Commonwealth v. Johnson

• Citation: 231 A.3d 807
• Decision Date: 19 May 2020
• Docket Number: No. 40 EAP 2018,40 EAP 2018
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kareem JOHNSON, Appellant
• Court: United States State Supreme Court of Pennsylvania

231 A.3d 807

COMMONWEALTH of Pennsylvania, Appellee

v.Kareem JOHNSON, Appellant

No. 40 EAP 2018

Supreme Court of Pennsylvania.

Argued: September 10, 2019

Decided: May 19, 2020

OPINION

CHIEF JUSTICE SAYLOR

The question presented pertains to the scope of protection offered by the Pennsylvania Constitution's Double Jeopardy Clause. We consider whether that provision bars retrial where the Commonwealth obtains a conviction based on false evidence and its misconduct, while not undertaken with the intent to deny the defendant a fair trial, nevertheless stems from prosecutorial errors that rise substantially above ordinary negligence.

I. Background

A. Underlying events, trial, and direct appeal

In 2002, the victim in the present case, Walter Smith, told police that Clinton Robinson had killed Margaret Thomas. Later that year, Smith himself was killed when he was shot twelve times outside a Philadelphia bar. Based on ballistics evidence, the police concluded that multiple individuals had acted in concert to kill Smith. Police also recovered a red baseball cap, which was located in the middle of the street approximately nine feet from Smith's body. Photos of the scene only showed this one cap. The cap was assigned property receipt number 9001079.¹

Shortly after the incident, Debbie Williams, a friend of Smith's who was with him on the night in question, went to the police station and was questioned by the assigned detective, James Burns. She provided a statement indicating the following.

Smith and Ms. Williams made a brief stop at a bar in Philadelphia during the early morning hours of December 15, 2002. When they left, there were seven to ten persons on the sidewalk or street outside the bar. As she and Smith went to get into Smith's van, she walked to the passenger door while Smith walked around to the driver's side. Just then, a young black male wearing a red article of clothing and a baseball cap ran past her in front of the van toward Smith. Shots rang out, whereupon Ms. Williams ducked down and did not see the actual shooting. When the shots began, the individuals outside the bar ran away toward Somerset Street. After the gunshots ceased, Ms. Williams saw the same person who had run past her flee the scene, also in the direction of Somerset Street.² Ms. Williams went to where Smith's body was lying in the street and picked up Smith's black baseball cap, which had a bullet hole in it. The police arrived shortly thereafter and transported her to the police station.

At the station, Ms. Williams gave the black cap to Detective Burns and explained that Smith had been wearing it when he was shot. This cap was assigned property receipt number 2425291, and was submitted to the crime lab for testing. The testing revealed the presence of Smith's blood under the brim.

The case remained unsolved until 2005, when Bryant Younger, a jailhouse informant who was under indictment on a federal narcotics offense, told police he had overheard Appellant make statements implicating himself in Smith's murder. Younger admittedly supplied this information solely in hopes of obtaining leniency when he was sentenced in federal court. See N.T., June 20, 2007, at 85-86 (reflecting the Commonwealth's acknowledgement in this regard); see also id . at 96-97, 100, 104, 110-112 (recording Younger's testimony that this was his sole motive). Regardless, in light of the information, the police obtained a sample of Appellant's DNA and submitted it together with the red cap for testing. The testing revealed that Appellant was a contributor to the DNA in the sweatband of the red cap.

Thereafter, the Commonwealth proceeded on the understanding that there was only one baseball cap involved – the red one – and that it contained both Smith's blood and Appellant's DNA. In fact, as explained, the red cap had Appellant's DNA, whereas the black cap contained Smith's blood; neither cap had DNA from both individuals. Appellant was ultimately arrested and charged with first-degree murder, conspiracy, and possessing an instrument of crime.

The matter went to trial in June 2007 as a capital case. The Commonwealth's theory as to motive was that Appellant had participated in killing Smith to prevent him from testifying against Clinton Robinson in the Margaret Thomas homicide case. The evidence tended to show that Appellant was a friend, or at least an acquaintance, of Robinson's. Moreover, one of the statements Younger claimed to have overheard included a suggestion by Appellant that if it were not for his (Appellant's) actions, Robinson would not be getting out of jail.

At trial, the Commonwealth's crucial piece of physical evidence was the red baseball cap. Unaware of its mistake regarding its possession of two caps from the crime scene rather than one – and unaware that there was no evidence suggesting Smith's blood was on the red cap – the prosecuting attorney repeatedly indicated in his opening statement that Appellant "got in real close" to shoot Smith essentially at point blank range, N.T., June 20, 2007, at 78, 79, 87, thus accounting for Smith's blood supposedly being on the underside of the red cap's brim. The prosecutor continued:

So now with, I would submit, as certain evidence as can you [sic] find we know that that hat that was left at that scene in the middle of the street has Kareem Johnson's sweat on it and has Walter Smith's blood on it . Based on that evidence, we come to trial.

Id . at 88 (emphasis added).

In support of the Commonwealth's position at trial that Appellant was one of the shooters and he shot Smith at close range, the lead crime-scene investigator, Officer William Trenwith, testified that when he recovered the red cap from the scene he saw drops of fresh blood underneath the cap's brim. See id . at 116. The officer also noted that he had never seen a case in which blood had spattered the distance from Smith's body to where the red cap was found at the scene – suggesting that the person who wore the cap had fired his weapon significantly closer to Smith than where the cap was located. The Commonwealth also presented the testimony of Lori Wisniewski, the forensic scientist who performed the DNA testing. She stated that Walter Smith's blood and Appellant's DNA were both found on "the hat." N.T., June 21, 2007, at 160-164.³ As well, the Commonwealth elicited testimony from Bryant Younger, who recounted Appellant's jailhouse statements.

Appellant never challenged the underlying premise that there was only one hat, and both parties construed the evidence as relating solely to the red cap. Accord Brief for Commonwealth at 5.⁴ Thus, in his summation Appellant was relegated to arguing that, despite the presence of both men's DNA on the same hat, no eyewitness saw Appellant wear the hat at or near the time of the killing or otherwise connected him with the crime scene, see N.T., June 22, 2007, at 23-24, 42-45; there were other contributors to the DNA in the hat's sweatband, see id . at 55-56; and, in any event, the DNA match between the cap's sweatband and the sample provided by Appellant was equivocal. See id . at 38, 40.

In his closing argument, the prosecutor took issue with the concept that the DNA match was equivocal, noting that, per Ms. Wisniewski's explanation, the odds of the DNA coming from someone other than Appellant were too small to be realistic. See id . at 60. Responding to Appellant's observation that no eyewitness identified Appellant as the shooter or even stated that the killer wore the red cap, he continued:

Do you know who says the killer wore the hat? Walter Smith says the killer wore the hat. He says it with his blood. There is no other way Walter Smith's blood could have gotten on the underside of this hat ... unless the person who killed Walter Smith was standing close to him while he shot and killed him .... So once you know that, we know this: The killer wore that hat. ...

This is the killer's hat. This is the killer's hat. The crime scene tells you that. The physical evidence tells you that. ... Physical evidence has no bias. Physical evidence cannot lie. ... It is just out there. It is there and it says what it says. ... This overwhelming physical evidence says that killer's hat was left out on the scene. ...

DNA evidence ... says, hey, this is Kareem Johnson's sweat on the sweatband, he is the major contributor, the very hat that has Walter Smith's blood on the brim .

Id . at 66-68, 89 (emphasis added).

The jury convicted Appellant on all counts and set the penalty at death. This Court affirmed the judgment of sentence on direct appeal. See Commonwealth v. Johnson , 604 Pa. 176, 197, 985 A.2d 915, 928 (2009).

B. Post-conviction relief and subsequent pre-trial motions

Appellant filed a counseled, amended petition under the Post Conviction Relief Act. See 42 Pa.C.S. §§ 9541 - 9546 ("PCRA"). Responding to a defense open-records request, Gamal Emira of the criminalistics lab generated a forensics report in 2011, reflecting that two hats, a red one and a black one – each with a distinct property receipt number – had been analyzed in connection with the Commonwealth's case, and that Smith's blood was only found on the black hat.⁵ The Commonwealth thereafter agreed that Appellant was entitled to a new trial, and the court entered an order to that effect in April 2015. The Commonwealth later withdrew its notice of intent to seek the death penalty, making this a non-capital case going forward.

Meanwhile, Appellant filed a supplemental discovery motion, to which he attached the 2011 criminalistics report by Gamal Emira. The court held a hearing on the motion that spanned several days in late 2015 and early 2016. During the hearing, the court allowed Appellant to develop evidence to support a potential motion to bar retrial based on double-jeopardy principles as reflected in, inter alia , the state Charter. See PA. CONST. art. 1, § 10 ("[N]o person shall, for the same offense, be twice put in jeopardy of life or limb[.]"). Thus, Appellant...