Commonwealth v. Johnston

Decision Date20 March 2012
Citation2012 PA Super 67,42 A.3d 1120
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. David JOHNSTON, Appellant. Commonwealth of Pennsylvania, Appellee v. Norman Johnston, Appellant.
CourtPennsylvania Superior Court

42 A.3d 1120
2012 PA Super 67

COMMONWEALTH of Pennsylvania, Appellee
v.
David JOHNSTON, Appellant.

Commonwealth of Pennsylvania, Appellee
v.
Norman Johnston, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 17, 2012.
Filed March 20, 2012.


[42 A.3d 1121]


David Johnston, appellant, pro se.

Norman Johnston, appellant, pro se.


Nicholas J. Casenta, Jr., Assistant District Attorney, West Chester, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., BENDER, J. and DONOHUE, J.

OPINION BY BENDER, J.:

Appellants, siblings David and Norman Johnston, appeal pro se from the order entered on June 30, 2011 denying their second petitions for post-conviction relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.1 We affirm.

A summary of the pertinent facts, being indispensable in addressing the issues raised by Appellants in the instant matter, is taken from the July 21, 1995 published opinion of the Honorable Louis H. Pollack of the United States District Court for the Eastern District of Pennsylvania, denying Norman Johnston's federal habeas corpus petition. That opinion summarized the facts adduced at trial as follows:

I. FACTUAL BACKGROUND2

(a) On September 14, 1978, an informant at Chester County Prison told Chester County Detective, Michael Carroll, that Leslie Dale confessed to him that he murdered Robin Miller. (See Jailing the Johnston Gang: Bringing Serial Murderers to Justice, at p. 45).

(b) In the summer of 1978, Richard Mitchell sent a series of letters to Chief of Chester County Detectives, Charles Zagorski, and Assistant District Attorney, Dolores Troiani, in which he made demands on Zagorski and Troiani with the ultimatum that they either meet his demands, or he would disclose information during Johnston's trial that would be detrimental to the prosecution's case. Mitchell stated: “I don't think you will like what I am going to say in the courtroom and everything I say is true.” (See Jailing the Johnston Gang: Bringing Serial Murderers to Justice, at p. 172).

(c) In November, 1979, Leslie Dale sent a series of letters to Zagorski and Troiani, in which he made numerous demands that they either meet his demands or “you are going to have a lot of trouble out of me in court, don't say I didn't warn you.” (See Jailing the Johnston Gang: Bringing Serial Murderers to Justice, at p. 172).

(d) In the photo section of Jailing the Johnston Gang: Bringing Serial Murderers to Justice, a photo appeared of Richard Mitchell while testifying at Johnston's 1980 trial which depicts him holding what appears to be a fifth of Rye Whisky. (See Pet's PCRA Pet., 5/14/09, Exhibit “C”).

Appellant's Brief (David Johnston) at 15–16; Appellant's Brief (Norman Johnston) at 16–17.

In addressing the first of the Brady claims, (a), the PCRA Court determined that “this is not new information; it was available to the defendants at the time of their trial, and it was, in fact, raised during the trial.” PCRA Court Opinion, citing the Order of April 7, 2011, at 3 n. 1. Because the factual assertion that Leslie Dale confessed to the killing of Robin is not new, and because the information contained in the book is merely cumulative evidence to what was known by the defense at the time of trial, we agree with the PCRA court that evidence of an additional confession by Dale to an additional person does not present an exception within the meaning of 42 Pa.C.S. § 9545(b)(1)(ii).

The PCRA court points to two witnesses who revealed evidence of Leslie Dale's confessions during the course of the trial. Id. Robert Proudfoot testified that Leslie Dale told him that he (Dale) had “ambushed” Bruce Johnston, Jr., the victim who was shot and wounded in the same shooting in which Robin Miller was killed. N.T., 03/07/80, at 4693. That same information had been revealed through the testimony of Detective Jeffrey Gordon, who obtained the information during an interview with Proudfoot. N.T., 03/10/80, at 5037.

As the Supreme Court explained in Commonwealth v. Abu–Jamal, 596 Pa. 219, 941 A.2d 1263 (2008), “[t]he fact appellant discovered yet another conduit for the

[42 A.3d 1128]

same claim of perjury does not transform his latest source into evidence falling within the ambit of § 9545(b)(1)(ii).” Id. at 1269. Here, Appellants “newly discovered evidence” is directed at discrediting the same witness, under the same theory, and with the same facts as had occurred during the course of the trial. The only difference this Court can ascertain is that yet another witness may have been available to testify to say that Leslie Dale had confessed to killing Robin Miller.

Appellants counter that this analysis, as undertaken by the PCRA Court, is seriously flawed because “once the court concluded that the Brady evidence set forth in Appellant's petition was indeed ‘newly discovered,’ the § 9545(b)(1)(ii) inquiry ends there because the petition then qualifies for the after discovered evidence exception to the one-year filing deadline.” Brief for Appellant (David Johnston) at 16–17; Brief for Appellant (Norman Johnston) at 18. Appellants also complain that the PCRA Court erred by considering the underlying merits of the Brady claim in concluding that Appellants failed to overcome the jurisdictional bar of 42 Pa.C.S. § 9545(b)(1)(ii). Appellants claim their analysis is supported by the Supreme Court's decision in Commonwealth v. Lambert, 584 Pa. 461, 884 A.2d 848 (2005). We disagree.

In Lambert, the Commonwealth had argued to the Supreme Court “that in order for appellant's PCRA petition to fall within the cited timeliness exceptions, he must actually establish a meritorious Brady claim.” Lambert, 884 A.2d at 852. The Supreme Court rejected this reasoning, holding instead that:

[t]he newly discovered evidence exception, set forth in Section 9545(b)(1)(ii) ... does not require a merits analysis of the claim in order for it to qualify as timely and warranting merits review. The exception merely requires that the “facts” upon which such a claim is predicated must not have been known to appellant, nor could they have been ascertained by due diligence.

Id. at 852.


However, the arguments of Appellants are misplaced, as the Supreme Court's holding in Lambert does not exist in a vacuum. As the Commonwealth correctly notes, in Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714 (2008), the Supreme Court synthesized several 42 Pa.C.S. § 9545(b)(1)(ii) related cases as follows:

Exception (b)(1)(ii) “requires petitioner to allege and prove that there were ‘ facts ’ that were ‘unknown’ to him” and that he could not have ascertained those facts by the exercise of “due diligence.” Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270–72 (2007) (emphasis added). The focus of the exception is “on [the] newly discovered facts, not on a newly discovered or newly willing source for previously known facts.” Commonwealth v. Johnson, 580 Pa. 594, 863 A.2d 423, 427 (2004) (emphasis in original). In Johnson, this Court rejected the petitioner's argument that a witness's subsequent admission of alleged facts brought a claim within the scope of exception (b)(1)(ii) even though the facts had been available to the petitioner beforehand. Relying on Johnson, this Court more recently held that an affidavit alleging perjury did not bring a petitioner's claim of fabricated testimony within the scope of exception (b)(1)(ii) because the only “new” aspect of the claim was that a new witness had come forward to testify regarding the previously raised claim. Abu–Jamal, supra at 1267. Specifically, we held that the fact that the petitioner “discovered yet another conduit for the same claim of perjury does not transform his latest source into evidence falling within the

[42 A.3d 1129]

ambit of [Section] 9545(b)(1)(ii).” Id. at 1269.

Marshall, 947 A.2d at 720.


“[T]here are three necessary components that demonstrate a violation of the Brady strictures: the evidence was favorable to the accused, either because it is exculpatory or because it impeaches; the evidence was suppressed by the prosecution, either willfully or inadvertently; and prejudice ensued.” Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (2001). In the case sub judice, the PCRA Court did not make any merits analysis of the Brady claims in concluding that Appellants failed to overcome the 42 Pa.C.S. § 9545(b)(1)(ii) time-bar exception.

Appellants' claims fail to meet the requirements of 42 Pa.C.S. § 9545(b)(1)(ii), not because they lack merit as Brady material, a determination we do not reach at this time, but rather because they are but another conduit for or new source of previously known facts. Abu–Jamal, supra;Johnson, supra.

Appellant's remaining three claims, (b), (c) and (d) above, all fail to meet the requirements of the § 9545(b)(1)(ii) time-bar exception for the same or similar reasons. The letters sent by Richard Mitchell and Leslie Dale to prosecutors, threatening unfavorable testimony in the event the Commonwealth failed to meet various demands regarding prison conditions, would only present cumulative impeachment evidence, and thus offer only additional conduits or sources for presenting the same perjury-related claims that were offered during the course of prior litigation. Abu–Jamal, supra;Johnson, supra. This is true even assuming the letters constitute withheld Brady material, a question we do not reach.

As the Commonwealth aptly summarized, Leslie Dale was “cross-examined concerning his plea agreement, his revoked plea agreement, what he received in exchange for his testimony, his lies, his inconsistent statements, and murders he committed.” Commonwealth's Brief at 39; see also N.T., 02/14/80, at 1111–1118, 1161–1172.

Richard Mitchell was also “cross-examined concerning his plea agreement, his revoked plea agreement, what he received in exchange for his testimony, his lies, his inconsistent statements, and murders he committed.” Commonwealth's Brief at 39; see also N.T., 02/13/80, at 732–845;...

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    • United States
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