene, Ms.
     Golding was improperly questioned in the presence of the jury.
     As such, [Attorney Fees’s] inaction lacked any objectively
     reasonable basis designed to effectuate [Appellee’s] interest.

PCO at 6.

     Now, on appeal, the Commonwealth contends that the court erred by

granting Appellee’s IAC claim.    Before delving into the specifics of the

Commonwealth’s argument, we note that we may only review the PCRA

court’s determination regarding the reasonable basis prong of the IAC test,


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as the Commonwealth has waived any challenge to the court’s decisions

regarding the two other prongs.                In the Commonwealth’s Rule 1925(b)

statement, it asserted that the issue it sought to raise on appeal was

whether the PCRA court “erred in granting [Appellee’s] Amended Petition for

Post-Conviction Relief, without a hearing, finding that trial counsel did not

have a reasonable basis for [her] failure to object to testimony by a co-

defendant.” Commonwealth’s Pa.R.A.P. 1925(b) Statement, 8/22/16, at 1.

The specific issue presented by the Commonwealth did not include any

challenge to the PCRA court’s determination that Appellee had proven the

arguable merit and prejudice prongs of the ineffectiveness test. Accordingly,

any such arguments are waived on appeal.1 See Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the Statement and/or not raised in accordance with

the provisions of this paragraph (b)(4) are waived.”).

       Regarding     the    reasonable     basis    prong   of   the   IAC   test,   the

Commonwealth focuses on arguing that the PCRA court erred by not

conducting an evidentiary hearing to consider testimony from Attorney Fees

about why she did not object to the Commonwealth’s calling Ms. Golding to

the stand. See Commonwealth’s Brief at 12. Again relying on Greene, the
____________________________________________


1
  We note that the PCRA court’s order directing the Commonwealth to file a
Rule 1925(b) statement informed the Commonwealth that any issue not
raised therein would be deemed waived. See PCRA Court Order, 8/1/16, at
1 (“[T]he Commonwealth is hereby notified that any issue not properly
included in the timely filed Statement shall be deemed waived by the
appellate court.”).



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Commonwealth stresses that “there is arguably a reasonable basis for

allowing the co-defendant in a criminal case to invoke the Fifth Amendment

right as a trial strategy.”   Id. at 13.   The Commonwealth then concludes

that, “[b]ecause the record is void of trial counsel’s testimony in regards to

this issue,” the court erred in finding that Attorney Fees had no reasonable

basis. Id.

      We are compelled to agree with the Commonwealth that a hearing is

required.    We recognize that the PCRA court discussed and distinguished

Greene; however, in doing so, the court speculated, based on the trial

record, that Attorney Fees was employing a different defense strategy than

the attorney in Greene.       The PCRA court generally mentioned portions of

the record that supported its conclusion, but it did not point to any specific

comments by counsel, or questions she posed to witnesses, which

demonstrated that her defense strategy was not to inculpate Ms. Golding.

Moreover, the PCRA court did not explicitly conclude, nor suggest, that

Attorney Fees could not have had, as a matter of law, any reasonable basis

for failing to object to the jury’s hearing Ms. Golding’s invoking her Fifth

Amendment privilege.     Absent any such legal determination, our Supreme

Court “has expressed a distinct preference for a hearing on counsel’s

strategy before venturing to hold that counsel lacked a reasonable basis for

his or her action or inactions.” Commonwealth v. Spotz, 870 A.2d 822,

832 (Pa. 2005) (citations omitted).




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      Consequently, we agree with the Commonwealth that this case must

be remanded for a PCRA hearing solely to ascertain Attorney Fees’s basis for

not objecting to the Commonwealth’s calling Ms. Golding to the stand,

despite knowing that she would invoke her Fifth Amendment right against

self-incrimination.   The PCRA court may then make findings of fact and

credibility determinations, and decide if Attorney Fees acted reasonably.

      Order vacated. Case remanded for further proceedings.       Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




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