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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DONTE JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1716 EDA 2018

Appeal from the PCRA Order May 11, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0008687-2010

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 04, 2019

Donte Johnson (Johnson) appeals pro se from the order entered by the 

Court of Common Pleas of Philadelphia County (PCRA court) dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 

9541-9546. We affirm.

We derive the following relevant facts and procedural history from the 

trial court’s November 14, 2018 opinion and our independent review of the 

record. On May 9, 2012, a jury convicted Johnson of one count each of firstdegree murder, rape, involuntary deviate sexual intercourse, robbery, and 

burglary.1 Johnson’s conviction stems from his brutal rape and fatal 

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1 18 Pa.C.S. §§ 2502(a), 3121(a)(1), 3123(a)(1), 3701(a)(1)(i), and 3502(a), 

respectively.
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strangulation of the victim, Sabina O’Donnell, in a vacant lot after he 

encountered her riding her bike. Johnson was eighteen years old at the time 

of his offense. The trial court sentenced him to a mandatory term of life 

imprisonment on the murder charge and a consecutive aggregate sentence of 

not less than forty nor more than eighty years’ incarceration on the remaining 

offenses. This Court affirmed the judgment of sentence and our Supreme 

Court denied further review on April 2, 2014. (See Commonwealth v. 

Johnson, 87 A.3d 381 (Pa. Super. 2013), appeal denied, 89 A.3d 660 (Pa. 

2014)).

Johnson, acting pro se, filed this timely PCRA petition on March 18, 

2015. Appointed counsel then filed a motion for leave to withdraw and a 

Turner/Finley2 no-merit letter. After issuing Rule 907 notice,3the PCRA 

court entered its order dismissing the petition and granting counsel’s request 

to withdraw. This timely appeal followed.

On appeal, Johnson argues that his life sentence for the murder 

conviction is unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460 

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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3 See Pa.R.Crim.P. 907(1).
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(2012). He also raises two claims of ineffective assistance of counsel. We 

begin by addressing his contention that is sentence is unconstitutional.

4

By way of background, in Miller, the United States Supreme Court held 

that it is unconstitutional for states to sentence juvenile homicide defendants 

to mandatory sentences of life imprisonment without the possibility of parole. 

See Miller, supra at 465. In Montgomery v. Louisiana, 136 S. Ct. 718 

(2016), the Court determined that its Miller holding constituted a substantive 

rule of constitutional law that must be applied retroactively to cases on 

collateral review. See Montgomery, supra at 736.

Johnson acknowledges that the Miller holding does not apply directly to 

him but nonetheless asserts that it should be extended to apply to defendants 

under the age of twenty-one as similarly situated to juvenile offenders. (See 

Johnson’s Brief, at 17-23). However, our case law is clear that “the Miller

decision applies to only those defendants who were under the age of 18 at the 

time of their crimes.” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. 

Super. 2016) (citation omitted). This Court has squarely rejected arguments 

seeking an extension of Miller to persons convicted of murder who were older 

at the time of their crimes than the class of defendants subject to the Miller

holding. See id.; see also Commonwealth v. Rodriguez, 174 A.3d 1130, 

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4 When reviewing issues arising from the denial of PCRA relief, we must 

determine whether the PCRA court’s ruling is supported by the record and free 

of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa. 

Super. 2018).
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1147 (Pa. Super. 2017), appeal denied, 186 A.3d 941 (Pa. 2018) (rejecting 

Miller claim where appellant acknowledged that he was eighteen years old at 

time he committed murder but argued that his immature and/or impulsive 

brain made him similar to juvenile). Accordingly, Johnson is not entitled to 

PCRA relief based on his contention that Miller should be extended.

Turning to Johnson’s ineffective assistance of counsel claims, “it is well 

established that counsel is presumed to have rendered effective assistance.” 

Commonwealth v. Montalvo, 2019 WL 1338433, at *7 (Pa. filed Mar. 26, 

2019) (citation omitted). A court must examine “whether: (1) the underlying 

claim has arguable merit; (2) counsel lacked a reasonable basis for his actions 

or failure to act; and (3) the petitioner was prejudiced by counsel’s deficient 

performance such that there is a reasonable probability that the result of the 

proceeding would have been different absent counsel’s error or omission.” Id.

(citation omitted). “A petitioner’s failure to satisfy any prong of the 

ineffectiveness test is fatal to the claim.” Id. (citation omitted). “We are not 

required to analyze the elements of an ineffectiveness claim in any particular 

order; if a claim fails under any prong of the ineffectiveness test, the Court 

may proceed to that element first.” Id. (citation omitted). “Moreover, counsel 

cannot be deemed ineffective for failing to raise a meritless claim.” Id.

(citation omitted).

Johnson first maintains that trial counsel was ineffective for failing to 

object to the prosecutor’s comments during closing argument that he asserts 
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were prejudicial and inflammatory. (See Johnson’s Brief, at 11-16). 

However, as the PCRA court points out, Johnson did not raise this issue in his 

PCRA petition. Our Supreme Court has explained: “Any claim not raised in 

the PCRA petition is waived and not cognizable on appeal.” Commonwealth 

v. Washington, 927 A.2d 586, 601 (Pa. 2007); see also Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal.”). Accordingly, because Johnson did not raise this issue 

in his PCRA petition, we cannot consider it on appeal.

Last, Johnson maintains that trial counsel was ineffective for failing to 

investigate two brown hairs that were found on the victim’s body. (See 

Johnson’s Brief, at 24-28). He describes the potential DNA evidence as crucial 

and exculpatory and argues that it should have been tested. (See id.).

As the PCRA court explains, this claim lacks merit because:

DNA evidence that was tested conclusively matched 

[Johnson]. That included DNA from vaginal and anal swabs taken 

from the decedent. (See N.T. Trial, 5/03/12, at 81-82, 86). Even 

assuming arguendo that a DNA test of hairs found on the decedent 

should show that they were not from [Johnson], that would not 

have exculpated [him] in light of the other DNA evidence in the

case.

Moreover, . . . the evidence at trial of [Johnson’s] guilt was 

overwhelming, including video surveillance showing him following 

the victim, conclusive evidence of his semen in the victim’s vagina 

and anus, and defendant’s full and detailed confession. There is 

no further investigation of any kind that defense counsel could 

have pursued that would have led to a reasonable probability that 

the outcome of the trial would have been different. No relief is 

due.
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(PCRA Court Opinion, 11/14/18, at 9-10) (citation formatting provided; 

emphasis in original).

After review of the record, we agree with the PCRA court’s assessment 

and find Johnson’s argument regarding the lack of testing of two hairs 

specious. Because counsel cannot be deemed ineffective for failing to raise a 

meritless claim, Johnson’s final issue fails. See Montalvo, supra at *7.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/4/19