J-A13039-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

DANA JAVON JOHNSON 

 Appellant No. 1748 WDA 2013 

Appeal from the Judgment of Sentence September 17, 2013 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0016575-2012 

BEFORE: PANELLA, J., SHOGAN, J., and OTT, J. 

MEMORANDUM BY OTT, J.: FILED JULY 10, 2015 

 Dana Javon Johnson appeals from the judgment of sentence entered 

on September 17, 2013, in the Court of Common Pleas of Allegheny County, 

after a jury convicted him of first-degree murder.1 He received the 

mandatory sentence of life imprisonment. Specifically, Johnson was charged 

with the shooting death of Donald Russell, while both men were attending a 

New Year’s Eve party in the Arlington section of Pittsburgh. Russell was shot 

11 times. In this timely appeal, Johnson claims: 1) there was insufficient 

evidence to support his conviction, 2) the trial court erred in failing to 

instruct the jury on the lesser charge of involuntary manslaughter, 3) the 

trial court abused its discretion in failing to grant a mistrial after a witness 

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1

 18 Pa.C.S. § 2502(a). 
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referred to having seen Johnson’s “mug shot”, and 4) the trial court abused 

its discretion in failing to grant Johnson’s pre-trial motion to dismiss based 

on the alleged violation of Rule 600.2 After a thorough review of the 

submissions by the parties, relevant law, and the certified record, we affirm. 

 The evidence, as stated by the trial court in its Pa.R.A.P. 1925(a) 

opinion is as follows: 

The evidence presented at trial established that in the early 

morning hours of December 31, 2011, the victim, Donald Russell 

and many others were at a house party at 313 Sterling Street in 

the Arlington section of the City of Pittsburgh. [Johnson] was 

seen at the party with Kavon Worlds and Montel Williams. At 

some point, a neighbor was awakened by shouting outside and 

heard discussion of a gun. Thereafter, [Johnson] was then seen 

again inside the party wearing an AK-47 type rifle on a strap 

underneath an army fatigue jacket. There was a commotion 

during the party and Donald Macon observed [Johnson] pointing 

his rifle at the victim, Donald Russell and reaching into his 

pockets. Macon fled and seconds later, shots were fired. When 

Macon returned, the victim had been shot several times and was 

eventually pronounced dead. An autopsy revealed that [Russell] 

had been shot 11 times, with two (2) shots being fatal or 

potentially fatal and nine (9) of those wounds being superficial or 

not otherwise fatal.[3] Although some of the superficial wounds 

were consistent with being fired by a .9 mm [sic] handgun, the 

size and trajectory length of the fatal wounds were consistent 

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2

 We have re-ordered Johnson’s claims. 

3

 The opinion inadvertently states it was “the Defendant” who was shot 11 

times. 
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with a 7.62 x .39 mm [sic][4] bullet fired from an automatic [sic] 

rifle. 

Pa.R.A.P. 1925(a) Opinion, 7/15/2014, at 11. 

 Additionally, the associate medical examiner, Dr. Todd Luckasevic, 

M.D., testified regarding the two fatal or possibly fatal wounds. The possibly 

fatal wound was caused by a shot that entered Russell’s right lower flank, 

travelling back to front, right to left and slightly downward. It struck 

Russell’s spinal column and pierced both his large and small intestines. The 

fatal shot entered Russell’s left upper thigh travelling front to back, left to 

right and upward. This wound was caused by a 7.62 caliber full metal jacket 

rifle bullet that transected Russell’s left iliac artery. An AK-47 semiautomatic rifle, such as Johnson was described to have brandished, is a 7.62 

caliber gun. Of the 11 gunshot wounds suffered by Russell, six were 

determined to have travelled back to front, three travelled front to back, and 

two were indeterminable. It was impossible to determine the order in which 

the wounds were suffered. Finally, the medical examiner testified there was 

no evidence Russell was shot from close range (within three feet) and that 

fact was used by Russell’s counsel in closing argument. See N.T. Video Trial 

Testimony, 8/26/2013, at 22-23, 31; N.T. Trial, 9/16/2013, at 806. 

____________________________________________ 

4

 These numbers represent the diameter of the bullet and the size of the 

cartridge case. See N.T. Trial, 9/12-13/2013, at 684. However, the proper 

measurements are 7.62 x 39 mm (not .39 mm) and 9 mm (not .9 mm). 
J-A13039-15 

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 Johnson’s first argument is that there was insufficient evidence to 

support his conviction, in that there was no evidence of a specific intent to 

kill. “Criminal homicide constitutes murder of the first degree when it is 

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). Further, “[t]o 

obtain a conviction of first degree murder, the Commonwealth must prove 

that a human being was unlawfully killed, that the defendant perpetrated the 

killing, and that the defendant acted with malice and a specific intent to kill.” 

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation 

omitted). Additionally, “[i]t is well-settled that specific intent to kill can be 

established through circumstantial evidence such as the use of a deadly 

weapon on a vital part of the victim's body.” Id.

Johnson argues that Commonwealth witness, Donald Macon, the only 

witness to testify as to what transpired immediately before the shooting, 

claimed he saw Johnson and Russell wrestling just prior to the shooting and 

that at this time, the barrel of the AK-47 was caught in Russell’s clothing and 

was pointing up through the collar of Russell’s shirt. Macon hid thereafter, 

but heard multiple gunshots within seconds. 

While the shooting occurred moments after Macon left the area, 

evidence revealed that Mr. Russell was hit by erratic gunfire that 

came from at least two different weapons.[5] This evidence was 

manifestly insufficient to create even the reasonable inference 

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5

 Johnson was seen with two other men at the party, one of whom was 

carrying what appeared to be a semi-automatic handgun. 
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that Mr. Johnson purposely directed the firearm at Mr. Russell 

and thus sustain his conviction for first-degree murder. 

Appellant’s Brief at 22. 

 

Our standard of review regarding a claim of insufficiency of the 

evidence is well-settled: We view the evidence in the light most 

favorable to the Commonwealth as verdict winner, together with 

all reasonable inferences therefrom. Our scope of review is 

plenary.

Commonwealth v. Rabold, 920 A.2d 857, 859 (Pa. Super. 2007) (citations 

omitted). 

Here, the evidence viewed in the light most favorable to the 

Commonwealth as verdict winner demonstrated that Johnson possessed an 

AK-47 type rifle, which is a 7.62 caliber weapon. Russell was shot at 14 

times, 10 shots from a 7.62 caliber weapon and four from a 9 mm weapon. 

Russell was struck 11 times. The fatal wound was from the 7.62 weapon. 

The possibly fatal wound had the characteristics of being from the rifle. 

Russell was shot five times in the trunk, and three times each in the upper 

and lower extremities. None of the gunshots were fired from close range. 

Russell was hit by 78% of the bullets fired. This does not bespeak erratic 

gunfire. Contrary to Johnson’s assertions, the evidence fully supports the 

inference that Russell was intentionally shot from at least three feet away. 

Therefore, Johnson’s sufficiency claims fails. 

 Johnson’s next claim is that the trial court erred in refusing to instruct 

the jury on involuntary manslaughter. 

[W]hen evaluating the propriety of jury instructions, this Court 

will look to the instructions as a whole, and not simply isolated 
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portions, to determine if the instructions were improper. We 

further note that, it is an unquestionable maxim of law in this 

Commonwealth that a trial court has broad discretion in phrasing 

its instructions, and may choose its own wording so long as the 

law is clearly, adequately, and accurately presented to the jury 

for its consideration. Only where there is an abuse of discretion 

or an inaccurate statement of the law is there reversible error. 

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) 

(citation omitted).

A defendant to a murder charge is entitled to instruction on 

involuntary manslaughter “only when requested, and where the offense has 

been made an issue in the case and the trial evidence would reasonably 

support such a verdict.” Commonwealth v. White, 415 A.2d 399, 402 

(Pa. 1996). However, “[i]t has long been the rule in this Commonwealth 

that a trial court should not instruct the jury on legal principles which have 

no application to the facts presented at trial.” Id. at 400. 

 The statutory definition of involuntary manslaughter is as follows: 

A person is guilty of involuntary manslaughter when as a direct 

result of doing an unlawful act in a reckless or grossly negligent 

manner, or the doing of a lawful act in a reckless or grossly 

negligent manner, he causes the death of another person. 

18 Pa.C.S. § 2504(a). 

 This claim is also based upon Donald Macon’s testimony that the AK47 was caught in Russell’s shirt moments before he was shot. Johnson 

argues this fact raises the possibility that Russell was shot inadvertently 

while the two men wrestled. This argument is unsupported by the evidence. 

While Macon testified he saw the barrel of the rifle protruding from the collar 
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of Russell’s shirt, the evidence showed Russell was not shot from close 

range, as would have occurred had the two men been wrestling when the 

gun was fired. Further, the AK-47 was fired ten separate times, meaning 

Johnson pulled the trigger ten times. This fact also argues against 

inadvertent discharge during a fight.6 In this regard, we agree with the 

Commonwealth’s argument that the instant case is similar to 

Commonwealth v. Williams, 415 A.2d 403 (Pa. 1980), in which our 

Supreme Court determined “it would be ludicrous to suggest that the 

defendant recklessly or negligently struck twelve blows with an iron pipe to 

the blind defendant’s head.” Id. at 404. The evidence presented at trial 

demonstrated Russell was shot by two people, from a distance of more than 

three feet, with multiple bullets striking Russell in vital parts of his body. 

There is nothing about these facts that suggest the killer was anything other 

than purposeful in his actions. Accordingly, the charge on involuntary 

manslaughter was not warranted.7

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6

 Other than the general contention that Russell might have been shot while 

wrestling with Johnson, Johnson has put forth no argument how, while 

wrestling, Russell could have been shot 11 times, with two different caliber 

weapons, front to back, back to front, upward and downward tracks at a 

distance of more than three feet. 

7

 We also note that the instant argument for involuntary manslaughter 

contradicts the theory put forward at trial, in which defense counsel argued 

Johnson was not the shooter, and could not have been the shooter, based 

upon the timing of events as related by independent witnesses. See N.T. 

Trial, 9/13/2013, at 793-94. Additionally, counsel argued given the 

narrowness of the hall where Russell was shot and the fact that none of the 

(Footnote Continued Next Page) 
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 Johnson’s next claim is that the trial court erred in failing to grant a 

mistrial after a civilian witness testified she reviewed an array of eight “mug 

shots”, one of which was Johnson. Defense counsel moved for a mistrial, 

which was denied. However, the trial court offered to give a curative 

instruction instead. Counsel replied: 

The only curative instruction I would want would be one that 

basically says she’s referred to them as “mug shots,” but there’s 

no evidence that that’s what they are, and that they should not - 

blah, blah, draw any inference from that. 

N.T. Trial, 9/10/2013, at 191. 

 The trial court agreed and gave the curative instruction as requested: 

Ladies and gentlemen of the jury, [the witness] referred to this 

group of photographs as mug shots. There’s no evidence that 

are in fact mug shots. They’re just merely to be looked upon as 

photographs. 

Id. 

 Our standard of review for this claim is as follows: 

In reviewing a question of whether a trial court erred in denying 

a motion for a mistrial, an appellate court considers whether the 

lower court abused its discretion. 

Commonwealth v. Young, 849 A.2d 1152, 1154 n. 1 (Pa. 2004) (citation 

omitted). Specifically, where the issue concerns a reference to “mug shots”: 

(Footnote Continued) _______________________ 

wounds were from close range, Macon’s account of the shooting was 

incredible. Id. at 806. Although Johnson did request a charge for 

involuntary manslaughter, the theory of the case as espoused in closing 

argument was that Johnson never fired a shot; rather, an unidentified 

person had to have been the killer. 
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A review of these cases clarifies that in applying the 

[Commonwealth v.] Allen [292 A.2d 373 (Pa. 1972)] test to 

the facts of a particular matter, a mere passing reference to 

photographs does not amount to prejudicial error. 

[Commonwealth v.] Carlos [341 A.2d 71 (Pa. 1975)]. Further, 

they explain that references to prior police contact do not 

amount to reversible error. [Commonwealth v.] Riggin [386 

A.2d 520 (Pa. 1978)]. Instead, it is only those references that 

expressly or by reasonable implication also indicate some 

involvement in prior criminal activity that rise to the level of 

prejudicial error. [Commonwealth v.] Nichols [400 A.2d 1281 

(Pa. 1979); [Commonwealth v.] Turner [311 A.2d 899 (Pa. 

1973)]. 

Id. at 1156.

Finally, 

It is also well established that “[a] trial court may grant a 

mistrial 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.” [Commonwealth v.] 

Chamberlain, [30 A.3d 381 (Pa. 2011)] supra at 422 (citation 

and internal quotation marks omitted); see also 

Commonwealth v. Travaglia, 611 Pa. 481, 28 A.3d 868, 879 

(2011) (“A mistrial is an extreme remedy that is required only 

where the challenged event deprived the accused of a fair and 

impartial trial.”). When the trial court gives adequate cautionary 

instructions, declaration of a mistrial is not necessary. 

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013). 

 Having given an adequate cautionary instruction requested by 

Johnson’s counsel, the grant of a mistrial was not necessary. 

 We also note that under Bryant, Johnson is not entitled to relief as the 

comment did not unavoidably deprive Johnson of a fair trial. The witness, 

who was not a police officer or otherwise employed by the Commonwealth, 

made a passing reference to what are colloquially known as “mug shots.” 
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The Commonwealth did not attempt to exploit the reference, the jury was 

properly instructed as to the photographs, and there was otherwise no 

specific reference to the origins of the pictures. Further, the jury acquitted 

Johnson of two counts of robbery, which indicates they were not prevented 

from weighing the evidence and rendering a true verdict. In light of the 

foregoing, we discern no abuse of discretion. Accordingly, Johnson is not 

entitled to relief on this issue. 

 In his final claim, Johnson argued the trial court erred in failing to 

grant his pre-trial motion to dismiss pursuant to Pa.R.Crim.P. 600, regarding 

his speedy trial rights. 

 Pursuant to Pa.R.Crim.P. 600(A)(2)(a), the Commonwealth shall 

commence a trial, in which a written complaint is filed against the defendant 

“within 365 days from the date on which the complaint is filed.” 

Additionally, 

[w]hen a defendant has not been brought to trial within the time 

periods set forth in paragraph (A), at any time before trial, the 

defendant’s attorney, or the defendant if unrepresented, may file 

a written motion requesting that the charges be dismissed with 

prejudice on the ground that this rule has been violated. 

Pa.R.Crim.P. 600(D)(1). 

 Our standards for reviewing a Rule 600 claim are well-settled: 

“In evaluating Rule [600] issues, our standard of review of a trial 

court's decision is whether the trial court abused its discretion.” 

Commonwealth v. Hill, 558 Pa. 238, 244, 736 A.2d 578, 581 

(1999). See also Commonwealth v. McNear, 852 A.2d 401 

(Pa. Super. 2004). “Judicial discretion requires action in 

conformity with law, upon facts and circumstances judicially 
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before the court, after hearing and due consideration.” 

Commonwealth v. Krick, 164 Pa.Super. 516, 67 A.2d 746, 749 

(1949). “An abuse of discretion is not merely an error of 

judgment, but if in reaching a conclusion the law is overridden or 

misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill 

will, as shown by the evidence or the record, discretion is 

abused.” Commonwealth v. Jones, 826 A.2d 900, 907 (Pa. 

Super. 2003) (en banc) (citing Commonwealth v. Spiewak, 

533 Pa. 1, 8 n. 4, 617 A.2d 696, 699 n. 4 (1992)). 

¶?10 “The proper scope of review...is limited to the 

evidence on the record of the Rule [600] evidentiary hearing, 

and the findings of the [trial] court.” Hill, supra, at 244, 736 

A.2d at 581; McNear, supra at 404. See also Commonwealth 

v. Jackson, 765 A.2d 389 (Pa. Super. 2000), appeal denied, 

568 Pa. 628, 793 A.2d 905 (2002) { "pageset": "Sea. “[A]n appellate 

court must view the facts in the light most favorable to the 

prevailing party.” Id. at 392. 

Additionally, when considering the trial court's ruling, this 

Court is not permitted to ignore the dual purpose behind 

Rule [600]. Rule [600] serves two equally important

functions: (1) the protection of the accused's speedy trial 

rights, and (2) the protection of society. In determining 

whether an accused's right to a speedy trial has been 

violated, consideration must be given to society's right to 

effective prosecution of criminal cases, both to restrain 

those guilty of crime and to deter those contemplating it. 

However, the administrative mandate of Rule [600] was 

not designed to insulate the criminally accused from good 

faith prosecution delayed through no fault of the 

Commonwealth. 

Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa. Super. 

2002)(en banc) (internal citations omitted). 

So long as there has been no misconduct on the part of 

the Commonwealth in an effort to evade the fundamental 

speedy trial rights of an accused, Rule [600] must be 

construed in a manner consistent with society's right to 

punish and deter crime. In considering [these] matters..., 

courts must carefully factor into the ultimate equation not 

only the prerogatives of the individual accused, but the 
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collective right of the community to vigorous law 

enforcement as well. Strained and illogical judicial 

construction adds nothing to our search for justice, but 

only serves to expand the already bloated arsenal of the 

unscrupulous criminal determined to manipulate the 

system. 

Commonwealth v. Corbin, 390 Pa.Super. 243, 568 A.2d 635, 

638-39 (1990). 

Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en 

banc). 

 Also, 

If the Commonwealth attempts to bring a defendant to trial 

beyond the 365 day-period prescribed by Rule 600, and the 

defendant files a Rule 600 motion to dismiss, the court must 

assess whether there is excludable time and/or excusable delay. 

Hill, supra, at 263, 736 A.2d at 591, Pa.R.Crim.P. 600(C), (G). 

“Even where a violation of Rule [600] has occurred, the motion 

to dismiss the charges should be denied if the Commonwealth 

exercised due diligence and...the circumstances occasioning the 

postponement were beyond the control of the Commonwealth.” 

Id. at 263, 736 A.2d at 591. 

“Due diligence is a fact-specific concept that must be determined 

on a case-by-case basis.” Id. at 256, 736 A.2d at 588. “Due 

diligence does not require perfect vigilance and punctilious care, 

but rather a showing by the Commonwealth that a reasonable

effort has been put forth.” Id. (emphasis added). 

Id. at 1241-42. 

 Instantly, both parties agree that the written complaint was filed 

against Johnson on August 28, 2012, meaning Johnson’s trial was to begin 
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by August 28, 2013.8 However, Johnson’s trial did not begin until 

September 5, 2013; 373 days after the original filing of the written 

complaint and eight days past the Rule 600 time limit. 

 Immediately prior to trial, a hearing was held on Johnson’s motion to 

dismiss pursuant to Rule 600. At issue was 20 days between the filing of the 

complaint and Johnson’s arrest. The Comment to Rule 600 addresses this 

situation. 

For purposes of paragraph (C)(1) and paragraph (C)(2), the 

following periods of time, that were previously enumerated in 

the text of formed Rule 600(C), are examples of periods of delay 

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8

 The written complaint found in the certified record is dated December 4, 

2012. However, the trial court has indicated in its Pa.R.A.P. 1925(a) opinion 

that the complaint was originally filed on August 28, 2012 and was 

withdrawn and refiled because the Commonwealth could not locate its 

eyewitness, Donald Macon. 

[W]hen an initial complaint has been withdrawn or otherwise 

dismissed, the [Rule 600 time] period begins to run anew with the 

filing of a subsequent complaint only if (1) the earlier complaint was 

properly dismissed by a competent magisterial or judicial authority, 

and (2) the record does not reveal evidence of a prosecution attempt 

to circumvent Rule [600].

Commonwealth v. Lynn, 815 A.2d 1053, 1057 (Pa. Super. 2003)(citation 

omitted). 

There is no determination to suggest that the Commonwealth was 

attempting to thwart Johnson’s speedy trial rights in its inability to locate the 

witness. However, the certified record is silent as to the manner in which 

the complaint was dismissed. Because the Commonwealth agrees in its 

Appellee’s Brief that August 28, 2012 is the proper date to begin Rule 600 

calculations, we accept that date as well. 
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caused by the defendant. This time must be excluded from the 

computations in paragraphs (C)(1) and(C)(2): 

(1) the period of time between the filing of the written 

complaint and the defendant’s arrest, provided that the 

defendant could not be apprehended because his or her 

whereabouts were unknown and could not be determined 

by due diligence. 

Pa.R.Crim.P. 600, Comment, Computation of Time. 

 Homicide Detective Pat Moffatt of the Pittsburgh Police Department 

testified regarding the efforts made by the police to locate and arrest 

Johnson. Detective Moffatt testified multiple addresses for Johnson were 

obtained using a variety of computer databases. The police visited each of 

these locations multiple times. The Western Pennsylvania Fugitive Task 

Force, a group consisting of elements of the U.S. Marshal Service, Allegheny 

County Sheriffs, and various local municipal police officers, was enlisted to 

help locate Johnson. Additionally, the National Crime Information Center 

(NCIC) database was accessed. On cross-examination, Detective Moffat 

testified he did not check with any utility company, post office or bail agency 

to locate Johnson. After considering Detective Moffatt’s testimony, the trial 

court found the Commonwealth had exercised due diligence in attempting to 

locate Johnson and excluded the 20 days from the filing of the written 

complaint to Johnson’s arrest. This exclusion of time extended the “run 

date” from August 28, 2013 to September 17, 2013. Because Johnson’s trial 

was started on September 5, 2013, there was no Rule 600 violation. 
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 The Commonwealth was not required to demonstrate perfect vigilance, 

rather that it put forward reasonable effort in locating Johnson. Our review 

of the certified record leads us to conclude the trial court did not abuse its 

discretion in determining the Commonwealth fulfilled its duty in this regard. 

Accordingly, Johnson is not entitled to relief on this issue. 

 In light of the foregoing analysis, we affirm Johnson’s judgment of 

sentence. 

 Judgement of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/10/2015