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Johnson v. Folino

August 12, 2010


The opinion of the court was delivered by: Eduardo C. Robreno, J.



I. BACKGROUND.................................................2

II. PROCEDURAL HISTORY.........................................5

III. APPLICABLE LAW.............................................7

A. Standard of Review....................................7

B. Ineffective Assistance of Counsel....................10

IV. DISCUSSION................................................12

A. Failure to Request Accomplice Liability Instruction..12

B. Failure to Object to Co-Conspirator Hearsay..........20

1. Confrontation Clause Violation..................27

2. Finding of Prejudice............................35

C. Failure to Object to Admission of "Other Bad Acts" Evidence.............................................39

D. Cumulative Effect of All Errors......................44

V. CONCLUSION................................................45

Before the Court is Petitioner Roderick Johnson's ("Petitioner") motion for habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's original petition asserted five grounds for relief. By way of Memorandum Opinion, the Court found that Petitioner's claim concerning the alleged failure of the Commonwealth to disclose Brady material was procedurally default and unavailable for review. See Johnson v. Folino, 671 F. Supp. 2d 658 (E.D. Pa. 2009). Petitioner's four remaining claims are ripe for final adjudication.


On July 14, 1998, Petitioner, was convicted of first-degree murder and related charges in the Berks County Court of Common Pleas with respect to the November 1, 1996 shooting death of Jose Martinez ("Martinez"). (Petition for Writ of Habeas Corpus ¶ 4.) On July 15, 1998, Petitioner was sentenced to life imprisonment without parole. (Id.) The Commonwealth's case relied heavily on testimony of three witnesses: George Robles ("Robles"), Luz Cintron ("Cintron," Robles' girlfriend) and Mylta Velazquez ("Velazquez," Petitioner's estranged girlfriend). (Id. at ¶¶ 17-21.)

An abridged summary of the facts supporting Petitioner's conviction is as follows. At approximately 11:15 p.m. on November 1, 1996, Pearl Torres ("Torres") observed two men run across Schuykill Avenue in Reading, Pennsylvania. (Trial Tr. 119, July 9, 1998.) One of the men, later found by the jury to be Petitioner, was carrying a black semi-automatic handgun which he used to shoot the other individual, Martinez. (Id.) After Martinez fell to the ground, Petitioner fired three shots into Martinez's body, after which Torres saw Petitioner flee the scene. (Id. at 119, 121-22.)

Shannon Sanders ("Sanders") testified that at the same time on November 1, 1996, she was in the vicinity of the 300 block of Schuykill Avenue in Reading. (Id. at 228.) Sanders testified that at this time she heard three gunshots, and immediately after hearing the gunshots she observed an African-American male run by her. (Id. at 230.) She testified that the individual was in possession of a semi-automatic handgun. (Id. at 231-32.) Sanders testified that when the individual ran by her she heard him exclaim "yo, that motherfucker's dead. You know what I mean. I just killed him." (Id. at 230.) Immediately after the exchange, the male fled the area. (Id. at 233.) Sanders testified that she could not identify Petitioner as the individual that she observed during this exchange because she did not get an adequate look at the individual's face. (Id.)

Robles testified that Petitioner showed up at his residence at 428 Buttonwood Street at approximately midnight on November 1, 1996, and was out of breath when he arrived. (Id. at 370.) Robles testified that Petitioner told him that "Yo, I just killed this dude. I just killed this dude." (Id. at 372.) Robles testified that Petitioner showed Robles a semi-automatic handgun that Petitioner stated he had just used to shoot someone. (Id. at 372-74.) Petitioner told Robles that he and Richard Morales ("Morales") had seen Martinez at a convenience store on Schuykill Avenue, at which point Petitioner questioned Martinez about a drug debt owed to Petitioner's associate, Shawn Bridges. (Id. at 375-79.) Petitioner told Robles that Martinez fled on Schuykill Avenue and that Petitioner and Morales pursued Martinez in a van. (Id. at 376.) When Martinez crossed the intersection of West Elm Street, Petitioner exited the van driven by Morales and chased Martinez on foot. (Id. at 376-77.) Petitioner told Robles that he fired several shots into Martinez's body. (Id. at 376-78.) After recounting the event to Robles, Petitioner left Robles' residence.

Robles testified that shortly after Petitioner's departure, Morales arrived at his residence. (Id. at 378.) Robles testified that Morales told him that he had driven Petitioner in pursuit of Martinez on Schuykill Avenue and that Petitioner shot Martinez. (Id. at 378-80.) Robles testified that Morales also told him that after Petitioner shot Martinez, Morales circled the block and returned to fire another gunshot into Martinez's body to "make sure he did the job right." (Id. at 380.) Cintron was present at Robles' residence at the time of this conversation and testified consistently as to the substance of this conversation.

Cintron testified that one to two days after the shooting incident she entered the residence that she shared with Robles and Tyhir Biggs ("Biggs") at 428 Buttonwood Street in Reading and overhead a conversation between Petitioner and Biggs. (Id. at 286.) Cintron testified that she overheard Petitioner tell Biggs that he and Morales had confronted Martinez on Schuykill Avenue and that Martinez became scared and ran away, at which point Petitioner ran after him and shot him. (Id.) Cintron further testified that she overheard Petitioner tell Biggs that he shot Martinez in the back. (Id. at 326.)

Velazquez testified that approximately one to two days after the incident, she and Petitioner were watching a news broadcast that showed a story about Martinez's murder. (Id. at 156, 162-68.) Velazquez testified that in response to the news story, Petitioner asked her if he could trust her, at which point he told her that he was the one who shot Martinez. (Id.) Petitioner went on to state to Velazquez that he was a "hitman" and "that's what he does." (See id. at 158-59, 162-68, 177.)


Petitioner filed a direct appeal of his sentence on August 14, 1998. The Superior Court affirmed the verdict on July 15, 1999, and the Pennsylvania Supreme Court denied Petitioner's allowance of appeal on December 30, 1999.

On December 21, 2000, Petitioner filed his first Petition for Post-Conviction Relief pursuant to 42 Pa.C.S.A. § 9543 ("PCRA") and was denied relief on November 29, 2001. This denial was affirmed by the Superior Court on January 8, 2003, and the Pennsylvania Supreme Court denied Petitioner's further request for relief on March 22, 2004. During the pendency of appeal from his first PCRA petition, Petitioner filed a second PCRA petition on September 12, 2003, which was later refiled on April 13, 2004. Petitioner sought to supplement this second PCRA petition with alleged Brady material, but the Court of Common Pleas refused to grant this request and denied Petitioner's second PCRA petition on September 22, 2004. The Court of Common Pleas held that Petitioner's newly asserted Brady claim was untimely under the PCRA statute and none of the statutory exceptions were applicable. The Superior Court affirmed the denial of this second PCRA petition on September 22, 2005.

During the interim in which Petitioner's first and second PCRA petitions were under review by the Pennsylvania state courts, Petitioner filed the instant habeas petition. Petitioner filed the petition in this matter on June 25, 2004, and the Court has accommodated Petitioner in several instances in staying certain aspects of these proceedings in order to facilitate exhaustion of Petitioner's state court petitions.

On June 19, August 2, and November 16, of 2007, Petitioner filed his third, fourth, and fifth "protective" PCRA petitions, respectively. These petitions were dismissed by the Court of Common Pleas on December 6, 2007, again based upon the untimeliness of the petitions. The Superior Court affirmed this decision on January 22, 2009.

On November 23, 2009, this Court issued an Order and Memorandum finding that Petitioner's claim based on alleged Brady violations was procedurally defaulted and unavailable for review.*fn2 The Commonwealth concedes that Petitioner's remaining four claims are exhausted and available for review. The Court permitted the parties to submit supplemental briefing as to Petitioner's remaining claims for ineffective assistance of counsel, which are now ripe for decision.


A. Standard of Review

Federal courts are vested with jurisdiction over petitions for writs of habeas corpus for a prisoner "in custody pursuant to the judgment of a State court" in violation of the United States Constitution. 28 U.S.C. § 2254(a). Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") a claim that is adjudicated on the merits in state court is to be afforded deference by a reviewing federal court. See 28 U.S.C. § 2254(d).*fn3 Pursuant to 28 U.S.C. § 2254, as amended by the AEDPA, the determinations of state courts are entitled to considerable deference from federal courts. Duncan v. Morton, 256 F.3d 189, 196 (3d. Cir. 2001). Section 2254(d) precludes federal habeas relief as to: any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court interpreted these two prongs in Williams v. Taylor, and stated the following:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. 529 U.S. 362, 412-13 (2000).

In order to determine whether a state court's application of federal law is "unreasonable," a court must apply an objective standard, such that the relevant application "may be incorrect but still not unreasonable." Duncan, 256 F.3d at 196 (citing Williams, 529 U.S. at 409-10). The test is whether the state court decision "resulted in an outcome that cannot reasonably be justified [under existing Supreme Court precedent]." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999) (en banc). A petitioner is required to do more than simply show that his proposed interpretation of the relevant precedent is "more plausible;" rather it is necessary to demonstrate that the precedent "requires a contrary outcome."

Id. A petitioner is not entitled to habeas relief "solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent." Id.

With regard to the factual findings of a state court, courts are instructed to apply a presumption of correctness which can only be overcome by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);*fn4 Duncan, 256 F.3d at 196. This presumption applies equally to factual determinations rendered by state trial and appellate courts. Duncan, 256 F.3d at 196. This presumption of correctness has been extended to implicit factual findings of state courts as well. See Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000) (noting that the Supreme Court interpreted this statute and "held that an ...

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