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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
JEROME JOHNSON,                           :          No. 553 EDA 2018
                                          :
                         Appellant        :


                 Appeal from the PCRA Order, February 9, 2018,
              in the Court of Common Pleas of Philadelphia County
                  Criminal Division at No. CP-51-CR-11983-2012


BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 19, 2019

        Jerome Johnson appeals from the February 9, 2018 order entered in the

Court of Common Pleas of Philadelphia County denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        The PCRA court set forth the following procedural history:

             On April 24, 2014, following a bench trial[Footnote 1]
             before the Honorable Chris R. Wogan, [a]ppellant was
             convicted of robbery, aggravated indecent assault,
             possessing an instrument of crime (“PIC”) and simple
             assault.[1][Footnote 2] Judge Wogan subsequently
             imposed a sentence of 42-120 months’ incarceration,
             followed by 5 years’ probation. Appellant filed a direct
             appeal[Footnote 3] in the Superior Court, which
             affirmed the judgment of sentence on November 13,
             2015.


1   18 Pa.C.S.A. §§ 3701, 3125(a), 907 and 2701, respectively.
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                  [Footnote 1] Appellant was represented at
                  trial by Louis T. Savino, Esquire.

                  [Footnote 2] Judge Wogan also acquitted
                  him of numerous other offenses,
                  including, inter alia, VUFA offenses.

                  [Footnote 3] Appellant was represented
                  on appeal by Peter A. Levin, Esquire.

            Appellant did not seek discretionary review, but
            instead filed a timely PCRA petition on February 22,
            2016. PCRA counsel, John P. Cotter, Esquire, was
            appointed, and subsequently filed amended/
            supplemental petitions alleging: (1) ineffectiveness of
            trial counsel for failing to object to the playing of
            hearsay 911 tapes; (2) ineffectiveness of trial counsel
            for failing to request a mistrial based on prosecutorial
            misconduct for referencing the complainant as
            “terrified”; and (3) ineffectiveness of appellate
            counsel for waiving all issues on appeal that could
            have been addressed by the Superior Court.

            In an abundance of caution, on December 8, 2017,
            the Court held a hearing regarding [appellant’s]
            claims.[2] Upon determining that [a]ppellant’s claims
            were without merit, the Court entered an Order on

2 We note that the PCRA court did conduct a hearing on December 8, 2017.
A review of the hearing transcript demonstrates that the purpose of the
hearing was to take testimony of direct appeal counsel. (See hearing
transcript, 12/8/17 at 4.) Appellant stated that his motion requesting an
evidentiary hearing related to his claim of trial counsel ineffectiveness had
been denied. (See id.) However, a review of the record does not establish
that this motion was, in fact, denied. At the hearing, appellant presented a
“Stipulation of Testimony of Peter A. Levin, Esq.” stating that had direct appeal
counsel testified at the hearing, he would have stated that the claims relating
to the inadmissibility of the 911 call and prosecutorial misconduct had merit.
(See “Stipulation of Testimony of Peter A. Levin, Esq.,” 12/8/17 (full
capitalization removed).) Trial counsel did not testify at the hearing nor was
a similar stipulation of his testimony presented. Appellant did, however,
present an oral argument on the issue of merit as to his underlying claims of
inadmissibility of the 911 call and the alleged prosecutorial misconduct. (See
hearing transcript, 12/8/17 at 6-8.)


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            February 9, 2018, denying PCRA relief. This timely
            appeal followed.

PCRA court opinion, 11/7/18 at 1-2.

      The PCRA court directed appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant timely complied. The

PCRA court subsequently filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            I.     D[id] the trial court err in denying appellant an
                   evidentiary hearing when the appellant raised a
                   material issue of fact that trial defense counsel
                   was ineffective in failing to object to improper
                   hearsay evidence introduced at trial?

            II.    Did the trial court err in denying [appellant] an
                   evidentiary hearing when appellant raised a
                   material issue of fact that trial defense counsel
                   failed to request a mistrial when the prosecutor
                   told the trial court that the complaining witness
                   was terrified?

Appellant’s brief at 2.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in the

certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)

(citations omitted). “This Court grants great deference to the findings of the

PCRA court, and we will not disturb those findings merely because the record



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could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d

136, 140 (Pa.Super. 2002) (citation omitted).       In contrast, we review the

PCRA court’s legal conclusions de novo.       Commonwealth v. Henkel, 90

A.3d 16, 20 (Pa.Super. 2014) (en banc). Moreover, a PCRA court may decline

to hold a hearing on the petition if the PCRA court determines that the

petitioner’s claim is patently frivolous and is without a trace of support either

in the record or from other evidence. See Commonwealth v. Jordan, 772

A.2d 1011, 1014 (Pa.Super. 2001).

      Instantly, appellant’s claims assert ineffectiveness of trial counsel.

(Appellant’s brief at 2.)

            In evaluating claims of ineffective assistance of
            counsel, we presume that counsel is effective.
            Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d
            435, 441 (Pa. 1999). To overcome this presumption,
            Appellant must establish three factors. First, that the
            underlying claim has arguable merit.               See
            Commonwealth v. Travaglia, 541 Pa. 108, 661
            A.2d 352, 356 (Pa. 1995). Second, that counsel had
            no reasonable basis for his action or inaction. Id. . . .
            Finally, “Appellant must establish that he has been
            prejudiced by counsel’s ineffectiveness; in order to
            meet this burden, he must show that ‘but for the act
            or omission in question, the outcome of the
            proceedings would have been different.’”           See
            Rollins, 738 A.2d at 441 (quoting Travaglia, 661
            A.2d at 357). A claim of ineffectiveness may be
            denied by a showing that [appellant’s] evidence fails
            to meet any of these prongs.

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007) (some

citations omitted). “[C]ounsel cannot be deemed ineffective for failing to raise




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a meritless claim.”    Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa.

2015).

      Here, appellant first claims that trial counsel was ineffective for failing

to object to the admissibility of the 911 tape. Appellant argues that the 911

tape did not fall under the present sense impression exception or the excited

utterance exception to the rule against hearsay “because one half hour

elapsed from the time of the incident to the time of reporting it which means

that the call was not made contemporaneous with the incident and the witness

had time to reflect about what happened before he reported it.” (Appellant’s

brief at 6.) In support, appellant cites to Harris v. Toys “R” Us-Penn, Inc.,

880 A.2d 1270 (Pa.Super. 2005), but entirely fails to explain its applicability.

(Appellant’s brief at 6.) In fact, appellant’s “argument” on the first prong of

the ineffectiveness test consists of three sentences which entirely fail to

establish that his underlying claim has arguable merit.      Consequently, this

claim of ineffectiveness fails.3

      Appellant next claims that trial counsel was ineffective for failing to

request a mistrial when the prosecutor informed the trial court that the

complaining witness “did not want to be here and was terrified.” (Appellant’s


3 We note that with respect to the prejudice prong, appellant claims that if the
evidence had not been admitted at his waiver trial, “the verdict may have
been more favorable.” (Appellant’s brief at 7.) Appellant’s speculation falls
far short of establishing that “but for the act or omission in question, the
outcome of the proceedings would have been different.” See Washington,
927 A.2d at 594 (citations omitted). Therefore, appellant’s ineffectiveness
claim would have also been denied for failure to establish prejudice.


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brief at 9.) Appellant’s seeming argument as to why this claim has arguable

merit is:

                [T]here was no reason at all to say that to the trial
                court, who was the fact finder in the case, and
                [appellant] was prejudiced because he was denied a
                fair trial because the trial court could improperly infer
                that [appellant] was guilty because the complainant
                was afraid of him.

Id.

          Once again, appellant has entirely failed to establish that his underlying

claim has arguable merit. Consequently, this claim of ineffectiveness equally

fails.4

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/19




4 We note that with respect to the prejudice prong, appellant claims that
appellant “was prejudiced by counsel’s failure to move for mistrial because
this statement of the prosecutor was allowed to be considered by the trial
court in rendering a decision in the case.” (Appellant’s brief at 9.) This reason
falls far short of establishing that “but for the act or omission in question, the
outcome of the proceedings would have been different.” See Washington,
927 A.2d at 594 (citations omitted). Therefore, appellant’s ineffectiveness
claim would have also been denied for failure to establish prejudice.


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