Appeal from the Order of the Court of Common Pleas of Berks County dated March 9, 2007 at CP-06-CR-0003849-1999.
The opinion of the court was delivered by: Mr. Chief Justice Castille
CASTILLE C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
SUBMITTED: December 10, 2007
The Commonwealth appeals from the order of the Court of Common Pleas of Berks County ("PCRA court") overturning the verdict of guilt and sentence of death, and awarding appellee Raymond Johnson a new trial pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. The court granted relief premised upon a finding that trial counsel were ineffective in various respects relating to the investigation and presentation of the defense at both the guilt and penalty phases. In granting guilt phase relief, the PCRA court declined to pass on the credibility of appellee's witnesses. For the reasons that follow, we conclude that such a failure constitutes legal error and thus, vacate and remand for proceedings consistent with this Opinion.
On June 18, 1996, at approximately five o'clock p.m., Louis Combs ("the victim") was fatally shot in connection with a drug-related territorial dispute in the City of Reading.
Appellee was charged with criminal homicide and related offenses, and, following a jury trial, was found guilty and ultimately sentenced to death on September 22, 2000. At trial, the Commonwealth presented eyewitness accounts identifying appellee as the killer. The testimony of Jackie Cook, the victim's nephew, described the shooting and established appellee's motive to kill the victim. Cook testified that he sold drugs with the victim and explained that the victim was concerned with a rival group that operated out of 437 Schuylkill Avenue and competed for area drug sales. According to Cook, on two consecutive days he and the victim confronted a suspected member of the rival group, Adrian Starks. On the second occasion, the afternoon of the killing, Cook stated that he demanded to speak with Starks' supplier. Cook testified that Starks returned with appellee, and that appellee and the victim entered the breezeway next to 437 Schuylkill Avenue that led to a courtyard. Cook stated that, from where he was standing in front of the house, he could see down the breezeway, and saw appellee pull a gun from his waist and shoot the victim in the abdomen. Cook testified that he fled the scene and, while fleeing, encountered another member of appellee's group known as "Izod" in the vicinity. Cook also admitted that he had repeatedly smoked marijuana on the day of the shooting, including immediately before the murder. Cook also testified that he later encountered appellee and Starks while the three were incarcerated in Berks County Prison, and that appellee and Starks threatened him and warned him not to testify against appellee at appellee's murder trial. Notes of Testimony ("N.T."), 9/19/00, at 253-79.
The testimony of Spencer Branford, offered by the Commonwealth, corroborated aspects of Cook's account of the encounter between appellee and the victim, though Branford did not witness the actual shooting. Branford stated that, when the shooting occurred, he was sitting on the front stoop of 437 Schuylkill Avenue and Cook was standing in front of the house, closer to the breezeway. Branford also testified that he did not get a good look at the man who accompanied Starks to the house. Id. at 234-39.
The Commonwealth also presented the testimony of Nicole Ramsey. Ramsey stated that she sold illegal drugs on behalf of appellee and explained that appellee and Izod, whom she described as appellee's "right-hand man," had experienced problems with the victim for some time prior to the murder because appellee and Izod were selling drugs in the vicinity of the victim's operation. Id. at 308-18. Ramsey testified that, while in her apartment on the day of the murder, appellee was carrying a firearm and expressed anger towards the victim. Ramsey also stated that, after the murder, Izod informed her that "we did them niggers. You didn't think we would, but we did. There is not going to be a problem." Id. at 322.
Appellee, represented by counsel ("trial counsel"),*fn1 presented an alibi defense, consisting of two witnesses, Crystal Johnson, appellee's wife; and Shadena Johnson, a friend. Each alibi witness testified that on the evening of June 18, 1996, the day the victim was murdered, she was with appellee at the home of Alice Jackson in Brooklyn, New York, and that in the evening, appellee asked Crystal Johnson to marry him. When questioned by the prosecution, however, both witnesses testified that they believed June 18, 1996 to be a Wednesday, when it was actually a Tuesday. Although trial counsel did not attempt to rehabilitate the alibi witnesses on redirect, in his closing statement, he acknowledged their "slight mistake" and stated that: "The point is, they were right on the date, the 18th. And they were right on the incident. How can they remember? The girl got engaged." N.T., 9/20/00, at 494. Appellee did not testify himself.
The jury found appellee guilty of first-degree murder, and, following the penalty phase, appellee was sentenced to death. The jury found one aggravating circumstance --that at the time of the killing appellee was involved, associated, or in competition with the victim in the sale, manufacture, distribution, or delivery of illegal drugs, 42 Pa.C.S. § 9711(d)(14) -- and that this aggravator outweighed the one mitigating circumstance that the jury found -- the character and record of appellee and the circumstances of the offense, 42 Pa.C.S. § 9711(e)(8).
On direct appeal, where appellee was represented by new counsel, this Court unanimously affirmed appellee's conviction and sentence. Commonwealth v. Johnson, 838 A.2d 663 (Pa. 2003), cert. denied, 543 U.S. 1008 (2004). We held that the jury's determination that appellee deliberately killed the victim was supported by sufficient evidence, and that, when viewed in the light most favorable to the Commonwealth, and employing reasonable inferences, the evidence was sufficient to support the aggravating circumstance that the murder was committed as a consequence of a drug-sale-related rivalry. Recognizing that the Commonwealth's case relied heavily on evidence obtained from admitted participants in the illegal drug trade, we stated that such concerns implicate the jury's responsibility to resolve questions of credibility, and, absent extraordinary circumstances, an appellate court will not substitute its judgment for that of the fact-finder. Appellee raised a number of claims alleging trial court error, none of which warranted relief. Appellee also attempted to litigate multiple claims of ineffective assistance of counsel, but, noting that the claims should be addressed in collateral, post-conviction proceedings, we dismissed appellee's ineffectiveness claims without prejudice pursuant to Commonwealth v. Grant, 813 A.2d 726 738 (Pa. 2002) (petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review; ineffectiveness claim will be waived only after petitioner has had opportunity to raise claim on collateral review and has failed to avail himself of that opportunity).
On November 18, 2006, a PCRA petition was filed on appellee's behalf by the Federal Community Defender's Office for the Eastern District of Pennsylvania.*fn2 A PCRA hearing was held from March 5-9, 2007, before the same judge who presided over appellee's trial. Appellee offered the testimony of, inter alia, trial counsel, Jackie Cook, Crystal Johnson, and three witnesses, Ronald George, Gerald Williams, and Jonathan Workman, whom appellee alleged trial counsel failed to interview and call at trial. After having been warned about the penalty for perjury, Cook, the Commonwealth's primary witness at trial, testified that his trial testimony regarding what he saw the evening of the shooting was not true, and that, from where he was standing in front of the house, he could not see down the breezeway to where the shooting took place. At trial, Cook had testified that appellee, riding a bicycle, was the man accompanying Adrian Starks after Cook demanded to meet Starks' supplier. At the PCRA hearing, however, Cook testified that appellee was not the man who shot the victim, and that the man on the bicycle had fairer skin than appellee and, unlike appellee, wore his hair in dreadlocks. Likewise, appellee introduced Cook's pre-trial statement to the police, which was inconsistent with his trial testimony and consistent with his PCRA testimony, as it stated that he did not see the shooting. Cook also claimed that he provided his perjurious trial testimony, inculpating appellee, in exchange for both a pizza and sentencing consideration on a separate drug-related charge.*fn3
Relevant to the failure to investigate claim, Ronald George testified at the PCRA hearing that he was in the courtyard, approximately three feet away from the victim, when the victim was shot and that appellee was not the shooter. George claimed that he saw the shooter and then described someone who did not resemble appellee. George also stated that he had never seen appellee prior to the PCRA hearing. Contradicting Cook's trial testimony, George claimed that no one looking down the breezeway could have seen the shooting. George further asserted that, even though he was an eyewitness to the shooting, he had lied to police and told them that he did not see anything. George said he lied because the police officer who spoke to him was rude. N.T., 3/5/07, at 19-37.
Gerald Williams, another PCRA witness called by appellee, testified that he was on his porch when he heard the shooting, then saw two men running away immediately after the shot was fired, and then saw a third man running low out of the breezeway in the same direction. Williams stated that he went to investigate, found the victim's body in the courtyard, covered it with a blanket, and told someone to call the police. Williams also testified that he spoke with the police following the shooting, but was not contacted by trial counsel, the defense investigator, or the prosecution prior to appellee's trial. Id. at 55-66.
Yet another witness called by appellee at the PCRA hearing, Jonathan Workman, testified that he saw the shooting take place and that appellee was not the shooter. Workman also gave a description of the shooter consistent with the descriptions presented by George and Cook at the PCRA hearing. Id. at 143-59.*fn4 Like George, Workman claimed that someone in front of the house would not have been able to see the shooting through the breezeway. Workman also testified that, at first, he did not inform the police that he saw the shooting for fear of retaliation, though he claimed that he later attempted unsuccessfully to contact the investigating officer. Id. at 154-56. All three witnesses claimed that, if they had been contacted by trial counsel or the defense investigator, they would have testified at trial on behalf of appellee.
Trial counsel testified at the PCRA hearing that he could not remember whether he interviewed witnesses, such as George, Williams, and Workman, who were referenced in the police report, but who were not called at trial. Trial counsel testified that he and the defense investigator would have tried to independently interview everyone named in the police report or identified by appellee, because they "did not accept the police version as to what [a] witness saw or said." N.T., 3/7/07, at 448. Further, trial counsel stated that there would not have been a strategic or tactical reason not to interview a witness if he or she had information of probative value.
As for appellee's claim of ineffectiveness respecting the alibi defense, appellee's wife, Crystal Johnson, testified at the PCRA hearing and claimed that trial counsel never spoke to her prior to calling her to testify at trial. Johnson testified that trial counsel never asked her the date of the Brooklyn get-together and never told her what day of the week June 18, 1996 was. Johnson did admit, however, that she had phone conversations with the defense investigator prior to trial and told him that appellee was with her in Brooklyn on June 18, 1996, and that that day was a Wednesday. At the PCRA hearing, Johnson reiterated that appellee was with her in Brooklyn on the evening of June 18th, though she did not attempt to explain the inconsistency in her trial testimony regarding the day of the week, or claim that she had been mistaken. Id. at 391-95, 401-04. Appellee did not call Shadena Johnson.
With respect to this claim, trial counsel stated that he presented the alibi defense at appellee's urging, and recounted the difficulty he encountered in securing the two alibi witnesses and the limited opportunities he had to interview and prepare them for trial. Although trial counsel testified that most of the preparation was done by the defense investigator, he contradicted Crystal Johnson's testimony and stated that both he and the investigator had "extensive discussions" with her, and added that he and his investigator would have interviewed Shadena Johnson as well. See N.T., 3/7/07, at 442, 444. When pressed, however, trial counsel testified that he did not recall having specific conversations with Crystal or Shadena regarding the night of the week the get-together in Brooklyn occurred, and could not provide a clear answer when asked whether he knew "that Shadena Johnson was going to say that the party was on a Wednesday." Id. at 444-47. When asked if "it would have been important to find out if your [alibi] witnesses thought they were talking about a Wednesday night [when the murder occurred on a Tuesday]," trial counsel invoked the "problems" he had with the alibi witnesses. Id. at 443-44. Trial counsel also testified that he "would have had some reason to expect what she was going to say," but that "what the witnesses say isn't always what they told you." Id. at 444. Further, trial counsel stated that he would not have knowingly introduced alibi witnesses who offered contrary and contradictory dates, times, and places. PCRA counsel failed to question trial counsel respecting his failure to attempt to rehabilitate his alibi witnesses on redirect.
Respecting the penalty phase, the primary claim was that penalty phase counsel was ineffective in preparing the case in mitigation. Penalty phase counsel testified at the PCRA hearing that at some point he had spoken with appellee's mother, though he did not investigate appellee's social or educational history. When asked if he had a strategic or tactical reason for not investigating aspects of appellee's social history, or for declining to have appellee evaluated by a mental health professional, penalty phase counsel answered, "No." N.T., 3/6/07, at 188-92. Trial counsel also testified and stated that he did not investigate appellee's social history, and that, if he had discovered that appellee had a significantly low I.Q., he would have investigated further. Trial counsel did state, however, that he observed nothing in his interactions with appellee that would have made him believe that a mental health evaluation was necessary. Id. at 432-36; N.T., 3/8/07, at 463-66.
At the hearing's conclusion, the PCRA court found that counsel were ineffective at both the guilt and penalty phases, vacated the death sentence, and granted appellee a new trial. The PCRA court identified three specific lapses by trial counsel respecting the guilt phase. First, the court faulted trial counsel for failing to give an opening statement in a capital trial. The court noted that, at the time, it had presumed that trial counsel had some legitimate reason for deciding not to do so. At the conclusion of the PCRA hearing, however, the PCRA court found that trial counsel did not provide a reason for failing to prepare or present an opening statement. Id. at 655-56.
The next two grounds are inter-related. The PCRA court found that trial counsel was ineffective for failing to adequately review the discovery materials and conduct independent interviews of witnesses named in those materials, such as George, Williams, and Workman. The court determined that this failure of preparation was "crucial and in and of itself... justifies a finding of ineffectiveness of counsel." Id. at 656. Finally, the court found that trial counsel failed to interview and adequately prepare alibi witness Crystal Johnson to testify, and most likely failed to interview and prepare Shadena Johnson. Regarding the alibi witnesses' testimony, the PCRA judge, who again was also the judge at appellee's trial, stated:
... I well remember when the alibi witnesses had finished testifying at the time of trial that I stepped back in the retiring room right here in this courtroom with my then law clerk and I looked at him, shrugged my shoulders, and just said dead man walking, referring to [appellee]. Because that was absolutely fatal to any possible defense to put on two witnesses and have -- and offer them as alibi witnesses and have them testify that they were with [appellee] on a Wednesday when, in fact, the murder took place on a Tuesday. It was incomprehensible to this Court.... [Trial counsel] conducted no meaningful interview and no meaningful preparation of these alibi witnesses.
N.T., 3/9/07, at 656-57. The court stated that while "[m]ost of these things individually might not give rise to a finding of ineffectiveness... [,] certainly taken as a whole, they lead to this Court's clear conclusion that trial counsel in the guilt phase was [ ] ineffective." Id. at 655. Notably, the court stated that it did not find Jackie Cook's recantation testimony credible.
Turning to penalty phase counsel's performance, and citing to the case presented by appellee at the PCRA hearing, the PCRA court found that counsel "completely abrogated his duty to [appellee]" because he did not retain an investigator to assist in gathering mitigation evidence; did not attempt to obtain appellee's prison records (indicating that appellee once tested to an I.Q. of 66), school records, or social history; did not have a psychiatric or psychological evaluation performed; and did not consult with or present any evidence from a mitigation expert. N.T., 3/9/07, 653-55. The PCRA court opined that there had been virtually no defense evidence at trial to support mitigating factors that could have outweighed the single aggravating circumstance. Id. In conclusion, the PCRA court stated that:
I'm not ruling on [appellee's] guilt or innocence. All I'm ruling is that he's entitled to representation. He's entitled to be treated better than an enemy combatant at Guantanamo Bay, who I believe those people with no legal rights under our current law probably have better representation than that provided to [appellee] at the time of his first trial.
The Commonwealth filed the instant appeal challenging the court's grant of relief as to both the guilt and penalty phases. In its Pa.R.A.P. 1925(b) statement of matters complained of on ...