Com. v. Johnson, K.

Superior Court of Pennsylvania·Decided June 27, 2018·No. 927 EDA 2016·Unpublished

Opinion

J-A08044-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KAREEM JOHNSON, : : Appellant : 927 EDA 2016

Appeal from the Order March 3, 2016 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1300424-2006

BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 27, 2018

Kareem Johnson (Appellant) appeals from the March 3, 2016 order

denying his motion to bar retrial on double jeopardy grounds. Specifically,

Appellant argues that the Commonwealth should be barred from retrying him

for the murder of Walter Smith because the Commonwealth’s deliberate

indifference during trial preparation resulted in a misrepresentation of DNA

evidence at his first trial. After review, we affirm.

We begin with the factual and procedural history.

On December 15, 2002, Appellant and at least one other person shot Walter Smith to death on the street in front of a bar in North Philadelphia. Some three months before his violent death, Mr. Smith had told police that an acquaintance of Appellant’s, Clinton Robinson, was responsible for the August 2002 murder of another person, Margaret Thomas. Appellant was arrested in May 2006, for the murder of Mr. Smith. The Commonwealth’s theory of the case was that Appellant had killed Mr. Smith in order to prevent him from testifying against Mr. Robinson. The

*Retired Senior Judge assigned to the Superior Court. J-A08044-18

Commonwealth relied upon physical evidence that included the following: 1) two different types of ammunition recovered from the murder scene as well as from Mr. Smith’s body, showing that Appellant had acted in concert with at least one other individual in the murder; and 2) a red baseball-type cap found at the scene that contained Appellant’s DNA on the sweatband and Mr. Smith’s DNA in blood stains on the brim. In addition, the Commonwealth presented the testimony of Bryant Younger, who had heard Appellant make two statements with which he implicated himself in Mr. Smith’s murder. The defense sought to cast doubt upon the Commonwealth’s evidence largely by challenging the significance of the DNA evidence and by characterizing Mr. Younger as a “rat” who would do anything to avoid an impending life sentence for a federal drug conviction.

Appellant was convicted by a jury in June 2007, of first-degree murder, criminal conspiracy, and possession of an instrument of crime. Appellant was sentenced to death after the jury found that any mitigating circumstances were outweighed by the aggravating circumstance that Appellant had a significant history of felony convictions involving the use of violence to the person.1 42 Pa.C.S. § 9711(d)(9). Appellant was also sentenced to a concurrent term of 20 to 40 years’ imprisonment on the conspiracy conviction. Appellant now appeals his judgment of sentence to this Court and raises six guilt phase issues and one penalty phase issue. ______ 1 In March 2006, Appellant had been convicted of the first-

degree murder of a 10–year old child who was shot while on his way to school and of aggravated assault upon the crossing guard at the school, who was also shot. Neither of these individuals was an intended victim of Appellant or the group of men of which he was a part. Appellant was sentenced to life in prison for the murder and an aggregate consecutive term of 23 ½ to 47 years’ imprisonment for the aggravated assault and related offenses. That judgment of sentence was affirmed by the Superior Court on October 18, 2007, and th[e Supreme] Court subsequently denied a petition for allowance of appeal. Commonwealth v. Johnson, 943 A.2d 315 (Pa. Super. 2007) ([t]able), appeal denied, [] 952 A.2d 675 ([Pa. ]2008). We note that Appellant declined the opportunity to plead guilty to the instant charges in return for imposition of a life sentence concurrent to the one he was already serving.

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Commonwealth v. Johnson, 985 A.2d 915, 918–19 (Pa. 2009).

On December 29, 2009, our Supreme Court affirmed Appellant’s

convictions and the judgment of sentence imposing the death penalty. See

id. Appellant filed a petition for a writ of certiorari to the United States

Supreme Court, which was denied on October 4, 2010. Johnson v.

Pennsylvania, 562 U.S. 906 (2010).

On December 16, 2010, Appellant pro se timely filed a petition pursuant

to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA

court appointed counsel. Appellant subsequently filed a motion for discovery

and an amended PCRA petition and petition for a writ of habeas corpus. The

Commonwealth conceded that Appellant was denied effective assistance of

counsel during his trial for the murder of Walter Smith, and therefore the

parties stipulated that Appellant was entitled to a new trial. The PCRA court

entered an order to that effect on April 22, 2015.

Appellant thus began the pre-trial process on his second trial for the

murder of Walter Smith.1 On October 9, 2015, Appellant filed a motion for

pre-trial discovery. The trial court held several pre-trial hearings, wherein the

Commonwealth’s handling of the DNA evidence from the first trial was

developed further. Specifically, at his first trial, the Commonwealth presented

1On February 17, 2016, the Commonwealth withdrew its notice of intent to pursue the death penalty.

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testimony and evidence that both the victim’s DNA in blood stains, and

Appellant’s DNA in sweat stains, were found on the same red cap. This proved

to be erroneous. The red cap recovered from the crime scene contained

Appellant’s DNA on the sweatband, but did not contain the victim’s DNA. A

second black cap, which the victim had been wearing at the time of the

shooting, had the victim’s DNA in blood stains on it, but did not contain

Appellant’s DNA. Though the scientific reports and property receipts clearly

differentiated between the two caps, it appears that all parties involved in

Appellant’s first trial and appeal assumed that there was only one cap – the

red cap recovered from the scene. See, e.g., Johnson, 985 A.2d at 918

(stating that the physical evidence included “a red baseball-type cap found at

the scene that contained Appellant’s DNA on the sweatband and [the victim’s]

DNA in blood stains on the brim”). Because the Commonwealth misread the

scientific reports, it conflated the scientific findings and represented at

Appellant’s first trial that both Appellant’s DNA and the victim’s DNA were

found on the same red cap.

Based on the development of this issue during the pre-trial hearings,

Appellant decided to pursue a motion to bar retrial based on double jeopardy.2

On March 3, 2016, the trial court found the Commonwealth’s mistake in

misrepresenting the DNA evidence at Appellant’s capital trial “intolerable,” but

2 Though Appellant’s counsel stated that he intended to file a written motion to bar retrial, no such motion appears of record. N.T., 1/27/2016, at 154-55.

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ultimately denied the motion because it did not rise to intentional prosecutorial

misconduct. N.T., 3/3/2016, at 36.

It’s intolerable that under our system of laws, procedure, Constitutional rights that this case went through a capital trial and verdict under these circumstances.

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