J-S21040-17

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee 

 v.

JUSTIN JUAN JOHNSON,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1605 WDA 2016

Appeal from the PCRA Order September 26, 2016

in the Court of Common Pleas of Lawrence County 

Criminal Division at No(s): CP-37-CR-0001512-2011

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 16, 2017

Justin Juan Johnson (Appellant) appeals from the order entered on 

September 26, 2016, which denied his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

We provide the following relevant background based upon the 

testimony from Appellant’s three-day jury trial. On the evening of August 

10, 2011, the victim in this matter, Regan Pierre, along with his girlfriend, 

Jill Murphy, drove from Pittsburgh to New Castle in Murphy’s black Saturn. 

Pierre dropped off Murphy at her home then went to the Westside Mini Mart. 

He encountered Appellant1and Marquise Wise2at the store. According to 

Pierre, prior to this encounter, he and Wise “got into a little fight or 

 

1 Appellant is also known as Mr. Muddles.

2 Wise is also known as Boo Boo.
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whatever” over a girlfriend and the two did not like “each other after that.” 

N.T., 9/11/2012, at 46. Pierre testified that Appellant and Wise had arrived 

at the Westside Mini Mart in a “burgundy [Oldsmobile] Alero” with an Ohio 

license plate. Id. at 47.

Pierre left the Westside Mini Mart in the Saturn, and Appellant and 

Wise began to follow him. Id. Subsequently, the Oldsmobile passed Pierre 

when Pierre turned. Eventually Pierre encountered the Oldsmobile stopped 

near the corner of Lincoln and Shenango Streets in the middle of the road 

halfway up a hill with both doors open. When Pierre looked to the left, he 

saw Appellant. Appellant then “stepped forward from the bushes and ... 

opened fire on [Pierre].” Id. at 52. 

After Pierre was shot, he called Murphy and “and told her that Muddles 

shot [him].” Id. at 70. Pierre then drove to Murphy’s house, and Murphy 

drove Pierre to the hospital. Sergeant David Cumo of the New Castle Police 

Department arrived at the hospital looking for a gunshot victim based upon 

reports of hearing gunshots. He saw a black Saturn with bullet holes and a 

broken window in the parking lot. Sergeant Cumo then went into the 

hospital in an attempt to find the victim. After identifying Pierre as the 

victim and as connected to the Saturn, Pierre told Sergeant Cumo that “he 

was shot by Muddles.” N.T., 9/12/2012, at 53. 

Appellant was arrested and charged with numerous crimes as a result 

of this incident. Following a jury trial, Appellant was convicted of attempted 
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criminal homicide, aggravated assault, and aggravated assault with a deadly 

weapon. Appellant was sentenced to an aggregate term of twenty to forty 

years of incarceration.

On July 17, 2013, this Court affirmed Appellant’s judgment of 

sentence. Commonwealth v. Johnson, 82 A.3d 1069 (Pa. Super. 2013) 

(unpublished memorandum). No petition for allowance of appeal to our 

Supreme Court was filed.

Appellant filed timely a PCRA petition seeking, inter alia, the 

reinstatement of his direct appeal rights. Following a hearing, the PCRA 

court entered an order reinstating Appellant’s direct appeal rights in the form 

of allowing him to file a petition for allowance of appeal nunc pro tunc to the 

Supreme Court of Pennsylvania and dismissing “[a]ll other requests for 

relief” stated in the original and amended PCRA petitions. Order, 5/11/2015, 

at 2. 

Appellant filed a notice of appeal to this Court. By memorandum filed 

December 22, 2015, this Court affirmed “that portion of the PCRA court’s 

order that granted Appellant leave to file nunc pro tunc a petition for 

allowance of appeal to our Supreme Court, and vacate[d] that portion of the 

order that disposed of Appellant’s remaining PCRA claims.” Commonwealth 

v. Johnson, 133 A.3d 665 (Pa. Super. 2015) (unpublished memorandum at 

4). Appellant then filed his nunc pro tunc petition for allowance of appeal to 
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our Supreme Court, which was denied on May 11, 2016. Commonwealth v. 

Johnson, 138 A.3d 3 (Pa. 2016).

On June 1, 2016, Appellant timely filed the instant PCRA petition 

raising claims of, inter alia, ineffective assistance of counsel. Relevant at 

this juncture, Appellant asserted that trial counsel was ineffective by failing 

1) to object to Murphy’s testimony, and 2) to object properly to Sergeant 

Cumo’s testimony, and 3) to raise all meritorious issues in Appellant’s direct 

appeal. A hearing was held on September 2, 2016.3 On September 26, 

2016, the PCRA court filed an opinion and order denying Appellant PCRA 

relief. Appellant filed timely a notice of appeal, and both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925.

On appeal, Appellant sets forth two issues for our review.

I. Whether the PCRA court committed an error of law by 

not finding ineffective assistance of counsel for trial counsel’s 

failure to object to, properly object to and/or otherwise preserve 

the issue of cumulative use of a prior consistent statement of 

[victim], used as substantive evidence and not for rehabilitative 

purposes; and by not granting [Appellant] a new trial as a result. 

II. Whether the PCRA court committed an error of law by 

not finding ineffective assistance of appellate counsel for 

appellate counsel’s failure to consult with [Appellant] prior to 

filing the appeal, by deviating substantially from [Appellant’s] 

concise statement of errors and raising only one issue on appeal, 

for improperly raising and/or waiving viable issues in said appeal 

as enumerated herein, and by not restoring [Appellant’s] direct 

appeal rights, nunc pro tunc as a result.

 

3 That hearing incorporated the notes of testimony from Appellant’s first 

PCRA hearing on May 1, 2015.
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Appellant’s Brief at 4.4

In reviewing an appeal from the denial of PCRA relief, “[w]e must 

examine whether the record supports the PCRA court’s determination, and 

whether the PCRA court’s determination is free of legal error. The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record.” Commonwealth v. Mikell, 968 A.2d 779, 

780 (Pa. Super. 2009) (quoting Commonwealth v. Lawrence, 960 A.2d 

473, 476 (Pa. Super. 2008) (citations omitted)). Since Appellant’s claims 

concern the ineffective assistance of counsel, the following principles apply.

It is well-established that counsel is presumed to have 

provided effective representation unless the PCRA 

petitioner pleads and proves all of the following: (1) the 

underlying legal claim is of arguable merit; (2) counsel’s 

action or inaction lacked any objectively reasonable basis 

designed to effectuate his client’s interest; and (3) 

prejudice, to the effect that there was a reasonable 

probability of a different outcome if not for counsel’s error. 

The PCRA court may deny an ineffectiveness claim if the 

petitioner’s evidence fails to meet a single one of these prongs. 

Moreover, a PCRA petitioner bears the burden of demonstrating 

counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) 

(internal citations omitted).

Appellant’s first issue concerns the ineffectiveness of trial counsel’s 

representation at trial. See Appellant’s Brief at 12-22. Appellant argues 

that trial counsel should have objected to Murphy’s testimony where she 

 

4 We point out with disapproval that not only has the Commonwealth failed 

to file a brief in this appeal, but the Commonwealth also neglected to file a 

brief in the last appeal to this Court. 
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testified that Pierre told her that Appellant shot Pierre. Appellant’s Brief at 13 

(citing N.T., 9/11/2012 vol. 2, at 30). Appellant suggests this was 

inadmissible hearsay.

Hearsay is a statement that “the declarant does not make while 

testifying at the current trial or hearing” and “a party offers in evidence to 

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c). 

There can be no doubt that Murphy’s testimony was hearsay. However, 

hearsay is admissible if it satisfies an exception. One such exception is an 

excited utterance. An excited utterance is defined as “[a] statement relating 

to a startling event or condition, made while the declarant was under the 

stress of excitement that it caused.” Pa.R.E. 803(2).

Here, Pierre testified that shortly after he was shot, he called Murphy 

and told her that “Muddles shot” him. N.T., 9/11/2012, at 70. Thus, 

Murphy’s testimony confirming this sequence of events was admissible 

pursuant to Pa.R.E. 803(3). See Commonwealth v. Manley, 985 A.2d 256 

(Pa. Super. 2009) (holding victim’s statements to police which were made 

within ten minutes after being shot and while victim was in a panicked state 

satisfied the requirements of an excited utterance exception to the hearsay 

rule). 

Accordingly, the underlying claim fails the arguable merit prong of the 

ineffective-assistance-of-counsel test, and Appellant is not entitled to relief 

on this basis. See Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011) 
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(holding that an appellant fails to satisfy the arguable merit prong of the 

ineffective-assistance-of-counsel test where the objection would have been 

overruled).5

We now turn to Appellant’s issues with Sergeant Cumo’s testimony 

about what Pierre told Sergeant Cumo at the hospital. Appellant’s Brief at 

13-14. Sergeant Cumo offered the following narrative during his testimony 

at trial.

[Pierre] said that he was at the Westside Mini Mart and he saw 

Muddles, in a maroon or burgundy, I believe he said an Aurora 

and he said nothing. No words were exchanged or anything. 

When he left the store, he was traveling towards Grant Street 

before you come to Falls Street by pass area. He said they came 

to a four-way stop sign. At that point, [Appellant], the vehicle 

he was driving, got behind him and began to follow him onto 

Grant Street. He said as he drove down Grant Street, he made a 

left-hand turn onto Locust Street and when he was turning the 

car, he said it appeared that [Appellant] accelerated his vehicle, 

went around him on Grant Street, continuing eastbound on 

Grant Street. He turned left onto Locust and proceeded up the 

hill there. He said he got up the hill, drove through the West 

Lincoln projects and when he got to the intersection of West 

Lincoln and Shenango Street, he viewed [Appellant’s] vehicle 

parked in the roadway, the driver’s door opened and at [sic] 

moments later he saw [Appellant], Muddles, come out from the 

bushes, shrub area and began shooting the gun at him.

N.T., 9/12/2012, at 53-54.

At trial, counsel for Appellant objected to this testimony as being 

inadmissible hearsay, and the trial court overruled the objection. Id. at 54-

55. In its opinion, the trial court opined that it did not err in admitting 

 

5 Moreover, even if the statements were admitted improperly, Pierre was 

available to testify about the statements he made to Murphy.
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Sergeant Cumo’s testimony because it was admissible as a prior consistent 

statement pursuant to Pa.R.E. 613(c).6 On direct appeal, this Court agreed 

with the trial court and concluded that the trial court did not err in admitting 

“Sergeant Cumo’s testimony regarding Pierre’s prior consistent statements.” 

Commonwealth v. Johnson, 133 A.3d 665 (Pa. Super. 2015) (unpublished 

memorandum at 4). “The trial court recognized that [Appellant] had 

challenged Pierre’s credibility and memory on cross-examination, and that 

Sergeant Cumo’s testimony was admissible, as it constituted a prior 

consistent statement concerning the identity of the individual responsible for 

shooting the firearm.” Id. 

At this juncture, to the extent Appellant is arguing that counsel was 

ineffective for failing to argue that this testimony was inadmissible pursuant 

 

6 That rule provides the following.

(c) Witness’s Prior Consistent Statement to Rehabilitate.

Evidence of a witness’s prior consistent statement is admissible 

to rehabilitate the witness’s credibility if the opposing party is 

given an opportunity to cross-examine the witness about the 

statement and the statement is offered to rebut an express or 

implied charge of:

(1) fabrication, bias, improper influence or motive, or 

faulty memory and the statement was made before 

that which has been charged existed or arose; or

(2) having made a prior inconsistent statement, 

which the witness has denied or explained, and the 

consistent statement supports the witness's denial or 

explanation.

Pa.R.E. 613.
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to Pa.R.E. 613 because it was being introduced as substantive evidence, 

Appellant is not entitled to relief. Appellant’s Brief at 17. This Court decided 

on direct appeal that this evidence was admissible under this exception. 

Thus, there is no arguable merit to Appellant’s contention that counsel was 

ineffective for failing to object on this basis.

Appellant also argues that trial counsel was ineffective for failing to 

object at trial on the basis that this testimony violated Pa.R.E. 403, which 

provides that “[t]he court may exclude relevant evidence if its probative 

value is outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.” Specifically, Appellant 

suggests that this testimony was “cumulative.” Appellant’s Brief at 18. 

“Evidence that bolsters, or strengthens, existing evidence is not 

cumulative evidence, but rather is corroborative evidence.” Commonwealth 

v. G.D.M., Sr., 926 A.2d 984, 989 (Pa. Super. 2007). Here, Officer Cumo’s 

testimony corroborated Pierre’s testimony; therefore, any objection would 

have been overruled, and Appellant is not entitled to relief. See 

Hutchinson, 25 A.3d at 277.

For his final allegation of error, Appellant argues that trial counsel was 

ineffective in the way he handled Appellant’s direct appeal. Specifically, 

Appellant argues that trial counsel was ineffective because he failed to 

consult with Appellant about what issues he intended to raise on appeal. 
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Appellant also argues that trial counsel should have raised additional 

meritorious issues, and his failure to do so was prejudicial. See Appellant’s 

Brief at 22-35. Additionally, Appellant contends that his deprivation of a full 

direct appeal entitles him to relief for “presumed or per se prejudice.” Id. at 

32.

It is well-settled that an accused who is deprived entirely 

of his right of direct appeal by counsel’s failure to perfect an 

appeal is per se without the effective assistance of counsel, and 

is entitled to reinstatement of his direct appellate rights.

***

However, it is also well-settled that the reinstatement of 

direct appeal rights is not the proper remedy when appellate 

counsel perfected a direct appeal but simply failed to raise 

certain claims. Where a petitioner was not entirely denied his 

right to a direct appeal and only some of the issues the 

petitioner wished to pursue were waived, the reinstatement of 

the petitioner’s direct appeal rights is not a proper remedy. In 

such circumstances, the appellant must proceed under the 

auspices of the PCRA, and the PCRA court should apply the 

traditional three-prong test for determining whether appellate 

counsel was ineffective.

Commonwealth v. Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. 2006) 

(internal citations and quotation marks omitted).

Here, Appellant was not deprived entirely of his right to a direct 

appeal. “It is well settled that appellate counsel is entitled, as a matter of 

strategy, to forego even meritorious issues in favor of issues he believes 

pose a greater likelihood of success.” Commonwealth v. Jette, 23 A.3d 

1032, 1043 (Pa. 2011). “To establish [] prejudice in the appellate 

representation context, the petitioner must show that there is a reasonable 
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probability that the outcome of the direct appeal proceeding would have 

been different but for counsel’s deficient performance.” Commonwealth v. 

Blakeney, 108 A.3d 739, 750 (Pa. 2014). 

Appellant argues that trial counsel was ineffective for failing to raise 

two issues in Appellant’s direct appeal. With respect to the first, we provide 

the following background.

Officer John George of the New Castle Police Department found the 

Oldsmobile Aurora driven by Appellant and Wise. He towed it to the police 

station and obtained consent to search the vehicle from Tashayla Reese, its 

owner. Officer George testified that he “found in the vehicle four plastic 

baggies and a digital scale.” N.T., 9/12/2012, at 21. Counsel objected to 

this testimony, arguing at a side bar that this testimony was prejudicial as 

these items are clearly drug-related. Thus, counsel asked for a mistrial. 

The trial court denied the motion for mistrial and, over trial counsel’s 

objection, offered a cautionary instruction. See N.T., 9/12/2012, at 71-74. 

Specifically, the trial court told the jury the following.

Officer George was on the stand. While he was on the 

stand, he offered some testimony regarding items confiscated 

from the vehicle that he had searched.... You’re directed that 

that is irrelevant to this case. That anything confiscated is not a 

part of this case. You are not to consider that part of his 

testimony in any manner in regard to this case. I trust you will 

follow that instruction.

Id. at 74.
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Appellant now argues that trial counsel was ineffective for failing to 

challenge on appeal the trial court’s denial of his motion for a mistrial. 

Appellant’s Brief at 32. 

The standard of review for determining whether the trial 

court erred in denying a motion for a mistrial is as follows:

The trial court is in the best position to assess the effect of 

an allegedly prejudicial statement on the jury, and as such, the 

grant or denial of a mistrial will not be overturned absent an 

abuse of discretion. A mistrial may be granted only where the 

incident upon which the motion is based is of such a nature that 

its unavoidable effect is to deprive the defendant of a fair trial by 

preventing the jury from weighing and rendering a true verdict. 

Likewise, a mistrial is not necessary where cautionary 

instructions are adequate to overcome any possible prejudice.

A mistrial is warranted when a juror could reasonably infer 

from the facts presented that the accused had engaged in prior 

criminal activity. When the statement at issue relates to a 

reference to past criminal behavior, [t]he nature of the reference 

and whether the remark was intentionally elicited by the 

Commonwealth are considerations relevant to the determination 

of whether a mistrial is required. A singular, passing reference 

to prior criminal activity is usually not sufficient to show that the 

trial court abused its discretion in denying the defendant’s 

motion for a mistrial. When the trial court provides cautionary 

instructions to the jury in the event the defense raises a motion 

for mistrial, [t]he law presumes that the jury will follow the 

instructions of the court.

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (internal 

citations and quotation marks omitted).

 Here, Officer George’s reference to plastic baggies and a digital scale 

was clearly unnecessary and prejudicial. However, Appellant was neither on 

trial for drug-related charges nor the owner of the car. In addition, the 

primary issue in this case was not whether Pierre was shot, but whether it 
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was Appellant or Wise who shot Pierre. The drug testimony applied equally 

to Appellant and Wise. See N.T., 9/11/2012, at 38. Moreover, the trial 

court offered a clear cautionary instruction,7and “[t]he law presumes that 

the jury will follow the instructions of the court.” Commonwealth v. 

Chmiel, 30 A.3d 1111, 1184 (Pa. 2011). Therefore, we conclude Appellant 

would not have prevailed had trial counsel raised this issue on direct appeal, 

and Appellant is not entitled to relief at this juncture.

In his next claim, Appellant argues that trial counsel was ineffective by 

failing to raise an issue related to Officer Cumo’s testimony. Appellant’s Brief 

at 32. When asked about his training and experience, the Commonwealth 

asked if Officer Cumo had been trained in “polygraph.” N.T., 9/12/2012, at 

48. Counsel objected and it was overruled. Appellant now argues that trial 

counsel should have challenged on direct appeal the trial court’s decision to 

overrule that objection.

 

7 The trial court stated the following.

Before counsel proceeds, let me just briefly give you one of 

those things that I said could happen. It’s a cautionary 

instruction. Officer George was on the stand. While he was on 

the stand, he offered some testimony regarding items 

confiscated from that vehicle that he had searched.... You’ve 

directed that that is irrelevant to this case. That anything 

confiscated is not part of this case. You are not to consider that 

part of his testimony in any manner in any regard to this case. I 

trust you will follow that instruction.

N.T., 9/12/2012, at 74.
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It is well settled that “any reference to a [polygraph test] which raises 

an inference concerning the guilt or innocence of a defendant is 

inadmissible.” Commonwealth v. Hetzel, 822 A.2d 747, 767 (Pa. Super. 

2003) (emphasis omitted). Here, Officer Cumo was asked about training, 

and at no point in his testimony was there any reference made to any 

polygraph test given or taken by anyone involved in this case. Moreover, 

the testimony was not elicited with any reference to Appellant’s guilt or 

innocence. Thus, even if trial counsel raised this issue on appeal, he would 

not have prevailed. Accordingly, we hold counsel was not ineffective for 

failing to do so.

Having concluded that Appellant has presented this Court with no issue 

worthy of relief, we affirm the order of the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/16/2017