J-A13039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANA JAVON JOHNSON

                            Appellant                No. 1748 WDA 2013


          Appeal from the Judgment of Sentence September 17, 2013
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0016575-2012


BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                 FILED JULY 10, 2015

        Dana Javon Johnson appeals from the judgment of sentence entered

on September 17, 2013, in the Court of Common Pleas of Allegheny County,

after a jury convicted him of first-degree murder.1          He received the

mandatory sentence of life imprisonment. Specifically, Johnson was charged

with the shooting death of Donald Russell, while both men were attending a

New Year’s Eve party in the Arlington section of Pittsburgh. Russell was shot

11 times.    In this timely appeal, Johnson claims: 1) there was insufficient

evidence to support his conviction, 2) the trial court erred in failing to

instruct the jury on the lesser charge of involuntary manslaughter, 3) the

trial court abused its discretion in failing to grant a mistrial after a witness

____________________________________________


1
    18 Pa.C.S. § 2502(a).
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referred to having seen Johnson’s “mug shot”, and 4) the trial court abused

its discretion in failing to grant Johnson’s pre-trial motion to dismiss based

on the alleged violation of Rule 600.2           After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

        The evidence, as stated by the trial court in its Pa.R.A.P. 1925(a)

opinion is as follows:

        The evidence presented at trial established that in the early
        morning hours of December 31, 2011, the victim, Donald Russell
        and many others were at a house party at 313 Sterling Street in
        the Arlington section of the City of Pittsburgh. [Johnson] was
        seen at the party with Kavon Worlds and Montel Williams. At
        some point, a neighbor was awakened by shouting outside and
        heard discussion of a gun. Thereafter, [Johnson] was then seen
        again inside the party wearing an AK-47 type rifle on a strap
        underneath an army fatigue jacket. There was a commotion
        during the party and Donald Macon observed [Johnson] pointing
        his rifle at the victim, Donald Russell and reaching into his
        pockets. Macon fled and seconds later, shots were fired. When
        Macon returned, the victim had been shot several times and was
        eventually pronounced dead. An autopsy revealed that [Russell]
        had been shot 11 times, with two (2) shots being fatal or
        potentially fatal and nine (9) of those wounds being superficial or
        not otherwise fatal.[3] Although some of the superficial wounds
        were consistent with being fired by a .9 mm [sic] handgun, the
        size and trajectory length of the fatal wounds were consistent




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2
    We have re-ordered Johnson’s claims.
3
  The opinion inadvertently states it was “the Defendant” who was shot 11
times.




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       with a 7.62 x .39 mm [sic][4] bullet fired from an automatic [sic]
       rifle.

Pa.R.A.P. 1925(a) Opinion, 7/15/2014, at 11.

       Additionally, the associate medical examiner, Dr. Todd Luckasevic,

M.D., testified regarding the two fatal or possibly fatal wounds. The possibly

fatal wound was caused by a shot that entered Russell’s right lower flank,

travelling back to front, right to left and slightly downward.       It struck

Russell’s spinal column and pierced both his large and small intestines. The

fatal shot entered Russell’s left upper thigh travelling front to back, left to

right and upward. This wound was caused by a 7.62 caliber full metal jacket

rifle bullet that transected Russell’s left iliac artery.    An AK-47 semi-

automatic rifle, such as Johnson was described to have brandished, is a 7.62

caliber gun.      Of the 11 gunshot wounds suffered by Russell, six were

determined to have travelled back to front, three travelled front to back, and

two were indeterminable. It was impossible to determine the order in which

the wounds were suffered. Finally, the medical examiner testified there was

no evidence Russell was shot from close range (within three feet) and that

fact was used by Russell’s counsel in closing argument. See N.T. Video Trial

Testimony, 8/26/2013, at 22-23, 31; N.T. Trial, 9/16/2013, at 806.




____________________________________________


4
  These numbers represent the diameter of the bullet and the size of the
cartridge case. See N.T. Trial, 9/12-13/2013, at 684. However, the proper
measurements are 7.62 x 39 mm (not .39 mm) and 9 mm (not .9 mm).



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        Johnson’s first argument is that there was insufficient evidence to

support his conviction, in that there was no evidence of a specific intent to

kill.   “Criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). Further, “[t]o

obtain a conviction of first degree murder, the Commonwealth must prove

that a human being was unlawfully killed, that the defendant perpetrated the

killing, and that the defendant acted with malice and a specific intent to kill.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted). Additionally, “[i]t is well-settled that specific intent to kill can be

established through circumstantial evidence such as the use of a deadly

weapon on a vital part of the victim's body.” Id.

        Johnson argues that Commonwealth witness, Donald Macon, the only

witness to testify as to what transpired immediately before the shooting,

claimed he saw Johnson and Russell wrestling just prior to the shooting and

that at this time, the barrel of the AK-47 was caught in Russell’s clothing and

was pointing up through the collar of Russell’s shirt. Macon hid thereafter,

but heard multiple gunshots within seconds.

        While the shooting occurred moments after Macon left the area,
        evidence revealed that Mr. Russell was hit by erratic gunfire that
        came from at least two different weapons.[5] This evidence was
        manifestly insufficient to create even the reasonable inference

____________________________________________


5
  Johnson was seen with two other men at the party, one of whom was
carrying what appeared to be a semi-automatic handgun.



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      that Mr. Johnson purposely directed the firearm at Mr. Russell
      and thus sustain his conviction for first-degree murder.

Appellant’s Brief at 22.

      Our standard of review regarding a claim of insufficiency of the
      evidence is well-settled: We view the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom. Our scope of review is
      plenary.

Commonwealth v. Rabold, 920 A.2d 857, 859 (Pa. Super. 2007) (citations

omitted).

      Here, the evidence viewed in the light most favorable to the

Commonwealth as verdict winner demonstrated that Johnson possessed an

AK-47 type rifle, which is a 7.62 caliber weapon.      Russell was shot at 14

times, 10 shots from a 7.62 caliber weapon and four from a 9 mm weapon.

Russell was struck 11 times. The fatal wound was from the 7.62 weapon.

The possibly fatal wound had the characteristics of being from the rifle.

Russell was shot five times in the trunk, and three times each in the upper

and lower extremities. None of the gunshots were fired from close range.

Russell was hit by 78% of the bullets fired. This does not bespeak erratic

gunfire.    Contrary to Johnson’s assertions, the evidence fully supports the

inference that Russell was intentionally shot from at least three feet away.

Therefore, Johnson’s sufficiency claims fails.

      Johnson’s next claim is that the trial court erred in refusing to instruct

the jury on involuntary manslaughter.

      [W]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated


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      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citation omitted).

      A defendant to a murder charge is entitled to instruction on

involuntary manslaughter “only when requested, and where the offense has

been made an issue in the case and the trial evidence would reasonably

support such a verdict.”    Commonwealth v. White, 415 A.2d 399, 402

(Pa. 1996).   However, “[i]t has long been the rule in this Commonwealth

that a trial court should not instruct the jury on legal principles which have

no application to the facts presented at trial.” Id. at 400.

      The statutory definition of involuntary manslaughter is as follows:

      A person is guilty of involuntary manslaughter when as a direct
      result of doing an unlawful act in a reckless or grossly negligent
      manner, or the doing of a lawful act in a reckless or grossly
      negligent manner, he causes the death of another person.

18 Pa.C.S. § 2504(a).

      This claim is also based upon Donald Macon’s testimony that the AK-

47 was caught in Russell’s shirt moments before he was shot.          Johnson

argues this fact raises the possibility that Russell was shot inadvertently

while the two men wrestled. This argument is unsupported by the evidence.

While Macon testified he saw the barrel of the rifle protruding from the collar



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of Russell’s shirt, the evidence showed Russell was not shot from close

range, as would have occurred had the two men been wrestling when the

gun was fired.      Further, the AK-47 was fired ten separate times, meaning

Johnson pulled the trigger ten times.                 This fact also argues against

inadvertent discharge during a fight.6             In this regard, we agree with the

Commonwealth’s         argument       that     the    instant   case   is   similar   to

Commonwealth v. Williams, 415 A.2d 403 (Pa. 1980), in which our

Supreme Court determined “it would be ludicrous to suggest that the

defendant recklessly or negligently struck twelve blows with an iron pipe to

the blind defendant’s head.”         Id. at 404.      The evidence presented at trial

demonstrated Russell was shot by two people, from a distance of more than

three feet, with multiple bullets striking Russell in vital parts of his body.

There is nothing about these facts that suggest the killer was anything other

than purposeful in his actions.           Accordingly, the charge on involuntary

manslaughter was not warranted.7
____________________________________________


6
  Other than the general contention that Russell might have been shot while
wrestling with Johnson, Johnson has put forth no argument how, while
wrestling, Russell could have been shot 11 times, with two different caliber
weapons, front to back, back to front, upward and downward tracks at a
distance of more than three feet.
7
  We also note that the instant argument for involuntary manslaughter
contradicts the theory put forward at trial, in which defense counsel argued
Johnson was not the shooter, and could not have been the shooter, based
upon the timing of events as related by independent witnesses. See N.T.
Trial, 9/13/2013, at 793-94.      Additionally, counsel argued given the
narrowness of the hall where Russell was shot and the fact that none of the
(Footnote Continued Next Page)


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      Johnson’s next claim is that the trial court erred in failing to grant a

mistrial after a civilian witness testified she reviewed an array of eight “mug

shots”, one of which was Johnson.                Defense counsel moved for a mistrial,

which was denied.          However, the trial court offered to give a curative

instruction instead. Counsel replied:

      The only curative instruction I would want would be one that
      basically says she’s referred to them as “mug shots,” but there’s
      no evidence that that’s what they are, and that they should not -
      blah, blah, draw any inference from that.

N.T. Trial, 9/10/2013, at 191.

      The trial court agreed and gave the curative instruction as requested:

      Ladies and gentlemen of the jury, [the witness] referred to this
      group of photographs as mug shots. There’s no evidence that
      are in fact mug shots. They’re just merely to be looked upon as
      photographs.

Id.

      Our standard of review for this claim is as follows:

      In reviewing a question of whether a trial court erred in denying
      a motion for a mistrial, an appellate court considers whether the
      lower court abused its discretion.

Commonwealth v. Young, 849 A.2d 1152, 1154 n. 1 (Pa. 2004) (citation

omitted). Specifically, where the issue concerns a reference to “mug shots”:
                       _______________________
(Footnote Continued)

wounds were from close range, Macon’s account of the shooting was
incredible.  Id. at 806.    Although Johnson did request a charge for
involuntary manslaughter, the theory of the case as espoused in closing
argument was that Johnson never fired a shot; rather, an unidentified
person had to have been the killer.



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     A review of these cases clarifies that in applying the
     [Commonwealth v.] Allen [292 A.2d 373 (Pa. 1972)] test to
     the facts of a particular matter, a mere passing reference to
     photographs      does  not   amount     to   prejudicial  error.
     [Commonwealth v.] Carlos [341 A.2d 71 (Pa. 1975)]. Further,
     they explain that references to prior police contact do not
     amount to reversible error. [Commonwealth v.] Riggin [386
     A.2d 520 (Pa. 1978)]. Instead, it is only those references that
     expressly or by reasonable implication also indicate some
     involvement in prior criminal activity that rise to the level of
     prejudicial error. [Commonwealth v.] Nichols [400 A.2d 1281
     (Pa. 1979); [Commonwealth v.] Turner [311 A.2d 899 (Pa.
     1973)].

Id. at 1156.

     Finally,

     It is also well established that “[a] trial court may grant a
     mistrial 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.” [Commonwealth v.]
     Chamberlain, [30 A.3d 381 (Pa. 2011)] supra at 422 (citation
     and     internal    quotation    marks      omitted);     see also
     Commonwealth v. Travaglia, 611 Pa. 481, 28 A.3d 868, 879
     (2011) (“A mistrial is an extreme remedy that is required only
     where the challenged event deprived the accused of a fair and
     impartial trial.”). When the trial court gives adequate cautionary
     instructions, declaration of a mistrial is not necessary.

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).

     Having     given   an   adequate    cautionary   instruction   requested   by

Johnson’s counsel, the grant of a mistrial was not necessary.

     We also note that under Bryant, Johnson is not entitled to relief as the

comment did not unavoidably deprive Johnson of a fair trial. The witness,

who was not a police officer or otherwise employed by the Commonwealth,

made a passing reference to what are colloquially known as “mug shots.”


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The Commonwealth did not attempt to exploit the reference, the jury was

properly instructed as to the photographs, and there was otherwise no

specific reference to the origins of the pictures. Further, the jury acquitted

Johnson of two counts of robbery, which indicates they were not prevented

from weighing the evidence and rendering a true verdict.       In light of the

foregoing, we discern no abuse of discretion.     Accordingly, Johnson is not

entitled to relief on this issue.

      In his final claim, Johnson argued the trial court erred in failing to

grant his pre-trial motion to dismiss pursuant to Pa.R.Crim.P. 600, regarding

his speedy trial rights.

      Pursuant to Pa.R.Crim.P. 600(A)(2)(a), the Commonwealth shall

commence a trial, in which a written complaint is filed against the defendant

“within 365 days from the date on which the complaint is filed.”

Additionally,

      [w]hen a defendant has not been brought to trial within the time
      periods set forth in paragraph (A), at any time before trial, the
      defendant’s attorney, or the defendant if unrepresented, may file
      a written motion requesting that the charges be dismissed with
      prejudice on the ground that this rule has been violated.

Pa.R.Crim.P. 600(D)(1).

      Our standards for reviewing a Rule 600 claim are well-settled:

      “In evaluating Rule [600] issues, our standard of review of a trial
      court's decision is whether the trial court abused its discretion.”
      Commonwealth v. Hill, 558 Pa. 238, 244, 736 A.2d 578, 581
      (1999). See also Commonwealth v. McNear, 852 A.2d 401
      (Pa. Super. 2004). “Judicial discretion requires action in
      conformity with law, upon facts and circumstances judicially


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     before the court, after hearing and due consideration.”
     Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746, 749
     (1949). “An abuse of discretion is not merely an error of
     judgment, but if in reaching a conclusion the law is overridden or
     misapplied    or    the   judgment    exercised    is   manifestly
     unreasonable, or the result of partiality, prejudice, bias, or ill
     will, as shown by the evidence or the record, discretion is
     abused.” Commonwealth v. Jones, 826 A.2d 900, 907 (Pa.
     Super. 2003) (en banc) (citing Commonwealth v. Spiewak,
     533 Pa. 1, 8 n. 4, 617 A.2d 696, 699 n. 4 (1992)).
      ¶?10
                “The proper scope of review...is limited to the
     evidence on the record of the Rule [600] evidentiary hearing,
     and the findings of the [trial] court.” Hill, supra, at 244, 736
     A.2d at 581; McNear, supra at 404. See also Commonwealth
     v. Jackson, 765 A.2d 389 (Pa. Super. 2000), appeal denied,
                                            { "pageset": "Sea
     568 Pa. 628, 793 A.2d 905 (2002)            . “[A]n appellate
     court must view the facts in the light most favorable to the
     prevailing party.” Id. at 392.

        Additionally, when considering the trial court's ruling, this
        Court is not permitted to ignore the dual purpose behind
        Rule [600]. Rule [600] serves two equally important
        functions: (1) the protection of the accused's speedy trial
        rights, and (2) the protection of society. In determining
        whether an accused's right to a speedy trial has been
        violated, consideration must be given to society's right to
        effective prosecution of criminal cases, both to restrain
        those guilty of crime and to deter those contemplating it.
        However, the administrative mandate of Rule [600] was
        not designed to insulate the criminally accused from good
        faith prosecution delayed through no fault of the
        Commonwealth.

     Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa. Super.
     2002)(en banc) (internal citations omitted).

        So long as there has been no misconduct on the part of
        the Commonwealth in an effort to evade the fundamental
        speedy trial rights of an accused, Rule [600] must be
        construed in a manner consistent with society's right to
        punish and deter crime. In considering [these] matters...,
        courts must carefully factor into the ultimate equation not
        only the prerogatives of the individual accused, but the


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         collective right of the community to vigorous law
         enforcement as well. Strained and illogical judicial
         construction adds nothing to our search for justice, but
         only serves to expand the already bloated arsenal of the
         unscrupulous criminal determined to manipulate the
         system.

     Commonwealth v. Corbin, 390 Pa.Super. 243, 568 A.2d 635,
     638-39 (1990).

Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en

banc).

     Also,

     If the Commonwealth attempts to bring a defendant to trial
     beyond the 365 day-period prescribed by Rule 600, and the
     defendant files a Rule 600 motion to dismiss, the court must
     assess whether there is excludable time and/or excusable delay.
     Hill, supra, at 263, 736 A.2d at 591, Pa.R.Crim.P. 600(C), (G).
     “Even where a violation of Rule [600] has occurred, the motion
     to dismiss the charges should be denied if the Commonwealth
     exercised due diligence and...the circumstances occasioning the
     postponement were beyond the control of the Commonwealth.”
     Id. at 263, 736 A.2d at 591.

     “Due diligence is a fact-specific concept that must be determined
     on a case-by-case basis.” Id. at 256, 736 A.2d at 588. “Due
     diligence does not require perfect vigilance and punctilious care,
     but rather a showing by the Commonwealth that a reasonable
     effort has been put forth.” Id. (emphasis added).

Id. at 1241-42.

     Instantly, both parties agree that the written complaint was filed

against Johnson on August 28, 2012, meaning Johnson’s trial was to begin




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by August 28, 2013.8             However, Johnson’s trial did not begin until

September 5, 2013; 373 days after the original filing of the written

complaint and eight days past the Rule 600 time limit.

       Immediately prior to trial, a hearing was held on Johnson’s motion to

dismiss pursuant to Rule 600. At issue was 20 days between the filing of the

complaint and Johnson’s arrest. The Comment to Rule 600 addresses this

situation.

       For purposes of paragraph (C)(1) and paragraph (C)(2), the
       following periods of time, that were previously enumerated in
       the text of formed Rule 600(C), are examples of periods of delay

____________________________________________


8
  The written complaint found in the certified record is dated December 4,
2012. However, the trial court has indicated in its Pa.R.A.P. 1925(a) opinion
that the complaint was originally filed on August 28, 2012 and was
withdrawn and refiled because the Commonwealth could not locate its
eyewitness, Donald Macon.

       [W]hen an initial complaint has been withdrawn or otherwise
       dismissed, the [Rule 600 time] period begins to run anew with the
       filing of a subsequent complaint only if (1) the earlier complaint was
       properly dismissed by a competent magisterial or judicial authority,
       and (2) the record does not reveal evidence of a prosecution attempt
       to circumvent Rule [600].

Commonwealth v. Lynn, 815 A.2d 1053, 1057 (Pa. Super. 2003)(citation
omitted).

There is no determination to suggest that the Commonwealth was
attempting to thwart Johnson’s speedy trial rights in its inability to locate the
witness. However, the certified record is silent as to the manner in which
the complaint was dismissed. Because the Commonwealth agrees in its
Appellee’s Brief that August 28, 2012 is the proper date to begin Rule 600
calculations, we accept that date as well.



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      caused by the defendant. This time must be excluded from the
      computations in paragraphs (C)(1) and(C)(2):

           (1) the period of time between the filing of the written
           complaint and the defendant’s arrest, provided that the
           defendant could not be apprehended because his or her
           whereabouts were unknown and could not be determined
           by due diligence.

Pa.R.Crim.P. 600, Comment, Computation of Time.

      Homicide Detective Pat Moffatt of the Pittsburgh Police Department

testified regarding the efforts made by the police to locate and arrest

Johnson.     Detective Moffatt testified multiple addresses for Johnson were

obtained using a variety of computer databases. The police visited each of

these locations multiple times.    The Western Pennsylvania Fugitive Task

Force, a group consisting of elements of the U.S. Marshal Service, Allegheny

County Sheriffs, and various local municipal police officers, was enlisted to

help locate Johnson.    Additionally, the National Crime Information Center

(NCIC) database was accessed.       On cross-examination, Detective Moffat

testified he did not check with any utility company, post office or bail agency

to locate Johnson. After considering Detective Moffatt’s testimony, the trial

court found the Commonwealth had exercised due diligence in attempting to

locate Johnson and excluded the 20 days from the filing of the written

complaint to Johnson’s arrest.    This exclusion of time extended the “run

date” from August 28, 2013 to September 17, 2013. Because Johnson’s trial

was started on September 5, 2013, there was no Rule 600 violation.




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      The Commonwealth was not required to demonstrate perfect vigilance,

rather that it put forward reasonable effort in locating Johnson. Our review

of the certified record leads us to conclude the trial court did not abuse its

discretion in determining the Commonwealth fulfilled its duty in this regard.

Accordingly, Johnson is not entitled to relief on this issue.

      In light of the foregoing analysis, we affirm Johnson’s judgment of

sentence.

      Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




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