Commonwealth v. Johnson

179 A.3d 1105

COMMONWEALTH of Pennsylvania

v.Karrem JOHNSON, Appellant

No. 3845 EDA 2016

Superior Court of Pennsylvania.

Submitted January 22, 2018

Filed February 13, 2018

Reargument Denied April 2, 2018

Mitchell S. Strutin, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Brad M. Paraszczak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant Karrem Johnson appeals from the Order entered in the Court of Common Pleas of Philadelphia County on December 12, 2016, denying his first petition filed pursuant to the Post Conviction Relief Act.¹ Also before this Court are Appellant's Application for Remand filed on August 17, 2017, and counsel's Application to Withdraw filed on August 31, 2017. Following our review, we affirm the trial court's order, deny PCRA counsel's application for remand and deny PCRA counsel's application to withdraw without prejudice to pursue the issue he raised therein before the trial court.

A prior panel of this Court set forth the relevant facts and procedural history when addressing Appellant's direct appeal as follows:

Appellant was arrested and charged with [first-degree murder, burglary, possessing an instrument of crime (PIC), and three violations of the Uniform Firearms Act] following the shooting death of Christopher Lomax. At Appellant's trial, the Commonwealth presented multiple witnesses, beginning with Tyree Graham. Graham testified that in the late night and early morning hours of June 21 to 22, 2008, he and Lomax were celebrating Lomax's birthday at a Philadelphia bar called Rumors. N.T. Trial, 2/2/11, at 43–44. When two men left the bar at about 1:45 a.m., Graham saw Appellant, whom he knew by the nickname "Cutt," standing outside the entrance to the bar. Id. at 43, 48–49. Graham stated that as he and Lomax talked to some women outside the bar, he heard gunshots. Id. at 49–50. Graham started running to his car and, when he turned to look back, he saw Lomax lying on the ground. Id. at 50.

While Graham denied actually seeing who shot Lomax, the Commonwealth presented the testimony of Kwame Mapp and Jahmil Miller to refute that claim. First, Mapp testified that he knew both Tyree Graham and Cristopher Lomax, and had heard about Lomax's death from Graham. Id. at 110. Specifically, Mapp stated that at some point between one week and one month after Lomax's murder, Graham told him that he saw "a person by the name of Cutty" shoot Lomax. Id. at 112. Mapp claimed that Graham told him that he saw "Cutty" walk up from behind Lomax and shoot him, and that "Cutty" continued to shoot Lomax after Lomax was on the ground. Id. at 113, 116. On October 23, 2008, Mapp provided a statement to police regarding what Graham had told him about Lomax's shooting. Id. at 114.

The Commonwealth also called Jahmil Miller to the stand. Miller testified that on May 8, 2009, he provided police with a signed, written statement regarding Lomax's murder. N.T. Trial, 2/3/11, at 11. Therein, Miller stated that shortly after the shooting, Tyree Graham told him that "Cutt," i.e Appellant, and Lomax had an altercation inside Rumors bar, and that once outside, Graham saw Appellant pull out a gun and shoot Lomax. Id. at 13–14, 17, 21.

The Commonwealth also called Darnell Clark to the stand. Clark stated that he was friends with Christopher Lomax and was at Rumors bar with him the night that he was shot. N.T. Trial, 2/2/11, at 146. Shortly after the altercation, Lomax went outside the bar where he was shot. Id. at 148. Directly after the shooting on June 22, 2008, Clark gave police a description of the man he saw arguing with Lomax inside the bar. Id. at 151. Then, in October, Clark identified Appellant from a photo array as the man that Lomax argued with on the night he was shot. Id. at 153, 165–67.

Renee Smith² also testified for the Commonwealth. When Ms. Smith took the stand, she denied any knowledge of Lomax's murder. Accordingly, the Commonwealth confronted her with a statement she gave police in March of 2009. N.T. Trial, 2/3/11, at 80. In that statement, Ms. Smith said that she was at Rumors bar in the early morning hours of June 22, 2008. Id. at 88. There, she saw Lomax, whom she knew by the nickname "Mo–Mo." Id. at 86, 89. Ms. Smith told police that shortly after 1:00 a.m, she left the bar and was standing across the street from the bar's entrance waiting for her mother to pick her up. Id. at 90–91. Ms. Smith stated as she stood outside,

I heard the gunshot from over the park area. I looked across and saw that there was a circle of people around the two guys, the one who was shooting and the one who was getting shot. I didn't know that it Mo–Mo until afterwards because he was on the ground when the other guy was shooting.

Id. at 91. Ms. Smith also told police that "[t]he guy who was shooting was shooting down at the guy on the ground" and explained that the shooter fired "more than seven shots." Id. at 92. When police asked Ms. Smith if she knew the shooter, she stated that she recognized him as a rapper who "calls himself Cutt." Id. She told police that she had seen "Cutt" in the bar earlier that night. Id. at 93. When confronted with a photo array, Ms. Smith identified Appellant as the man she knew as "Cutt" who she saw shoot Christopher Lomax. Id. at 94.

Next, Lakia Bunch testified for the Commonwealth. She stated that she was at Rumors bar on the night of Lomax's shooting. N.T. Trial, 2/4/11 at 4. Ms. Bunch stated that she knew Appellant as "Cutt," and that she had known him all her life. Id. at 5. When asked if she witnessed Lomax's shooting, Ms. Bunch said she did not, claiming she had no knowledge regarding the circumstances of Lomax's death. Id. at 5, 24. At that point the Commonwealth confronted her with a signed, written statement that she provided to police on May 11, 2009. Id. at 6. In that statement, Ms. Bunch claimed that she witnessed Lomax's shooting, explaining that the shooter "shot [Lomax] like at least six or seven times." Id. at 15. Ms. Bunch further stated that she knew the shooter as "Cutt." Id. Ms. Bunch was then presented with a photo array and identified Appellant as the man she knew as "Cutt." Id. at 23–24.

Following this testimony regarding Lomax's shooting, the Commonwealth presented evidence relating to how Appellant was apprehended by police. For instance, the Commonwealth called Philadelphia Police Officer James Boone to the stand. Officer Boone stated that on July 28, 2008, almost a month after Lomax's murder, he and his partner, Officer White, were in a marked police car traveling on the 3100 block of Park Avenue at approximately 3:45 p.m. N.T. Trial, 2/3/11, at 144, 145. The Officers were patrolling this area because they had received a complaint of individuals selling drugs and loitering. Id. at 145. During the course of their patrol, Officer Boone and his partner observed Appellant and another man sitting on the porch of a home. Id. at 144, 145. The officers were patrolling this area because they had received a complaint of individuals selling drugs and loitering. Id. at 145. During the course of their patrol, Officer Boone and his partner observed Appellant and another man sitting on the porch of a home. Id. at 144, 145. When the officers asked Appellant if he lived there, Appellant "cursed at" them. Id. at 147. At that point, the officers exited their vehicle in order to conduct "a pedestrian investigation." Id. at 148. As Officer Boone and his partner, who were in full uniform, approached Appellant, he "jumped up, got onto the porch and started running southbound along the porch, along the porches, hurdling the wrought-iron porch fences going southbound on Park Avenue." Id. at 149. As the officers pursued him, Officer Boone saw Appellant "produce[ ] a black handgun in his right hand." Id. at 150. Officer Boone yelled "gun" numerous times to inform his partner that Appellant was armed. Id. at 151. Appellant then tripped over a wrought-iron railing and fell, losing his grip on the gun, which dropped to the floor of the porch. Id. at 150–51. Appellant got up and continued to flee, and Officer Boone recovered the gun from the porch floor. Id. at 151.

Appellant fled to a home on North Park Avenue where there were "a handful of people standing out front." Id. at 152. Officer Boone testified that Appellant "pushed an older black female out of the way and went [in]to this house with a younger black female and locked the door behind him." Id. At that point, Officer Boone and his partner called for police backup, including the S.W.A.T. unit. Id. When police subsequently accessed the home, they found Appellant hiding underneath a bed and arrested him. Id. at 153–54.

Evangeline Hamilton, the owner of the home which Appellant fled on July 28, 2008, also testified for the Commonwealth.

Ms. Hamilton stated that on that evening, she was on her porch when she saw Appellant running and "leaping over the porches." N.T. Trial, 2/7/11, at 12. Appellant ultimately ran inside her home. Id. at 12–15. When asked by the Commonwealth if Appellant "could have had permission" to go into her home, Ms. Hamilton replied, "Yes, because he's a friend of my daughter's." Id. at 16. However, the Commonwealth confronted Ms. Hamilton with statement she made to police at 8:15 p.m. on July 28, 2008. Id. at 20. Therein, Ms. Hamilton told police that she knew Appellant from the neighborhood, but did not say that he was a friend of her daughter. Id. at 25. Furthermore, when asked if she gave Appellant permission to enter he home, Ms. Hamilton told police, "No, I didn't." Id. Ms. Hamilton also declared in her statement to police that she was "willing to prosecute [Appellant] for entering [her] house without [her] permission." Id. at 26.

Lastly, Kenneth Lay, the Philadelphia Police Forensic Science Bureau's firearms laboratory supervisor, testified for the Commonwealth as an expert in

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