J-S37003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CLARENCE JOHNSON

Appellant No. 2306 EDA 2014

Appeal from the Judgment of Sentence March 10, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1103371-1988

BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 16, 2015

Appellant, Clarence Johnson, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas, following remand 

from the federal court with instructions to vacate only his conviction and 

sentence for corrupt organizations. We dismiss the appeal. 

The relevant facts and procedural history of this case are as follows. 

On May 25, 1990, a jury convicted Appellant of first-degree murder, corrupt 

organizations, and conspiracy,1in connection with the shooting death of 

Victim in retaliation for Victim’s robbery of a gambling operation run by 

Appellant’s co-defendant. The court sentenced Appellant on March 22, 

1991, to life imprisonment for murder, and five (5) to ten (10) years’ 

____________________________________________

1 18 Pa.C.S.A. §§ 2502(a); 911; 903, respectively. 
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imprisonment for each of the remaining convictions, concurrent to each 

other but consecutive to the murder sentence. On October 22, 1992, this 

Court affirmed the judgment of sentence, and our Supreme Court denied 

allowance of appeal on March 3, 1993. See Commonwealth v. Johnson, 

615 A.2d 1322 (Pa.Super. 1992), appeal denied, 533 Pa. 657, 625 A.2d 

1191 (1993). Thereafter, Appellant unsuccessfully litigated two postconviction collateral relief petitions in state court.

In 1999, Appellant filed a petition for writ of habeas corpus in federal 

court, which the court denied on February 16, 2000. On October 3, 2006, 

Appellant filed another petition for writ of habeas corpus in federal court, 

claiming his conviction and sentence for corrupt organizations were unlawful, 

based on the Supreme Court’s decision in Commonwealth v. Besch, 544 

Pa. 1, 674 A.2d 655 (1996) (holding corrupt organizations statute does not 

encompass prosecution of wholly illegitimate enterprise), superseded by 

statute at 18 Pa.C.S.A. § 911(h)(3) (as amended June 19, 1996). The 

federal district court initially dismissed the petition as successive; but on 

December 1, 2010, the Third Circuit reversed and remanded, permitting 

Appellant to file the second habeas corpus petition based on his claim under 

Besch. See Johnson v. Wynder, 408 Fed.Appx. 616 (3d Cir. 2010). 

Appellant subsequently filed an amended and supplemental amended 

petition in federal court. On November 12, 2013, the federal district court 

granted habeas corpus relief with respect to only Appellant’s claim that his 
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conviction for corrupt organizations was unlawful. The federal court stayed 

execution of the writ for 180 days to permit the Commonwealth of 

Pennsylvania to vacate Appellant’s corrupt organizations conviction and to 

resentence him accordingly. The federal court denied habeas corpus relief in 

all other respects. See Johnson v. Wingard, 2013 WL 5988918 (E.D.Pa. 

November 12, 2013) (slip copy). 

On March 10, 2014, in accordance with the federal court’s directive, 

the trial court vacated only Appellant’s conviction and sentence for corrupt 

organizations. The trial court did not alter Appellant’s convictions or 

sentences for murder or conspiracy. On March 18, 2014, Appellant filed a 

post-sentence motion, which the court denied by operation of law on July 

17, 2014. Appellant timely filed a notice of appeal on July 29, 2014. On 

August 4, 2014, the court ordered Appellant to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant 

timely filed his Rule 1925(b) statement on August 15, 2014.

Appellant raises one issue for our review:

WAS THE CONSECUTIVE SENTENCE IMPOSED BY THE 

TRIAL COURT ON THE CONSPIRACY OFFENSE UNJUST, 

IMPROPER, MANIFESTLY UNREASONABLE, IRRATIONAL, 

AND AN ABUSE OF DISCRETION WHEN THE TRIAL COURT 

IMPOSED A CONSECUTIVE PRISON SENTENCE FOR THE 

CONSPIRACY OFFENSE TO A SENTENCE FOR THE OFFENSE 

OF FIRST DEGREE MURDER WHICH REQUIRED THE 

IMPOSITION OF A LIFE SENTENCE WITHOUT PAROLE?

(Appellant’s Brief at 2). 

Preliminarily, we observe that a limited grant of relief for resentencing 
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does not entitle a defendant to litigate on appeal claims unrelated to the 

resentencing. See Commonwealth v. Anderson, 801 A.2d 1264, 1266 

(Pa.Super. 2002) (stating “having been re-sentenced following remand, 

appellant could not file another direct appeal attacking his conviction; the 

only issues reviewable in a direct appeal would be challenges to the 

sentence imposed following remand”; dismissing appeal following remand 

for resentencing where appellant raised new issues on appeal challenging his 

conviction). In Commonwealth v. McKeever, 947 A.2d 782 (Pa.Super. 

2008), this Court explained:

Although [a]ppellant successfully challenged his corrupt 

organizations convictions and sentences...in federal court, 

the remainder of his convictions, each having a distinct 

sentence, were not disturbed by the Eastern District 

Court’s grant of habeas corpus relief or by the trial court 

when it vacated the corrupt organizations sentences in its 

resentencing order. Further, while it is correct that 

[a]ppellant had an absolute constitutional right to 

appeal his judgment of sentence entered after the 

Eastern District Court’s grant of habeas corpus

relief...in that direct appeal, he was permitted to 

raise issues pertaining only to the resentencing 

procedure itself; his underlying claims of trial court error 

regarding his non-vacated convictions could not be 

addressed on direct appeal from re-sentencing.

Id. at 785-86 (internal footnote and citation omitted) (emphasis added) 

(holding appellant’s non-vacated sentences became final on October 2, 

1995, when appellant discontinued his direct appeal; federal court’s 

subsequent grant of limited habeas corpus relief did not “reset clock” of 

finality of non-vacated sentences). 
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Instantly, the federal district court granted Appellant limited habeas 

corpus relief on November 12, 2013, and directed the trial court to vacate 

only Appellant’s conviction and sentence for corrupt organizations. The 

federal district court denied habeas corpus relief in all other respects. In 

accordance with the federal court’s directive, on March 10, 2014, the trial 

court vacated only Appellant’s conviction and sentence for corrupt 

organizations. The trial court did not disturb Appellant’s convictions or 

sentences for murder or conspiracy. Nevertheless, Appellant complains on 

appeal that the trial court’s imposition of a consecutive sentence for 

conspiracy was unjust, improper, manifestly unreasonable, irrational, and an 

abuse of discretion. Because the trial court did not resentence Appellant on 

his conspiracy conviction following the federal court’s remand, Appellant is 

precluded from challenging his conspiracy sentence in this appeal. See 

McKeever, supra. Accordingly, we dismiss the appeal. See Anderson, 

supra. 

Appeal dismissed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2015