Commonwealth v. Johnson

A.2d 562 the Matter Allan In of Mark KOVLER. Disciplinary

No. 787 Docket No. 3. Supreme Pennsylvania. Court 20,

Dec. 2002. ORDER PER CURIAM. NOW, December, 2002,

AND this 20th Allan day Mark having practice Kovler been from the law in disbarred Supreme State of York New Order Court York, Division, Appellate State of New Second Judicial De- 8, 2002; partment, July dated the said Mark Allan Kovler having been directed October to inform this Court of any imposition claim he has that the of the identical or comparable discipline in this unwar- Commonwealth would be therefor; ranted and the reasons and upon consideration of responses filed, it ORDERED that Mark Allan Kovler is disbarred practice Commonwealth, of law this comply and he shall with all provisions Pa.R.D.E. Rule Pennsylvania, Appellee v. COMMONWEALTH of JOHNSON, Appellant. Roderick Supreme Pennsylvania. Court of July 2002.

Submitted 27, 2002. Decided Dec.

Reargument Denied Feb. Ñolas, Billy Philadelphia, Horatio Angelí, Samuel J.B. appellant, Roderick Johnson. Kline,

Kelly appellee, Com. Pa. S. CASTILLE, ZAPPALA, C.J., CAPPY, NIGRO, Before EAKIN, NEWMAN, JJ. SAYLOR

OPINION NEWMAN. Justice (Johnson) appeals

Roderick Andre Johnson Order (PCRA court) County of the Court Common Pleas Berks denying pursuant Relief to his Petition Post-Conviction (PCRA). For reasons set the Post-Conviction Relief Act1 herein, we affirm of court. forth the decision the PCRA AND

FACTS PROCEDURAL HISTORY2 Johnson, co-Defendants, charged along police The with (Bridges) Shawn and Richard “Rambo” Morales Bridges (Damon) (Morales), the murders of Damon Banks and with Gregory (Gregory). large part statements Banks Based on police, gave Johnson the record indicated that someone 7, gunpoint December girlfriend Bridges robbed the they looking drugs 1996. The robbers indicated that were any money. They drugs money, they and did not find or but Sony Playstation. did abscond with a and camcorder News quickly Bridges, girlfriend this incident traveled whose green him green informed that the robbers wore masks and Bridges seeing “hoodies.” Damon Gregory recalled and wear- ing green day. Bridges “hoodies” earlier that and Johnson Morales; there, went to grabbed the home while a Bridges shotgun and mentioned that go he wanted to to the home of Damon Gregory and and them. Bridges murder showed pistol and Morales 9-millimeter Glock that he had person. on his Johnson, following day, Bridges,

The went to a Morales purchase local shotgun thereafter, K-Mart© shells. Soon they in a minivan traveled home of Gregory. Damon and Bridges While was in talking Grego- house Damon and ry, unloading Johnson noticed a woman groceries next door. Bridges emerged from Gregory the house Damon and and stated that he drug-selling wanted them take care of operations away. while he was Damon Gregory got into Johnson, Bridges, the minivan with The group Morales. drove to a dirt road lot near car and construction site. seq. § 1. 42 Pa.C.S. et large part

2. The herein facts recited are taken March from the Court, Justice, Opinion appeal this authored on direct first-degree Johnson's two convictions for murder. Commonwealth v. Johnson, (1999), denied, A.2d 1089 cert. 528 U.S. (Johnson (2000) I). 120 S.Ct. 145 L.Ed.2d 1087 and Bridges Morales out of the van and asked Damon got and drugs accompany to the location the Gregory to them where refused, Bridges and Gregory were When Damon hidden. Bridges separately the van and and Morales returned to Damon (Bridges) going that was shoot informed Johnson he Johnson, According and on the count of Gregory three. minivan, Bridges walked around to the front of the where then shouted, Gregory standing, Damon and were and “What’s , point, Bridges station and At that shoot- two three?” started police, that ing. In his to the Johnson claimed statements him, Bridges striking fired a at Johnson in the side also shot Bridges away of drove walked his torso. then Johnson Restaurant, Queen City to the where approximately two miles up subsequently picked hospital he was and taken to the gunshot his wound. treatment of Bridges separately Commonwealth tried Johnson The trial, of At Gregory. and Morales for the murders Damon and a of con- presented piece the Commonwealth crucial evidence a claim was not as tradicting the of Johnson that he involved a testimony the of shooter. The Commonwealth introduced pathologist, forensic who stated that one of the bullets recov- body Damon was caliber Ac- ered from the a .38 bullet. expert the cording testimony to the of the ballistics Commonwealth, weapon the a .38 hand- murder caliber gun; police handgun a .38 caliber close to the scene recovered (Robles), a friend George the murder. Robles of Johnson Commonwealth, witness who was a for the testified possessed handgun Johnson .38 caliber like the one found scene. also at trial that when he murder Robles stated in him hospital, visited Johnson told that he had shirt, him, handgun wiped taken had it off with his with one-quarter it on the of the road mile of threw side within a jury scene. November convicted murder On first-degree two Johnson of counts of murder.3 During penalty presented the Commonwealth phase, testimony of Robles that Johnson was the for the “enforcer” in drug murder operations Bridges that the occurred 2502(a). § 3. 18 Pa.C.S. sales, aggravating in drug support

connection with was committed connection circumstance the murder unanimously activity,4 jury found. The drug which jury mitigating found as a circumstance the murder significant The history.5 Damon that Johnson had no criminal jury aggravating circumstance out- determined weighed mitigating imposed and the court circumstance determining death accordingly. sentence When the sentence impose Gregory, on Johnson for the murder had mitigating found that that Johnson no circumstance significant longer criminal was no true because John- history son just “Upon questioning had killed Damon. from the judge, testimony jurors stated that because there [Gregory], would had a [Damon] [Johnson] died before have (i.e. [Damon]) history’ ‘criminal [Gregory] the murder of when I, was killed.” Johnson Thus, 727 A.2d at 1102-1103. aggravating found one and no mitigating circumstance circumstances, a mandating sentence of death. appeal,

On direct we affirmed the convictions and death imposed Johnson; Supreme sentences on the United States Court denied certiorari. On March 19, 2000, then Governor Ridge Johnson, a signed death warrant for whose execution 11, 11, the Commonwealth May April scheduled for 2000. On 2000, Stay Johnson filed a for Emergency Motion of pro se Execution and a for Petition Post-Conviction Relief court. appointed PCRA PCRA court for The counsel Johnson, who filed a April First Amended Petition on PCRA 26, 2000. reviewing Stay After the Motion an Emergency for Execution, grant PCRA court refused to a The stay. request court also denied the of Johnson to a Second file 8, 2000, May grant Amended PCRA Petition. On this Court ed Johnson an Emergency Stay of Execution. Common Johnson, (2000) (Johnson wealth v. 489, 751 A.2d 647 II). 7, July 2000, despite On Order the PCRA court denying request Johnson leave file a Second Petition, PCRA Supple- Amended counsel for Johnson filed a l(d)(14). § 4. 42 Pa.C.S. 9711(e)(1). §

5. 42 Pa.C.S. 25, August First PCRA On ment to the Amended Petition. 2000, hearing to court conducted a determine the PCRA amend First PCRA whether Amended Petition in the First Supplement those issues raised to the include permitted The amend- Amended PCRA Petition. court days gave forty-five ment additional in which Johnson support position. file materials in of his On October additional 10, 2000, Supplement to the filed Second Johnson presented this First Amended PCRA Petition. As Johnson days forty-five to the more than after the document court Order, August Sup- 25th the PCRA court denied Second 12, plement to First PCRA on Amended Petition October 2000. 23, 2001, February the PCRA court most of

On dismissed hearing without the issues Johnson raised scheduled July of hearings remaining for the seven contentions. In again Supplement filed a Motion to the PCRA Johnson Petition, First Supplement his Third constituting This two supplement PCRA Petition. raised Amended new issues; motion. new the PCRA court denied the The PCRA on the hearings remaining court conducted seven issues May 11, By August Order dated October 25, 2001, the PCRA court denied the PCRA Petition November filed a Notice Johnson. On 9546(d). Appeal § to this to pursuant Court Pa.C.S. ISSUES6 n appeal On to this Court the denial his PCRA Petition, following twenty-three allegations Johnson raises of error: present

1. Did the Commonwealth insufficient evidence aggravating forth in 42 Pa. establish the circumstance set Sixth, 9711(d)(14), Eighth, § in violation of and C.S. Fourteenth Amendments? presented by

6. have the issues Johnson for ease We renumbered discussion. failing adequately 2. Was trial counsel ineffective for suppress law move to Johnson’s statements to enforcement authorities?

3. Was a fair trial counsel did not Johnson denied because effectively George cross-examine material witness Robles and because the did not disclose a bail Commonwealth report and off paying police other evidence that Robles officers, Sixth, all in Eighth, violation of Johnson’s and rights? Fourteenth Amendment standard, proper materiality Under the when consider- letter,

ing Brady regarding claim the Robles entitled to was trial relief and for failing counsel ineffective get the Robles letter? 5. Was request counsel ineffective for that the trial court panel potential dismiss the venire when three jurors in a were involved conversation about the case with officer, the investigating Sixth, police in violation of the Eighth, and Fourteenth Amendments?

6. Was Johnson a fair impartial jury denied and in viola- Sixth, tion of Eighth, his rights Fourteenth Amendment County jury systemat- where the Berks procedure selection ically excluded minorities?

7. Was right Johnson denied his to effective assistance of counsel during jury Sixth, selection in violation Eighth, and Fourteenth Amendments where trial counsel object cause, failed to attempt removal or to rehabili- tate, jurors expressed who some reservations about the death penalty?

8. Was Johnson a fair Sixth, denied trial in violation of the Eighth, and Fourteenth Amendments when counsel failed trial, when, seek mistrial the aunt of the decedent was disruptive crying gallery, the first row of the right next to the box?

9. Was presenting counsel ineffective for an inconsistent Sixth, conceding guilt defense in violation Eighth, Fourteenth Amendments? failing for to investigate

10. Was trial counsel ineffective capacity raise a diminished defense? and call failing for to -witness 11. Was trial counsel ineffective testify Commonwealth witness regarding Iris Alvarez to George Robles? failing object for to when the

12. Was counsel ineffective improper accomplice an instruction liabil- gave trial court Sixth, rights Eighth, ity, in violation of Johnson’s under the and Fourteenth Amendments? expert employ Did failure to ballistics con- counsel’s assistance?

stitute ineffective failing investigate, for to 14. Was trial ineffective mitigating and relevant evidence of John- develop, present during incarceration? good son’s conduct for failing proper 15. Was counsel ineffective to seek was jury jury stipulation instruction that the bound parties failing appeal jury and for to raise on 9711(e)(1) § “no improperly rejected signifi- Pa.C.S. mitigating history prior cant criminal circum- convictions” Sixth, Eighth, and in violation Fourteenth stance Amendments? for to failing investigate

16. Was trial counsel ineffective available, readily mitigating evidence that was to substantial argue to jury, numerous present evidence life, spare as a mitigating factors basis Johnson’s Sixth, Eighth, violation of Fourteenth Amend- ments? failing object for trial

17. Was counsel ineffective jury during sending court out written instructions with the compounded sentencing phase, which error because erroneously presump- denied the instructions tion of life? object for to the failing

18. Was counsel ineffective instruction, request En- trial court’s sentencing stage, mund v. Florida instruction at the raising appeal, issue on violation Johnson’s Sixth, Eighth, rights? and Fourteenth Amendment

299 failing 19. Was to properly trial counsel ineffective for 9711(d)(14) investigate § of the 42 the evidence Pa.C.S. aggravator, failing during request, sentencing and for to phase, period investigate of a adequate police time to report requested during before trial but trial? received 20. Did prosecutor engage in misconduct where he repeatedly alleged asked about Johnson’s failure to show and, occurred, remorse after this counsel ineffective for failing to seek curative instruction mistrial and and/or for failing to on appeal? raise issue 21. Is sentencing hearing Johnson entitled to a new be- cause the trial court failed to instruct properly factors, the nature aggravating mitigating and use of and in Sixth, Eighth, violation of the and Fourteenth Amend- ments?

22. Was for failing counsel ineffective to move to bar the (d)(14) 42 aggravator § Pa.C.S. unconstitutionally as vague, overbroad, arbitrary, and failing object for aggravator grounds on these raise the error on appeal, Sixth, in Eighth, violation Johnson’s and Four- rights? teenth Amendment seeking Was counsel ineffective for not an instruction

that Johnson ineligible be did parole, would the trial instruction, court in providing err such an and was error on appeal, ineffective raise the Sixth, violation of Eighth, and Fourteenth Amend- ments?

DISCUSSION Previously Litigated Claims matter, As a preliminary first allega Johnson’s two error—insufficiency 9711(d)(14) tions of § Pa.C.S. (claim 1) aggravating circumstance and ineffectiveness of counsel for failing “adequately” suppress move state ments Johnson to law made enforcement authorities (claim 2)—have through December December 9544(a)(2), previously litigated. been Section 42 Pa.C.S. 9544(a)(2), previously litigat- that an issue has been provides § petitioner court in which the could highest-appellate ed if the right as has ruled on merits have had review a matter independent As of the of the review part issue[.] appeal conducted in the direct Court Record sentence, specifically ad- conviction and death we Johnson’s (d)(14) (murder sufficiency committed dressed activity) aggravating conjunction drug circumstance sufficient. aggravator found evidence of that to be John- I, Additionally, on son Pa. 727 A.2d 1102-1103. rejected arguments we of Johnson that the direct review the suppress 1996 failing trial court erred December reason, of Id. at For this statements Johnson.7 1098-1099. not for review. appropriate these issues are collateral

Commonwealth Witness Robles claims stemming Johnson raises four distinct testimony of witness Robles. Commonwealth (1) a Brady contends that: Commonwealth committed a and by failing report to disclose bail other evidence violation (2) that off trial counsel was ineffective for paid police; Robles (3) Robles; effectively cross-examine used failing Court materiality determining standard for whether the incorrect a Brady by turning violated over Commonwealth get that do anything letter in which Robles stated he would (4) failing out of and trial counsel was ineffective for jail; Robles To demonstrate ineffective assis procure the letter. (1) counsel, [underlying] tance of one must show: (2) merit; had no arguable claim counsel reasonable is of (3) inaction; and, that, action strategic basis his or her or counsel, but omissions of there a reason for the errors and is proceedings outcome would probability able that the Kimball, have different. been Commonwealth appeal rejected underlying we of substance the claim On direct raises it here as a claim of ineffective assistance Johnson—he counsel, prerequisites finding but as one of the ineffective assistance underlying arguable we need to find that the claim has merit. merit, underlying arguable there is no claim with no further Because necessary. inquiry is

301 (1999). 333 Counsel will not be deemed ineffec- 724 tive for to raise a meritless claim. Commonwealth v. (2001). 312, 780 A.2d 649 Tilley, 566 Pa. sub-issue,

Regarding the first failure to disclose the off report paid police, that Robles bail and other evidence is that Brady this evidence is not material. It well settled only prosecution violation exists where the failed disclose deprived material the defendant of a fair trial. evidence Agurs, States v. 427 96 S.Ct. 49 L.Ed.2d United U.S. (1976). “[Fjavorable material, evidence constitu tional error from its if suppression government, results that, probability there is reasonable had the been evidence defense, proceeding disclosed to the result would probability have .... A a proba [is been different reasonable bility sufficient undermine confidence the outcome.” to] 419, 433, Kyles v. Whitley, U.S. S.Ct. (internal (1995) omitted).

L.Ed.2d quotations and citations Robles, a bail report Johnson cites to that Johnson con helped could him impeach According tends have Robles. Johnson, bail report upon states that his is conditioned his appearance changes proceedings, reporting any court address, undergoing drug testing counseling. failWe report, Johnson, to see how this if it had been to disclosed changed would of proceeding. have the result the In his Court, question to this Johnson refers to other evidence that police Robles, paid the off he does to any but not such cite argument. posits evidence his Johnson also that trial counsel was for failing ineffective cross-examine Robles regard, this but the Attorney Record indicates otherwise. Adams specifically following question: “They asked Robles the you gave you agreed bail to testify, because is that correct?” 11/20/97, N.T., “No, Trial page responded: 523. Robles they gave I requirements me bail because met whatever I needed to make bail.” Id. We refuse find counsel ineffective he did pursue argument. because this allegations other two of this regard

The Johnson in stem from Court’s this discussion the Robles letter on stated that it was not material appeal,

direct wherein we Brady. did not pursuant correctly notes that we Johnson for his In employ proper analyzing claim. the standard I, Johnson we stated that where defendant makes general “a evidence, request is consid- exculpatory then evidence if only ered omitted evidence creates a reasonable material I, at Johnson not exist.” doubt that did otherwise However, Supreme Court has abolished the distinc- discovery now general specific requests tion between whether materiality questioning determines “there that, had the been disclosed probability reasonable evidence defense, proceeding would have been result Kyles, As it different.” 514 U.S. 115 S.Ct. 1555. case, facts of the two relates to the difference between and, judice in the case sub play into standards does come therefore, suffer any prejudice Johnson did not as a result Likewise, have has our error. as we determined Johnson materiality proving failed his pursuant to meet burden Brady, requisite prejudice cannot establish the to succeed he on a assistance of counsel. claim ineffective with

Venire Panel Members’ Conversation Police Officer trial next ineffective contends panel trial request that the court dismiss venire potential impermissible when had jurors three conversation Dunn, police Dur- investigating Lieutenant officer. dire, ing Dunn as voir Lieutenant described conversation follows: Youth, talking Dunn: I was with Children and

Lieutenant I’m working, one of their the case investigators said, it’s going. she me how selection was I asked said, said, slow. And she how’s Mr. Johnson. I he’s oh, jurors said, his did we up cleaned act. And one around, I she buy And and there have to suit? turned said, suit, I standing. guess was he looks nice in She an pay gentleman we for it. And older have there me, And you attorney? standing there. She said are no, said, he he’s Chief Police from Exeter. So that’s what was said. Well,

The Court: did this occur? where back of Lieutenant Dunn: In the smoke—at the the build- smoke, ing they people where stand outside and where smoke, doorway. in that little

The Court: In center? the services Yes, I they Lieutenant Dunn: the Services Center. believe picked weren’t yet.

The All right. Court: There were two then?

Lieutenant Dunn: Two females and a male. people. The Court: Two and a male. Three females them, Lieutenant Dunn: I said to don’t talk me. And the said, well, people other female these do anything would get off jury, something to that effect. (N.T.), 11/13/97, Dire,

Notes of Testimony pages Voir 300-301. The trial jurors questioned court the two identified female Record; they them on the both indicated that had not told anyone Dire, 11/13/97, else about the conversation. N.T. Voir pages potential jurors 420-429. The court excused both panel. the venire Lieutenant Dunn was able to identify never observed, the male whom though thought he had both females may that he person. have been venire allegations may makes this male have spoken jurors conversation; however, about other PCRA court correctly notes that he has “no given indication other than speculation the wildest that this unknown man may have jury.” Opinion Court, somehow tainted the of the PCRA 23, February 2001, conjecture page Clearly this does not any prejudice establish suffered Johnson. “Absent a dem onstration prejudice, petitioner] prevail [a PCRA cannot claim for ineffective assistance of and no further inquiry into the claim warranted.” Commonwealth v. Pierce, (2001) 567 Pa. A.2d (citing Common Fletcher, (2000), wealth v. cert. denied, (2000)). 531 U.S. 121 S.Ct. 148 L.Ed.2d 533

304 County Racial Bias Berks

Alleged Jury Selection Procedure alleges a fair Johnson next that he denied procedure utilized in impartial jury selection jury because bias, has a racial in violation of the Sixth and County Berks Fourteenth Amendments the United States Constitution. requirement pool that the To establish a violation fair representation community, is a of the prospective jurors (1) group allegedly “a defendant must show that: excluded (2) community; in group representation is distinctive juries group of this in venires from which are selected people in relation to the number of such in fair reasonable (3) under[-]representation is due community; pro jury in the systematic group exclusion selection Craver, 17, 691, v. Pa. A.2d 547 688 cess.” Commonwealth (1997), denied, 834, 104, 522 696 cert. U.S. 118 S.Ct. 139 (1997) Missouri, 357, v. (quoting L.Ed.2d 58 Duren 439 U.S. (1979)). 364, 664, “‘Systematic’ 99 58 L.Ed.2d 579 S.Ct. juries system by or inherent in the which means caused Duren, 366-367, 439 (quoting were selected.” Id. U.S. 99 664). S.Ct. complains County’s use of

Specifically, Johnson Berks registration pool as for the has jury driver’s lists the basis systematically excluding In Common effect minorities. 1, denied, (2000), wealth v. 563 Pa. 757 A.2d 859 cert. Bridges, (2002), 1102, 2306, 122 152 L.Ed.2d 1061 535 U.S. S.Ct. Bridges judice, rejected in same involved the case sub we jury pool compiled registration claim that a similar voter In systematically minorities. we Bridges, lists excluded stated composi may that “a criminal defendant not attack the racial registration tion of drawn from voter lists panels theory underrepresented are voter lists blacks because compiled regard computer generated such lists are without Id. 524 Pa. (quoting Henry, race.” at 868 Commonwealth v. denied, 931, 135, 929, (1990), 569 933 cert. 499 U.S. 111 A.2d (internal 1338, (1991)) 269 omit quotation 113 L.Ed.2d S.Ct. Abu-Jamal, 485, ted); see 720 also Commonwealth (1998), denied, cert. 528 U.S. 120 S.Ct. A.2d 114

305 Jones, (1999); v. Ronald L.Ed.2d Commonwealth (1976). Likewise, Pa. driver’s license compiled regard to Other than a bald lists are without race. “[cjustomarily Hispan- African Americans and statement inadequately represented ics been license have driver’s (Brief 73) lists[,]” Johnson, registration page argument makes no that the method used to select drivers is showing inherently biased. Absent some that driver’s license biased, selection failed procedures inherently are Johnson has jury to lists distinguish pool registration derived from voter registration records from those derived license driver’s Accordingly, lists. Johnson has to establish a constitu- failed tional violation. Failure to

Alleged Rehabilitate Jurors Who Expressed to

Opposition Penalty Death Johnson next that trial counsel was asserts ineffective for to attempt who jurors expressed rehabilitate opposition penalty. Specifically, objects to the death to the alleged jurors, failure of counsel to rehabilitate eleven each of whom the trial court struck During for cause. either general dire, questioning or individual voir each of eleven jurors they would prevent stated had beliefs that him or imposing her from It is penalty. the death well settled that a juror’s on capital punishment pre “whenever views would vent or substantially impair performance of his as a duties juror oath, in accordance with his instructions his he Lark, properly jury.” excluded from the Commonwealth v. 441, (1997) 43, 548 Pa. (citing Commonwealth 1, (1992)) (internal 949, Pa. Jasper, 531 610 A.2d 952-53 omitted). quotation Additionally, is within the trial “[i]t cause, court’s juror discretion to strike a such decision will not showing be disturbed absent a of abuse of Rollins, discretion.” Commonwealth v. 558 Pa. 738 A.2d (1999) Fisher, (citing Commonwealth v. (1996)). 681 A.2d 130 court

The PCRA reviewed the voir found it dire record and unlikely any could have rehabilitated eleven

jurors. independent conducted review of the We have Moreover, court, transcripts agree. the PCRA which also court, that, as the trial “had trial counsel original sat stated cause, agree striking jurors each of these we failed panel, would have struck them from the as is our discretion to Therefore, it have futile for counsel do. would been to have attempted jurors.” Opinion these to rehabilitate PCRA Court, February page Accordingly, we find no attempt in the of counsel to not error decision rehabilitate jurors. these Failure to Seek a Mistrial Due

Alleged Disruptive Behavior Allegedly that trial inef Johnson next avers counsel rendered by failing to for mistrial assistance move when fective victims, (Eugenia), the aunt of Eugenia began Banks court, crying According courtroom. the PCRA early phase arose on in of trial guilt incident when “[t]his crying to be head [Eugenia] was observed her down At time a gallery near the box. sidebar was held ultimately in which matter was and it was discussed away vicinity to move [Eugenia] resolved Court, 23, Opinion 2001, jury.” February page of the PCRA 169-170). Phase, 11/18/97, (citing pages 14 N.T. Guilt “Mistri granted only when an is of a als should be incident such deprive that appellant nature its unavoidable effect is to of Lewis, v. 523 fair trial.” Pa. 567 A.2d Commonwealth (internal omitted) (1989) quotation (citing 1383 Common (1986)). Chestnut, wealth 512 A.2d We incident, say quickly this which was cannot that ameliorated moving of Eugenia, depriving had the unavoidable effect notes, of trial. aptly a fair As the PCRA court “as Johnson case, every juror would that this is homicide we trust with scintilla of common sense that even the merest realize would likely to grieving are be relatives for victims.” there Court, 23, 2001, February page of As Opinion the PCRA is no to contention that he was there merit Johnson’s entitled incident, not to a mistrial as a result this counsel was v. Til- one. Commonwealth request for ineffective to (2001) (counsel Pa. will not ley, be claim). failing to a meritless deemed ineffective for raise Strategy Allegedly Inconsistent Defense pre that Johnson avers counsel was ineffective senting a Johnson fails guilt. defense that conceded his realize, however, police his that several statements severely December of 1996 constrained the avenues defense pursue. viable for In to police, left counsel to these statements he Bridges planned Johnson conceded that knew murder Damon, Bridges, Damon and that Gregory and he drove and Gregory to the Trial location the murders. counsel could exist, pretend not that these statements did not as the only would consider The them. credible defense counsel to was present one which Johnson admitted above-recited participation. chose to submit that it was Bridges, Counsel Johnson, girlfriend not whose was robbery the victim the Johnson, Bridges, that to kill had a motive Damon and Gregory. argued Bridges Counsel also that shot Johnson or shooting Gregory before Damon Johnson fled the immediately, Bridges Gregory. scene before fired at Damon or manner, In this present counsel admitted that was Johnson scene, at argued accomplice but that Johnson not an stopped facilitating because he commission prior the crimes Bridges’ shooting act of Gregory. Additionally, Damon and presented Bridges county, evidence that fled the while stayed police, mitigate culpability met strategy ultimately succeed, of Johnson. did not While Johnson, given the against evidence it was nonetheless one of very arguments few reasonably counsel could have jury. Accordingly, made we find counsel had a conceding presence reasonable basis for Johnson’s thus, and, and degree complicity scene some counsel was Paolello, See regard. not Commonwealth ineffective this (1995) (where' particular 665 A.2d “the basis, course chosen by counsel had some reasonable our effective”). inquiry ceases and counsel’s assistance is deemed to Raise a Diminished Alleged Capacity Failure Defense argues trial was Johnson next that ineffective capacity a present diminished defense. Johnson from significant that was evidence that he suffered avers there cognitive prevented him impairments mental health and necessary requisite for the commis forming from intent hearing, murder. first-degree sion of At the PCRA Johnson testimony experts health presented two mental (Dr. Armstrong), Armstrong neuropsychol Dr. a point. Carol from brain hemi right testified that Johnson suffered ogist, dysfunction multiple neurocognitive do sphere encompassing mains, memory, reasoning. and Dr. including perception, Armstrong during that these opined impairments surfaced through childhood of his adolescence. Johnson remained PCRA, 5/11/01,pages Armstrong 6-22. Dr. testified that N.T. in judgment from an and reason impairment Johnson suffered murder; that was at the she ing present time further would impairment “probably greater stated that have been taking drugs at the drinking [Johnson] because time PCRA, 5/11/01, N.T. complex page and was situation.” if When PCRA counsel asked Johnson these problems impaired ability appreciate of Johnson to mental conduct, criminality Armstrong replied they of his Dr. thinking. act they did “because ... caused him to without He If you put of his mental him poor thoughts. has control under stress, give drugs, him and him to act with going inebriate he’s Id. forethought.” less at 36. even hearing, presented At the PCRA also the testimo- Kessel), (Dr. of Dr. B. Kessel ny psychiatrist, Julie who depression, organic stated that Johnson suffered from mental impairments (“[pjeople with with symptom baseline brain dysfunction brain to have a time judging baseline tend harder reality, inadvertently reality, out of with saying over touch they respond interpret reality”), but tend to substance dependency, and attention abuse alcohol deficit disorder. agreed Armstrong Id. at 57-60. Dr. Kessel Dr. impairments time of Johnson suffered these shooting Gregory problems Damon and and that these

309 substantially impaired ability appreciate of Johnson criminality of his Id at 62-64. conduct. hearing, questioned by

At the PCRA when the Common- wealth, trial counsel8 as follows: testified Adams, regard

Q: you Mr. discussion that with had you with a capacity, diminished did ever consider diminished capacity defense?

A: No. was, fact,

IQ: your testimony your it in believe client merely charges; was in beating interested isn’t that correct? plea

A: Yes. And agreement he—after—we discussed the occasions, aon number of but not accept he would it. He try wanted to it. take his chance to beat And, fact, Q: regard in capacity to a diminished defense, you your isn’t it true have to admit culpability your merely defense and show that he didn’t have the murder; specific intent to first degree commit is that cor- rect?

IA: think that fair is a statement. at Attorney Id 156-157. consistently, Miller testified stating during that “the case in guilt phase chief was that [John- was a [Bridges] acting follower and that son] retaliation for what happened girlfriend], being robbery [his all, by Bridges the Bankses .... After we said shot [John- Id at 185. son].” “[a]

We have held that capacity defense diminished only available who liability defendant admits criminal but degree guilt.” Laird, contests the Commonwealth v. (1999) Pa. 726 A.2d (citing Commonwealth v. Weaver, (1983)). Weaver, In counsel for Weaver had presented, Weaver, without consent of trial, represented attorneys 8. Johnson was two Mr. Adams and Mr. Miller. primary Mr. as Adams served counsel and look the lead during guilt phase; responsibilities Mr. Miller primarily assumed 5/11/01, during penalty phase. page N.T. PCRA 158. Unless indicated, otherwise Attorney references to trial counsel indicate Adams. defense, though Weaver insisted that capacity diminished even was on had committed the murder which he someone else first-degree trial. A murder convicted Weaver Tioga related crimes Court Common Pleas of County imprisonment. to life filed sentenced Weaver Weaver appeal a direct to this Court.9 We determined that nonetheless, but, only presented viable defense Weaver Judgment by of imposed we the of Sentence the Court vacated authority to County, finding of that Tioga Common Pleas thereby conceding of present capacity, a diminished defense solely liability, province is within the of general criminal Weaver, A.2d at 506. accused. 457 “[Cjounsel’s acquittal than strategic decision seek rather pursue capacity a diminished defense does not constitute assistance if there a reasonable basis for ineffective Jones, v. 539 Pa. strategy chosen.” Commonwealth James denied, 835, 222, 1101, (1994), 516 116 651 A.2d 1109 cert. U.S. (1995). 113, 133 L.Ed.2d 65 Johnson maintained S.Ct. he, throughout Bridges, had and the trial that shot Damon that had shot Gregory; Bridges Johnson contended even had from that he Johnson. Absent admission Johnson and trial could Gregory, been one to shoot Damon counsel Thus, capacity we presented not have a diminished defense. cannot trial did not a strate say that counsel have reasonable a trial gic rejecting Consequently, basis for such tactic. for failing present counsel was not diminished ineffective Paolello, 47, Pa. capacity evidence. See v. 542 Commonwealth (1995) (where 439, particular 665 A.2d course chosen “the basis, and by inquiry had some our ceases counsel reasonable effective”). counsel’s assistance is deemed Alleged to Call Witness Iris Alvarez Failure that posits next trial counsel was ineffective Johnson (Alvarez) testimony to call Iris to refute Alvarez conviction, detailing At direct the time of Weaver's the statute Court, appellate jurisdiction provided § that 42 Pa.C.S. of jurisdiction Supreme appeals Court have “[t]he shall exclusive of following of pleas final orders of the of common in the classes courts [fjelonious (1) Repealed cases: ...." Act of No. 137. homicide Robles, Reading of who visited at testified he Johnson Hospital participating and heard Johnson confess to in the and To on a claim of Gregory. murders Damon succeed to present ineffective assistance wit counsel failure nesses, “(1) existed; a must defendant establish: the witnesses (2) (3) available; was the witnesses were informed or the existence the witnesses should have known of the (4) existence; witnesses’ witnesses were available prepared cooperate would have [the testified defen behalf; (5) testimony prejudiced the absence dant’s] Crawley, [defendant].” Commonwealth (1995), denied, 679-680 cert. U.S. S.Ct. (1996). 1832, 134 L.Ed.2d 936 hearing,

At the PCRA Alvarez testified that she was girlfriend former of Johnson and cousin of Robles. She told that, Johnson, court at PCRA the time Robles visited Johnson had in his barely speak. tubes mouth and could She stated that Robles never alone with hospital and that never Johnson say anything she heard about shooting to Bridges other than that shot him. state N.T. PCRA, 5/11/01, pages 88-95. Alvarez that admitted she was subpoenaed testify Johnson, to at of the trial but stated that she told trial counsel that could not she attend because she was one-and-one-half months at pregnant experi- the time and encing abdominal pains. Alvarez claimed at the PCRA hear- ing that she trial that testify informed counsel she could if the postponed trial was gave until after she birth.

In statements, direct contradistinction to these trial counsel testified at hearing the PCRA that uncooperative Alvarez was and Pennsylvania “refused to come down [to from Connecti- testify.” cut] and Id. at Trial did not recall asking request Alvarez him to a continuance so that she could testify gave Moreover, after she birth. trial counsel testified during his conversations with Alvarez in of the advance Johnson, trial of Alvarez never him always told that she was in room Attorney Robles Johnson. gave Miller testimony counsel, with that trial stating consistent of Alvarez told him any that she did not have interest John- court, had The which

son’s situation. Id. 180-181. PCRA witnesses, to observe the demeanor opportunity testimony Attorney of trial counsel and Miller credited The court concluded testimony over the of Alvarez. PCRA ” any .... cooperate respect refused to “simply Alvarez Court, Thus, 2001, page 19. Opinion of the PCRA October we find that Johnson has failed to meet his burden of estab- prepared cooperate lishing that Alvarez available testify on behalf Johnson. Object Accomplice Failure Alleged Instruction Liability that trial counsel was ineffective Johnson avers trial accom object to the court’s instruction on asserts that the instruction plice liability; specifically, he of first- to believe that he could be convicted allowed the jury kill, degree Bridges possessed specific intent even murder if following if Johnson did not. The court read the instruction jury: theory find may guilty You the defendant a crime accomplice long you as satisfied that he was an as are was committed beyond reasonable doubt that crime accomplice person who and that the was an defendant person you it. It does not matter committed whether has or prosecuted the crime not been believe committed think, I important, analysis What is is the convicted. an accomplice or the defendant or was whether first, accomplice anyone, you my must remember instruc- as to The of- tions and definition the offenses. different anyone You decide or not committed fenses. must whether third or degree degree, of the first or murder of the murder assault, you or either If that one aggravated type. decide proven beyond of those have been a reason- more offenses fact, Commonwealth, who, you in able doubt the decide offenses, you must committed or more of these then one actually you if have not defendant decided decided the it, it, you if did not commit committed but decided he then must at that acting accomplice, you but was as an look

313 the defendant have language accomplice liability. Did aiding agreeing the same intent when he acted in or to actually attempting person who aid or to aid the com- mitted it? a prove, you

The must if find that was Commonwealth there defendant, degree, of the first the as murder state, accomplice, intent had the same mental same killer, kill, specific to kill as actual intent to degree aided—agreed first murder. And aid or he to attempted person committing to aid other or planning it. 11/25/97, added). Trial,

N.T. 832-833 pages (emphasis reviewing instruction, jury

When a to a challenge charge we must as a v. review whole. Commonwealth 1280, (2000); Spotz, 563 Pa. 759 A.2d 1290 see Common (1996). Jones, wealth v. Pa. A.2d Gilbert 1181 An will if upheld adequately instruction be it accu clearly, rately law. may reflects the The trial form court use its own expression explain legal concepts difficult jury, to the as long as accurately the trial court’s instruction conveys the law. Spotz, 759 1287. A trial court has broad discretion in phrasing its permitted instructions and is its choose own Hawkins, wording. Commonwealth 701 A.2d denied, (1997), cert. 523 U.S. S.Ct. (1998). instruction, L.Ed.2d 685 above-quoted The when read whole, as clearly that, a indicated to find Johnson guilty of degree, they murder the first needed to find that possessed he requisite specific kill, if they intent even person determined he was not the actually pulled who Therefore, trigger. jury charge not erroneous counsel will be for failing deemed ineffective raise meritless claim. Tilley, supra. a,

Alleged Failure to Em,ploy Ballistics Expert posits that trial counsel rendered ineffective by failing assistance expert obtain ballistics to examine scene, the bullets recovered from the crime vehicle driven by Bridges, body of Johnson. The Commonwealth testimony Trooper

presented expert the of ballistics State Johnson; of Tempinski (Trooper Tempinski) trial Kurt the failing Johnson to asserts that trial was ineffective counsel by expert employed defense examine the bullets. have the (1) However, merely that: it is Johnson makes bald assertions would aided the de- “reasonably likely such evidence have (2) of fense[;]” no basis for the omission there was reasonable (3) counsel; as prejudice suffered a result. trial Johnson Johnson, fails to contend that the page Brief of Johnson any way Trooper Tempinski conclusions of were incorrect expert his that a support and fails to contention ballistics by would have uncovered that employed the defense evidence thus, defense; to the he has failed meet his would have aided underlying has proving arguable of that claim burden merit. to Good

Alleged Failure Present Evidence of During Incarceration Conduct alleges that trial Johnson also ineffective good to the his failing present jury “for evidence of behavior prison awaiting mitigating trial as a circumstance while 9711(e)(8) (the § pursuant mitigator). catchall Pa.C.S. However, clearly transcript indicates Johnson PCRA Adams such Attorney informed trial counsel or never (“We N.T., 5/11/01, page existed. See PCRA evidence by outstanding him that had an were never made aware he record”). record, of prison prison and I am not aware his jury present Trial counsel did not this evidence to because himself his of his Johnson never made defense team aware good conduct or witnesses to that prison the existence of failing We refuse to deem trial counsel ineffective for effect. that he not know present mitigation evidence did existed. (e)(1) Mitigator Allegedly Improper Rejection jury error Johnson finds decision (e)(1) respect reject mitigating circumstance with to the claim as Gregory; murder of he raises the one ineffective seek an that the assistance of counsel for instruction stipulation During was bound jury parties. phase, stipulated penalty the Commonwealth Johnson history significant prior fact had no above, discussed found the criminal convictions. As (no (e)(1) mitigator history prior of significant existence convictions) Damon, of respect criminal with to murder the rejected determining mitigating but this circumstance when Gregory. jurors the sentence for death of The each the that they upon indicated made this determination based the testimony Gregory. medical Damon that died before Johnson by failing now submits that trial erred to raise appeal jury improperly rejected direct to this that Court the (e)(1) the with to mitigating respect circumstance the murder Gregory. of Rizzuto,

Johnson cites to our decision in v. Commonwealth (2001), Pa. 777 proposition A.2d 1069 that a the is jury by stipulation bound of the the defendant and the any mitigating Commonwealth to existence of the circum case, In parties stances. that the that stipulated the defen did previous dant not a criminal jury have record. The (e)(1) rejected the mitigating circumstance sentenced the reversed, to holding defendant death. We that “where a mitigating presented jury by circumstance is stipula the tion, jury the law required mitigating to find that factor.” Thus, at expressly Id. we overruled Commonwealth v. (1991), Copenhefer, 526 Pa. 587 A.2d 1353 in which we had (e)(1) that a jury held was free to refuse to find mitigating the parties stipulated circumstance even the when the defen did dant not criminal prior have record. note, preliminary

As a at of sentencing the time the Johnson, 26, 1997, phase of Copenhefer on November was the law myriad Commonwealth. As we held on have occasions, previous counsel will not be deemed ineffective for See, failing change divine a in the law. e.g., Commonwealth (2001) Tilley, 566 Pa. 780 A.2d (citing Com Fowler, (1997)). monwealth v. On basis, clearly a more distinguishable substantive this case is Rizzuto, jury from Rizzuto. In convicted the defendant of murder, parties phase stipulated penalty one which the judice, was his In the case sub first criminal conviction. separate During murders. jury convicted Johnson two jurors they penalty phase, trial court instructed the verdicts, two one rendering separate respect would be with Gregory. Sentencing Damon with respect and the other case, 11/26/97, N.T. 1031. Prior to the trial in this page convictions, significant history had no of criminal as a in the death jury mitigating which the found circumstance However, given Gregory Damon. died the evidence (e)(1) Damon, longer found jury mitigator that the no after did stipulate existed. Johnson and the Commonwealth (e)(1) murders; as to both mitigator the existence that at they agreed beginning proceedings rather past. criminal Rizzuto significant Johnson did not have (e)(1) jury mitigator respect find mandates that the murder, first but the was well within bounds to its (e)(1) reject mitigator respect the with the second murder. Mitigation Failure to Evidence Alleged Present Johnson contends that trial counsel was ineffective for history, of investigation to conduct a his life reasonable abuse, health, and and of drug mental alcohol other avenues that mitigation. hearing, At the PCRA trial testified family history, prepared by sister of he obtained detailed the Johnson, records, However, and nei school medical records. family any his about provided ther Johnson nor information or trauma now alleged attempts suicide head that Johnson Trial alleges hearing he counsel stated the PCRA suffered. infirmity that not show of mental or an any signs Johnson did N.T., inability 5/11/01, page communicate. 198. PCRA [drug Trial that said that and counsel testified “[Johnson] degree alcohol was not There wasn’t a of issue. abuse] not influence alcohol he was under the of a controlled [and] why particular pur substance. That is that issue was not Trial stated did not sued.” Id. at 183. counsel also that he mitigation and alcohol in present drug much evidence abuse was, of aggravating as “one the factors [Commonwealth’s] during drug of transaction homicide the course paraphrase, 184. for involving drug activity.” Id. at It was reasonable attempt portraying to avoid as some- trial counsel to Johnson scene, heavily drug the which could have the one involved jurors of of solidifying the minds the the existence effect (d)(14) activity aggravator. drug original sentencing phase transcript Our indi- review of presented gleaned he cates trial counsel evidence that family from his communications with the and only The mitigation Johnson himself. avenues family prior penalty or Johnson advised trial counsel of to the (1) murders; (2) phase age were: at the time of Johnson’s (3) abuse; drug family his and alcohol his troubled as a sought mitigating household. Trial counsel circumstance age present of Johnson. Counsel did evidence of some and, above, drug and alcohol as had Johnson’s abuse discussed presenting a reasonable basis not more. Counsel also testimony family introduced the members of Johnson to family problems they show that he came from a high expectations correctly had of him. As the PCRA court “[ujnder found, case, facts and circumstances of this trial counsel cannot be held ineffective for what not know he did family.” not made aware of or his [Johnson] Opinion Court, 2, 2001, of the PCRA October page Coun- reasonably thorough sought sel conducted a review and rele- penalty phase. vant information presented He his findings in reasonably designed highlight a manner bringing positives Johnson without too much attention to negatives. Any presentation deficiencies in the of counsel performance counsel, stem from his as but from Johnson’s own failure to advise. to

Alleged Object Failure to Written Instructions alleges Johnson also trial that counsel was ineffective to to object the decision of the to trial court send jury written instructions with into the deliberations. The designed jury written instructions were assist the com pleting complicated the somewhat verdict and did not forms any on of law. cites points

contain statements cases to establish a court commits three Court a gives jury. it written instructions to reversible error when (1998); Pa. 709 A.2d 887 Karaffa, v. Commonwealth DeHart, (1994); Pa. 650 A.2d Commonwealth (1990). Pa. 568 A.2d 1238 Oleynik, Commonwealth v. following language Oleynik: on from Johnson relies the in- permitted a is to take them written jury Where deliberations, question may a during structions their arise application of the appropriate as to the written instruction case, a it resolving an issue in the cause In such [sic]. when jury interpretation resort to highly probable is the would its reaching its of the written instructions verdict. Where given the oral jury required rely upon the is instructions charge, disagreement if concern- by judge in his arises instructions, likely jury it is more ing the oral from the judge would further instructions to resolve seek question. issue is resolved further instruc- When court, that procedure misconcep- tions from the insures that process. tions are not to infect the permitted deliberative hand, jury when is left to On the other its own devices instruction, the of a miscon- interpret possibility a written Moreover, submission ception significantly enhanced. encourage jury of written instructions would tend general upon ignore the court’s instruction and focus supplied emphasis to them. This undue written instructions charge portions potential undermining has the process. integrity of the deliberative at 1241. Oleynik, 568 A.2d jury

In court sent out with the written in- Oleynik, the causation, legal third-degree structions on the definitions of murder, involuntary manslaughter. That situation is ob- case, viously present the in- distinguishable where law, of points structions did not contain an articulation but fill merely explained slip. to the how to out verdict DeHart, jury gave In court to the written instruction itself the law. That error is in a different misstated alleged In Karaffa, class from herein. similar to the error court Oleynik, provided jury the the with written instructions and doubt. the definitions unlawful restraint reasonable clearly directly implicate These errors and the concerns we Oleynik; addressed in the written “instructions” in the case to judice jury detailing sub do not. the Written directions subject procedure filling slip the for out a verdict are not to interpretations that potentially prejudice could a defendant. reason, For this we refuse to find that trial counsel was object to written ineffective to the instructions. Alleged to Request Failure an Enmund

v. Florida Instruction trial for failing request Johnson next faults to an during pursuant instruction penalty phase, the to Enmund Florida, U.S. S.Ct. L.Ed.2d 1140 (1982), that an to a accomplice murder cannot be sentenced proof death contemplat absent that intended to take life or he in ed that would process. During penalty life be taken the the phase, trial the court instructed the as follows: (1) regard Banks,

With aggravating Damon is one there is, may by you. circumstance that be considered That killing, the time of Damon Banks was or had been involved, associated, competition in in or the defendant sale, distribution, delivery any or sub- controlled stance, and the defendant was an killing committed or accomplice killing, killing from or resulted association, was related or competition, involvement promote selling, the defendant’s distributing activities delivering or controlled substances. I,

Since I have “accomplice” again, used the in no term way you can ask your predicated upon what verdicts were yesterday, to prove Commonwealth needs defendant killed or an accomplice rely upon cannot conspiracy liability this aggravated circumstance. Therefore, I will briefly again you accomplice tell is—the defendant is an if accomplice else with intent someone promotion, or facilitating crime, commission he solicits, commands, encourages, requests per- or the other it, aids, aid, agrees attempts or to aid

son to commit or or it. committing person planning other N.T., 11/26/97, im page nothing We see Sentencing 1033. clearly, adequately, as it proper with this instruction accurately Spotz, law. 759 A.2d at supra, reflects the Moreover, above, jury on as we discussed instruction liability guilt was As the during phase correct. accomplice already possessed that jury had determined Johnson finding first-degree to of requisite support kill to a intent In murder, superfluous. instruction was Commonwealth Chester, (1991), v. 587 1385 cert. denied Pennsylvania, sub nom Laird 502 U.S. S.Ct. (1991) (Chester I), by of a we held virtue L.Ed.2d guilty first-degree a- murder based finding defendant instruction, a guilt phase accomplice liability on a as proper law, possessed culpabili minimum matter of the defendant ty Accordingly, under required progeny. Enmund its present this not an which Johnson could does avenue issue relief, as for obtain will be deemed ineffective counsel arguable a merit. failing to raise claim devoid to Alleged Investigate Aggravating Failure a Request Factor and Continuance that trial was asserts counsel ineffective adequately investigate report a failing police to that detailed knowledge drug of Johnson that Robles’ of the activities (d)(14) drug circum supported aggravating involvement request adequate to continuance to stance and much prepare a cross-examination Robles. Johnson raised appeal of his conviction and death this contention direct the claim at that time as follows: sentence. We addressed phase trial was days penalty Two before the of [Johnson’s] coun- begin, [Johnson’s] the Commonwealth disclosed police report sel of a that described state- the existence regarding participation [Johnson’s] ments Robles made pro- Bridges’ drug activities. The Commonwealth Shawn day copy report [Johnson’s] this duced At the penalty phase begin. was commence- before the preclude penalty phase, sought ment of the [Johnson] any from introducing concerning Commonwealth evidence aggravating circumstance found at Pa.C.S. 9711(d)(14)—that § the murder occurred in connection with illegal trafficking—as sanction for the Common- drug report. wealth’s The trial production late court request, noting denied [Johnson’s] the Commonwealth produced report had and that had been on [Johnson] was seeking penal- notice that the Commonwealth the death ty on of this aggravating the basis circumstance. [Johnson] now engaged claims that the Commonwealth misconduct by failing produce report when police [Johnson] general discovery requests made his months nine before trial. here,

We find no violation of Brady there no error by denying made trial court request [Johnson’s] the preclude presenting the Commonwealth from evidence of the between relationship drug the murders and [Johnson’s] dealing The produced police activities. Commonwealth the report of penalty phase before the trial. [Johnson’s] The therefore, basis for complaint, [Johnson’s] is that the Com- comply monwealth failed to a timely in fashion with his discovery for request of all that statements witnesses at sentencing phase, Commonwealth intended to call prejudiced by production he was late report. this claim, (1) In evaluating this we must look at: whether the (2) discovery violated; rules were whether the trial court its excluding pursu- abused discretion in not evidence 305(E) ant to Rule Pennsylvania Rules of Civil trial Procedure. The court broad in choosing has discretion the appropriate remedy discovery for a violation. More- over, a seeking discovery defendant from a relief violation must prejudice. demonstrate production The of statements made the witnesses of the Commonwealth within discretion of the trial In refusing grant court. [John- request son’s] that the precluded Commonwealth be introducing any regarding evidence the aggravating circum- 9711(d)(14), stance Section trial court found that had disclosed—several months before the Commonwealth during on planned calling penalty it Robles trial—that Further, in- [Johnson’s] the trial court noted phase. previous on occasions and vestigator interviewed Robles had question knowledge Robles about his opportunity had activities, Bridges’ drug in if he involvement of [Johnson’s] granted do trial court some [Johnson] chose to so. The him a by granting prepare half-hour continuance relief police basis of this for cross examination Robles of the advanced adequate light and found report, subject had matter of Robles’ [Johnson] notice testimony penalty phase. According at to these circum- stances, we find no abuse of the discretion of the trial court refusing request further relief. [Johnson’s] (internal Johnson, 727 footnote and cita 1096-1097 omitted). previously this claim is not To the extent that tions any it not Johnson to as litigated, still does entitle relief investigation has what additional failed articulate Thus, have longer might or a continuance uncovered. John and, proving prejudice burden accord son has met his his claim of assistance of counsel fails. Com ingly, ineffective (2001) Pierce, v. 567 Pa. 786 A.2d monwealth Fletcher, 750 A.2d 261 (citing Commonwealth (2000), denied, cert. 148 L.Ed.2d U.S. S.Ct. (2000)). Prosecutorial Misconduct Alleged trial Johnson contends that ineffective or a mistrial failing to seek a curative instruction when prosecutor during penalty mentioned his lack of remorse this one of miscon phase; prosecutorial he also raises claim as following prose comments of points duct. Johnson as cutor error: by [Attorney] Mil- Bailey,

Detective on direct examination ler, in the you he asked describe events course 11th, statements, statement from December two written 12th, 1996, on your follow-up December and he then said,’ you yes. if cooperative, you asked he

323 [Johnson], statements, in of any the course those two at did time he show remorse for his actions— Sergeant [To In Godshall] the course of this first statement 1996, any December 11th of did time show [Johnson] you remorse his actions? 11/26/97,

Sentencing 973, N.T. pages 980. Trial counsel ob- jected to both comments and the trial court sustained the objections.

It is well settled “brief comments regarding defendant’s remorse—particularly ... in response when to a defendant’s display self-centered emotion—do constitute Rollins, 532, misconduct.” Commonwealth v. 558 Pa. 738 435, (1999) A.2d 449 (citing v. King, Commonwealth 554 Pa. 331, 763, (1998), denied, 721 A.2d 784 1119, cert. 528 U.S. 120 942, (2000); S.Ct. 145 Harris, L.Ed.2d 819 Commonwealth v. 92, 441, (1998), denied, 703 A.2d cert. 525 U.S. 1015, (1998)). 119 S.Ct. 142 L.Ed.2d 447 While the prosecutor comments of the judice the case sub were not made in response to a display “self-centered emotion” Johnson, nonetheless, the statements are the ilk contem plated by this Court in Rollins. Trial objected to the statements and the court objections. sustained As the Commonwealth out, and PCRA court point had trial counsel requested instruction, a curative that action would have brought the lack of remorse of Johnson cogni more into the jury. zance Requesting a mistrial would have been fruitless, as the trial court would not granted have it for such minimal comments. The trial court jury instructed the disregard objections matters which were sustained. N.T. Trial, 11/18/97,pages 22-23. law presumes jury “The that the will follow the instructions of the court.” Commonwealth v. Brown, (2001); Pa. 786 A.2d Commonwealth O’Hannon, (1999) (“[a]b- Pa. 732 sent evidence to contrary, presumed to have instructions”). followed trial Hence, court’s trial counsel did not render ineffective regard. assistance The claim underlying prosecutorial misconduct is waived be- instruction or not seek a curative trial counsel did cause and did not raise the issue of the comment at the time mistrial appeal to this Court. on direct Mitigating and Aggravating and

Nature Use of Instruction Circumstances trial was ineffective counsel next asserts Johnson on the jury trial instruction object to the court’s failing instruction circumstances.10 The mitigating and nature use was as follows: complains about which Johnson you find you impose depend will whether sentence The Sentencing Code Pennsylvania any things that the of the Loosely circumstances. mitigating or aggravating calls about the things are circumstances speaking, aggravating murder case degree which make a first and the killer killing while deserving penalty, of the death terrible and more things which make the are those mitigating circumstances deserving and less death. less terrible case 11/26/97, maintains that Johnson page N.T. 909. Sentencing jury’s the focus of the “impermissibly diverted instruction as to a reasoned determination life or death deliberation unguid- amorphous to an personal culpability, [Johnson’s] was.” Brief of ‘the case’ of how terrible ed consideration Johnson, this exact claim Common- We addressed page 86. (1999). Stevens, We Pa. 739 A.2d 507 wealth follows: in Stevens as rejected the contention discussed counsel was ineffective previous claims that Appellant concerning instruction of the trial court challenging the mitigating circumstances aggravating purpose that the fol- Appellant complains capital Specifically, cases. trial court interfered instruction of the portion of the lowing personal Appellant’s with the determination Sentencing Code murders: culpability “[t]he for these moral Court, Questions his brief to this Presented section of In the however, error; in the text of his one of trial court raises this claim as was ineffective for argument, he contends trial alleged trial court We cannot address object to the instruction. will, however, waived; address we that contention error as regard. stewardship in this of counsel aggravating defines and mitigating circumstances. There things [sic] are a degree make first murder case either more terrible or less According Appellant, terrible.” the “terrible,” use of the word in conjunction with the use of the “case,” word improperly jury distracted the from consider- Appellant’s ation of mitigation by drawing evidence their generalized attention to a conception of the ‘case.’ reviewing challenge When part jury instruction, to a of a an appellate court jury must review charge the as a whole determine if it is fair complete. A trial court has broad discretion in phrasing charge its and can choose its own wording long so as clearly, the law is adequately, accurately presented jury to the for its Ap- consideration. pellant ignores an earlier instruction the trial court regarding the function of aggravating mitigating cir- cumstances, where the court stated:

Now, you the sentence that impose depend will on wheth- you er any find of things Pennsylvania Sentencing aggravating Code calls mitigating or circum- stances. Loosely speaking, aggravating circumstances things are about the killing and the killer which amake degree first murder case more deserving terrible and penalty, death mitigating while circumstances are things those which make the case less terrible and less deserving of the penalty. death We do not find that the instructions court, of the trial as a whole, jury’s interfered with the evaluation specific mitigation presented by evidence Appellant or their assess- personal ment of his moral culpability. These instructions merely expressed to jury, in laymen’s terms, pur- pose for the distinction between aggravating and mitigating in capital circumstances penalty phase. (internal omitted).

Id. at 526-527 citations Therefore, trial in judice the case sub was not ineffective for failing object instruction. (d)(U)

Constitutionality Drug Activity Aggravator penultimate (d)(14) Johnson’s argument is that aggravating circumstance is unconstitutional and that trial to raise this at trial or

counsel was ineffective issue 9711(d)(14) aggrava- § includes an appeal. 42 Pa.C.S. as ting circumstance that: victim had been killing,

At the time of the was or involved, competition or with the defendant associated manufacture, sale, delivery any or con- distribution controlled in vio- trolled substance or counterfeit substance Substance, Drug, lation of Device and Cos- The Controlled state, any law other District metic Act or similar States, and the commit- Columbia or the United defendant to the killing accomplice killing ted the or was as defined 306(c), killing § in 18 from or was Pa.C.S. and the resulted association, or competition related to that involvement selling, manufacturing, promote activities the defendant’s delivering distributing or controlled substances or counter- feit substances. controlled “involved,” “associated,” and posits that the words vague aggra- and

“competition” unconstitutionally are that the vating unconstitutionally in toto is overbroad circumstance in a apply any drug “because it could murder saturated or victim involved setting perpetrator urban which the are Johnson, drugs.” page Brief Supreme Court of the United has held The States that, capital punishment “if a it has a wishes authorize State and in a responsibility apply constitutional to tailor its law arbitrary capricious and infliction of manner that avoids the responsibility Part in this penalty. the death of a State’s regard may is for which death be to define crimes way [sentencing] in a that obviates ‘standardless sentence ” 420, 428, discretion.’ v. 446 U.S. 100 S.Ct. Godfrey Georgia, (1980) 1759, 64 v. 428 (citing Gregg Georgia, L.Ed.2d 398 U.S. (1976)). 153, 2909, “must 96 49 L.Ed.2d 859 The statute S.Ct objective channel clear and stan the sentencer’s discretion specific guidance, dards and detailed provide rationally process imposing make reviewable the sen (internal quotations Id. and footnotes omit tence death.” ted). unconstitutionally vague An aggravating circumstance find to juries they if it “fails what must adequately inform 327 and as a leaves impose penalty the death result them and appellate open-ended courts with the kind of discretion which 238, 92 Georgia, was held invalid in Furman 408 U.S. S.Ct. (1972).” v. Cartwright, 33 L.Ed.2d Maynard (1988). 361-362, L.Ed.2d 372 U.S. 108 S.Ct. Georgia’s capital punish- “Furman held that then-standardless being applied arbitrary capricious ment statute was in an manner; principled provided there was no means to distin- guish penalty those that those that did not.” received In challenge Id. 108 S.Ct. 1853. of a context aggravator, Eighth breadth to survive an Amendment challenge aggravating genuinely must nar- “fa]n circumstance persons eligible penalty row the class of death reasonably justify imposition must of a more severe sen- compared guilty tence the defendant found others 862, 877, murder.” Zant v. Stephens, U.S. S.Ct. (1983). 77 L.Ed.2d 235 (d)(14)

The aggravating is not constitutionally circumstance for vagueness. void vagueness challenge Johnson’s fails be- aggravator adequately cause the they informs involved, associated, must find that was or the victim had been competition sale, or in manufacture, with the defendant in the distribution, any or delivery controlled substance and that killing involvement, in relation occurred to that associa- tion, or competition promote activities defendant sale, manufacture, distribution, in the delivery of or controlled “Involved,” “associated,” “competition” substances. are words common usage meaning and do not require additional aggravator definition. This not jury does leave the or open-ended arbitrarily unfettered impose discretion death penalty. the (d)(14)

Likewise, aggravating the circumstance is not overbroad. It clearly “genuinely both narrow[s] the class of persons eligible for death penalty” “reasonably jus the imposition of a tiffies] more sentence on severe compared Zant, defendant others guilty found of murder.” 877, 462 U.S. at aggravator 103 S.Ct. 2733. requires The a relationship the defendant they between and the victim where

328 drug in illicit competitors in concert or are

either act activities killing promote that the occurred to market and market, over the victim in that whether of the defendant accomplice. or an To consider was the actual killer defendant could, itself, by justify circumstance that aggravating this sentence, with the of a is consistent imposition capital Commonwealth, reasonably which seeks public policy of society. on drugs harmful that have our reduce the effects Thus, that proving has failed to meet his burden (d)(14) has aggravator his claim that the is unconstitutional and, accordingly, was not ineffective arguable merit counsel to raise this issue. failing Means Instruction

Life Life that trial allegation final of error of Johnson is The by request assistance rendered ineffective Pennsylvania that in means life jury instruction a life sentence in accordance with Simmons possibility parole without the Carolina, 2187, v. L.Ed.2d South 512 114 S.Ct. 129 U.S. Simmons, (1994). Supreme 133 In Court of the United “may a false dilemma States held that state create arguments regarding defendant’s advancing generalized time, while, preventing dangerousness future at the same jury learning that the defendant will released be never Id. at parole.” 114 S.Ct. 2187. The Court determined process requires that the defendant is entitled due ineligible parole inform is he where the state puts dangerousness into issue. the future the defendant added). Id. As we stated in Commonwealth (emphasis denied, Bridges, cert. (2000), Pa. A.2d 859 535 U.S. 2306, 152 (2002), has L.Ed.2d 1061 issue “[t]his S.Ct. The law of this been before this Court numerous times. is that a Simmons required to is Commonwealth instruction given only dangerousness in future be those cases where the Id. at 881 (citing issue.” placed defendant minority Bridges 11. We of this Court is of ''[a] also noted given, prospectively, view all that a Simmons instruction should be Clark, (citing capital Id. at cases.” n. Commonwealth v. Chester, 358, 1242, 557 Pa. Commonwealth (1999) (Chester II)). A review of Record that the shows put dangerousness did not Commonwealth future John and, thus, son into issue there was need for no a Simmons “life life without will parole” means instruction.. Counsel be ineffective for has deemed to raise claim that no merit. Tilley.

CONCLUSION deny We affirm the decision the PCRA court to 9711(i), § Petition of Pursuant to 42 Pa.C.S. Johnson. we Prothonotary Pennsylvania direct Supreme of the Court of complete transmit the record of this case to the Governor Pennsylvania.

Justice files concurring opinion SAYLOR which Justice joins. NIGRO EAKIN concurring dissenting

Justice files a opinion, joined CASTILLE, by Justice who joins majority also opinion. SAYLOR, concurring.

Justice I result, concur separately in the but my write to note disagreement with aspects majority’s analysis. several (as

First, Argument by majority), renumbered Appellant challenges jury’s rejection stipulated mitigating Appellant circumstance that had no significant his- tory of prior 9711(e)(1). convictions. See 42 § Pa.C.S. The majority rejects this claim upon based observation controlling principles as stated in Copenhe- Commonwealth v. (1991), fer, 526 Pa. 587 A.2d 1353 yet had not been modified Court’s subsequent decision in Common- Rizzuto, (2001). wealth v. 777 A.2d 1069 Nevertheless, relief, as an alternate denying basis for Rizzuto, majority distinguishes only noting there one (1998), denied, 710 A.2d 31 cert. 526 U.S. 119 S.Ct. (1999)). 143 L.Ed.2d 550 330 case, present in matter

murder at issue that whereas the relevant, ac- a distinction is involves double homicide. This stipulation to the here at issue cording majority, because to the victim died only pertaining viewed as that should be Thus, victim Banks Gregory was evidence that first.1 as there second, jury rejecting acted within its discretion died as to him. See Opinion, at mitigator Majority agreed-upon Rizzuto, that, cir- mitigating “where a In this Court held by stipulation, the is jury jury to the presented cumstance is by mitigating to that factor.” Such conclu- required law find Pennsylvania’s upon observations that sion was based requires sentencing a sentencing affirmatively capital scheme any proven mitigators, find of jury to the existence legal equivalent requisite degree as the of the stipulation acts 72-74, id. Accordingly, at 777 A.2d at 1088-89. See proof. that, upon stipulation, the existence of the the Court indicated “ ” id. at case,’ ‘law mitigating factor becomes of the Co., Nat’l Parsonese v. Midland Ins. (quoting (1998)), 423, 426, jury 706 A.2d and the lacks it: find discretion to refuse stipulations grant jury ignore

If discretion we would fact, right at a granting would to arrive we be arbitrary capricious in an fashion. sentencing verdict very purpose would undercut the conclusion Such developed by our penalty sentencing scheme General death Assembly.

Rizzuto, Pa. at 777 A.2d at 1089.2 jury to majority re-opens now an avenue for the

The reconsider, cannot, position reject, stipulated facts. Such Rizzuto. my view, reconciled with the strictures be solely upon Accordingly, deny I would relief the basis that terms, stipulation, by contemplates party its 1. Neither contends that the any such restriction. Suggested Jury Instruction 3.17 Pennsylvania Standard Criminal 2. Cf. (“When attorney stipulate, and counsel for defendant the district true[,] stipulation they agree, a certain fact is their that is when stipulated regard agreed or as evidence that fact. You should fact added)). proven." (emphasis counsel was not anticipate ineffective for failure the modifi- Copenhefer. cation of

Additionally, although majority it, does not address there is substantial aspect Argument partic- another 15. In ular, Appellant that, apart any stipulation avers even parties, the trial court erred polling why as to 9711(e)(1) rejected it the Section mitigator to Gregory, relative and then accepting explanation its rejection such was due Gregory evidence that died after victim Damon In Banks. regard, Appellant asserts that the mitigating circum- stance, terms, by its only applies prior “convictions,” and that there is no dispute concerning the absence of such regardless convictions of which victim died first. Appellant contends that jury by the refusing “erred” to consider such mitigating upon evidence based the premise erroneous that the order of death of the two murder victims is determinative. He maintains that when, the trial court also erred polling after jury the and learning of its erroneous rejecting basis for 9711(e)(1) Section mitigator with regard Gregory, to it failed to instruct jury presence of this mitigator is independent of the order of death.

Whatever merit underlying this may claim trial error have, it is can only presented be in the waived context of an assertion of ineffective assistance. In his petition PCRA and in Court, his brief to this Appellant only asserts counsel’s ineffectiveness in the form of a boilerplate statement attached underlying error, claim of stating in a conclusory manner that all prior counsel were ineffective for failing to raise the error. As such undeveloped of prior claims counsel’s ineffectiveness are satisfy insufficient to proof the PCRA’s requirement, Bond, see 588, 600, Commonwealth v. 572 Pa. 33, 39-40, 819 A.2d (Pa., WL at *4 Aug. 2002), Appellant is not sentencing entitled a new hearing upon based this claim.3 Although I expressed concurred in the result in Bond and reservations concerning employed by majority reject rubric Bond’s inef- claims, that, recognize fectiveness garnered I opinion as the lead in that case Court, majority votes of a principles I am bound Argument majority

Finally, disposing of states “[wjritten jury procedure detailing directions to the interpretations are not completing slip subject verdict Majority potentially prejudice Opin could defendant.” any it ion, why As I am unaware of would be at 584. reason instructions contain harmful ambi impossible for such in this agree majority’s I cannot with the statement guities, DeHart, 5, 25, 650 regard. Commonwealth Cf. (1994) slip verdict (vacating a death sentence where the jurors have language contained that the could construed weigh aggravators against mitigator them to each require individually mitigators collectively). all The chal rather than as instruction directed follows: lenged portion sheet IMPRISONMENT, LIFE [sic] IF YOU SENTENCE IS FINDING, C.2., THE C.l. OR SHOULD CHECK YOU WHY YOUR THE WHICH EXPLAINS JURY REJECTS AND A LIFE DEATH PENALTY IMPOSES SEN- IF THE REASON FOR REJECTING THE TENCE. THAT ONE DEATH PENALTY IS OR MORE JURORS CIRCUMSTANCES, FIND THEN NO AGGRAVATING THE REASON CHECK C.l. IF FOR REJECTING THAT, ALTHOUGH ALL AGREE DEATH IS JURORS CIRCUMSTANCE, AT LEAST ONE AGGRAVATING ON FIND THAT OR MORE JURORS MITIGATING ONE BY ARE NOT OUTWEIGHED AGGRAVATING CIR- CUMSTANCES, C.2. THEN CHECK 23, Dismiss, February to of Intent dated See Order Notice 2001, that, by suggesting Exhibit A. claims Appellant at “reject” penalty must to sentence him to jury the death directing I read Bond as that claims of trial of stare decisis follow it. developed according to the must be factors ineffectiveness Pierce, 158-59, 153, in v. 515 Pa. 527 A.2d identified Commonwealth 973, (1987), presently, pursuant although, to Commonwealth v. 975-76 567, 517, Williams, (2001), 566 Pa. 782 A.2d the Court 525 still concerning involving claims affords some latitude ineffectiveness of Wharton, 571 appellate counsel. See Commonwealth v. Pa.

direct J., that, (2002) (recognizing (Saylor, concurring) purposes post-conviction petitioner a obtained new counsel "where yet expressed appeal, has not retreated from its of direct the Court degree layered to afford a of latitude relative to claims of decision ineffectiveness”). life, could these instructions have been understood raise death, presumption thereby improperly shifting in favor of persuasion to him. burden scheme,

According Pennsylvania’s capital sentencing cer- and, imposed, tain conditions must be death to met for be conditions, barring such imprison- the sentence defaults to life may ment.4 in paradigm While this be various described ways, language employed by challenged different sheet, whereby instruction imposed “reject- life is if death ed,” sufficiently comports statutory with the procedure. No- that, tably, well, as by indicating juror even one con- where “mitigating outweighed cludes that are not by aggravating circumstances,” that, clarify instructions where the miti- gating aggravating weigh equally, factors sentence imposed. life must be Accordingly, Appellant has not demon- strated that prejudiced use the instruction sheet him. joins

Justice concurring opinion. NIGRO EAKIN, Justice concurring dissenting.

I agree with the majority’s conclusion that appellant is not relief, entitled to Post-Conviction but separately write in express my order to concerning “layered view ineffectiveness” claims raised under the PCRA.

Appellant issues, raises all of which pertain trial error and trial my counsel’s As I ineffectiveness. noted in in dissent Ford, this Court’s decision in recent Commonwealth v. (Pa.2002), 809 A.2d 325 failure to raise issue at trial right however, waives the to raise that on appeal; issue if trial counsel’s failure raise the issue is proven under the stan dard 668, 694, Strickland Washington, U.S. 104 S.Ct. 2052, 2068, (1984); 80 L.Ed.2d 674 Commonwealth v. jury 4. The must sentence the defendant death if it unanimously aggravating specified finds least one circumstance as (d) mitigating subsection and no or if circumstances unanimously aggravating one finds or more circumstances which outweigh any mitigating circumstances. The verdict must be a imprisonment sentence of life in all other cases. § 42 Pa.C.S. 971l(c)(l)(iv). jury. The trial court so instructed See N.T. at 1031-32. 11/26/97 Pierce, 153, 973, (1987), 975-76 and 515 Pa. A.2d

[Charles] 9543(a)(4), direct may § then relief be afforded on Pa.C.S. allege If, appellate counsel fails to appeal. appeal, on direct waived; ineffectiveness, yet then that issue is trial counsel’s in a by alleging, also be this second waiver can overcome failing to counsel’s petition, appellate PCRA ineffectiveness However, stewardship. appellate challenge trial counsel’s not proven, in this must be counsel’s ineffectiveness vein assumed, post petitioner in to be entitled order for conviction relief.

Here, is only ineffectiveness mentioned appellate counsel’s 23,1 recites appellant’s in and brief issues boilerplate paragraph in appellate counsel’s ineffectiveness Brief, argument Appellant’s See at 8-9. preceding the section. at the argues underlying issues Appellant the merits level, develop prongs two of the trial but does not the latter appellate respect counsel’s ineffective- Strickland test issue, omission ness: lack of a reasonable basis resulting prejudice. Ford, must be appellate stewardship As I in counsel’s stated given with the consideration trial counsel. appraised same J., Ford, (Eakin, Strategic not dissenting). at 414 choices See simply an issue trial are not unreasonable se per to advance likewise, found guilty; appellate was because the defendant concerning trial forego advancing counsel’s decision an issue not se per should be held ineffective stewardship counsel’s may have unrea- simply trial counsel’s decision been because alleg- is required, paragraph simply Id. Proof and a sonable. trial ing every attorney to date is ineffectiveness sufficient under Strickland. Ford, appellant’s in PCRA appellant petition

Unlike the waiver” in PCRA litigated after the abolition “relaxed Albrecht, capital appeals Commonwealth v. (1998); therefore, required plead he was respect test with

prove prong each the ineffectiveness so, failed to he is not appellate Having counsel. do entitled majority opinion. 1. As renumbered hearing, a remand Accordingly, and no relief is due. although majority appellant’s addresses issues their meritless, they merits and I appel- concludes are would hold sufficiently lant has not appellate demonstrated counsel’s inef- fectiveness for to challenge stewardship, trial counsel’s deny would relief on this basis. Therefore, I dissent from analysis my col- learned leagues. joins

Justice concurring dissenting CASTILLE opinion.

Marjorie WOLLOCH, Appellee v. M.D., AIKEN, Meltzer, M.D., Keohane, Robert Michelle Richard M.D., Pennsylvania Hospital, and Thomas Jefferson

Hospital, Appellants, Appeal Aiken, of Robert M.D.

Marjorie Wolloch, Appellee v. Aiken, M.D., Meltzer, M.D., Robert Keohane, Michelle Richard M.D., Pennsylvania Hospital, and Thomas Jefferson

Hospital, Appellants, (Three Cases). Appeal of Michelle Meltzer Supreme Pennsylvania. Court of

Argued Oct. 2001.

Decided Dec. 2002. Reargument Feb. Denied

Case Details

Case Name: Commonwealth v. Johnson

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 27, 2002

Citation: 815 A.2d 563

Docket Number: 361 CAP

Court Abbreviation: Pa.