Com. v. Johnson, 529 CAP.

• Citation: 966 A.2d 523
• Decision Date: 18 March 2009
• Docket Number: No. 529 CAP.,529 CAP.
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Raymond JOHNSON, Appellee.
• Court: United States State Supreme Court of Pennsylvania

966 A.2d 523

COMMONWEALTH of Pennsylvania, Appellant v. Raymond JOHNSON, Appellee.

No. 529 CAP.

Supreme Court of Pennsylvania.

Submitted: December 10, 2007.

Decided: March 18, 2009.

Alisa Rebecca Hobart, Esq., Amy Zapp, Esq., Berks County District Attorney's Office, for Commonwealth of Pennsylvania.

Mary Elizabeth Hanssens, Esq., Defender Association of Philadelphia, Philadelphia, for Raymond Johnson.

BEFORE: CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION

Chief Justice CASTILLE.

The Commonwealth appeals from the order of the Court of Common Pleas of Berks County ("PCRA court") overturning the verdict of guilt and sentence of death, and awarding appellee Raymond Johnson a new trial pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. The court granted relief premised upon a finding that trial counsel were ineffective in various respects relating to the investigation and presentation of the defense at both the guilt and penalty phases. In granting guilt phase relief, the PCRA court declined to pass on the credibility of appellee's witnesses. For the reasons that follow, we conclude that such a failure constitutes legal error and thus, vacate and remand for proceedings consistent with this Opinion.

On June 18, 1996, at approximately five o'clock p.m., Louis Combs ("the victim") was fatally shot in connection with a drug-related territorial dispute in the City of Reading. Appellee was charged with criminal homicide and related offenses, and, following a jury trial, was found guilty and ultimately sentenced to death on September 22, 2000. At trial, the Commonwealth presented eyewitness accounts identifying appellee as the killer. The testimony of Jackie Cook, the victim's nephew, described the shooting and established appellee's motive to kill the victim. Cook testified that he sold drugs with the victim and explained that the victim was concerned with a rival group that operated out of 437 Schuylkill Avenue and competed for area drug sales. According to Cook, on two consecutive days he and the victim confronted a suspected member of the rival group, Adrian Starks. On the second occasion, the afternoon of the killing, Cook stated that he demanded to speak with Starks' supplier. Cook testified that Starks returned with appellee, and that appellee and the victim entered the breezeway next to 437 Schuylkill Avenue that led to a courtyard. Cook stated that, from where he was standing in front of the house, he could see down the breezeway, and saw appellee pull a gun from his waist and shoot the victim in the abdomen. Cook testified that he fled the scene and, while fleeing, encountered another member of appellee's group known as "Izod" in the vicinity. Cook also admitted that he had repeatedly smoked marijuana on the day of the shooting, including immediately before the murder. Cook also testified that he later encountered appellee and Starks while the three were incarcerated in Berks County Prison, and that appellee and Starks threatened him and warned him not to testify against appellee at appellee's murder trial. Notes of Testimony ("N.T."), 9/19/00, at 253-79.

The testimony of Spencer Branford, offered by the Commonwealth, corroborated aspects of Cook's account of the encounter between appellee and the victim, though Branford did not witness the actual shooting. Branford stated that, when the shooting occurred, he was sitting on the front stoop of 437 Schuylkill Avenue and Cook was standing in front of the house, closer to the breezeway. Branford also testified that he did not get a good look at the man who accompanied Starks to the house. Id. at 234-39.

The Commonwealth also presented the testimony of Nicole Ramsey. Ramsey stated that she sold illegal drugs on behalf of appellee and explained that appellee and Izod, whom she described as appellee's "right-hand man," had experienced problems with the victim for some time prior to the murder because appellee and Izod were selling drugs in the vicinity of the victim's operation. Id. at 308-18. Ramsey testified that, while in her apartment on the day of the murder, appellee was carrying a firearm and expressed anger towards the victim. Ramsey also stated that, after the murder, Izod informed her that "we did them niggers. You didn't think we would, but we did. There is not going to be a problem." Id. at 322.

Appellee, represented by counsel ("trial counsel"),¹ presented an alibi defense, consisting of two witnesses, Crystal Johnson, appellee's wife; and Shadena Johnson, a friend. Each alibi witness testified that on the evening of June 18, 1996, the day the victim was murdered, she was with appellee at the home of Alice Jackson in Brooklyn, New York, and that in the evening, appellee asked Crystal Johnson to marry him. When questioned by the prosecution, however, both witnesses testified that they believed June 18, 1996 to be a Wednesday, when it was actually a Tuesday. Although trial counsel did not attempt to rehabilitate the alibi witnesses on redirect, in his closing statement, he acknowledged their "slight mistake" and stated that: "The point is, they were right on the date, the 18th. And they were right on the incident. How can they remember? The girl got engaged." N.T., 9/20/00, at 494. Appellee did not testify himself.

The jury found appellee guilty of first-degree murder, and, following the penalty phase, appellee was sentenced to death. The jury found one aggravating circumstance— that at the time of the killing appellee was involved, associated, or in competition with the victim in the sale, manufacture, distribution, or delivery of illegal drugs, 42 Pa.C.S. § 9711(d)(14)— and that this aggravator outweighed the one mitigating circumstance that the jury found—the character and record of appellee and the circumstances of the offense, 42 Pa.C.S. § 9711(e)(8).

On direct appeal, where appellee was represented by new counsel, this Court unanimously affirmed appellee's conviction and sentence. Commonwealth v. Johnson, 576 Pa. 23, 838 A.2d 663 (2003), cert. denied, 543 U.S. 1008, 125 S.Ct. 617, 160 L.Ed.2d 471 (2004). We held that the jury's determination that appellee deliberately killed the victim was supported by sufficient evidence, and that, when viewed in the light most favorable to the Commonwealth, and employing reasonable inferences, the evidence was sufficient to support the aggravating circumstance that the murder was committed as a consequence of a drug-sale-related rivalry. Recognizing that the Commonwealth's case relied heavily on evidence obtained from admitted participants in the illegal drug trade, we stated that such concerns implicate the jury's responsibility to resolve questions of credibility, and, absent extraordinary circumstances, an appellate court will not substitute its judgment for that of the fact-finder. Appellee raised a number of claims alleging trial court error, none of which warranted relief. Appellee also attempted to litigate multiple claims of ineffective assistance of counsel, but, noting that the claims should be addressed in collateral, post-conviction proceedings, we dismissed appellee's ineffectiveness claims without prejudice pursuant to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (2002) (petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review; ineffectiveness claim will be waived only after petitioner has had opportunity to raise claim on collateral review and has failed to avail himself of that opportunity).

On November 18, 2006, a PCRA petition was filed on appellee's behalf by the Federal Community Defender's Office for the Eastern District of Pennsylvania.² A PCRA hearing was held from March 5-9, 2007, before the same judge who presided over appellee's trial. Appellee offered the testimony of, inter alia, trial counsel, Jackie Cook, Crystal Johnson, and three witnesses, Ronald George, Gerald Williams, and Jonathan Workman, whom appellee alleged trial counsel failed to interview and call at trial. After having been warned about the penalty for perjury, Cook, the Commonwealth's primary witness at trial, testified that his trial testimony regarding what he saw the evening of the shooting was not true, and that, from where he was standing in front of the house, he could not see down the breezeway to where the shooting took place. At trial, Cook had testified that appellee, riding a bicycle, was the man accompanying Adrian Starks after Cook demanded to meet Starks' supplier. At the PCRA hearing, however, Cook testified that appellee was not the man who shot the victim, and that the man on the bicycle had fairer skin than appellee and, unlike appellee, wore his hair in dreadlocks. Likewise, appellee introduced Cook's pre-trial statement to the police, which was inconsistent with his trial testimony and consistent with his PCRA testimony, as it stated that he did not see the shooting. Cook also claimed that he provided his perjurious trial testimony, inculpating appellee, in exchange for both a pizza and sentencing consideration on a separate drug-related charge.³

Relevant to the failure to investigate claim, Ronald George testified at the PCRA hearing that he was in the courtyard, approximately three feet away from the victim, when the victim was shot and that appellee was not the shooter. George claimed that he saw the shooter and then described someone who did not resemble appellee. George also stated that he had never seen appellee prior to the PCRA hearing. Contradicting Cook's trial testimony, George claimed that no one looking down the breezeway could have seen the shooting. George further asserted that, even though he was an eyewitness to the shooting, he had lied to police and told them that he did not see anything. George said he lied because the police officer who spoke to him was rude. N.T., 3/5/07, at 19-37.

Gerald Williams, another PCRA witness called by appellee, testified...