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HomeMy WebLinkAboutCP-21-CR-2195-1998COMMONWEALTH V. RONNIE E. JOHNSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2195 CRIMINAL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., January 8, 2004 On August 12, 2003, we denied Petitioner's Second Petition for Relief under the Post Conviction Relief Act.~ Petitioner has filed this timely appeal in which he contends that we erred in 1) finding that counsel's ineffectiveness after the entry of the guilty plea had been fully litigated; 2) not approving sufficient funds to allow for scientific evidence to show petitioner's innocence, 3) failing to find "manifest injustice" in the context of petitioner's "invalid plea"; and 4) failing to find that petitioner had shown his innocence by a preponderance of the evidence.2 We will address each allegation of error in the opinion that follows. However, before we do, we feel that it is necessary to recount the procedural and factual background of this case. PROCEDURAL BACKGROUND On July 9, 1999, petitioner entered a plea of guilty to one count of first degree murder. He received a mandatory sentence of life imprisonment on that same date. On August 11, 1999, this Court received a letter from petitioner in which he requested the opportunity to withdraw his guilty plea and proceed to trial. Since the letter was received more than thirty days after imposition of sentence, and since he made 42 Pa. C.S.A. § 9541, et seq. See Concise Statement of Matters Complained of on Appeal. NO. 98-2195 CRIMINAL certain allegations regarding the effectiveness of his counsel, we treated it as a petition under the Post Conviction Relief Act. We appointed new counsel to represent him and granted sixty days to file an amended petition. On December 22, 1999, an evidentiary hearing was held before this Court. At the conclusion of the hearing we denied petitioner's claims for relief. He filed a timely appeal to the Superior Court. On November 15, 2000, the Superior Court affirmed our decision. On July 6, 2001, the Pennsylvania Supreme Court denied allocatur. On September 3, 2002, petitioner filed the instant Petition for Relief under the Post Conviction Relief Act. By order dated on September 19, 2002, we appointed counsel to represent him. Counsel requested, and was granted, additional time to file an amended petition. The amended petition was filed on November 15, 2002. Over the next several months, numerous evidentiary hearings were scheduled. However, for various reasons, no evidentiary hearing was actually held until May 22, 2003. At the conclusion of that hearing we granted petitioner's request for funds to hire a firearms expert. After review of the expert's report, and having heard argument from counsel, we denied the PCRA petition on August 12, 2003. This timely appeal followed. FACTUAL BACKGROUND Petitioner was charged with criminal homicide and various related offenses arising out of a shooting incident that occurred in a crowded park on Memorial Day in 1998. The Commonwealth had filed notice of its intention to seek the death penalty. On July 9, 1999 the Commonwealth agreed to forego the death penalty in return for a plea of guilty to first degree murder. The plea was in full satisfaction of the NO. 98-2195 CRIMINAL numerous charges which arose out of the shooting incident.3 The factual basis for the plea was articulated by the District Attorney as follows: MR. EBERT: The factual basis for this plea will be as follows, sir. On May 25, 1998, shortly after 5:00 p.m., the Defendant, Ronnie Eugene Johnson, and his Co-Defendant, Germane Watkins, entered Memorial Park in the Borough of Carlisle, Cumberland County, Pennsylvania. The Defendant and Watkins were looking for Robert "Rocky" Anderson to settle a dispute which had been ongoing over the Memorial Day weekend. The Defendant was in possession of a .22 caliber revolver and Watkins was in possession of a .380 caliber semi- automatic handgun. Watkins approached Rock Anderson while Anderson was playing basketball. This Defendant took up a position behind Watkins from where this Defendant could see all that would transpire. An argument ensued between Watkins and Rocky Anderson. In the course of the argument, the Defendant and Watkins began to fire their respective weapons. A bystander, the victim in this case, Anthony Shannon Banks, was struck by a bullet and fell to the ground. While Banks was lying on the ground, the Defendant walked up to where Banks was lying and intentionally and with malice shot Banks several more times striking him in vital parts of his body including the back of his head. Shannon Banks died from the Defendant's multiple gunshot wounds specifically a .22 caliber bullet was removed from Anthony Shannon Banks' brain. Dr. Wayne Ross, an expert pathologist, determined that this wound was fatal. That would be the extent of the factual basis of the plea, sir. MR. GILROY: Your honor, ! have reviewed that with my client. He has reviewed these facts, and we are satisfied after the extensive discovery that we have conducted in this particular case that the facts as presented by the Commonwealth are correct, and Mr. Johnson stands before you today prepared to admit those facts. MR. EBERT: One factor that ! - - in regard to this plea, obviously - - it becomes patently obvious that the Commonwealth had filed a notice of aggravating circumstances in this case and was seeking the death penalty in this case. Obviously as a part of the plea, the negotiated plea, ! will not be pursuing the death penalty even based on this plea. This is for a set sentence of life imprisonment pursuant to the statute. 3 Guilty Plea and Sentence Colloquy, July 9, 1999 pp. 2-3. The Commonwealth also accepted the plea in full satisfaction of other charges that arose out of incidents that occurred during petitioner's incarceration on those charges. NO. 98-2195 CRIMINAL THE COURT: Now, sir, you understand that you will be entering a plea to murder in the first degree, and the factual basis of that plea is that you are charged with intentionally killing Mr. Banks, firing bullets into his body that caused his death. Do you understand that, sir? THE DEFENDANT: Yes. THE COURT: Are you prepared to admit that you did, in fact, intentionally cause the death of Mr. Banks? THE DEFENDANT: Yes. (emphasis added)4 Petitioner's first PCRA petition was filed because of a letter he received from George Fassnacht, the firearms expert originally retained by his trial counsel. The letter was dated July 6, 1999 and raised questions as to whether the fatal bullet removed from the decedent's brain had come from a .22 caliber weapon.5 Mr. Fassnacht concluded his letter by stating that "the projectile fragment in Mr. Banks' head appears to be larger than .22 caliber.''6 After the evidentiary hearing held in connection with the first PCRA petition, we were satisfied that the bullet removed from the decedent's brain had in fact come from a .22 caliber pistol. We found as a fact that Mr. Fassnacht was convinced that the bullet in question was .22 caliber. We also found that his letter of July 6, 1999, was written at the request of petitioner's trial counsel for the specific purpose of assisting him in the cross examination of the Commonwealth's expert at trial.? The instant PCRA petition is based upon the very same letter. Petitioner continues to assert that the letter is evidence of his innocence. At the May 22, 2003 evidentiary hearing Petitioner augmented the letter with an autopsy report showing that 4 Guilty Plea and Sentence Colloquy, July 9, 1999, pp. 4-7. s The letter was admitted into evidence as Exhibit 4 at the May 22, 2003, evidentiary hearing on the instant petition. 6 Defendant's Exhibit 4, May 22, 2003, Proceedings. 7 See our Opinion dated February 11, 2000, at p. 8. See also Defendant's Exhibit 5, May 22, 2003, proceedings. NO. 98-2195 CRIMINAL the entry wound in decedent's skull measured 3/8 inch x 3/8 inch,8 and testimony from the surviving victim, Rocky Anderson, to the effect that there were other shooters in the park on the day in question. Petitioner's counsel argued that the 3/8 inch entry wound was too large to have been made by a .22 caliber bullet. He requested funds to employ a new firearms and ballistics expert to examine the bullet and, if necessary, to testify at a subsequent hearing.9 We granted the request,l° After petitioner filed his new expert report, we scheduled argument to determine if an additional evidentiary hearing would be necessary. We asked petitioner's counsel to relate what his ballistics expert would say if he were called to testify. In essence, the expert was prepared to testify that in his opinion: · The size of the entry wound was not inconsistent with having been made by a .22 caliber bullet. · He concurred with Mr. Fassnacht's opinion that the bullet removed from the decedent's brain was in fact, .22 caliber. · The bullet was so badly deformed that it could not be matched to the petitioner' s gun. The expert was also prepared to raise questions about another bullet that may have been in the decedent's brain, based upon his reading of a CAT scan. Significantly, 8 Defendant's Exhibit 2, May 22, 2003, proceedings. 9 Mr. Fassnacht passed away prior to the filing of the second petition. l0 We authorized 4 hours time at $175 per hour. The expert actually spent 16.5 hours at a cost of over $2800. NO. 98-2195 CRIMINAL however, there was no other bullet found in the brain during the autopsy, nor were there any other head wounds observed on the decedent.~ Based upon the proffered testimony, we saw no need to expend additional funds to have the ballistics expert testify at an evidentiary hearing. Therefore, we denied the PCRA petition based upon the existing record. DISCUSSION The relevant sections of the Post Conviction Relief Act provide as follows: § 9543. Eligibility for relief (a) General rule.-To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: (3) That the allegation of error has not been previously litigated or waived. 42 Pa. C.S.A. § 9543(a)(3). As our Supreme Court has noted: PCRA claims are not merely direct appeal claims that are made at a later stage of the proceedings, cloaked in a boilerplate assertion of counsel's ineffectiveness. In essence, they are extraordinary assertions that the system broke down. To establish claims of constitutional error or ineffectiveness of counsel, the petitioner must plead and prove by a preponderance of evidence that the system failed.., that his claim has not been previously litigated or waived, and where a claim was not raised at an earlier stage of the proceedings, that counsel could not have had a rational strategic or tactical reason for failing to litigate these claims earlier. Commonwealth v. Rivers, 567 Pa. 239, 249 786 A.2d 923,929 (2001), (emphasis added). In the instant case, we were satisfied that all of the issues raised by petitioner had been previously litigated. Therefore, we denied his request for relief. See Defendant's Exhibit 2, May 22, 2003, proceedings. NO. 98-2195 CRIMINAL Counsel's Ineffectiveness The first allegation of error on appeal is our failure to find that petitioner's trial was counsel ineffective. The issue of counsel's ineffectiveness was dealt with extensively during the first PCRA proceedings. ~2 Therefore, it cannot form the basis for relief in the instant action. ~3 Petitioner's Invalid Plea Petitioner alleges that we erred in failing to find "manifest injustice" as a result of his "invalid plea.''~4 This issue was also fully litigated at the first PCRA proceeding. As we noted: The bottom line is that petitioner entered the guilty plea in order to avoid the death penalty. It may have been induced, in part, by the advice of his counsel. (FN 23) However, we are convinced that counsel's advice was sound. Furthermore, we are satisfied that the guilty plea was knowing, intelligent and, under the circumstances, extremely wise. (FN 24) (FN 23) Before accepting his plea, we made certain that despite whatever advice counsel might be giving him, the final decision to plead guilty was petitioner's and petitioner's alone. See Guilty Plea and Sentence Colloquy, p. 7. (FN 24) On May 12, 1999, petitioner's counsel sent him a letter which was introduced as Commonwealth's PCRA Exhibit 2. It thoroughly discussed the options available to, and evidence against, petitioner. It was followed by letters on June 28, 1999, (Commonwealth's PCRA Exhibits 3 & 4) as well as several face to face conferences with petitioner. The correspondence makes it perfectly clear that the evidence against petitioner was overwhelming and that the death penalty was a very real possibility. ~2 See our Opinion dated February 11, 2000. ~3 "(A)n issue may not be relitigated merely because a new or different theory is posited as a basis for re- examining an issue that has already been decided." Commonwealth v. Berry, 760 A.2d 1164, 1165 (Pa. Super. 2000). ~4 See "Concise Statement of Matters Complained of on Appeal," para. 5. NO. 98-2195 CRIMINAL (emphasis added)~5 Petitioner's Innocence The remaining allegations of error on appeal deal with our failure to find that petitioner proved his innocence, or in the alternative, to authorize the expenditure of funds so that he could do so. Petitioner made the same allegation of innocence at the first PCRA proceeding, i.e. he was not the one who fired the fatal bullet. We addressed that issue in our previous opinion: If the ballistics expert truly was of the opinion that the bullet in the victim's brain did not come from petitioner's gun, we agree that he would be entitled to relief. However, petitioner has not proven that his expert was of that opinion. Significantly, he did not call the expert to testify at the evidentiary hearing. He merely introduced into evidence a letter from the expert to his trial counsel dated July 6, 1999. While the letter raises the possibility that there was a mix-up in the identification of the bullets, it does not say that the fatal bullet did not come from petitioner's gun. The report relied on by petitioner as evidence of his innocence was written merely to assist his trial counsel in cross-examining the Commonwealth's expert at trial. It does not in any way vitiate the soundness of the advice given by trial counsel to petitioner. Nor does it establish his innocence of the crime. Therefore, he has not sustained the burden necessary to entitle him to relief... (footnote omitted).~6 In the instant case, petitioner produced additional evidence of his innocence in the form of the testimony of the surviving victim. Mr. Anderson now claims that there were shooters in the park other than petitioner and his co-defendant. While we found the testimony of Mr. Anderson to be patently unreliable, and in the final analysis have not ~5 See our Opinion dated February 11, 2000, at pp. 9-10. 16 Opinion dated February 11, 2000, at pp. 7-8. NO. 98-2195 CRIMINAL given it any credence, we did authorize funds to have another expert examine the bullet found in the deceased victim's brain. That independent expert confirmed that it was, in fact, a .22 caliber. The fact that it was deformed and could not be positively matched to petitioner's gun was also raised at the time of the first PCRA proceedings. We felt neither compelled nor authorized to reexamine an issue that had been previously (and thoroughly) litigated. For the reasons set forth above, we were satisfied that all issues raised by petitioner had been previously litigated. Therefore, we denied his current request for relief. DATE Edward E. Guido, J. Jaime Keating, Esquire For the Commonwealth Dirk Berry, Esquire For the Defendant :sld