J-S42021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES EARL JOHNSON

                        Appellant                  No. 1751 WDA 2013


               Appeal from the PCRA Order October 2, 2013
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000116-2011

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES EARL JOHNSON

                        Appellant                  No. 2004 WDA 2013


               Appeal from the PCRA Order October 2, 2013
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0003200-2010


BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.                         FILED AUGUST 22, 2014

     Appellant James Earl Johnson appeals pro se from the Court of



the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. We affirm.
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        At docket number CP-25-CR-0003200-2010, after a non-jury trial, the

court found Johnson guilty of rape,1 burglary,2 and terroristic threats.3 On

direct appeal, this Court summarized the facts as follows:

           On    November       6,   2010,     Johnson   enteredAllyson
                                                                      d
           her shoulder to wake her up. Dragoone, who was asleep
           on her bed in the living room with the television on, awoke
           and saw a tall black man standing over her. She did not
           recognize him and initially asked if this was a joke.
           Johnson said this was serious and told her to roll over or
           he would hurt her. He removed her pants and made her
           take off her shirt. Then he moved her underwear to the
           side and put his penis in her vagina. He stuck his tongue in
           her mouth and threatened to hurt her when she objected
           to the contact. He ejaculated inside her then grabbed her
           arm and brought her to the bathroom where he forced her
           to clean herself. The bathroom was lit and Dragoone was

           her back to bed, told her to stay there, then left.

           Dragoone ran to the window and saw a dark Dodge
           Durango drive away. She was familiar with this vehicle
           because she had worked at a Dodge dealership. Once
           Johnson left, Dragoone called 911. Officer Langdon
           responded to the residence and took a report of the
           incident from Dragoone, including a description of the
           suspect and vehicle. He then took Dragoone to the hospital
           for a rape kit.

           The following evening Officer Langdon came across a
           vehicle illegally parked outside of a bar that matched the
           vehicle Dragoone described. Officer Langdon went back to
           get the license plate and observed Johnson standing next
____________________________________________


1
    18 Pa.C.S. § 3121(a)(1).
2
    18 Pa.C.S. § 3502(a).
3
    18 Pa.C.S. § 2706(a)(1).



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J-S42021-14


        to the vehicle. Believing that both the vehicle and Johnson

        Johnson who provided him with identifying information.
        Officer Langdon passed this information on to Detective
        Lawrence.

        The following day Detective Lawrence created a photo
        lineup, which included a photo of Johnson. Dragoone came
        to the Police Department and viewed the photo lineup but
        was unable to identify her assailant; however, Detective
        Lawrence testified that while viewing the lineup she placed

        that point Detective Lawrence created a composite sketch
        of the s

        The next day Dragoone went to Magisterial District Judge



        Website. Judge Robie asked her if that was the person who
        raped her. Dragoone vomited and then replied yes. Based
        on the identification Johnson was arrested and charged
        with the above offenses.

        Dragoone positively identified Johnson at the preliminary
        hearing and at trial. Additionally, at trial a serologist from
        the Pennsylvania State Police Crime Lab testified that
        seminal material was present in the vaginal swabs from

        testified that the DNA mixture found on the swabs was
        much more likely to have come from Dragoone and
        Johnson, than from Dragoone and another man.

Commonwealth v. Johnson, No. 1852 WDA 2011 (Pa.Super.Aug.10,

2012) (unpublished memorandum).

     On October 17, 2011, the trial court sentenced Johnson to a term of

life imprisonment without parole for the rape conviction, a term of life

imprisonment without parole for the burglary conviction, and a term of 30 to

60 months imprisonment for the terroristic threats conviction.


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        At docket number CP-25-CR-0000116-2011, Johnson pled guilty to

charges of possession of a small amount of marijuana4 and possession of

drug paraphernalia.5         On October 17, 2011, the trial court sentenced

Johnson to a term of 30 days imprisonment for the possession conviction,

which was to run consecutive to the sentence imposed at CP-25-CR-

0003200-2010, and a term of 6 to 12 months imprisonment on the

paraphernalia conviction, to run consecutive to the sentence for possession.

        On November 23, 2011, Johnson appealed his judgment of sentence at

CP-25-CR-0003200-2010. On August 10, 2012, we affirmed.6

        On December 11, 2012,7 Johnson filed a pro se PCRA petition.      His

PCRA petition alleged:

     (1)   His arrest on the drug charges was pretextual and designed to allow

           police to interrogate him regarding the rape charges;


____________________________________________


4
    35 Pa.C.S. § 780-113(a)(31).
5
    35 Pa.C.S. § 780-113(a)(32).
6
  Johnson did not file a direct appeal of his judgment of sentence at CP-25-
CR-0000116-2011. See Docket, CP-25-CR-0000116-2011. Accordingly,
because he was sentenced on October 17, 2011, any PCRA claims regarding
his judgment of sentence and guilty plea at CP-25-CR-0000116-2011 are
untimely. 42 Pa.C.S.A. § 9545(b)(1) (a PCRA petitio
subsequent petition, shall be filed within one year of the date the judgment


7
 The postage indicates Johnson mailed the PCRA petition on December 11,
2012.



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      (2)     Ineffective assistance of counsel for failing to request relief due to

              the pretextual nature of the arrest;

      (3)     Ineffective assistance of counsel for compromising his speedy trial

              rights;

      (4)     The court erred in not allowing his counsel8 sufficient time to

              prepare a defense;

      (5)     The Commonwealth failed to provide discovery materials;

      (6)     Ineffective assistance of counsel for failing to pursue this failure

              through a pre-trial motion; and

      (7)     The identification evidence of a witness was unduly suggestive.

See         Motion   for   Post   Conviction   Collateral   Relief,   12/13/2012,   and

accompanying memorandum [hereinafter Pro Se Petition]; Letter to Judge

Garhart from William J. Hathway, Esq., 3/21/2013 [hereinafter Turner

Letter].

         The PCRA court appointed counsel, who filed a no merit letter pursuant

to Commonwealth v. Finley9 and Commonwealth v. Turner.10 Counsel

noted that the case hinged on the identification evidence. Turner Letter, at

____________________________________________


8
     Johnson had different pre-trial and trial counsel. Both counsel were from


9
    550 A.2d 213 (Pa.Super.1998).
10
     544 A.2d 927 (Pa.1988).




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2-3.11 The admissibility of such evidence was previously litigated, because

counsel filed a motion seeking to suppress the identification, counsel

challenged the denial of the motion on appeal, and this Court affirmed the

denial of the motion.        Id. at 2.         Counsel further opined t

remaining allegations lacked merit. Id. at 3.

       On August 5, 2013, the PCRA court issued a notice of intent to dismiss



Criminal Procedure 907.12 Johnson filed objections to this notice.

       On October 2, 2013, the PCRA court dismissed the PCRA petition and,



On October 28, 2013, Johnson filed a notice of appeal.              On December 2,

2013, Johnson filed a concise statement of matters complained of on appeal

alleging:



____________________________________________


11
   The Turner Letter does not contain page numbers.                 All numbers are
supplied by this Court.
12

challenges his identification by [the victim] as unduly suggestive, due to the
nature in which the identification took place; (2) the court failed to afford
attorney Ungerman sufficient time to prepare a defense when it denied a
continuance; (3) counsel wrongfully compromised his speedy trial rights; (4)
counsel failed to compel the production of discovery materials as part of the

in nature and was designed solely to interrogate him with regard to the rape
case, and (6) counsel was ineffective for failing to challenging the pretextual




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   (1)   A due process violation because the evidence was insufficient to

         sustain his conviction;

   (2)   The prosecution withheld exculpatory discovery evidence, including



   (3)



         was ineffective at the suppression hearing because he did not

                                                    d a reasonable doubt and



         ineffective at trial because he failed to effectively cross-examine

         witnesses;

   (4)   A violation of his speedy trial rights;

   (5)   The witness identification was unduly suggestive;

   (6)   Ineffective assistance of PCRA counsel; and

   (7)   The trial court erred when it dismissed the PCRA petition without a

         hearing.

Concise Statement of Matters Complained of on Appeal, at 1-3.

      The PCRA court issued a 1925(a) opinion and incorporated its Notice of



unduly suggestive was previously litigated, and that all ineffective assistance

of counsel claims raised in the PCRA petition lacked merit. 1925(a) Opinion,

at 4-5; Notice of Intent, at 4-5.     The 1925(a) opinion further found any

claim not raised in his PCRA petition was waived, except claims of PCRA

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counsel ineffectiveness. 1925(a) Opinion at 4. His claims of PCRA counsel

ineffectiveness lacked merit because Johnson failed to plead and prove any

of the three ineffectiveness prongs. Id.

       Johnson raises the following issues on appeal:13


          (12) hour detention and custodial interrogation in violation
          of defendant's constitutionally guaranteed rights as
          afforded by USCA 4, USCA 5 and Pa.CW Art.1 § 8?

          2. Was petitioner denied effective assistance of counsel
          [EAC] at critical stages of trial and appellate proceedings
          as constitutional and statutory guarantees of USCA 6,
          Pa.CW Art. 1 § 9 and 42 Pa.C.S. § 9541 et seq?

          3. Was petitioner denied Due Process as constitutionally
          mandated by USCA 14 when [the Commonwealth] was
          awarded a conviction for §3121 & §3502 without proving
          every element of charged offense aka 'Burden of Proof,
          Beyond a Reasonable Doubt[BP-BRD]?

          4. Did the PCRA Court abuse its discretion by denying a full
          and fair Evidentiary Hearing?

          5. Has petitioner satisfied the statutory requirement of: 42

          compelling Trial Court's Remand Order of Post-Conviction
          DNA Testing [PC-DNA]?
____________________________________________


13
   An appellant waives any issue not raised in his or her appellate brief.
State Farm Fire & Cas. Co. v. Craley, 675 A.2d 732, 733 n.1
(Pa.Super.1996) (finding issues waived where not mentioned in appellate
brief). To the extent Johnson raises additional issues in his reply brief by
discussing the issues raised in his 1925(b) statement, including that the
identification was unduly suggestive, such issues are waived.            See
Commonwealth v. Otero
presented before this court for the first time in a reply brief are waived .
Further, the trial court pro
1925(b) statement.



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      Our standard of review from the denial of post-

limited to examining whether the court's determination is supported by the

                                                             Commonwealth v.

Ousley,    21   A.3d   1238   (Pa.Super.2011)      (citing   Commonwealth       v.

Morales, 549 Pa. 400, 701 A.2d 516, 520 (1997)).



at 15. In support of this claim, he maintains the Commonwealth had a copy

of a traffic stop video and did not provide this video to counsel. Id. This

claim was not raised below.      Johnson previously claimed his arrest on the

drug charges was pretext to interrogate him regarding the rape allegations.

Pro Se Petition, Facts of the Alleged Errors, at 1; Turner Letter at 2. This

claim differs from the claim raised in his brief, i.e., the underlying traffic stop

was pretextual.     This claim, therefore, is waived.        Commonwealth v.

Jones

presented in the original or amende

      Moreover, even if not waived, the claim is meritless.              Evidence



matched the descriptions provided by the victim. Therefore, the stop was

proper.   See Commonwealth v. Chase, 960 A.2d 108, 120 (Pa.2008)

                                                                    Vehicle Code

violation, a constitutional inquiry into the officer's motive for stopping the

vehicle

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       Johnson next alleges ineffective assistance of counsel claims.          To



and prove by a preponderance of the evidence . . . that the conviction or

sentence resulted from . . . 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

         Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa.2005) (citing

Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1020 (2003)).

Pennsylvania courts apply the following three-prong test to ineffectiveness



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

the errors or omissions of counsel, there is a reasonable probability that the

                                                              Ousley, 21 A.3d at

1244    (quoting   Commonwealth        v.     Rivera,   10    A.3d   1276,   1279

                                  presumed to be effective and the burden of

demonstrating ineffectiveness                           Id.

any one of the three [ineffectiveness] prongs results in the failure of

                    Id. (quoting Rivera, 10 A.3d at 1279).



Johnson was denied a voice in assembling a defense theory and counsel

ignored communications from Johnson regarding ex-parte communications

between the Commonwealth, a district judge and detectives; evidence from

the district attorney; clarification of charges; review of pretrial motions; and

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clarification of non-consentable waiver of speedy trial rights; (2) counsel

abandoned Johnson and did not supply documentation to new counsel and

new counsel was not provided sufficient time to prepare a defense; and (3)

                                                                           -17.

Johnson also alleges PCRA counsel ineffectiveness for failing to fully

                                    Id., at 17.

       To the extent the claims were raised below, including ineffective

assistance of counsel related to speedy trial rights, the absence of discovery

materials, and the lack of time to prepare for trial, the trial court acted

within its discretion when it found Johnson failed to establish the ineffective

assistance of counsel prongs.          Johnson did not present any evidence his

claims had arguable merit or that the trial outcome would have differed.14

The PCRA court also did not err in finding Johnson waived any claims raised

in the 1925(b) statement, but not raised in the PCRA petition. 15 Jones, 912




____________________________________________


14
  The court noted Johnson did not make any inculpatory statements when in
custody and failed to establish a nexus between the drug arrest and the
subsequent interrogation regarding the rape. Notice of Intent, 8/5/2013, at
5. Therefore, counsel was not ineffective for failing to raise the issue of a
pretextual arrest. Id.
15
   The waived claims include the claim of ineffective assistance of counsel
due to an alleged failure to pursue inconsistent testimony, which was not
raised in the PCRA petition.




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                                         16



                                                    aims are meritless, the trial



PCRA counsel also failed.         PCRA counsel cannot be found ineffective for

failing to raise a meritless claim. Commonwealth v. Keaton, 82 A.3d 419,

426

ineffective for failing to pursue meritless claims             Commonwealth

v. Pursell, 555 Pa. 233, 724 A.2d 293, 304 (1999))).

                                                                     ufficient to

support the conviction.        Because he did not raise this claim in his PCRA

petition, the claim is waived.        Commonwealth v. Jones, 912 A.2d 268,



original or amended PCRA petitio

claims are not cognizable on PCRA review.          See 42 Pa.C.S. § 9543(a)(2)

(listing categories eligible for PCRA relief).



when it denied his PCRA petition without a hearing. This claim lacks merit.

A hearing is not required where there are no genuine issues of material fact,


____________________________________________


16
   Moreover, Johnson fails to establish any counsel ineffectiveness claims
because he fails to establish any underlying claim had merit and fails to




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the defendant is not entitled to PCRA relief, and no purpose would be served

by further proceedings. Pa.R.Cr.P. 907(1). The trial judge found no hearing

was required because there existed no genuine issues of material fact and

PCRA relief is not warranted. This was not error.



PCRA petition to request additional discovery related to DNA evidence.17

Amendment would not be proper. A trial court may grant leave to amend a



Pa.R.Crim.P.905(A).        However, the Commonwealth was not required to

conduct DNA testing of evidence obtained from the apartment, particularly



any amendment to allow additional discovery would not achieve substantial

justice.




____________________________________________


17
    In a November 27, 2013 correspondence to the trial court, Johnson
claimed a number of items were missing from discovery, including reports
pertaining to fingerprint lifts, hair and fiber dustings, and testing of the
bedding, clothing, and towels. 1925(a) Opinion, 12/20/2013, at 3 n.1. The
PCRA court ordered the Commonwealth to file a written response. Id. The
Commonwealth responded stating it sent a copy of the serology report

conducted, and that the Commonwealth did not send the bedding or clothing


concerns and we agree.




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       Order affirmed and application for relief denied.18



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




____________________________________________


18

Consequences for Failure to File a Brief Pursuant to Pennsylvania Rules of




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