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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

Common Pleas of Erie County’s order dismissing his petition filed pursuant to 

the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq. We affirm. 
J-S42021-14

- 2 - 

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 entered Allyson 

Dragoone’s unlocked second story apartment and nudged 

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 

able to see Johnson’s face in the mirror. Johnson brought 

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). 
J-S42021-14

- 3 - 

to the vehicle. Believing that both the vehicle and Johnson 

matched Dragoone’s description, Officer Langdon spoke to 

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 

her hand over Johnson’s photograph, covering it up. At

that point Detective Lawrence created a composite sketch 

of the suspect with Dragoone’s help.

The next day Dragoone went to Magisterial District Judge 

Tom Robie’s office, where her mother is employed. 

Dragoone went into Judge Robie’s office where she was 

shown a single photograph of Johnson on the Megan’s Law

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 

Dragoone’s rape kit, and forensic scientist Alex Glessner

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. 
J-S42021-14

- 4 - 

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-CR0003200-2010, 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 petition “including a second or 

subsequent petition, shall be filed within one year of the date the judgment 

becomes final”). 

7

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

2012. 
J-S42021-14

- 5 - 

(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 

the Public Defender’s Office.

9

 550 A.2d 213 (Pa.Super.1998). 

10 544 A.2d 927 (Pa.1988). 
J-S42021-14

- 6 - 

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 that Johnson’s 

remaining allegations lacked merit. Id. at 3. 

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

Johnson’s PCRA petition without a hearing pursuant to Pennsylvania Rule of 

Criminal Procedure 907.12

 Johnson filed objections to this notice. 

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

on November 1, 2013, it granted counsel’s petition for leave to withdraw. 

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 The court summarized Johnson’s claims as follows: “(1) Defendant 

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 

Omnibus Motion; (5) Defendant’s arrest on the drugs charges was pretextual 

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 

arrest.” Notice of Intent , 8/5/2013, at 4.
J-S42021-14

- 7 - 

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

sustain his conviction; 

(2) The prosecution withheld exculpatory discovery evidence, including 

“the dwelling contents affirmed to be in police control;” 

(3) Ineffective assistance of counsel maintaining: “counsel act[ed] as 

Amicus Curiae assisting prosecution in time to prepare”; counsel 

was ineffective at the suppression hearing because he did not 

“hold[] Court with burden of proof beyond a reasonable doubt and 

[did] not assert[] production of items request;” and counsel was 

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 

Intent to Dismiss, which found Johnson’s claim that the identification was 

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 
J-S42021-14

- 8 - 

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

1. Was November 7,2010 ‘police stop’ resulting in twelve 

(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 

Pa.C.S. §9543.1 to invoke this Court’s Judicial Authority 

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, 860 A.2d 1052, 1054 (Pa.Super.2004) (“Issues 

presented before this court for the first time in a reply brief are waived”). 

Further, the trial court properly disposed of all issues raised in Johnson’s 

1925(b) statement. 
J-S42021-14

- 9 - 

Appellant’s Brief, at 12. 

 Our standard of review from the denial of post-conviction relief “is 

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

evidence of record and whether it is free of legal error.” Commonwealth v. 

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

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

Johnson first claims the police stop was pretextual. Appellant’s Brief, 

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, 912 A.2d 268, 278 (Pa.2006) (“an issue is waived where it was not 

presented in the original or amended PCRA petition below”).

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

established Johnson’s car was parked illegally and both the car and Johnson 

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

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

(where “police can articulate a reasonable suspicion of a Vehicle Code 

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

vehicle is unnecessary”).
J-S42021-14

- 10 - 

 Johnson next alleges ineffective assistance of counsel claims. To 

establish an ineffective assistance of counsel claim, a petitioner must “plead 

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 

place.” 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 

claims: whether “(1) the underlying claim has merit; (2) counsel had no 

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 

outcome of the proceedings would have been different.” Ousley, 21 A.3d at 

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

(Pa.Super.2010)). “[C]ounsel is presumed to be effective and the burden of 

demonstrating ineffectiveness rests on appellant.” Id. “The failure to prove 

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

petitioner's claim.” Id. (quoting Rivera, 10 A.3d at 1279). 

Johnson’s ineffective assistance of counsel claims on appeal are: (1) 

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 
J-S42021-14

- 11 - 

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) 

counsel failed to pursue inconsistent testimony. Appellant’s Brief, at 16-17. 

Johnson also alleges PCRA counsel ineffectiveness for failing to fully 

understand Johnson’s claims. 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. 
J-S42021-14

- 12 - 

A.2d at 278 (“an issue is waived where it was not presented in the original 

or amended PCRA petition below”).16

 

Further, because Johnson’s underlying claims are meritless, the trial 

court did not err when it found Johnson’s claim of ineffective assistance of 

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 (Pa.2013) (“[I]t is axiomatic that [trial] counsel will not be considered 

ineffective for failing to pursue meritless claims.” (quoting Commonwealth 

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

Johnson’s third claim maintains the evidence was insufficient 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, 

278 (Pa.2006) (“an issue is waived where it was not presented in the 

original or amended PCRA petition below”). Further, insufficient evidence 

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

(listing categories eligible for PCRA relief). 

Johnson’s fourth claim alleges the trial court abused its discretion 

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 

establish any claim would have altered the trial’s outcome. 
J-S42021-14

- 13 - 

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. 

Johnson’s fifth claim alleges he should be permitted to amend his 

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 

PCRA petition at any time “to achieve substantial justice.” 

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

conduct DNA testing of evidence obtained from the apartment, particularly 

because Johnson’s DNA matched the vaginal swab of the victim. Therefore, 

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 

requesting “hair and fiber dustings,” that no fingerprint analysis was 

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

to the lab because Johnson’s DNA matched the DNA on the victim’s vaginal 

swabs. The PCRA court found this letter fully addressed Johnson’s discovery 

concerns and we agree. 
J-S42021-14

- 14 - 

 Order affirmed and application for relief denied.18

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/22/2014 

____________________________________________ 

18 Johnson filed an “Application for Relief: Request for Court to Impose 

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

Appellate Procedure § 2188.” We deny this application.