J-S43044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN JOHNSON                              :
                                               :
                       Appellant               :   No. 415 WDA 2018

                 Appeal from the PCRA Order March 15, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0016400-2008


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 16, 2018

       Appellant Shawn Johnson appeals from the order denying his first timely

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. Appellant claims that the PCRA court erred in rejecting his claims based

on the ineffective assistance of trial counsel.1 We affirm.

       The PCRA court set forth the facts of this case as follows:

       Ray Menifield, [(Victim)], was robbed on July 14, 2008, while he
       was working as a manager and an after-hours parking lot
       attendant at McDonald’s. He immediately reported the robbery
       and provided a detailed description of the robber, as well as the
       vehicle in which he had seen the robber arrive at the lot. Mr.
       Menifield did not know the robber personally, but he had seen him
       on multiple occasions prior to the robbery, and he knew he would
       be able to identify him if he saw him again.

       On September 15, 2008, approximately two (2) months after the
       robbery, Mr[.] Menifield testified that he saw the perpetrator get
____________________________________________


1At trial, Appellant was represented by Rosalyn Guy-McCorkle, Esq. (Trial
Counsel).
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        out of a vehicle at the parking lot where he worked. Mr. Menifield
        testified that he “knew right away” that the person who had exited
        the vehicle was the individual who had robbed him. Mr. Menifield
        overheard the robber talking to another lot attendant with whom
        he appeared to be friends.            Mr. Menifield overheard the
        perpetrator tell that attendant, “that’s the guy I robbed” or “I just
        robbed him,” referring to Mr. Menifield.[2] Mr. Menifield called the
        police immediately and provided another description of the
        perpetrator and the vehicle in which he had arrived. When the
        police officer arrived at the lot, and as [Appellant] returned to the
        lot, Mr. Menifield identified [Appellant] as the perpetrator of the
        robbery. As a result of Mr. Menifield’s identification, [Appellant]
        was arrested at the scene.

Mem. Order of Ct., 3/15/18, at 1-2 (citations omitted).

        On March 1, 2010, following a bench trial, the trial court found Appellant

guilty of robbery—threat of immediate bodily injury and possession of a

firearm by a person not to possess.3             On May 20, 2010, the trial court

sentenced Appellant to an aggregate term of 9½ to 19 years’ incarceration.

        On May 26, 2010, Appellant filed a timely notice of appeal. This Court

affirmed Appellant’s judgment of sentence on December 1, 2011. Appellant

filed a petition for allowance of appeal, which the Pennsylvania Supreme Court

denied on May 31, 2012.

        On June 13, 2012, the PCRA court docketed Appellant’s first pro se PCRA

petition, but no further action was taken. On December 11, 2015, the PCRA

court docketed the instant pro se PCRA petition. On December 22, 2015, the

____________________________________________


2 Later during trial, the Victim identified the attendant as “Roy.” See N.T.
Trial, 3/1/10, at 41.

3   18 Pa.C.S. §§ 3701(a)(1)(iv) and 6105(a)(1), respectively.


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court appointed Patrick K. Nightingale, Esq., to represent Appellant.              On

August 16, 2016, Attorney Nightingale filed a petition to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

      On November 9, 2016, the PCRA court filed a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907.        On December 2, 2016, the PCRA court

docketed Appellant’s pro se response to the court’s notice of intent to dismiss

claiming that Attorney Nightingale had not consulted or communicated with

Appellant. See Pro se Resp. to Notice of Intention to Dismiss, 12/3/16, 1-2

(unpaginated). On April 21, 2017, the PCRA court docketed Appellant’s pro

se supplemental response to the court’s notice of intent to dismiss claiming

that trial counsel was ineffective in failing to conduct a pre-trial investigation

and/or request a postponement of trial to locate a witness, Roy Bingham. Pro

se Suppl. Resp. to Notice of Intention to Dismiss, 4/21/17, at 2-3.

      On June 23, 2017, the PCRA court entered an order stating that in light

of   Attorney   Nightingale’s   petition   to   withdraw,   the   alleged   lack   of

communication between Attorney Nightingale and Appellant, and the claim

raised by Appellant in his supplemental response, it was appointing Scott

Coffey, Esq. (PCRA Counsel), to represent Appellant. PCRA Counsel filed an

amended PCRA petition on August 30, 2017, raising essentially the same

argument as Appellant did in his pro se supplemental response.              See Am.

PCRA Pet., 8/30/17.      On November 3, 2017, the Commonwealth filed a

response to the amended petition, claiming that (1) Appellant does not have

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an affidavit from Bingham because the alleged affidavit “is not verified or

notarized”; (2) Trial Counsel testified that she would not have asked for a

postponement because she would have relied on cross-examination; and (3)

there was “abundant evidence” as to Appellant’s guilt.          Commonwealth’s

Answer to PCRA Pet., 11/3/17, at 6-7.

      On November 29, 2017, the PCRA court filed a notice of its intent to

dismiss. Appellant filed a pro se response, docketed on December 11, 2017,

again claiming that Trial Counsel was ineffective for failing to conduct a pretrial

investigation and possibly presenting Bingham as a witness. Pro se Resp. to

Notice of Intention to Dismiss, 12/1/17, at 2-3. Additionally, Appellant raised

a claim of PCRA Counsel’s ineffectiveness. Id. at 3. On December 13, 2017,

the PCRA court rescinded its November 29, 2017 notice of intent to dismiss

and scheduled an evidentiary hearing.

      At the hearing held on February 28, 2018, PCRA Counsel called Bingham

to testify. Bingham testified that in 2008 he worked at the after hour parking

lot with Victim. N.T. PCRA Hr’g, 2/28/18, at 5. Bingham further testified that

while working at the parking lot with Victim:

      [Appellant] had came, and I guess he was going to the club and
      parking cars. I haven’t seen him in a while, so when I seen him,
      we greeted each other. And we talked or whatever. [Appellant]
      was saying he was going to the club. He went in the club. And
      when he went in, [Victim] said, “I think that’s the guy that robbed
      me.”

      I was like, “You sure?” He was like, “Yeah.” I was like, “I know
      him,” you know what I mean. Because we were, like, kind of
      nervous about since he got robbed the one time, would there be


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      continued robberies or whatever. So when [Victim] said it was
      him, I was just like, “I know him.”

Id. at 7. Bingham stated that he did not hear Appellant say that Appellant

had just robbed Victim. Id. Finally, Bingham explained that he did not know

Appellant had been on trial for the robbery and that Trial Counsel never

contacted him to testify. Id. at 9-10.

      During cross-examination, Bingham acknowledged that he found out

Appellant was in prison because of a mutual friend who was in the same

prison. Id. at 12. Bingham further acknowledged that he was Appellant’s

friend and knew Appellant’s mother. Id. at 14, 16.

      Trial Counsel also testified at the hearing. She stated that she did not

know of Bingham’s existence prior to trial. Id. at 20-21. She testified that

the first time she heard of Bingham was when Victim testified at trial that

Appellant told Bingham that Appellant had robbed the alleged Victim. Id. at

21. Trial Counsel explained that when Victim made this statement she decided

to cross-examine him on that point because she did not believe Victim was

credible.   Id. at 22.   She further explained that she did not ask for a

postponement to find Bingham because (1) there was nothing to corroborate

the Victim’s statement that he heard Appellant tell Bingham that Appellant

had robbed Victim; (2) it was the first time Victim had said it; and (3) it was

not in the police reports. Id. at 23. Moreover, during cross-examination, Trial

Counsel acknowledged that Appellant did not tell her during pre-trial




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proceedings or at trial that one of the workers at the McDonald’s parking lot

was a friend of his. Id. at 25.

      On March 15, 2018, the PCRA court denied Appellant’s PCRA petition,

concluding that Appellant “cannot show that his [T]rial [C]ounsel lacked a

reasonable strategy in failing to postpone the trial in order to locate [Bingham.

Appellant] also cannot show that he has suffered actual prejudice as a result

of his Trial Counsel’s decision.” Mem. Order of Ct., 3/15/18, at 6.

      Appellant timely appealed and filed a concise statement of matters

complained of on appeal.      The PCRA court filed an opinion relying on the

reasoning it provided in its March 15, 2018 order denying Appellant’s PCRA

petition.

      Appellant raises the following question on appeal:

      Did the [PCRA] court err in denying Appellant’s PCRA petition since
      Trial Counsel was ineffective for failing to request a postponement
      during the trial, after the Victim’s testimony, to locate and call
      potential witness Roy Bingham to testify at trial, after the Victim
      testified that Appellant told Mr. Bingham on 9/15/08 that
      Appellant had robbed the Victim; on 8/7/17, Bingham submitted
      an affidavit stating that Appellant never told him that he robbed
      the Victim, and that Bingham had been willing to testify at trial
      and was never contacted by Appellant’s trial attorney, and
      Bingham testified consistent to the content of his affidavit at the
      2/28/18 PCRA hearing[?] If the trial court had heard Bingham’s
      testimony at trial, the Victim’s credibility would have been
      substantially weakened and Appellant likely would have been
      acquitted of the instant crimes[.]

Appellant’s Brief at 3 (full capitalization omitted).

      Appellant argues that Trial Counsel was ineffective in failing to request

a postponement to locate Bingham. Id. at 17. He claims that Bingham would

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have testified at trial that Appellant never told him that Appellant had robbed

Victim or anybody else. Id. This testimony, Appellant contends, “would surely

have [made the trial court find Victim]’s credibility to be substantially

weakened, and [Appellant] would likely have been acquitted of the instant

robbery and [Violation of the Uniform Firearm Act] counts.” Id. Appellant

argues that he must be granted a new trial at which Bingham can testify in

light of counsel’s ineffectiveness. Id.

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

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted). “The PCRA

court’s credibility determinations, when supported by the record, are binding

on this Court; however, we apply a de novo standard of review to the PCRA

court’s legal conclusions.”   Commonwealth v. Mitchell, 105 A.3d 1257,

1265 (Pa. 2014) (citation omitted).

      It is well-settled that to establish a claim of ineffective assistance of

counsel, a defendant “must show, by a preponderance of the evidence,

ineffective 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.” Commonwealth

v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) (citation omitted). The

burden is on the defendant to prove all three of the following prongs: “(1)

the underlying claim is of arguable merit; (2) that counsel had no reasonable

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strategic basis for his or her action or inaction; and (3) but for the errors and

omissions of counsel, there is a reasonable probability that the outcome of the

proceedings would have been different.”        Id. (citation omitted); see also

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (“A failure to

satisfy any prong of the ineffectiveness test requires rejection of the claim of

ineffectiveness.” (citation omitted)).

      Our Supreme Court has explained that prejudice “means demonstrating

that there is a reasonable probability that, but for counsel’s error, the outcome

of the proceeding would have been different. Counsel is presumed to have

been effective and the burden of rebutting that presumption rests with the

petitioner.”   Commonwealth v. Fletcher, 986 A.2d 759, 772 (Pa. 2009)

(quotation marks and citations omitted). We add that “boilerplate allegations

and bald assertions of . . . ensuing prejudice cannot satisfy a petitioner’s

burden to prove that counsel was ineffective.” Commonwealth v. Paddy,

15 A.3d 431, 443 (Pa. 2011).

      Instantly, the PCRA court found that Appellant was not prejudiced by

Trial Counsel’s decision to not request a postponement to locate Bingham.

Mem. Order of Ct., 3/15/18, at 7. The PCRA court reasoned:

      This court sat as the fact-finder during the non-jury trial, and it
      has a vivid recollection of the evidence and testimony presented.
      As this court noted at the time that it rendered its verdict, the
      court found the testimony of [V]ictim to be consistent and very
      credible, and it found [Victim]’s identification of [Appellant] to be
      solid.

      Moreover, given the connection that Mr. Bingham had and
      continues to have with [Appellant], there was not a “substantially

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        greater chance of success” if Mr. Bingham would have testified at
        trial. Indeed, rather than being a disinterested, unbiased witness,
        Mr. Bingham had grown up with [Appellant] as next-door
        neighbors, and Mr. Bingham knew [Appellant]’s mother well.
        Given the strength of [V]ictim’s identification testimony, the
        circumstances surrounding the identification, and the possible
        bias/interest of Mr. Bingham, which certainly would have been
        more fully explored on cross[-]examination during trial had he
        testified, there was no reasonable likelihood that the outcome of
        the trial would have been any different had trial counsel presented
        the testimony of Mr. Bingham.

Id. We agree.

        Our review of the record reveals ample support for the PCRA court’s

findings of fact and credibility determinations.    See Mitchell, 105 A.3d at

1265.     As noted by the court, Victim’s identification of Appellant was

unwavering. See Mem. Order of Ct., 3/15/18, at 7. The court further noted

that Bingham was not a disinterested and unbiased witness. Id. Bingham’s

testimony, even if believed, did not weaken the Victim’s identification and the

trial court’s finding that Victim was “consistent and very credible.” See id.;

see also Mitchell, 105 A.3d at 1265; Turetsky, 925 A.2d at 880.

        Accordingly, because Appellant has not met his burden of proving that

he has been prejudiced, his ineffectiveness claim fails. See Daniels, 963 A.2d

at 419 (holding that failure to satisfy any prong of the ineffectiveness test

requires rejection of the ineffectiveness claim).

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2018




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