The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner Robert Johnson ("Petitioner" or "Johnson"), an inmate presently confined at the State Correctional Institution at Somerset ("SCI Somerset") in Somerset, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2254. (Doc. 1.) He challenges his 2003 conviction in the Dauphin County Court of Common Pleas. For the reasons set forth herein, the Petition will be denied.
The circumstances that bring Robert Johnson to federal court as a habeas corpus petitioner arose out of a series of escalating violent crimes in January 2002, a crime spree that has been aptly described by the Pennsylvania Courts in the following terms:
At the end of December, 2001, [a woman named] Nancy Gardner met [the petitioner, Robert] Johnson in Harrisburg. (Notes of Testimony of Jury Trial dated January 13-17, 2003, volume 2, at 19-20). They rented a movie and Johnson ended up staying with Gardner at her apartment at 113 Fisher Avenue in Middletown, Dauphin County. (N.T. v.2 20). On January 1, 2002, they had a dispute about disciplining Gardner's oldest daughter. (N.T. v.2 20-21). An argument ensued, leading to Johnson's departure. (N.T. v.2 21). However, when Johnson took money belonging to Gardner and threw her keys out a window, Gardner called the police. Id.Officer Kenneth Yoder of the Middletown Borough Police Department responded with his partner, helped Gardner to retrieve her belongings, and made sure that Johnson had left the premises. (N.T. v.2 21-22, v.3 192-195). Although Gardner told Officer Yoder that Johnson had a gun and some drugs, Yoder did not feel that he had enough information to do anything further. (N.T. v.3 197). However, he told Sergeant Peter D. Ranck, the supervisor of the next shift, about the domestic dispute and the report of a firearm and drugs. (N.T. v.3 23-24, 197).
Shortly after the 11:00 p.m. shift change, the Middletown police received a second call from 113 Fisher Avenue indicating that Johnson had returned. (N.T. v.3 24). Officers Jeffrey Weaver and James Still were the first officers to respond to the scene. (N.T. v.3 24, v.2 49). When they arrived, they heard a male voice coming from the rear of the building. (N.T. v.2 50). Johnson was in an agitated state and would not respond to demands that he identify himself. (N.T. v.2 50-51). Sergeant Ranck arrived and saw that Johnson was being unruly and uncooperative, so he directed the officers to take physical control of Johnson, due in part to the earlier report of a gun and drugs. (N.T. v.3 25-27, v.2 51-52). Johnson became more violent and resisted the officers' efforts to control him. (N.T. v.3 27, v.2 52).
A third officer, Officer Richard Beynon, arrived and tried to assist Officers Weaver and Still. (N.T. v.2 52, v.3 7). Officer Weaver was able to take Johnson to the ground at one point (N.T. v.2 53) and struck Johnson in the shoulder in an effort to get Johnson to release his arm. (N.T. v.2 54). While Sergeant Ranck came to assist the other officers, Johnson managed to get back on his feet and Officer Still fell to the ground. (N.T. v.3 28, v.2 57). When Officer Weaver reached for his pepper spray, there was a shot from a small caliber weapon, and he felt a burning sensation in his shoulder. (N.T. v.2 58). While Officer Weaver, Officer Still and Officer Beynon did not see the gun (N.T. v.2 78, 89, v.3 9), Sergeant Ranck saw Johnson pull the gun from somewhere in front of himself. (N.T. v.3 29).
There was another shot, and Officer Beynon yelled that he was hit. (N.T. v.2 59). When Johnson tried to point the gun at Sergeant Ranck, the sergeant was able to grab Johnson's arm. (N.T. v.3 29). Johnson fired a round that went by Sergeant Ranck's head. Id.Sergeant Ranck was able to keep the gun pointed up in the air while Johnson fired two more shots. (N.T. v.3 30).
As Johnson broke away from Sergeant Ranck and fled, Officer Weaver was able to draw his own weapon and fire two shots at Johnson. (N.T. v.2 59). Johnson kept running. Id. Sergeant Ranck ordered Weaver to stay with Officer Beynon and Officer Still, called for assistance, and began chasing Johnson. (N.T. v.3 34-35). With the assistance of neighbors, Sergeant Ranck was able to determine the route taken by Johnson. (N.T. v.3 35).
Meanwhile, officers of the Susquehanna Regional Airport Authority ("SARAA") Police heard the message that two officers were down and responded. (N.T. v.3 152). Based on their path of travel, Officers Harry Cleland, Jr., and Michael Shetter came upon Johnson running towards them in the area of Ann and Grant Streets, near a church. (N.T. v.3 154). Johnson ran around a tractor-trailer that was parked on the road while the SARAA officers exited their car. (N.T. v.3 155). Officer Cleland chased Johnson on foot around the church but lost sight of Johnson. (N.T. v.3 156).
Eventually, Johnson emerged from some bushes near Officer Cleland. Id. While the officer yelled at Johnson to put his hands up and to get down on the ground, Johnson kept telling Officer Cleland, "Just shoot me."
(N.T. v.3 156-157). When Johnson made a sudden, twisting move while saying, "Kill me or I will kill you," Officer Cleland fired two rounds. (N.T. v.3 157). Johnson fell to the ground but moved his hands to his waist. (N.T. v.3 157-158). While Officer Cleland asked if Johnson was hit, Johnson kept telling the officers to kill him. (N.T. v.3 158). Officer Cleland approached Johnson and tried to hold him down, but Johnson got up and started running. Id.Johnson first ran into a tree but collected his sense and ran around the church again. Id. Both of the SARAA officers followed but Officer Cleland tired and could not keep up the chase. (N.T. v.3 159). Officer Cleland realized that Johnson was trying to reach their car, which had the lights on, doors open, and engine running. Id.While Officer Shetter tried to catch Johnson, Johnson reached the car and got in. Id.The car went into reverse, the tires squealed, and it headed directly for Officer Cleland. (N.T. v.3 159-160). As Officer Cleland aimed his gun at the car, it came too close to him and he had to jump out of the way to avoid being hit. (N.T. 161). The car went by and Officer Cleland heard a crash as the police car hit a pickup truck. (N.T. 161-162).
Officer Yoder, after telling Sergeant Ranck about the domestic dispute, had changed his clothes and left the Middletown police station for home. (N.T. v.3 197). En route, he heard the radio dispatch about officers being down and turned back to the scene. (N.T. v.3 198). He proceeded toward the entrance to the airport as a result of the ongoing radio calls. (N.T. v.3 199). He followed Highspire police officers responding to the scene and parked his pickup truck at the intersection of Ann and Grant Streets. (N.T. v.3 200-201). After Officer Yoder got out of his truck, the car being driven in reverse by Johnson slammed into the pickup truck. (N.T. v.3 201-202).
Johnson made a few attempts to restart the police car but could not, and he was taken into custody by a number of police officers that surrounded the car. (N.T. v.3 204-205). The revolver that Johnson used to shoot the officers was recovered from underneath a car along the route of Johnson's flight. (N.T. v.3 119-120, v.4 33-34). (Doc. 13, Ex. N, 2/24/05 Pa. Super. Ct. Op., pp.1-4.)
B. Johnson's State Trials and Convictions
As a result of this crime spree, on January 1, 2002, Johnson was charged with four counts of Criminal Attempt, Homicide, seven counts of Aggravated Assault, Possession with Intent to Deliver a Controlled Substance, Theft by Unlawful Taking, Carrying Firearms without a License, two counts of Flight to Avoid Apprehension, seven counts of Recklessly Endangering Another Person, and two counts of Resisting Arrest. One week later, on January 7, 2002, a second Criminal Complaint was filed against Johnson, charging him with two counts of being a Prohibited Person in Possession of Firearms, Possessing Instruments of Crime, and False Reports to Law Enforcement Authorities.
On January 14, 2003, Johnson proceeded to a jury trial on these charges in the Dauphin County Court of Common Pleas. At the conclusion of this first trial, the jury returned a mixed verdict, convicting Johnson of ten counts, acquitting him of six counts, and reaching a deadlock with respect to eight counts as to which the jury was unable to reach a unanimous verdict.*fn1
Following the declaration of a mistrial on the deadlocked charges, on August 8, 2003, the Commonwealth re-tried Johnson on these eight remaining counts. At the close of this retrial, the second jury found Johnson guilty of all of the remaining eight counts. Ultimately, Johnson was convicted and sentenced on the following offenses:
Criminal Attempt Homicide (three counts); Aggravated Assault (three counts); Possession with Intent to Deliver a Controlled Substance; Firearms-Carrying without a License; Theft by Unlawful Taking; Recklessly Endangering Another Person (five counts); Flight to Avoid Apprehension (two counts); Resisting Arrest (two counts); Possessing Instruments of Crime; and False Reports to Law Enforcement Authorities.
On October 30, 2003, Johnson was sentenced to an aggregate term of imprisonment for 401/2 to 81 years following his conviction at trial on these charges.
C. Johnson's State Appeal
Johnson appealed this conviction and sentence. On direct appeal, Johnson raised four claims, two of which are reprised in this federal habeas corpus petition. Specifically, Johnson alleged that his multiple convictio0sn should be set aside because: (1) there was insufficient evidence to sustain the attempted homicide charges; (2) the trial court erred in its jury instructions; (3) the trial court erred in failing to dismiss the prospective jury panel after it learned that some potential jurors might have briefly and inadvertently seen the defendant in handcuffs; and (4) that the re-trial of the defendant following the jury's deadlock and the declaration of a ...