Johnson v. Rosemeyer

Citation117 F.3d 104
Decision Date13 June 1997
Docket NumberNo. 96-1861,96-1861
PartiesCurtis JOHNSON, Appellant, v. Frederick ROSEMEYER, Warden, of the State Correctional Institute--Greensburg; The District Attorney of Philadelphia County; The Attorney General of the State of Pennsylvania.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Steven N. Yermish (argued), Caplan & Luber, Paoli, PA, for Appellant.

Donna G. Zucker (argued), Chief, Federal Litigation, Deborah Fleisher, Ronald Eisenberg, Deputy District Attorney, Arnold H. Gordon, First Assistant District Attorney, Lynn Abraham, District Attorney, Philadelphia, PA, for Appellees.

Before: GREENBERG, ROTH, and WEIS, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant, Curtis Johnson, appeals from an order entered on August 29, 1996, in this habeas corpus action following his conviction for aggravated assault in the Common Pleas Court of Philadelphia County, Pennsylvania. The district court denied Johnson's petition in a comprehensive memorandum opinion accompanying the order. Johnson v. Rosemeyer, Civ. No. 95-7365, 1996 WL 528871 (E.D.Pa. Aug. 27, 1996). Johnson raises two issues on this appeal. First, he contends that "the district court erred in failing to grant habeas relief where the state trial court's jury instruction[s] on justification [were] erroneous and thus violated [his] right to due process." Br. at 11. Second, he urges that he "was denied due process because of the trial court's incomplete and erroneous jury instruction[s] on aggravated assault." Br. at 34. After a careful review of the matter, we have concluded that we should affirm the district court's order. We confine our discussion to the court's instructions to the jury on the justification issue, as Johnson's contention with respect to the aggravated assault instructions clearly affords no basis for habeas corpus relief.

II. FACTS AND PROCEDURAL HISTORY

There is no dispute regarding the basic facts in this case. On November 27, 1988, Johnson, a Philadelphia police officer, shot and seriously wounded James Cahill while off duty. This unfortunate incident arose from a dispute between Johnson and Cahill's mother, who was a tenant in an apartment building Johnson owned. At his trial on the aggravated assault charge in the state court, Johnson testified that Cahill assaulted him with a shovel, and that he then shot Cahill after Cahill attempted to escape when Johnson tried to arrest him.

As Johnson explains in his brief, his "sole defense" at trial was that he "was justified in shooting Cahill in order to prevent his escape." Br. at 11. Pennsylvania law sets forth the circumstances in which a law enforcement officer may use force in making an arrest in 18 Pa. Cons.Stat.Ann. § 508 (West 1983) ("section 508"):

Use of force in law enforcement (a) Peace officer's use of force in making arrest.--

(1) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes both that:

(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and

(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.

In recognition of Johnson's contention that section 508 justified his use of force, the trial court instructed the jury that a police officer:

is justified using deadly force only when he believes that such force is necessary to prevent the death or serious bodily injury to himself or another or when he believes that both are present, these two factors are present and such force is necessary to prevent the arrest from being defeated by resistance or escape, and the person to be arrested has committed or attempted to commit a forcible felony under the act.

App. at 323. The court defined aggravated assault as an attempt to cause serious bodily injury to another or intentionally causing serious bodily injury to another in accordance with 18 Pa. Cons.Stat.Ann. § 2702 (West Supp.1997). App. at 321.

During its deliberations, the jury sent a question to the court asking whether an arresting police officer was"obliged to use deadly force to shoot against a fleeing felony[sic] under all circumstances or can an alternative measure be taken to secure the arrest." App. at 348-49 (emphasis in original). The court responded as follows:

All right, we said that an officer is justified in using any force which he believes to be necessary to effectuate an arrest, any force generally, that's the general rule but he must use only that amount of force that is necessary to accomplish the arrest. Now, when it comes to the use of deadly force, deadly force being force that is likely to cause serious bodily injury or death, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person or when he believes both, one, that such force is necessary to prevent the arrest from being defeated. An arrest being defeated meaning that, being not effectuated, that he could not make the arrest otherwise, and the person to be arrested has committed or attempted a forcible felony, and is fleeing therefrom. That's the only thing I can tell you. It is the standard. You utilize it. I could answer your question yes or no but I can't without interfering with your obligation to make a determination of the facts. Again the general rule is that a police officer can use force to effectuate an arrest and that amount that is necessary to make that arrest. He can use only that force that is necessary, however when he has to use deadly force,then he must meet special conditions: that he must believe that he cannot effectuate the arrest, that is the arrest becomes defeated unless he can use deadly force of [sic] a fleeing felon, all right?

App. at 349-50. The jury subsequently convicted Johnson.

After the trial court denied Johnson's post-trial motions and sentenced him, Johnson appealed to the Superior Court, a Pennsylvania intermediate appellate court. Johnson contended on appeal, as he has in these habeas corpus proceedings, that section 508 establishes three separate and distinct circumstances in which a police officer may use force to effectuate an arrest: (1) when the police officer believes that such force is necessary to prevent death or serious bodily injury to himself or another person; (2) when necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested has committed or attempted a forcible felony; or (3) when necessary to prevent the arrest from being defeated by resistance or escape and the person attempting to escape possesses a deadly weapon or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay. Johnson further contended in the Superior Court that the trial court's instructions to the jury, even as the court amplified the instructions in response to the jury's question, did not conform with the above law.

In an unpublished opinion the Superior Court rejected Johnson's contention, as well as other issues he raised,and thus affirmed his conviction. Commonwealth v. Johnson, 408 Pa.Super. 648, 588 A.2d 561 (1990) (table). That court held that the instructions, though ambiguous, did not require that it grant Johnson a new trial because Johnson was not entitled to a jury charge on justification, and because the trial court in any event cleared up any confusion with its supplemental instructions. Commonwealth v. Johnson, slip op. at 5. In explaining why Johnson was not entitled to a justification charge, the court held that section 508 allows a police officer to use deadly force in effectuating an arrest only if the person to be arrested has committed a forcible felony and possesses a dangerous weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested immediately. Id.

The Superior Court made particular reference to Johnson's argument indicating:

Johnson would have us read § 508 disjunctively, thereby negating the element of endangerment where a 'forcible felon' is pursued. This we cannot do. The phrase 'committed or attempted a forcible felony or is attempting to escape' has, as a necessary condition, the requirement of '[possession of] a deadly weapon, or [other indication] that he will endanger human life or inflict serious bodily injury unless arrested without delay.' The statute is not to be read to allow deadly force to be used against a person who poses no threat to human life or safety....

Id. Johnson unsuccessfully sought allocatur from the Supreme Court of Pennsylvania and thereafter he unsuccessfully sought post-conviction relief in the state courts.

Johnson, who had exhausted his state remedies,subsequently instituted these proceedings in the district court under 28 U.S.C. § 2254. The district court referred the matter to a magistrate judge who filed a report and recommendation that the district court grant the petition on the ground that the trial court's instructions to the jury on justification were erroneous and deprived Johnson of due process of law. The magistrate judge, however, recommended that, to the extent that Johnson based the petition on...

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