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Commonwealth v. Johnson

Supreme Court of Pennsylvania

May 25, 2017


          ARGUED: December 6, 2016

         Appeal from the Judgment of Sentence entered on June 9, 2015 in the Court of Common Pleas, Bucks County, Criminal Division at No. CP-09-CR-0001413-2014. PSM denied 07/20/2015




         In June 2015, Marcel Emanuel Johnson ("Johnson") was convicted of killing Ebony Talley ("Talley"), her unborn child, and her four-year-old daughter, R.R. He was sentenced to death for R.R.'s murder. In this automatic direct appeal, [1] Johnson raises nine issues for our review. Following our thorough consideration of these issues and for the reasons set forth below, we affirm his convictions and the imposition of the death sentence.

         In November 2013, Talley was living in Apartment 604 of the Avalon Court Apartments in Bristol Township, Bucks County with R.R.[2] Early in the afternoon of November 25, 2013, Talley's mother and sisters arrived at Avalon Court to visit. Talley, who was twenty weeks pregnant, and her mother left briefly to obtain a money order for a partial amount of Talley's rent. Upon their return, Johnson arrived at the apartment. Johnson and Talley were friends and he was well acquainted with her visiting family members. Johnson was storing some of his belongings in the apartment and Talley occasionally allowed him to stay overnight. Johnson socialized with Talley and her family that afternoon. When Talley's mother and sisters left at approximately 2:30 p.m., Johnson remained.

         Shortly thereafter, around 3:00 p.m, a fire was detected in Talley's apartment. The fire emitted a thick, black smoke that made it difficult for the responding firefighters to gain entry. Once inside, firefighters discovered Talley's lifeless body in the bedroom. Talley was lying face-down with numerous stab wounds to her head, neck and body. A plastic bag was also wrapped tightly around her head.[3] Small, empty yellow wax bags stamped in red ink with "#1 way to go" were found scattered around Talley's body. More of these distinctive empty wax bags were found in a shoebox in the bedroom. In the living room, the firefighters found an unresponsive R.R. in a pool of blood beneath an overturned couch. R.R. had been stabbed in the chest and bled profusely. She was rushed to the hospital, but pronounced dead soon after her arrival. Minutes before the fire was detected, a resident of Avalon Court observed Talley's vehicle speed out of the parking lot, hitting another vehicle in its haste. The resident noticed that vehicle was being driven by a black male.

         While emergency responders were still at the scene of the fire, Johnson placed a series of calls to Talley's cousin, Brittany Coles. Ms. Coles, who had been alerted to what was happening at Talley's apartment and was in a frantic state, told Johnson about the fire. Because she was at work and could not leave, she implored Johnson to return to the apartment complex to obtain more information. Johnson refused, explaining that he wanted to avoid the police because there were outstanding warrants for his arrest. Later that afternoon, Johnson called Talley's sister, Paulina Burke. Ms. Burke informed Johnson that both Talley and R.R. had died. She asked Johnson to turn Talley's vehicle over to the police and otherwise aid in the police investigation. Again, Johnson refused, citing the outstanding warrants as the basis for his refusal.

         In these phone conversations, Johnson indicated that he was calling from a friend's home in the Levittown Trace Apartment complex.[4] Based on this information, the police proceeded to the Levittown Trace Apartments at approximately 6:00 p.m. and located Talley's vehicle in the most remote portion of the apartment complex's parking lot. When the police approached the vehicle, they found it was vacant. They also noticed that the license plate had been changed, but the VIN number, which is visible through the windshield, verified that it was Talley's vehicle. Shortly after 7:00 p.m., Johnson entered the vehicle and began to leave the parking lot. The police immediately stopped him, utilizing a "felony stop" procedure. During a felony stop, the police officers remain shielded by their vehicles and, with weapons drawn, they instruct the motorist to exit his car, demonstrate that he does not possess a weapon, and lay on the ground before they approach. The police then transported Johnson to their headquarters for questioning. A subsequent search of Talley's vehicle revealed, among other items, a bundle of eight empty wax packets stamped in red with "# 1 way to go, " in the ash tray. These packets were identical to the packets found around Talley's body and in her bedroom.

         At the police station, Johnson waived his Miranda[5] rights and agreed to speak with investigators. He explained his friendship with Talley and acknowledged that he was at her apartment earlier that day. He stated that he left Talley's home on foot and met up with a friend named Eric Stahl, who was driving Talley's vehicle, and that Stahl gave him the keys later that day. After being confronted with evidence that conflicted with this account, Johnson changed his story and admitted both to taking Talley's car and her Xbox gaming system and hitting another vehicle as he did. When asked why he did not come to the scene of the fire or the police station at Talley's family's requests, he reiterated his concern about the arrest warrants. The police arrested Johnson that evening on charges of possession of drug paraphernalia based on items found in his possession when the police stopped him in Talley's vehicle.[6] That night, while he was in custody, the police obtained and executed a warrant for samples of Johnson's DNA, fingernail scrapings, hair samples and clothes.

         In January 2014, Johnson was charged with the murders of Talley, R.R., Talley's unborn child and related crimes. While detained in the Bucks County Correctional Facility, Johnson admitted to another inmate that he killed Talley and that he killed R.R. because she could identify him as her mother's killer. Also while incarcerated, Johnson phoned his brother, Marquis Johnson, and told him that he hid "evidence" in a precise location at the Levittown Trace Apartments and asked him to retrieve it, admonishing that the items should never see the light of day. Marquis did as his brother requested and retrieved a blue plastic glove containing 167 packets of heroin, all in wax packets stamped in red with "# 1 way to go, " and a money order for eighty dollars.

         A jury trial commenced in May 2015, at the conclusion of which Johnson was convicted of the first-degree murders of both Talley and R.R., third-degree murder of Talley's unborn child, arson (endangering people), and possessing instruments of crime.[7] During the penalty phase, the Commonwealth presented evidence of four aggravating factors as to Talley: torture; conviction of another murder at the same time of Talley's murder; involvement in the sale of narcotics at the time of the murder; and knowledge of Talley's pregnancy.[8] N.T., 6/8/2015, at 192-95. The Commonwealth pursued three aggravating factors with regard to R.R.: that R.R. was a witness to a murder and was killed to prevent her from testifying; conviction of another murder at the same time as R.R.'s murder; and that R.R. was less than twelve years old.[9] Id. at 197-200.

         Johnson presented evidence in support of four mitigating factors: his lack of a significant history of prior criminal convictions; extreme mental or emotional disturbance at the time of the murders; and the fact that he was twenty-one at the time of the murders.[10] Id. at 200. Johnson also presented an assemblage of evidence under the catchall mitigating factor, 42 Pa.C.S. § 9711(e)(8), including evidence that Johnson's life up until the time of the murders was characterized by chronic and pervasive abuse, neglect and abandonment; that he suffered brain damage and had been diagnosed with various mental illnesses; cycles of placement in and out of treatment programs; and a complete lack of any semblance of stability or permanence. The jury ultimately sentenced Johnson to death for R.R.'s murder and life in prison for Talley's murder.[11]

         The trial court denied Johnson's post-sentence motions, after which Johnson filed this timely appeal. He presents several issues for our review, challenging the denial of his motions to suppress, evidentiary rulings, the sufficiency of the evidence, the trial court's refusal to allow Johnson to present certain mitigating evidence, the trial court's jury instruction during the penalty phase, the denial of his motion to preclude the Commonwealth from seeking the death penalty, and the constitutionality of the three statutory aggravating factors presented by the Commonwealth in connection with R.R.'s murder .

         I. Sufficiency of the Evidence

         In all death penalty cases, this Court reviews the sufficiency of the evidence to ensure that it supports the verdicts of first-degree murder, whether or not the appellant raises the issue. Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). When reviewing the sufficiency of the evidence, we consider whether the evidence presented at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as the verdict winner, support the jury's verdict beyond a reasonable doubt. Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014). The determination of whether sufficient evidence exists to support the verdict is a question of law; accordingly, our standard of review is de novo and our scope of review is plenary. Id.

         To establish first-degree murder, the Commonwealth must prove that a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill. Id. "Specific intent to kill may be inferred by the use of a deadly weapon upon a vital part of the body, and the Commonwealth may prove the specific intent to kill necessary for first-degree murder wholly through circumstantial evidence." Id.

         The evidence, when viewed in the light most favorable to the Commonwealth, establishes these elements beyond a reasonable doubt. To begin, Johnson admitted to killing both Talley and R.R., thereby establishing that they were unlawfully killed and that Johnson killed them. In his confession, he stated that Talley "made [him] kill her[, ]" and acknowledged killing R.R. so that she could not identify him as her mother's killer N.T., 6/1/2015, at 230, 233-35.

         Substantial evidence also demonstrated that both victims were killed by the use of a deadly weapon on vital parts of the victims' bodies. Dr. Ian Hood, a forensic pathologist, testified that Talley suffered thirty-five stab wounds to her head, neck, chest and abdomen. N.T., 5/28/2015, at 205. One wound perforated the common carotid artery in her neck and two others entered her chest cavity, causing a collapsed lung and internal bleeding. Id. at 206-08. While Talley was incapacitated from blood loss, a plastic bag was secured over her head, "providing terminal asphyxia as a final mechanism of death[.]" Id. at 232. R.R. was stabbed in the upper chest, just below her collarbone. Id. at 194-95.

         There was also circumstantial evidence of Johnson's guilt. Talley's mother and sister testified that when they left Talley's home, Johnson remained in the apartment with Talley and R.R. N.T., 5/28/2015, at 271; N.T., 5/27/2016, at 112. Fires were set on or immediately beside the incapacitated Talley and R.R, N.T., 5/27/2015, at 186-88, and were discovered approximately half an hour after Talley's mother and sister left, just minutes after Johnson was observed fleeing the scene at a high rate of speed in Talley's vehicle. N.T., 5/29/2015, at 300. This evidence, when viewed in the light most favorable to the Commonwealth, places Johnson in the apartment at the relevant time. Moreover, Talley's DNA was found under Johnson's fingernails, which, according to expert testimony, was not the result of casual contact with Talley. Id. at 186-87. Dr. Hood testified that Talley's body bore multiple defensive wounds and that the relatively shallow depth of many of the stab wounds was the result of Talley's struggle against her assailant. N.T., 5/28/2015, at 205, 210. Johnson was observed to have recent lacerations on his hands and fingers just a few hours after the murders, and he had changed his clothes. N.T., 5/29/2015, at 233, 237-38.

         Johnson raises a single challenge to the sufficiency of the evidence, claiming that it is insufficient to establish that he was the person who killed Talley and R.R. and set the apartment on fire. Johnson's Brief at 37. Notably, Johnson does not dispute the evidence detailed above. Instead, he directs our attention to other evidence. For instance, Johnson acknowledges that he fled Talley's apartment complex in a hurry, but argues that flight alone does not establish guilt. Id. at 38. He suggests that other people involved in the drug trade could have wanted to harm Talley, and presents an alternative scenario in which he arrived at the apartment only to find that it had been set on fire and fled in a panic. Id. at 38-39. He also points to the lack of blood found on his clothes and body, that his blood was not found in Talley's apartment, and that his DNA was not found on Talley. Id. at 39-40.

         These alleged deficiencies of physical evidence were, however, offset by other evidence. For example, although Johnson points to the lack of blood on his clothing, there was testimony that Johnson changed his clothes between the time of Talley's family's visit and his apprehension by the police a few hours later. N.T., 5/27/2015, at 113; N.T., 5/29/2015, at 41. Likewise, Johnson's focus on the absence of incriminating blood or DNA at the scene of the crime may be explained by testimony from a Commonwealth witness that the blood and DNA samples recovered from Talley's apartment proved to be unsuitable for testing. N.T., 5/29/2015, at 122-126.

         More importantly, Johnson does not genuinely contest that the evidence presented by the Commonwealth, when viewed in the light most favorable to it, was legally sufficient to prove his guilt. Instead, his arguments seek to vitiate the weight of the evidence supporting his convictions and to undermine the credibility of the Commonwealth's witnesses. Seen in this light, Johnson's arguments are addressed to the weight of the evidence supporting his convictions, not the sufficiency of the evidence. See, e.g., Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009). Johnson has not raised a weight of the evidence claim in this direct appeal, and as such, it has not been preserved for appellate review. Pa.R.A.P. 302(a); see also Commonwealth v. Freeman, 827 A.2d 385, 402 (Pa. 2003).

         II. Suppression Issues

         Johnson raises two issues in connection with the trial court's denial of his motions to suppress his statement to the police and evidence of him selling drugs with Talley. Our standard of review for such claims provides that we may consider only the Commonwealth's evidence and so much of the defense's evidence as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016). Where the record supports the suppression court's factual findings, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Id. As an appellate court, however, we are not bound by the suppression court's conclusions of law. Id.

         Johnson first argues that the trial court should have suppressed his statement to the police because the police did not inform him that they were going to question him about the deaths of Talley and R.R. until after he waived his Miranda rights. Johnson's Brief at 25. Johnson protests that he had no indication as to the purpose of the interrogation and was under the reasonable (but mistaken) assumption that he was stopped by the police and brought in for questioning because of outstanding arrest warrants issued for summary, non-traffic citations. Id. at 28.

         A waiver of Miranda rights is valid where the suspect is aware of the general nature of the transaction giving rise to the investigation. Commonwealth v. Dixon, 379 A.2d 553, 556 (Pa. 1977). "[O]nly when such knowledge is possessed by a suspect … can [he] be said to understand the consequences of yielding the right to counsel." Id. This is because "[i]t is a far different thing to forgo a lawyer where a traffic offense is involved than to waive counsel where first degree murder is at stake." Commonwealth v. Collins, 259 A.2d 160, 163 (Pa. 1969). When a defendant challenges the validity of his Miranda waiver on this basis, the Commonwealth must establish, by a preponderance of the evidence, that the defendant was aware of the reason for the interrogation. Dixon, 379 A.2d at 556. The Commonwealth can meet this burden through evidence of the circumstances surrounding the interrogation, such as "the fact that the interrogation follows hard upon the criminal episode and there is no circumstance lending ambiguity to the direction and purpose of the questioning." Id.

         In the present case, the trial court found that substantial evidence supported Johnson's awareness that the police intended to question him about the fire and murders rather than warrants for non-traffic summary offenses. Trial Court Opinion, 3/23/2016, at 16-17. This evidence included: Johnson's knowledge of the fire and of Talley's and R.R.'s deaths, his understanding that the police wanted to inspect Talley's vehicle as part of the investigation, and his possession of that vehicle. In light of these facts and the tight timeline between the murders and the police taking Johnson into custody, it was "completely illogical" for Johnson to think that a number of officers would "swoop down on him, [and] tak[e] him into custody in a car that was owned by a homicide victim or potential homicide victim … for some old summary citations, basically what amounts to a dispute between himself and the local [d]istict [c]ourt." N.T., 11/26/2014, at 19.

         The trial court's factual findings are supported by evidence of record. Talley's cousin, Brittany Coles, testified that she knew Johnson through Talley. N.T., 11/25/2014, at 27. At about 4:30 p.m. on the day of the murders, Ms. Coles told Johnson that there was a fire in Talley's apartment and that she could not get in touch with Talley. Id. at 31. Talley's sister, Paulina Burke, testified that while she was at the hospital on the day of the fire, she received a phone call from Johnson. During this conversation, she told him that Talley and R.R. died. N.T., 9/16/2014, at 6; N.T., 6/30/2014, at 134. Ms. Burke knew that Johnson was driving Talley's car, and when she asked him to bring it to the police station for their investigation, Johnson refused, citing his outstanding warrants. N.T., 9/16/2014, at 6-7. At approximately 7:30 that evening, only a few hours after being told of the fire and Talley's and R.R.'s deaths, uniformed police officers stopped Johnson while he was driving Talley's vehicle, the plates on which had been changed. N.T., 6/30/2014, at 123. When brought to the police station following this felony stop, Johnson was taken to an interview room to be interrogated by Detective Slattery and Detective Fuhrmann. Id. at 100-01. In consideration of these facts, [12] we find no error in the trial court's conclusion that Johnson was aware that the police intended to question him with regard to what occurred in Apartment 604 of the Avalon Court Apartments.

         Johnson argues that his case is factually indistinguishable from Dixon. We disagree. In Dixon, a local magistrate convicted the defendant of malicious mischief and ordered her to pay restitution at the rate of fifty dollars a month, beginning in March 1973, until the $500 judgment was satisfied. Dixon, 379 A.2d at 555. The magistrate pointedly told the defendant that if she defaulted on her payments, a warrant would be issued for her arrest and police officers would be sent to arrest her. Id. The defendant failed to make even one payment, and as a result, a warrant for her arrest issued. Id.

         That summer, the body of the defendant's young son was discovered in a wooded area and a police investigation ensued. Id. at 554. On August 14, 1973, three police officers appeared at the defendant's home and asked her to go with them to the police barracks. Id. The officers had in their possession the arrest warrant related to defendant's restitution delinquency, but because the defendant agreed to go with them, they did not show it or mention it to the defendant. Id. at 555. The officers did not tell the defendant why they wanted to speak with her. Id. at 554. At the barracks, the defendant was placed in an interrogation room and asked whether she knew why the officers wanted to speak with her. Id. at 555. The defendant responded affirmatively and executed a Miranda wavier.

         The police immediately began to question the defendant about her son's death, to which she quickly confessed. Id. On appeal following her conviction for her son's murder, the defendant argued that her Miranda waiver was not knowing and voluntary because she believed that the police appeared at her house because of her failure to make restitution payments. Id. This Court agreed, concluding that the circumstances exhibited that a "palpable ambiguity" existed as to the defendant's understanding of why she was being questioned. Id. at 557. Because the interrogating police officers took no measures to dispel the ambiguity before obtaining her waiver, the defendant's waiver could not be deemed to have been knowingly and intelligently made. Id.

         It is Johnson's position that, just like the defendant in Dixon, he knew that there were outstanding arrest warrants for him on summary citations. Johnson's Brief at 28. He also points out that he was apprehended in a vehicle that was not his, thus creating another ambiguity as to the topic of the interrogation. Id. at 29. Johnson's arguments, however, entirely ignore all of the other above-reviewed information he possessed at the time of his arrest and interrogation. In Dixon, the ambiguity stemmed, in large part, from a magistrate's explicit warning that the defendant would be arrested if she did not comply with the terms of the restitution order (and her knowledge that she had not made any payments). Dixon, 379 A.2d at 557. Here, in significant contrast, Johnson's knowledge of relevant events at the time of his arrest and interrogation do not support a finding of any such ambiguity.

         For his second suppression issue, Johnson claims that no probable cause existed to support the issuance of a warrant for samples of his DNA. Johnson's Brief at 31. Generally, to be valid, a search warrant must be issued by a neutral and detached magistrate and supported by probable cause. U.S. Const. amend. IV; Pa. Const. art. 1 § 8; Commonwealth v. Lyons, 79 A.3d 1053, 1063-64 (Pa. 2013). Probable cause exists where the totality of the circumstances set forth in the affidavit provide a fair probability that evidence of a crime will be found in a particular place. Lyons, 79 A.3d at 1064. The issuing magistrate must apply this "totality of the circumstances" test in a practical, common-sense, and not overly-technical, manner. Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012). When a trial court reviews an issuing authority's decision to issue a search warrant, it must affirm unless there was no substantial basis for the issuing authority's decision. Lyons, 79 A.3d at 1064. In turn, on appeal, this Court will affirm the decision of the trial court unless we conclude that it committed an error of law or made a factual finding without record support. Id.

         Here, the application for a search warrant and accompanying affidavit of probable cause were filed by Detective Fuhrmann at 1:33 a.m. on November 26, 2013, within hours of the end of the interrogation of Johnson. The warrant application sought, inter alia, DNA samples by means of oral swabbing, swabbing of both hands, fingernail scrapings from both hands, and hair samples.[13] Application for Search Warrant, 11/26/2013, at 1. In the affidavit of probable cause, Detective Fuhrmann detailed the fire in Apartment 604 and discovery of the bodies of Talley and R.R; the determination that Talley had multiple stab wounds, including some that looked to be defensive wounds; and the conclusion that the fire appeared suspicious in nature. Affidavit of Probable Cause, 11/26/2013, at 1-2. He stated that based on his training and experience, he was aware that "arson is sometimes used to destroy or conceal evidence of a crime." Id. at 2. Detective Fuhrmann stated that Nigeria Gary, a resident of the apartment complex, observed Talley's vehicle speed out of the parking lot approximately ten minutes before the fire was detected. Id. at 3. Detective Fuhrmann also explained that earlier that evening, Paulina Burke informed the police that Johnson was at the Levittown Trace Apartments, and as a result, the police found Johnson there, in possession of Talley's vehicle, the license plates on which had been changed. Id. at 2. Detective Fuhrmann further explained that in his interview with Johnson earlier that evening, Johnson admitted to being with Talley and R.R. just prior to their deaths and to taking the Cadillac from Avalon Court, and that he "gave conflicting accounts as to his possible involvement." Id. The detective also indicated that Johnson had a cut that appeared recent on the outside edge of one of his fingers. Id.

         The magistrate issued the search warrant based on these sworn allegations. The trial court found the warrant sufficiently supported by probable cause, reasoning as follows:

The probable cause affidavit … set forth the facts regarding the time and place of the fire, the death of [Talley] and R.R. and the stab wounds observed on the bodies. The affidavit also set forth facts regarding [Johnson's] connection with those events. [Johnson] admitted that he was in the apartment with the victims [on] the day of the fire. Within minutes of the fire being detected, [Johnson] fled the scene in a Cadillac at a high rate of speed, striking a parked car in the process. Within four hours of the fire, [Johnson] was stopped driving the Cadillac. At that time, the Cadillac displayed a license plate that did not belong to the vehicle. Just hours after the murders, police observed a cut on [Johnson's] hand. When he was questioned by the police as to his whereabouts at the time of the murders, [Johnson] gave conflicting accounts. [Johnson's] presence at the scene both before and after the fire started, his hasty flight from the scene in the apartment owner's car, his inconsistent statements to police and the injury to his hand provided sufficient circumstances, when viewed in a practical, ...

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