J-S21040-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
JUSTIN JUAN JOHNSON,                      :
                                          :
                    Appellant             :    No. 1605 WDA 2016

                   Appeal from the PCRA Order September 26, 2016
                  in the Court of Common Pleas of Lawrence County
                 Criminal Division at No(s): CP-37-CR-0001512-2011

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                        FILED JUNE 16, 2017

        Justin Juan Johnson (Appellant) appeals from the order entered on

September 26, 2016, which denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We provide the following relevant background based upon the

testimony from Appellant’s three-day jury trial. On the evening of August

10, 2011, the victim in this matter, Regan Pierre, along with his girlfriend,

Jill Murphy, drove from Pittsburgh to New Castle in Murphy’s black Saturn.

Pierre dropped off Murphy at her home then went to the Westside Mini Mart.

He encountered Appellant1 and Marquise Wise2 at the store.       According to

Pierre, prior to this encounter, he and Wise “got into a little fight or


1
    Appellant is also known as Mr. Muddles.
2
    Wise is also known as Boo Boo.


* Retired Senior Judge assigned to the Superior Court.
J-S21040-17


whatever” over a girlfriend and the two did not like “each other after that.”

N.T., 9/11/2012, at 46. Pierre testified that Appellant and Wise had arrived

at the Westside Mini Mart in a “burgundy [Oldsmobile] Alero” with an Ohio

license plate. Id. at 47.

      Pierre left the Westside Mini Mart in the Saturn, and Appellant and

Wise began to follow him. Id. Subsequently, the Oldsmobile passed Pierre

when Pierre turned. Eventually Pierre encountered the Oldsmobile stopped

near the corner of Lincoln and Shenango Streets in the middle of the road

halfway up a hill with both doors open. When Pierre looked to the left, he

saw Appellant.    Appellant then “stepped forward from the bushes and …

opened fire on [Pierre].” Id. at 52.

      After Pierre was shot, he called Murphy and “and told her that Muddles

shot [him].” Id. at 70. Pierre then drove to Murphy’s house, and Murphy

drove Pierre to the hospital. Sergeant David Cumo of the New Castle Police

Department arrived at the hospital looking for a gunshot victim based upon

reports of hearing gunshots. He saw a black Saturn with bullet holes and a

broken window in the parking lot.        Sergeant Cumo then went into the

hospital in an attempt to find the victim.    After identifying Pierre as the

victim and as connected to the Saturn, Pierre told Sergeant Cumo that “he

was shot by Muddles.” N.T., 9/12/2012, at 53.

      Appellant was arrested and charged with numerous crimes as a result

of this incident. Following a jury trial, Appellant was convicted of attempted



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criminal homicide, aggravated assault, and aggravated assault with a deadly

weapon. Appellant was sentenced to an aggregate term of twenty to forty

years of incarceration.

        On July 17, 2013, this Court affirmed Appellant’s judgment of

sentence. Commonwealth v. Johnson, 82 A.3d 1069 (Pa. Super. 2013)

(unpublished memorandum).        No petition for allowance of appeal to our

Supreme Court was filed.

        Appellant filed timely a PCRA petition seeking, inter alia, the

reinstatement of his direct appeal rights.    Following a hearing, the PCRA

court entered an order reinstating Appellant’s direct appeal rights in the form

of allowing him to file a petition for allowance of appeal nunc pro tunc to the

Supreme Court of Pennsylvania and dismissing “[a]ll other requests for

relief” stated in the original and amended PCRA petitions. Order, 5/11/2015,

at 2.

        Appellant filed a notice of appeal to this Court. By memorandum filed

December 22, 2015, this Court affirmed “that portion of the PCRA court’s

order that granted Appellant leave to file nunc pro tunc a petition for

allowance of appeal to our Supreme Court, and vacate[d] that portion of the

order that disposed of Appellant’s remaining PCRA claims.” Commonwealth

v. Johnson, 133 A.3d 665 (Pa. Super. 2015) (unpublished memorandum at

4). Appellant then filed his nunc pro tunc petition for allowance of appeal to




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our Supreme Court, which was denied on May 11, 2016. Commonwealth v.

Johnson, 138 A.3d 3 (Pa. 2016).

      On June 1, 2016, Appellant timely filed the instant PCRA petition

raising claims of, inter alia, ineffective assistance of counsel.   Relevant at

this juncture, Appellant asserted that trial counsel was ineffective by failing

1) to object to Murphy’s testimony, and 2) to object properly to Sergeant

Cumo’s testimony, and 3) to raise all meritorious issues in Appellant’s direct

appeal.   A hearing was held on September 2, 2016.3        On September 26,

2016, the PCRA court filed an opinion and order denying Appellant PCRA

relief. Appellant filed timely a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925.

      On appeal, Appellant sets forth two issues for our review.

             I. Whether the PCRA court committed an error of law by
      not finding ineffective assistance of counsel for trial counsel’s
      failure to object to, properly object to and/or otherwise preserve
      the issue of cumulative use of a prior consistent statement of
      [victim], used as substantive evidence and not for rehabilitative
      purposes; and by not granting [Appellant] a new trial as a result.

             II. Whether the PCRA court committed an error of law by
      not finding ineffective assistance of appellate counsel for
      appellate counsel’s failure to consult with [Appellant] prior to
      filing the appeal, by deviating substantially from [Appellant’s]
      concise statement of errors and raising only one issue on appeal,
      for improperly raising and/or waiving viable issues in said appeal
      as enumerated herein, and by not restoring [Appellant’s] direct
      appeal rights, nunc pro tunc as a result.



3
  That hearing incorporated the notes of testimony from Appellant’s first
PCRA hearing on May 1, 2015.


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Appellant’s Brief at 4.4

      In reviewing an appeal from the denial of PCRA relief, “[w]e must

examine whether the record supports the PCRA court’s determination, and

whether the PCRA court’s determination is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Mikell, 968 A.2d 779,

780 (Pa. Super. 2009) (quoting Commonwealth v. Lawrence, 960 A.2d

473, 476 (Pa. Super. 2008) (citations omitted)).      Since Appellant’s claims

concern the ineffective assistance of counsel, the following principles apply.

         It is well-established that counsel is presumed to have
         provided effective representation unless the PCRA
         petitioner pleads and proves all of the following: (1) the
         underlying legal claim is of arguable merit; (2) counsel’s
         action or inaction lacked any objectively reasonable basis
         designed to effectuate his client’s interest; and (3)
         prejudice, to the effect that there was a reasonable
         probability of a different outcome if not for counsel’s error.

      The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(internal citations omitted).

      Appellant’s first issue concerns the ineffectiveness of trial counsel’s

representation at trial.   See Appellant’s Brief at 12-22.    Appellant argues

that trial counsel should have objected to Murphy’s testimony where she

4
  We point out with disapproval that not only has the Commonwealth failed
to file a brief in this appeal, but the Commonwealth also neglected to file a
brief in the last appeal to this Court.


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testified that Pierre told her that Appellant shot Pierre. Appellant’s Brief at 13

(citing N.T., 9/11/2012 vol. 2, at 30).          Appellant suggests this was

inadmissible hearsay.

         Hearsay is a statement that “the declarant does not make while

testifying at the current trial or hearing” and “a party offers in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c).

There can be no doubt that Murphy’s testimony was hearsay.              However,

hearsay is admissible if it satisfies an exception. One such exception is an

excited utterance. An excited utterance is defined as “[a] statement relating

to a startling event or condition, made while the declarant was under the

stress of excitement that it caused.” Pa.R.E. 803(2).

         Here, Pierre testified that shortly after he was shot, he called Murphy

and told her that “Muddles shot” him. N.T., 9/11/2012, at 70.               Thus,

Murphy’s testimony confirming this sequence of events was admissible

pursuant to Pa.R.E. 803(3). See Commonwealth v. Manley, 985 A.2d 256

(Pa. Super. 2009) (holding victim’s statements to police which were made

within ten minutes after being shot and while victim was in a panicked state

satisfied the requirements of an excited utterance exception to the hearsay

rule).

         Accordingly, the underlying claim fails the arguable merit prong of the

ineffective-assistance-of-counsel test, and Appellant is not entitled to relief

on this basis. See Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011)



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(holding that an appellant fails to satisfy the arguable merit prong of the

ineffective-assistance-of-counsel test where the objection would have been

overruled).5

       We now turn to Appellant’s issues with Sergeant Cumo’s testimony

about what Pierre told Sergeant Cumo at the hospital. Appellant’s Brief at

13-14. Sergeant Cumo offered the following narrative during his testimony

at trial.

       [Pierre] said that he was at the Westside Mini Mart and he saw
       Muddles, in a maroon or burgundy, I believe he said an Aurora
       and he said nothing. No words were exchanged or anything.
       When he left the store, he was traveling towards Grant Street
       before you come to Falls Street by pass area. He said they came
       to a four-way stop sign. At that point, [Appellant], the vehicle
       he was driving, got behind him and began to follow him onto
       Grant Street. He said as he drove down Grant Street, he made a
       left-hand turn onto Locust Street and when he was turning the
       car, he said it appeared that [Appellant] accelerated his vehicle,
       went around him on Grant Street, continuing eastbound on
       Grant Street. He turned left onto Locust and proceeded up the
       hill there. He said he got up the hill, drove through the West
       Lincoln projects and when he got to the intersection of West
       Lincoln and Shenango Street, he viewed [Appellant’s] vehicle
       parked in the roadway, the driver’s door opened and at [sic]
       moments later he saw [Appellant], Muddles, come out from the
       bushes, shrub area and began shooting the gun at him.

N.T., 9/12/2012, at 53-54.

       At trial, counsel for Appellant objected to this testimony as being

inadmissible hearsay, and the trial court overruled the objection. Id. at 54-

55.    In its opinion, the trial court opined that it did not err in admitting


5
  Moreover, even if the statements were admitted improperly, Pierre was
available to testify about the statements he made to Murphy.


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Sergeant Cumo’s testimony because it was admissible as a prior consistent

statement pursuant to Pa.R.E. 613(c).6 On direct appeal, this Court agreed

with the trial court and concluded that the trial court did not err in admitting

“Sergeant Cumo’s testimony regarding Pierre’s prior consistent statements.”

Commonwealth v. Johnson, 133 A.3d 665 (Pa. Super. 2015) (unpublished

memorandum at 4).          “The trial court recognized that [Appellant] had

challenged Pierre’s credibility and memory on cross-examination, and that

Sergeant Cumo’s testimony was admissible, as it constituted a prior

consistent statement concerning the identity of the individual responsible for

shooting the firearm.” Id.

        At this juncture, to the extent Appellant is arguing that counsel was

ineffective for failing to argue that this testimony was inadmissible pursuant

6
    That rule provides the following.

        (c) Witness’s Prior Consistent Statement to Rehabilitate.
        Evidence of a witness’s prior consistent statement is admissible
        to rehabilitate the witness’s credibility if the opposing party is
        given an opportunity to cross-examine the witness about the
        statement and the statement is offered to rebut an express or
        implied charge of:

              (1) fabrication, bias, improper influence or motive, or
              faulty memory and the statement was made before
              that which has been charged existed or arose; or

              (2) having made a prior inconsistent statement,
              which the witness has denied or explained, and the
              consistent statement supports the witness's denial or
              explanation.

Pa.R.E. 613.



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to Pa.R.E. 613 because it was being introduced as substantive evidence,

Appellant is not entitled to relief. Appellant’s Brief at 17. This Court decided

on direct appeal that this evidence was admissible under this exception.

Thus, there is no arguable merit to Appellant’s contention that counsel was

ineffective for failing to object on this basis.

       Appellant also argues that trial counsel was ineffective for failing to

object at trial on the basis that this testimony violated Pa.R.E. 403, which

provides that “[t]he court may exclude relevant evidence if its probative

value is outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” Specifically, Appellant

suggests that this testimony was “cumulative.” Appellant’s Brief at 18.

       “Evidence that bolsters, or strengthens, existing evidence is not

cumulative evidence, but rather is corroborative evidence.” Commonwealth

v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. 2007). Here, Officer Cumo’s

testimony corroborated Pierre’s testimony; therefore, any objection would

have   been    overruled,   and   Appellant    is   not   entitled   to   relief.   See

Hutchinson, 25 A.3d at 277.

       For his final allegation of error, Appellant argues that trial counsel was

ineffective in the way he handled Appellant’s direct appeal.              Specifically,

Appellant argues that trial counsel was ineffective because he failed to

consult with Appellant about what issues he intended to raise on appeal.



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Appellant also argues that trial counsel should have raised additional

meritorious issues, and his failure to do so was prejudicial. See Appellant’s

Brief at 22-35. Additionally, Appellant contends that his deprivation of a full

direct appeal entitles him to relief for “presumed or per se prejudice.” Id. at

32.

             It is well-settled that an accused who is deprived entirely
      of his right of direct appeal by counsel’s failure to perfect an
      appeal is per se without the effective assistance of counsel, and
      is entitled to reinstatement of his direct appellate rights.

                                        ***

             However, it is also well-settled that the reinstatement of
      direct appeal rights is not the proper remedy when appellate
      counsel perfected a direct appeal but simply failed to raise
      certain claims. Where a petitioner was not entirely denied his
      right to a direct appeal and only some of the issues the
      petitioner wished to pursue were waived, the reinstatement of
      the petitioner’s direct appeal rights is not a proper remedy. In
      such circumstances, the appellant must proceed under the
      auspices of the PCRA, and the PCRA court should apply the
      traditional three-prong test for determining whether appellate
      counsel was ineffective.

Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. 2006)

(internal citations and quotation marks omitted).

      Here, Appellant was not deprived entirely of his right to a direct

appeal. “It is well settled that appellate counsel is entitled, as a matter of

strategy, to forego even meritorious issues in favor of issues he believes

pose a greater likelihood of success.” Commonwealth v. Jette, 23 A.3d

1032, 1043 (Pa. 2011).        “To establish [] prejudice in the appellate

representation context, the petitioner must show that there is a reasonable


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probability that the outcome of the direct appeal            proceeding would have

been different but for counsel’s deficient performance.” Commonwealth v.

Blakeney, 108 A.3d 739, 750 (Pa. 2014).

      Appellant argues that trial counsel was ineffective for failing to raise

two issues in Appellant’s direct appeal. With respect to the first, we provide

the following background.

      Officer John George of the New Castle Police Department found the

Oldsmobile Aurora driven by Appellant and Wise. He towed it to the police

station and obtained consent to search the vehicle from Tashayla Reese, its

owner.   Officer George testified that he “found in the vehicle four plastic

baggies and a digital scale.” N.T., 9/12/2012, at 21.          Counsel objected to

this testimony, arguing at a side bar that this testimony was prejudicial as

these items are clearly drug-related.       Thus, counsel asked for a mistrial.

The trial court denied the motion for mistrial and, over trial counsel’s

objection, offered a cautionary instruction. See N.T., 9/12/2012, at 71-74.

Specifically, the trial court told the jury the following.

             Officer George was on the stand. While he was on the
      stand, he offered some testimony regarding items confiscated
      from the vehicle that he had searched…. You’re directed that
      that is irrelevant to this case. That anything confiscated is not a
      part of this case. You are not to consider that part of his
      testimony in any manner in regard to this case. I trust you will
      follow that instruction.

Id. at 74.




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      Appellant now argues that trial counsel was ineffective for failing to

challenge on appeal the trial court’s denial of his motion for a mistrial.

Appellant’s Brief at 32.

            The standard of review for determining whether the trial
      court erred in denying a motion for a mistrial is as follows:

            The trial court is in the best position to assess the effect of
      an allegedly prejudicial statement on the jury, and as such, the
      grant or denial of a mistrial will not be overturned absent an
      abuse of discretion. A mistrial may be granted only where the
      incident upon which the motion is based is of such a nature that
      its unavoidable effect is to deprive the defendant of a fair trial by
      preventing the jury from weighing and rendering a true verdict.
      Likewise, a mistrial is not necessary where cautionary
      instructions are adequate to overcome any possible prejudice.

            A mistrial is warranted when a juror could reasonably infer
      from the facts presented that the accused had engaged in prior
      criminal activity. When the statement at issue relates to a
      reference to past criminal behavior, [t]he nature of the reference
      and whether the remark was intentionally elicited by the
      Commonwealth are considerations relevant to the determination
      of whether a mistrial is required. A singular, passing reference
      to prior criminal activity is usually not sufficient to show that the
      trial court abused its discretion in denying the defendant’s
      motion for a mistrial. When the trial court provides cautionary
      instructions to the jury in the event the defense raises a motion
      for mistrial, [t]he law presumes that the jury will follow the
      instructions of the court.

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (internal

citations and quotation marks omitted).

       Here, Officer George’s reference to plastic baggies and a digital scale

was clearly unnecessary and prejudicial. However, Appellant was neither on

trial for drug-related charges nor the owner of the car.        In addition, the

primary issue in this case was not whether Pierre was shot, but whether it


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was Appellant or Wise who shot Pierre. The drug testimony applied equally

to Appellant and Wise.       See N.T., 9/11/2012, at 38.     Moreover, the trial

court offered a clear cautionary instruction,7 and “[t]he law presumes that

the jury will follow the instructions of the court.” Commonwealth v.

Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). Therefore, we conclude Appellant

would not have prevailed had trial counsel raised this issue on direct appeal,

and Appellant is not entitled to relief at this juncture.

        In his next claim, Appellant argues that trial counsel was ineffective by

failing to raise an issue related to Officer Cumo’s testimony. Appellant’s Brief

at 32. When asked about his training and experience, the Commonwealth

asked if Officer Cumo had been trained in “polygraph.” N.T., 9/12/2012, at

48. Counsel objected and it was overruled. Appellant now argues that trial

counsel should have challenged on direct appeal the trial court’s decision to

overrule that objection.




7
    The trial court stated the following.

        Before counsel proceeds, let me just briefly give you one of
        those things that I said could happen.         It’s a cautionary
        instruction. Officer George was on the stand. While he was on
        the stand, he offered some testimony regarding items
        confiscated from that vehicle that he had searched…. You’ve
        directed that that is irrelevant to this case. That anything
        confiscated is not part of this case. You are not to consider that
        part of his testimony in any manner in any regard to this case. I
        trust you will follow that instruction.

N.T., 9/12/2012, at 74.


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       It is well settled that “any reference to a [polygraph test] which raises

an   inference      concerning   the   guilt   or   innocence   of   a   defendant   is

inadmissible.” Commonwealth v. Hetzel, 822 A.2d 747, 767 (Pa. Super.

2003) (emphasis omitted).        Here, Officer Cumo was asked about training,

and at no point in his testimony was there any reference made to any

polygraph test given or taken by anyone involved in this case.              Moreover,

the testimony was not elicited with any reference to Appellant’s guilt or

innocence. Thus, even if trial counsel raised this issue on appeal, he would

not have prevailed.       Accordingly, we hold counsel was not ineffective for

failing to do so.

       Having concluded that Appellant has presented this Court with no issue

worthy of relief, we affirm the order of the PCRA court.

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2017




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