Com. v. Johnson, R.

J-E01006-20

                                

    COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
    REBECCA L. JOHNSON                     :
                                           :
                    Appellant              :    No. 2063 EDA 2018


              Appeal from the PCRA Order Entered June 8, 2018,
            in the Court of Common Pleas of Northampton County,
             Criminal Division at No(s): CP-48-CR-0000559-2013,
             CP-48-CR-0002629-2012, CP-48-CR-0002774-2012.


BEFORE: PANELLA, P.J., STABILE, J., DUBOW, J., KUNSELMAN, J.,
        NICHOLS, J., MURRAY, J., McLAUGHLIN, J., KING, J., and
        McCAFFERY, J.

OPINION BY KUNSELMAN, J.:                               Filed: July 23, 2020

       Rebecca L. Johnson appeals from the order dismissing her first Post-

Conviction Relief Act (“PCRA”) petition1 that she filed at three related trial-

court docket numbers. Johnson was convicted in October 2013 of multiple

crimes, including murder of the second degree, arising from the robbery and

death of her grandmother, Carrie Smith. Following her direct appeal, Johnson

filed a timely PCRA petition alleging ineffective assistance of trial counsel. The

PCRA court denied relief, and Johnson appealed.

       Johnson claims that she filed three separate notices of appeal to this

Court pursuant to the Supreme Court decision in Commonwealth v. Walker,

 (Pa. 2018) (holding that after June 1, 2018, separate notices of


1   42 Pa.C.S.A. §§ 9541-9546.
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appeal must be filed for each lower-court docket number). However, Johnson

listed all three docket numbers on each filing.

      While her appeal was pending, a divided three-judge panel of this Court

decided Commonwealth v. Creese, 

 (Pa. Super. 2019). In

quashing the appeal under Walker, Creese stated, “a notice of appeal may

contain only one docket number.” Creese, 216 A.3d at 1144 (footnote

omitted). Shortly thereafter, the three-judge panel that heard oral argument

on Johnson’s case issued a memorandum explaining that Creese compelled

it to quash. A week later, that panel withdrew its memorandum sua sponte,

and it requested that Johnson’s case proceed before an en banc panel to

determine whether Creese should control. The full Superior Court granted

the panel’s request.   We must resolve the procedural issues first, before

reaching the merits of this appeal.

                                      I.

      This Court granted en banc consideration of the following procedural

issues:

          1.   Whether [Johnson’s] inclusion of multiple court of
               common pleas docket numbers on her notice of appeal
               violates Pa.R.A.P. 341 and Walker?

          2.   If so, whether such violation necessitates quashal by
               this Court?

Per Curiam Order of Superior Court, 10/4/19, at 2.

      First, we observe that Rebecca Johnson’s use of multiple case numbers

on her notices of appeal is irrelevant in light of our conclusion in



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Commonwealth v. Jerome Johnson, ___ A.3d ___, ___, Slip Opinion at 12

(Pa. Super. 2020) (en banc) (partially overruling Creese to the extent that

Creese interpreted Walker as requiring Superior Court to quash appeals

when appellant files multiple notices of appeal and each notice lists all of the

appealed from docket numbers). The only preliminary issue we must now

decide is whether Johnson complied with Walker — i.e., whether she actually

filed separate notices of appeal for each docket number of the court of

common pleas.

      Counsel for Rebecca Johnson claims that she filed three separate notices

of appeal, one for each lower-court docket number.2         Although all three

notices contain the three related case numbers, counsel indicates that the

clerk of courts’ time stamp is in different locations on each notice and two

notices are stamped 9:54 AM while one is stamped 9:56 AM.           Our review

supports Johnson’s claims.

      The two notices with a time stamp of 9:54 AM are clearly distinct filings;

one has its time stamp near counsel’s signature, and the other has its time

stamp at the bottom of the page. The third notice has a completely unique

time stamp of 9:56 AM. In Creese, the filing clerk accepted one notice of

appeal for multiple dockets, time-stamped and photocopied it, and then filed


2 Counsel for Johnson states that the Clerk of Courts of Northampton County

highlighted and placed a red checkmark next to one of the docket numbers on
each notice for reference and filing purposes. Additionally, counsel notes that
although it is her practice to attach a copy of the docket to each individual
notice, she inadvertently attached the incorrect docket to one of the notices.
We find her clerical mistake inconsequential.


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one copy at each docket number.      Rebecca Johnson, by contrast, filed three

separate notices for each lower-court docket number; as such, she complied

with Walker and Rule 341 to perfect three appeals. Therefore, we need not

quash them and proceed to the factual background and issues of her case.

                                      II.

      In January of 2012, Johnson, Roger Suero, David Bechtold, and Quadir

Taylor, collaborated to rob Johnson’s grandmother, Carrie Smith. Two of the

conspirators broke into Ms. Smith’s residence in the middle of the night, placed

a pillow over her face, stole about $35,000 from a safe, and fled. Ms. Smith,

who suffered from coronary artery disease, atrial fibrillation, and interstitial

lung disease, had a minor heart attack during or shortly after the robbery.

Approximately two months later, she died.

      Based upon the autopsy results, the Commonwealth claimed Ms. Smith

died from the robbery-induced heart attack. As such, it charged Johnson and

her co-conspirators with murder of the second degree.         A jury convicted

Johnson and Suero of the felony murder3 and related charges,4 and the trial

court sentenced Johnson to life in prison without parole.

      After exhausting her direct appeal, Johnson filed a timely pro se PCRA

petition.   The court appointed counsel and held a pre-hearing conference.

3 18 Pa.C.S.A. § 2502(b).


4 The same jury tried and convicted Suero and Johnson together. David
Bechtold, a juvenile, pleaded guilty to non-homicide charges prior to Johnson
and Suero’s trial. Quadir Taylor, the fourth accomplice, was convicted of the
felony murder and other charges after a separate jury trial.



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Johnson’s counsel filed an amended petition, and the court granted counsel

time to review Ms. Smith’s medical records.       A few months later, counsel

requested funds to retain medical-expert witnesses to prove that trial counsel

ineffectively failed to present a viable causation defense to the felony-murder

charge. Given the expense of hiring such experts, the PCRA court bifurcated

the proceedings to determine, initially, whether Johnson’s trial counsel had a

reasonable basis for the tactics that Johnson claimed were erroneous, before

it approved the funds for medical experts.          Both Suero’s counsel and

Johnson’s trial counsel testified during this initial phase of the PCRA hearings.

      The court concluded Johnson’s trial counsel lacked a reasonable basis

for failing to pursue a causation defense on behalf of his client. See PCRA

Court Opinion, 9/13/17, at 3-7.5 Thus, the PCRA court afforded Johnson an

opportunity to prove prejudice – i.e., that but for trial counsel’s errors, there

probably would have been a different outcome in her trial.

      At the second phase of the bifurcated PCRA hearing, Johnson intended

to call three physicians, two of whom (Drs. Edward Viner and Arnold Meshkov)

had already testified on causation for her accomplices (Taylor, in his criminal

trial, and Suero, in his PCRA hearing). Hence, the PCRA court asked whether

it could judicially notice their prior testimony.   Johnson’s counsel agreed,

provided she could also have a pulmonologist review Ms. Smith’s medical

records and the expert reports from Johnson’s trial. See N.T., 10/20/17, at

5 In this opinion and order, the PCRA court also denied Johnson’s PCRA petition

regarding her counsel’s performance at the post-sentence and direct-appeal
stages. Johnson did not appeal those rulings.


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12.   In light of Johnson’s stipulation to judicial notice, the PCRA court

authorized funds to retain a pulmonologist.

      The second phase of Johnson’s PCRA hearing convened on May 11,

2018. Dr. Wissam Abouzgheib, a board-certified pulmonologist, testified on

behalf of Johnson. Afterwards, the parties briefed the PCRA court. Two weeks

later, that court ruled Johnson did not prove she was prejudiced by her trial

counsel’s ineffectiveness and dismissed the PCRA petition as meritless. This

timely appeal followed.

      Johnson raises the following four issues:

         1.    Did the [PCRA] court err in finding [Johnson] failed to
               meet her burden of proof that she was prejudiced as
               a result of trial counsel’s proven ineffectiveness?

         2.    Did the [PCRA] court err in disregarding material
               differences between the testimony of Dr. Wissam
               Abouzgheib[,] the pulmonologist who testified at
               Appellant’s post-conviction hearing, and Dr. Arnold
               Meshkov (cardiologist) and Dr. Edward Viner (internal
               medicine) who were called by the defense as expert
               witnesses in co-conspirator, Quadir Taylor’s, trial?

         3.    Did the [PCRA] court err in failing to consider each
               separate and distinct form of trial counsel’s
               ineffectiveness ((a) failure to perform reasonable
               investigation into the issue of causation; (b) failure to
               consult with any medical expert; (c) failure to conduct
               any reasonable investigation with regard to the
               complex medical history of the deceased in order to
               make an informed decision as to the trial strategy; (d)
               failure to conduct any cross-examination or re-cross
               of the four expert witnesses called during trial by the
               Commonwealth; (e) and, failure to call an expert
               witness) and, instead, considering these actions and
               inactions as one conflated issue of “failure to pursue a
               causation defense”?



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         4.    Did the [PCRA] court err in taking judicial notice of the
               conviction of Quadir Taylor, CP-48-CR-00587-2016
               (Northampton County 2017), as well as the entire
               record and trial transcript of his case, and considering
               and/or evaluating the evidence presented during that
               other trial, and the verdict reached by that other jury,
               in determining whether Appellant met her burden of
               proof that she was prejudiced at her own trial as a
               result    of   her    own     trial  counsel's   proven
               ineffectiveness?

Johnson’s Brief at 4-5 (footnote omitted).

      All of Johnson’s issues arise from the PCRA court’s refusal to grant her

a new trial, due to the alleged ineffectiveness of Johnson’s trial counsel. Our

scope of review of a PCRA court’s decision is limited “to examining whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error. We view the findings of the PCRA

court and the evidence of record in a light most favorable to the prevailing

party.” Commonwealth v. Mason, 

 (Pa. 2015). “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.” 

      To obtain relief on a claim of ineffectiveness of counsel, a PCRA

petitioner must satisfy the performance and the prejudicial-impact test set

forth in in Strickland v. Washington, 

 (1984). The Supreme

Court of Pennsylvania applies Strickland by requiring a petitioner to establish

that: (1) the underlying claim has arguable merit; (2) no reasonable basis

existed for counsel’s action or failure to act; and (3) the petitioner suffered


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prejudice as a result of counsel’s error, with prejudice measured by whether

there is a reasonable probability that the result of the proceeding would have

been different.   Commonwealth v. Pierce, 

, 975–76 (Pa.

1987)6; see also Commonwealth v. Solano, 

 (Pa.

2015). If a claim fails under any required element of the Strickland/Pierce

test, the court may dismiss the claim on that basis.      Commonwealth v.

Rivera, 

 (Pa. Super. 2010). Counsel is presumed to be

effective, and the burden of demonstrating ineffectiveness rests on the

appellant. 

      We first observe that the PCRA court concluded that Johnson proved the

first two prongs of the ineffectiveness test: that the claim had arguable merit

and that counsel lacked a reasonable basis for failing to challenge causation.

In this appeal, Johnson challenges the PCRA court’s conclusion that she failed

to prove prejudice. As more fully discussed below, because the PCRA court

misapplied the Strickland/Pierce prejudice test, we address only Johnson’s

fourth issue and remand to allow the court below to apply the proper

prejudicial-impact test in the first instance.




6 The Supreme Court of Pennsylvania expressly adopted the Strickland
prejudice standard in Commonwealth v. Pierce, 

 (Pa.
1987) (concluding that “the identical textual and policy considerations” in
Pennsylvania precedent and Strickland “logically lead us to hold that together
they constitute an identical rule of law in this Commonwealth”).


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       In Strickland, the Supreme Court of the United States identified certain

narrow categories where prejudice may be presumed: (1) where there has

been an “[a]ctual or constructive denial of the assistance of counsel

altogether”; (2) “when counsel is burdened by an actual conflict of interest;”

or (3) when there are “various kinds of state interference with counsel’s

assistance.” Strickland, 

. In these circumstances, prejudice

is so likely that a case-by-case inquiry is unnecessary. 

      If prejudice is

not presumed, the defendant must prove that counsel’s errors were so serious

that she was deprived of “a fair trial, a trial whose result is reliable.” 

.

       Critically, the Strickland Court explained how courts are to assess the

prejudicial impact of prior counsel’s unreasonable acts or omissions. First, the

reviewing court must shift its scope of review to the perspective of the decision

maker from the original prosecution. It must then look for prejudice in light

of the law that controlled the prior proceeding. In Strickland, the High Court

stated how reviewing courts and litigants should frame the prejudice issue as,

“When a defendant challenges a conviction, the question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had

a reasonable doubt respecting guilt.” Strickland, 

.

       Next, the reviewing court “must consider the totality of the evidence

before the judge or jury” of the original proceeding, 

, and ask what

effect, if any, defense counsel’s errors had upon the evidence that the prior



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judge or jury reviewed. Some errors may have had no impact whatsoever on

certain facts. Others “will have had a pervasive effect on the inferences to be

drawn from the evidence, altering the entire evidentiary picture, and some

will have had an isolated, trivial effect.” 

 at 695–96.

      The strength of the prosecution’s case from the original proceeding is a

vital part of the reviewing court’s inquiry. A “verdict or conclusion only weakly

supported by the record is more likely to have been affected by [defense

counsel’s] errors than one with overwhelming record support.” 

.

Moreover, “the ultimate focus of inquiry must be on the fundamental fairness

of the proceeding whose result is being challenged.” 

 “[T]he court should

be concerned with whether . . . the result of the particular proceeding is

unreliable because of a breakdown in the adversarial process that our system

counts on to produce just results.” 

      Here, however, the PCRA court did not make the correct factual findings

regarding the relation between the expert testimony on causation that

Johnson presented at the PCRA proceeding and her original prosecution. In

assessing prejudice, the PCRA court “reviewed the record of the trial in this

case, as well as the expert testimony offered by the defense in Quadir Taylor’s

trial, the cross-examination of witnesses by Taylor’s counsel, and finally the

testimony offered by Dr. Abouzgheib . . . .” PCRA Court Opinion, 6/8/18, at

5. It then held that, because Taylor’s jury rejected expert testimony that

Ms. Smith died of lung disease (as opposed to the robbery-induced heart



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attack), there was a reasonable probability that the proposed testimony of the

three experts would not have changed the outcome of Johnson’s trial. This

was analytical error under Strickland/Pierce. Whatever Taylor’s jury may

have thought of Dr. Abouzgheib’s testimony is irrelevant to how Johnson’s

jury might have viewed it along with the testimony of Drs. Meshkov and

Viner, relative to the prosecutorial evidence presented in Johnson’s case.

      The PCRA court should have made its own credibility determinations on

Dr. Abouzgheib’s testimony and the testimony of the other two physicians

who, but for the failure of Johnson’s trial counsel to call them, would have

testified before Johnson’s jury. Then, the court should have found what facts,

if any, it believed from Drs. Meshkov, Viner, and Abouzgheib’s testimony.

Next, the PCRA court needed to reweigh the Commonwealth’s evidence of guilt

from Johnson’s trial (not Taylor’s) in light of the erroneously omitted, expert

testimony on Ms. Smith’s cause of death and decide what impact, if any, the

absence of the three doctors’ testimony had upon the evidentiary picture the

Commonwealth developed in Johnson’s trial.

      In derogation of Strickland/Pierce, the PCRA court compared Dr.

Abouzgheib’s testimony with the testimony of the defense experts who

testified at Taylor’s trial. And then, as Johnson observes in her fourth issue,

the PCRA court took judicial notice of the verdict from Taylor’s case, a verdict

that is legally irrelevant here. The court therefore did not decide whether the

evidence of causation that the Commonwealth presented at Johnson’s trial



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was relatively weak in comparison to the testimony of the three physicians

Johnson’s counsel should have called. Instead, the PCRA court performed a

cumulative-evidence inquiry, similar to Pennsylvania Rule of Evidence 304,

and found “[w]hile some additional details regarding the process by which

physicians diagnose pulmonary fibrosis was offered by Dr. Abouzgheib at

[Johnson’s] post-conviction hearing, the core of his testimony regarding the

cause of [Ms.] Smith’s death echoed that offered by Drs. Arnold Meshkov and

Edward Viner during the Taylor trial.”        PCRA Court Opinion, 6/8/18, at 6

(citations omitted).

      This inquiry was beside the point, because no jury heard Drs. Meshkov,

Viner, and Abouzgheib testify against the Commonwealth’s experts from

Johnson’s trial. Thus, even if Dr. Abouzgheib’s testimony was repetitive of the

other two physicians, this does not prove that the verdict in Johnson’s trial

would have probably remained guilty.          It only proves that the verdict in

Taylor’s trial would have probably remained guilty. Hence, the PCRA court’s

factual findings that it made during its prejudicial-impact review miss the

mark. The PCRA court therefore made factual findings that were irrelevant to

this case. We must remand for the PCRA court to evaluate the factual record

under the correct framework of Strickland, so that it may apply prejudicial-

impact test in the first instance.

      The Supreme Court of the United States recently explained appellate

review of the Strickland prejudice prong in Andrus v. Texas, ___ U.S. ___,



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___ S.Ct. ___, 

 (June 15, 2020), in relation to the role of

the fact-finding court. In assessing whether a petitioner for post-conviction

relief has proven a reasonable probability of prejudice – i.e., that “the jury [at

the petitioner’s trial] would have made a different judgment . . . the reviewing

court must consider the totality of the available [exculpating] evidence – both

available at [the petitioner’s] trial, and the evidence adduced in the habeas

proceeding – and reweigh it against the evidence” of guilt. 

 ___ U.S. at

___, Slip Opinion at 16 (some punctuation omitted).

      Like the PCRA court in this matter, the Texas Court of Criminal Appeals7

in Andrus failed to reweigh the evidence from the habeas corpus proceeding


7
 Under Texas’ post-conviction practice, when the convicted individual is facing
a death sentence, the petition for writ of habeas corpus is filed with the trial
court, but it is returnable to the Texas Court of Criminal Appeals. See Tex.
Code Crim. Proc. Ann., Art. 11.071 §4(a). This was the applicable procedure
in Andrus’ case, because the trial court had sentenced him to death. It
therefore received Andrus’ habeas corpus evidence as a special master and
made recommended findings of fact and conclusions of law to the judges of
the Court of Criminal Appeals.

        The trial court recommended granting a new trial at the sentencing
phase due to counsel’s ineffectiveness, but the Court of Criminal Appeals
rejected that recommendation as well as the trial court’s findings of fact.
Thus, when the Court of Criminal Appeals failed to reweigh the evidence from
the habeas corpus proceeding and the previous trial in violation of Strickland,
it failed to do so in its original (as opposed to its appellate) jurisdiction.

       Unlike the Texas Court of Criminal Appeals, this Court has no original
jurisdiction over PCRA matters. See 45 Pa.C.S.A. § 741. Hence, it would be
inappropriate for us to apply the Strickland prejudice prong in the first
instance, because it requires a fact finder to exercise its original jurisdiction
to make credibility determinations and to weigh facts. Thus, we are unable to
decide whether Johnson suffered prejudice from her counsel’s inactions on the
current record.


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with the evidence that the prosecution produced at the original trial – exactly

the same procedural error that the PCRA court made here. This shortcoming

prohibited the Supreme Court from addressing the merits of Andrus’ claim of

prejudice.8   In fact, it was “unclear whether the Court of Criminal Appeals

considered Strickland prejudice at all.” Id., ___ U.S. at ___, Slip Opinion at

17.

      Here, while the PCRA court acknowledged the Strickland prejudice

prong,   it   disregarded   that   precedent’s   directives   by   comparing   the

prosecutorial evidence from the wrong trial to the evidence Johnson produced

at her PCRA hearing. Thus, where the Supreme Court in Andrus could not

be certain whether the Texas court had properly examined the facts of record,

in Johnson’s case, it is obvious that the PCRA court did not do so. We cannot

perform an adequate appellate review in light of the PCRA court’s analytical

misstep. Given that the PCRA court “[in]adequately conducted that weighty

and record-intensive analysis in the first instance, we remand for the [PCRA

court] to address Strickland prejudice in light of the correct legal principles

articulated above.” Id., ___ U.S. at ___, Slip Opinion at 19.




8
  Notably, the Texas Court of Appeals’ non-application of the Strickland
prejudice prong was so clearly erroneous that the Supreme Court of the United
States granted Andrus’ petition for certiorari and summarily vacated the order
denying habeas corpus relief without requiring the parties to file merit briefs.
Andrus v. Texas, ___ U.S. ___, ___ S.Ct. ___, 

, Slip
Opinion at 1 (2020).


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      Order vacated. Case remanded for the court to address the prejudice

prong of Strickland/Pierce in a manner consistent with this opinion. See

      Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/20




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