February 8, 2016
Appeal from the United States District Court for the Eastern
District of Pennsylvania (District Court No.: 2-12-cv-05156)
District Judge: Honorable Anita B. Brody
Rudovsky [ARGUED] Kairys, Rudovsky, Messing & Feinberg
Counsel for Appellant.
Catherine B. Kiefer [ARGUED] Assistant District Attorney
Susan E. Affronti Chief, Federal Litigation Unit Ronald
Eisenberg Deputy District Attorney, Law Division Edward F.
McCann, Jr. First Assistant District Attorney R. Seth
Williams District Attorney Max C. Kaufman Philadelphia County
Office of District Attorney Counsel for Appellees.
Before: FUENTES [*] , KRAUSE, and RENDELL, Circuit
RENDELL, Circuit Judge.
early morning hours of August 26, 2005, off-duty police
officer Terrence Flomo was shot to death while he sat in his
car near the intersection of 20th Street and Cecil B. Moore
Avenue in North Philadelphia. The Commonwealth charged
William Johnson and Mumin Slaughter with murder based on
witness identifications and forensic testimony. The shooting
occurred after Flomo had stopped his car and solicited Brenda
Bowens, a prostitute and Slaughter's and Johnson's
long-time drug customer.
trial, the jury acquitted both defendants of first-degree
murder, but convicted Slaughter on third-degree murder and
criminal conspiracy. It failed to reach a verdict on any
remaining charges as to Johnson.
Johnson's retrial, the prosecution introduced a statement
that Slaughter had given police that implicated Johnson.
Everyone agrees that this violated Johnson's right to
confront witnesses against him, and Johnson now argues that
the error caused him prejudice warranting habeas relief.
Separately, Johnson urges that the prosecutor's calling
Slaughter to testify knowing that Slaughter would invoke his
Fifth Amendment privilege denied him of due process. For the
reasons that follow, we will affirm the District Court's
denial of Johnson's habeas petition.
second trial began on May 28, 2009 and lasted four days. The
Commonwealth's witnesses included Dr. Lieberman, the
medical examiner, who testified that Flomo was shot in his
right elbow and wrist area, as well as his chest. He opined
that the gunshot to the chest caused significant damage to
his liver, right lower lung, heart, and left lung, and as
such was the "more immediately fatal of all three
gunshot wounds." R.579. Lieberman also testified that the
muzzle of the gun was fired from two-and-one-half to three
feet from Flomo. He opined that the entries were on the right
side of his body, "including the shot that actually
kill[ed] him, the one to his heart, the most immediately
fatal one." R.595. Given the scenario of Flomo's
sitting in the driver's seat of the car, Lieberman
testified that the shots could only have come from the front
passenger's side of the vehicle.
a firearms expert testified that two particles of unburnt
gunshot residue were recovered from the front passenger's
side armrest, indicating that the gun was within three feet
of the passenger's side window.
was no physical evidence, however, linking Johnson to the
crime scene. The Commonwealth offered two eyewitnesses,
Brenda Bowens and Nora Williams, each of whom implicated
Slaughter and Johnson and identified Johnson as the
passenger's side shooter. The Commonwealth also put
Slaughter on the stand and, when he refused to testify,
introduced the statement he gave to police implicating
Johnson. Because Slaughter's statement was admitted
erroneously, and the remaining two identifications are
central to our analysis as to harmless error, we recount
their testimony in some detail.
support her crack addiction, Bowens worked as a prostitute in
the area of 20th Street and Cecil B. Moore Avenue. Slaughter,
whom she knew as "Muk, " and Johnson, whom she knew
as "Juice, " were her drug dealers. R.647. She
testified that she had known Johnson for "five, six
years, " and Slaughter for "ten, twelve."
R.647. In fact, she "would see them every day"
because she "always bought crack from them."
morning of the murder, Bowens reported being solicited by a
man near the intersection of 20th and Cecil B. Moore. She
declined because she intended to go into a nearby house to
get high. She crossed the street and reported the
encounter to Slaughter and Johnson, who were walking up Cecil
B. Moore Avenue. Bowens then continued to an all-night
convenience store around the corner. Upon her return shortly
after, she saw the same car that had solicited her before. As
she approached the house, she "turned around" and
"[saw] Muk and Juice. Muk's standing on the
driver's side; Juice was on the other side, the
passenger['s] side." R.632. She testified that
Johnson was "leaning in the car." R.689. She
I didn't "see" it happen, but I saw flashes and
I heard a gunshot, and immediately I ran, because that's
what I do. When you see two neighborhood drug dealing guys,
you run, because, you know. I don't have to go into
detail. But I ran and started banging on the door, [saying]
"Let me the hell in."
While banging on the door to be let in, she
"glanced" behind her to "make sure that [she]
was . . . out of harm's way." R.633. She then
"heard another shot" and saw the "flash
again." R.633. She testified that Johnson, at that
point, was still standing at the passenger's side door.
She then finally was able to enter the house.
trial, the prosecutor reviewed the entire episode using a
demonstrative map of the intersection. Bowens identified the
house she intended to smoke in as well as where other events
occurred. Bowens also addressed her failure to come forward
to the police initially:
Q. . . . When you went the second time to Homicide, after
they're talking to you and you told them what you saw,
what caused you to tell them that you saw this? What
A. I was saying that my family was real concerned that I was
in danger, someone was going to kill me and that I needed
cross-examination, Bowens was impeached with her "severe
drug habit, " R.655, and criminal history. Bowens
admitted to a prior conviction (for which she was sentenced
to eleven-and-a-half to twenty-three months in jail), to
being on probation, and to having a bench warrant out for her
arrest when she gave her statement. She was also impeached
with her failure to report what she saw to the police and her
initial refusal to give a statement after she was picked up
for questioning. Bowens disclosed that, during these
interrogations, she was "promised" that she would
be given help with her drug addiction. R.663.
perception of the shooting was also impeached. While Bowens
reported seeing Johnson leaning into Flomo's car, she did
not see anything in his hands. Bowens admitted that she only
glanced in the direction of the shooting for what defense
counsel characterized as a "mini-second . . . a
flash." R.687. Defense counsel also impeached her with
her prior inconsistent statements about the exact location of
Flomo's car in the intersection when the shooting
occurred. Finally, the distance between the shooting and the
crack house Bowens attempted to enter (and in the vicinity of
which Bowens reportedly saw the shooting) was, defense
counsel urged in his closing, approximately 600
re-direct, the prosecutor attempted to rehabilitate Bowens on
a number of points. He reviewed Bowens's identification
of Johnson again:
Q. In terms of that car, and counsel has asked you where the
car was back and forth. When you see the shooting, are you
concentrating on where the car is?
A. No, not at all.
Q. What are you concentrating on?
A. Me getting away.
Q. And did you recognize the guys who did it?
Q. And who are they?
A. Juice and Muk.
Q. And is Juice here now?
A. Yes, sir.
Q. Point to Juice.
A. Right there (indicating)
Q. No doubt in your mind it was them, right?
A. That's a hard question. It was so many years ago, and
I done been through so much, sir. I'm really honestly
going to say that I am not really sure. I'm really
honestly going to say that I'm not really sure. I been
through so fucking much. I been through so much.
Q. And I know you've been through - Brenda, listen to me
[DEFENSE COUNSEL]: Your Honor, may we have a break at this
[PROSECUTOR]: Look at me. No.
[DEFENSE COUNSEL]: Excuse me.
I'm asking the Court.
THE COURT: No. Well, let me see.
Are you all right? You all right?
[DEFENSE COUNSEL]: Your Honor, perhaps we should take a
THE COURT: We're going to take a break.
brief recess, Bowens testified that she was "very tired,
" and agreed with the prosecutor that she was
"emotionally drained" and "want[ed] to get
this over with." R.731. She continued, however, and
testified again that Slaughter and Johnson stood next to
Q. Okay. Now, I'm going to ask you this: That morning
when you were out there and you hear the shot, what do you
[A.] That morning when I was out there, I see Juice and Muk
standing at the car.
Q. You sure of that?
A. Am I positive, a hundred percent positive? I just said I
wasn't. You asked me did I have any doubt, and I just
said it. I was just - I mean, I'm emotionally drained.
You all asking me the same thing over and over and over
Q. When you made the statement to homicide, did you tell them
Q. When you went to the preliminary hearing - remember it was
just a judge, no jury, and I was there and asked you
questions - did you tell that judge the truth?
Q. When you were here in 2007 before that judge and another
jury, did you tell this judge the truth?
THE COURT: I was the Judge.
THE WITNESS: Yes.
BY [THE PROSECUTOR]:
Q. Are you telling us the truth now?
R.732-34. The prosecutor then read portions of Bowens's
prior consistent statements to the jury, which confirmed the
essential details of her eyewitness account, including that
Johnson stood on the passenger's side of Flomo's
also testified that she feared for her safety. She stated
that she had to be "relocated" after giving her
statement to the police. R.649. The prosecutor also questioned
whether persons in the courtroom might have threatened her:
Q. You said you were worried or not comfortable about certain
people in this room. Are you afraid of the defendant's
people and his family that are sitting in this room right
now? A. I'm afraid of everything right now, you know.
I'm afraid of everything right now. I'm very - yeah,
very afraid of everything. Not only them, but everybody.
It's like everybody out to get me. When this shit went
down, everybody was out to get me. . . .
THE COURT: . . . You want to get off the stand; Is that
THE WITNESS: Yes. I have a life. I'm just tired of being
badgered. It's been five, four years I've been being
badgered, badgered, badgered. The DA been badgering me, other
people badgering me, everybody badgering me.
R.748-50. She was then briefly recrossed and
redirected before being excused.
Commonwealth next called Nora Williams, who also placed
Johnson at the passenger's side of Flomo's car during
the shooting. Williams was also a prostitute who worked in
the vicinity of 20th Street and Cecil B. Moore Avenue and who
knew Bowens from having worked there.Williams knew Johnson and
Slaughter too and testified that she saw them every day on
the block. Williams also purchased her drugs from them,
sometimes several times a day.
morning of the murder, Williams had just finished with a
customer when she saw Bowens across the street
"arguing" with a man in a car. R.760. She
then saw Bowens "walk away." R.761. She testified
that Bowens "walked to [Slaughter and Johnson]" and
"talked to them for a minute" before Bowens left
the area. R.762-63. Then Williams saw "the car come back
around" the block. R.764. When asked what happened next,
she relayed the following:
Q. When you see the car on 20th, what happens?
A. That's when I seen Muk and Juice running towards the
Q. Okay. When they run towards the car, do they get to ...