705 F.3d 117 (3rd Cir. 2013), 11-3250, Johnson v. Folino

Docket Nº:11-3250.
Citation:705 F.3d 117
Opinion Judge:RENDELL, Circuit Judge.
Party Name:Roderick JOHNSON, Appellant v. Louis FOLINO, Superintendent; the District Attorney of the County of Berks; the Attorney General of the Commonwealth of Pennsylvania.
Attorney:Samuel J.B. Angell, Esq., Michael Gonzales, Esq., David L. Zuckerman, Esq., [Argued], Federal Community Defender Office for the Eastern District of Pennsylvania, Capital Habeas Unit, Philadelphia, PA, for Appellant. Andrea F. McKenna, Esq., [Argued], Office of Attorney General of Pennsylvania, Ha...
Judge Panel:Before: SLOVITER, RENDELL and HARDIMAN, Circuit Judges.
Case Date:January 16, 2013
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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705 F.3d 117 (3rd Cir. 2013)

Roderick JOHNSON, Appellant


Louis FOLINO, Superintendent; the District Attorney of the County of Berks; the Attorney General of the Commonwealth of Pennsylvania.

No. 11-3250.

United States Court of Appeals, Third Circuit.

January 16, 2013

Argued Sept. 18, 2012.

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Samuel J.B. Angell, Esq., Michael Gonzales, Esq., David L. Zuckerman, Esq., [Argued], Federal Community Defender Office for the Eastern District of Pennsylvania, Capital Habeas Unit, Philadelphia, PA, for Appellant.

Andrea F. McKenna, Esq., [Argued], Office of Attorney General of Pennsylvania, Harrisburg, PA, Douglas J. Waltman, Jr., Esq., Berks County Office of District Attorney, Reading, PA, for Appellees.

Before: SLOVITER, RENDELL and HARDIMAN, Circuit Judges.


RENDELL, Circuit Judge.

Roderick Johnson filed multiple petitions under Pennsylvania's Post-Conviction Relief Act (" PCRA" ), 42 Pa. Cons.Stat. §§ 9541-9546, unsuccessfully claiming that violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), undermined his conviction for first-degree murder. He then sought habeas corpus relief in the United States District Court for the Eastern District of Pennsylvania on the same basis, and, having been denied relief there, he has appealed to our court.

Johnson had been convicted and sentenced to life in prison without any physical evidence or eyewitness testimony tying him to the crime. The testimony of George Robles, a " friend" of Johnson's, that Johnson had confessed his guilt to him, was clearly pivotal to the case. What makes this case unusual is that it was not until discovery in Johnson's federal habeas case that substantial previously undisclosed evidence was uncovered and revealed that at the time Robles testified, he was under investigation for his role in a shooting, an assault, and multiple shots-fired incidents. The undisclosed evidence also showed that Robles, who was never arrested or charged for any crimes despite his having had repeated dealings with the police in investigations involving guns and drugs, did in fact supply the police with information concerning an unrelated crime when his own involvement in an assault came under investigation. The jury never heard any of this impeachment evidence because when Johnson sought discovery of all information in the possession of the local police concerning any criminal activity of Robles, charged or uncharged, the District Attorney who prosecuted Johnson represented to the state court that it had no information or police reports naming Robles as a suspect— a patent misrepresentation.

The District Court denied Johnson's petition concluding that the undisclosed evidence would not have been admissible at Johnson's murder trial and thus could not establish a Brady violation. We believe that this case deserves a more thorough and exacting evaluation and for the reasons set forth below, we will reverse and remand for further proceedings consistent with this opinion.

I. Factual Background and Procedural History

A. Pre-trial

On the evening of November 1, 1996, Jose Bernard Martinez was shot to death in Reading, Pennsylvania. The police discovered Martinez later that evening after an eyewitness, Pearl Torres, reported seeing a man chase down and shoot another man along Schuylkill Avenue in Reading. Torres described the shooter as a black man wearing dark clothes, jeans, and a checkered jacket, but was unable to identify the shooter.

In the weeks following the shooting, the Reading police approached George Robles

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seeking information about the shooting. He denied any knowledge of the incident. They also interviewed Mylta Velazquez, Johnson's live-in girlfriend, who similarly denied possessing any information. As the investigation continued, the police returned to Robles repeatedly, interviewing him between six and twelve times. Again and again, Robles claimed to have no knowledge of the shooting.

Finally, on December 17, 1996, Robles, indicating that his " consci[ence] was killing [him]," relented and gave the police a statement implicating Johnson and Richard Morales in the murder of Martinez. (JA 943). Robles told investigators that Johnson had come straight to his home after the shooting and confessed to his involvement. According to Robles, Johnson admitted to confronting Martinez at a Getty's Mart about a debt Martinez owed Johnson's friend David, firing his gun twice in the store, chasing down Martinez in a van because he fled when Johnson's gun jammed, and then shooting Martinez in the street. Robles told the police that Johnson said that he bumped into a girl after the shooting and mistaking her for Morales, yelled to her that he had just " killed that guy." (JA 510). Robles also informed the investigators that Morales turned up at his home about 15 minutes after Johnson left and confirmed Johnson's account of the shooting. Morales apparently added that he had fired an additional shot at Martinez after Johnson fled to ensure that Johnson had " finished the job." ( Id. ).

On the same day that Robles recanted his denials, Shannon Sanders came forward to give a statement to the police. Sanders told the investigators that on the night of the shooting she had been walking in an alley in the immediate vicinity of Schuylkill Avenue when she encountered a dark-skinned man dressed in baggy clothes and carrying a 9-millimeter semiautomatic handgun. The man spontaneously confessed that he had just shot a man. Sanders, who was an acquaintance of Johnson's, could not identify the man she encountered, despite having seen his face. Although Sanders waited six weeks before speaking with investigators, she recounted her story to numerous family and friends, including Velazquez, in the meantime.

Three days after Robles and Sanders gave their statements, Velazquez retracted her denial as well, telling the police that Johnson, now her ex-boyfriend, had confessed to killing Martinez as part of a hit. In her police statement, Velazquez denied ever having seen Johnson with a gun.

Thereafter, Richard Morales and Roderick Johnson were arrested and charged in connection with the murder of Martinez.

In February 1997, George Robles was arrested as a material witness after failing to appear in court to testify against Johnson. Robles was incarcerated for approximately two months in Berks County Prison as a result. During his incarceration— Robles's first— he wrote a letter to Detective Cabrera of the Reading Police asking to be released early and offering to " do anything" in exchange. (JA 979-80). Robles was released from prison only after he testified at the preliminary hearing.

On September 13, 1997, more than ten months after the shooting, Luz Cintron, Robles's girlfriend, approached the investigators with her knowledge of the shooting. Cintron told police that the night of the shooting Morales had turned up at Robles's home where Cintron overheard him telling Robles that he and Johnson had seen Martinez at an IGA and that Johnson had confronted him about money he owed their friend Shaun Bridges. Cintron also claimed that Morales said that when Martinez ran, Johnson took off chasing him on

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foot, eventually catching him and shooting him in the back. According to Cintron's police statement, Morales told Robles that after Johnson fled, Morales pulled up in a car, got out, and shot Martinez again. Cintron recalled Johnson coming to Robles's home shortly after Morales left and refusing to answer any questions about the incident. Cintron told the police that the next day she overheard Johnson telling another occupant of the house that he had shot Martinez and fled after hearing a girl shout " here come the cops." (JA 505).

Prior to trial, Johnson brought a motion to compel discovery. The state court held a hearing on the motion on May 15, 1998. At the hearing, Johnson sought " all information and reports in possession of the Reading Police Department and DANET concerning any and all criminal activities charged and uncharged, past and present of George Robles." (JA 310-11). It was Johnson's theory that " Robles was actively engaged in criminal enterprises in Reading.... [And] that certain police officer[s] were aware of that, that that's been for some reason, uncharged and we'd like to find out why that is and what they know about him. [Because] [t]his guy has no arrest record." ( Id. at 309-10). In response, the District Attorney denied the existence of any such evidence, stating that he was " unaware of any reports which state [ ] that ... [Robles] is a suspect of a crime." ( Id. at 313). The court inquired of the District Attorney, " [s]o, we agree that you are stating that he has no convictions and that you have no information about any police reports which name him as a suspect?" ( Id. at 314). " That's correct," replied the District Attorney, " I believe that there was a report turned over ... where Mr. Robles may have been shot at ... that's the only report I am aware of Mr. Robles being involved in any criminal activities." ( Id. )

At the hearing, Johnson also sought discovery into whether any of the Commonwealth's witnesses were on probation or parole, or had received any agreements, inducements, or promises with respect to their testimony. ( Id. at 318-19). The District Attorney represented that " there have been no promises or inducement to any of the witnesses ... there are no plea agreements, there are no pending cases that I am aware of and there's been no promise for the testimony." ( Id. at 319).

The state court, relying on the representations of the District Attorney, did not...

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