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JOHNSTON v. LOVE

July 18, 1996

NORMAN L. JOHNSTON
v.
WILLIAM J. LOVE, et al



The opinion of the court was delivered by: POLLAK

 Pollak, J.

 July 18, 1996

 Now before the court is a Report and Recommendation (R&R) by Magistrate Judge Rueter. The R&R recommends that this court deny a petition for habeas corpus filed by Norman L. Johnston, an inmate at the State Correctional Institution in Huntingdon, Pennsylvania. Mr. Johnston, who is proceeding pro se, has filed objections to the R&R. In lieu of filing a brief, the Commonwealth has filed a copy of the brief it has filed before the Third Circuit Court of Appeals in a related case, David Johnston v. James Price, No. 94-4314; the latter case is an appeal of the denial of the petition for habeas corpus of Norman Johnston's brother and codefendant, David K. Johnston.

 I. Background

 I will begin with a brief recitation of the factual and procedural background of this case. *fn1" The evidence presented at Johnston's trial indicated that a group including Norman Johnston, his brothers David Johnston and Bruce Johnston, Sr., Richard Mitchell, Leslie Dale, Roy Myers, and James Griffen operated a burglary ring in Chester County, Pennsylvania. The group also included a number of members who were teenagers; these members were apparently referred to as the "Kiddie Gang."

 Law enforcement officials then arrested Dale, Mitchell, Griffen, and other gang members; all agreed to cooperate as witnesses for the Commonwealth. On January 29, 1979, David and Norman Johnston were each charged with five counts of murder and one count each of criminal conspiracy, attempted murder, aggravated assault, and a weapons offense. Bruce Johnston, Sr. was charged with the same crimes, and one additional count of murder. As a result of this additional charge, the trial of Bruce Johnston, Sr., was severed from (and followed) the trial of his brothers.

 David and Norman Johnston were tried together before Judge Sugerman of the Chester County Court of Common Pleas. Their trial began on January 29, 1980; on March 18, they were found guilty of four of the counts of murder and all of the related charges. (As already noted, they were acquitted of the murder of Wayne Sampson.) Norman Johnston was sentenced to four consecutive life sentences and a further twelve and one-half to twenty-five years, to be served consecutive to the life sentences.

 Norman Johnston appealed his conviction. Before the disposition of that appeal, he filed a motion seeking a new trial on the basis of after-discovered evidence. The Superior Court then remanded the case to Judge Sugerman for a hearing on this evidence. Judge Sugerman conducted that hearing on May 26 and 27 and June 10, 1987. On May 9, 1989, Judge Sugerman issued a lengthy (343-page) opinion finding that a new trial was not necessary. See Commonwealth v. Norman L. Johnston, No. 0037779, slip op. (Court of Common Pleas, Chester County, May 9, 1989) (hereinafter "Opinion of Judge Sugerman"). Johnston appealed this ruling; his appeal was consolidated with his original direct appeal, and, on May 31, 1990, both appeals were denied. On May 14, 1991, the Pennsylvania Supreme Court denied Johnston's petition for allowance of appeal. On June 14, 1995, Johnston filed the present petition for habeas corpus.

 II. Johnston's Petition

 Johnston's habeas corpus petition, which is brought under 28 U.S.C. ยง 2254, asserts five claims:

 
(1) that he was denied his right to a fair trial because the Commonwealth failed to disclose a number of promises made to or benefits conferred upon James Griffen, a witness for the Commonwealth;
 
(2) that the trial court erred in excluding the testimony of Graham Andes, Esq., testimony which Johnston asserts would have called into question the credibility of Richard Mitchell, another witness for the Commonwealth;
 
(3) that the trial court erred in admitting into evidence information as to prior criminal activity by Mr. Johnston;
 
(4) that the trial judge was biased against him; and
 
(5) that his trial counsel was ineffective in a number of respects.

 Johnston's petition was referred to Magistrate Judge Rueter. Judge Rueter prepared a 59-page R&R, to which Johnston has filed objections. Judge Rueter's R&R is learned and comprehensive, and reveals an intimate familiarity with the complex record in this case. I also note that Johnston's objections demonstrate a very high quality of advocacy, especially given that he is appearing pro se. I will now consider the R&R, together with Johnston's objections. *fn2"

 A. The Commonwealth's Failure to Disclose Promises To or Benefits Conferred Upon James Griffen

 James Griffen *fn3" was one of several important witnesses at the petitioner's trial who had at some point been confederates of the Johnstons. Griffen's testimony was that he had overheard the three Johnston brothers planning to bury "some snitches" - apparently referring to the victims of the triple murder - and that he had driven with Norman Johnston and others to the hardware store to buy shovels and lime for use in the burial. Griffen also testified that he had overheard Norman and David Johnston discussing the attack on Bruce Johnston, Jr. and Robin Miller, in terms that clearly implicated them. R&R at 19. Griffen was an important witness for the Commonwealth; indeed, Johnston points out that the Commonwealth's opening described a ...


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