Commonwealth v. Johnson, M, Aplt.

[J-31-2025]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 813 CAP

:

Appellee : Appeal from the Order entered on

: December 29, 2023, in the Court of

: Common Pleas of Bucks County,

v. : Criminal Division, at No. CP-09-CR-

: 0001413-2014.

:

MARCEL EMANUEL JOHNSON, : SUBMITTED: February 26, 2025

:

Appellant :

OPINION

JUSTICE WECHT DECIDED: March 26, 2026

Marcel Emanuel Johnson was convicted by a jury of killing Ebony Talley (first-

degree murder1), her unborn child (third-degree murder2), and her four-year-old daughter,

R.R. (first-degree murder), as well as other associated offenses.3 He was sentenced to

death for R.R.’s murder. On direct appeal, this Court affirmed his judgment of sentence.4

Now before this Court is Johnson’s appeal of the Court of Common Pleas’ denial in its

1 18 Pa.C.S. § 2502(a) (“A criminal homicide constitutes murder of the first degree

when it is committed by an intentional killing.”).

2 Id. § 2502(c) (“All other kinds of murder shall be murder of the third degree.”).

3 Johnson also was convicted of arson endangering persons, id. § 3301(a), and

possessing instruments of crime, id. § 907.

4 Commonwealth v. Johnson, 160 A.3d 127 (Pa. 2017).

entirety of Johnson’s timely first petition under the Post Conviction Relief Act (“PCRA”).5

We affirm.

I. Background

For reasons that will become clear, we segregate the circumstantial evidence

supporting Johnson’s convictions in this case from certain evidence that comes under

challenge in Johnson’s PCRA claims. This is necessary because our analysis of the

issues in this case requires us to consider whether, with problematic evidence excluded,

there is a reasonable probability that the outcome of the trial would have been different.

Accordingly, we begin with the trial court’s account, as sustained by the trial record, with

the contested evidence excised. Afterward, we review the challenged evidence. Our

analysis of the issues follows.

A. The Circumstantial Case for Guilt

The trial court’s detailed account, limited to the circumstantial evidence and

modestly abridged, is as follows:

On Monday, November 25, 2013, at approximately 3:30 p.m., Bristol

Township Police were dispatched to a reported fire in Building 600 of the

Avalon Court Apartments located in Bristol Township, Bucks County.

Officer Joseph Dragon was the first emergency responder to arrive at the

scene. Upon his arrival, he was advised by employees of the apartment

complex that a child might be trapped in one of the basement level

apartments. Officer Dragon then entered the building and proceeded down

to the basement level. He was prevented from entering the common

hallway on that floor due to the presence of thick, heavy smoke. Two

firefighters, who arrived in advance of the emergency equipment, identified

Apartment 604, located on the basement level of the building, as the

location of the fire and also attempted entry. They too were forced to retreat

due to the dense smoke and heat.

5 See 42 Pa.C.S. §§ 9541-9546. The PCRA “provides for an action by which

persons convicted of crimes they did not commit and persons serving illegal sentences

may obtain collateral relief.” Id. § 9542.

[J-31-2025] - 2

Entry into Apartment 604 was made shortly after the first fire engine arrived.

After entering the apartment, firefighters proceeded to a bedroom located

in the rear of the apartment. There, they observed the bed and piles of

clothes burning. Once that fire was extinguished, firefighters found the body

of a deceased female lying face-down on the bedroom floor. Her head and

neck were encased in a blue plastic bag. This victim was identified as

twenty-two-year-old Ebony Talley. Talley was five months pregnant at the

time of her death. Firefighters found Talley’s four-year-old daughter, R.R.,

on the floor in the living room lying beneath an overturned couch. R.R. was

rushed to St. Mary Medical Center where she was pronounced dead.

****

The [autopsy] of Talley’s body revealed thirty-five knife wounds . . . . One

of the stab wounds penetrated her uterus and punctured the amniotic sac.

Defensive wounds were found on her arms and on her left hand. Talley

also suffered a blunt impact injury to her mouth, causing her to lose two

teeth. One tooth was found in her mouth at the autopsy. The other was

found at the crime scene on the floor in between the kitchen/dining area and

the living room of the apartment. [Pathologist Ian Hood] testified that the

injury was consistent with Talley having been struck in the face with the

frying pan found near her body at the scene. . . . The cause of death was

determined to be multiple stab wounds. Dr. Hood testified that he could not

exclude terminal asphyxiation, caused by the plastic bag being placed over

her head, as the final mechanism of death. Fingernail scraping[s] taken

from Talley at the autopsy were submitted for DNA analysis. The scrapings

contained male DNA.

The twenty-week male fetus Talley was carrying, otherwise healthy and

uninjured, died as a result of the death of his mother.

The Commonwealth’s arson expert . . . testified that two fires were set

inside the apartment; one in the back bedroom next to the body of Talley,

the other in the living room next to where R.R. lay dying. He testified that

the fires were intentionally set by application of an open flame to two

separate fuel sources, clothing and a cushioned chair in the bedroom and

a potholder in the living room. Cooking oil was poured throughout the

scene. It was found at both points of origin and on the victims’ clothing.

Talley lived with her daughter in Apartment 604 of Avalon Court

Apartments.[6] Johnson used her apartment to shower and change clothes.

He also stored his personal property there. At the time of her death, Talley

6 Talley’s was subleasing the apartment from an acquaintance, Gisele Ucci, who

was on a lengthy trip in Argentina. Talley also had use of Ucci’s Cadillac, which plays a

role in this case. For purposes of this narrative we refer to both as Talley’s.

[J-31-2025] - 3

was selling heroin out of that apartment. Johnson, an accomplice in Talley’s

drug dealing activities, knew that she sold heroin. . . . Johnson had . . . told

his girlfriend, Natashia Martinez, that he had to do something to make

money. The night before she was murdered, Talley asked her boyfriend,

Eric Nawuoh, to tell Johnson that he had to “leave.” Nawuoh did as she

requested.

On the morning of the murders, Talley, R.R., Talley’s mother, her two

sisters, Nawuoh and Johnson were at the victims’ apartment. Nawuoh left

the apartment before noon. Talley’s mother and sisters left at approximately

2:30 in the afternoon, leaving Talley and R.R. alone with Johnson. When

he was last seen by the victims’ family, Johnson was wearing dark clothing,

a black or blue hoodie, dark pants and dark shoes.

At approximately 2:30 that afternoon, maintenance man Joseph Casey saw

R.R. playing outside with a dog. Seeing that she was alone, he told her to

go back inside. At that time, he noted that Talley's burgundy Cadillac was

parked in front of Building 600. At approximately 3:00 p.m., Casey observed

smoke in Building 600. After calling the fire department, he and his co-

workers attempted to enter the hallway to the ground floor apartments

where the victims resided but were prevented from doing so as black smoke

began filling the hallway. When he went back outside, Casey noticed that

the Cadillac was gone and immediately notified police of its absence.

Just minutes before police and fire crews arrived, area resident, Nigeria

Gary, was sitting in her vehicle in the parking lot of the Avalon Court

Apartments when she observed the burgundy Cadillac quickly reverse out

of its parking space, strike a parked car and speed out of the apartment

complex. At approximately 3:27 p.m., a local video surveillance camera

captured the vehicle as it traveled away from Avalon Court Apartments, in

the direction of Levittown Trace Apartments.

At approximately 5:30 p.m., a resident of Levittown Trace Apartments, Jill

Connolly, observed the burgundy Cadillac drive into the parking lot of

Levittown Trace Apartments. After the car entered the lot, the headlights

were switched off, the car reversed and proceeded to the rear of H Building.

Approximately three minutes later, Connolly observed Johnson walk from

that location towards the entrance of F Building.

Johnson thereafter unexpectedly arrived at the apartment of Jina Padilla,

located in F Building of Levittown Trace Apartments. He was wearing a

blue sweater, jeans and a red and black hat. He appeared to be “very

worried” and “very panicky” and immediately asked to use Padilla's cell

phone. After Padilla agreed to let him use her phone, Johnson took the

phone into her bedroom to make his call(s) in private. After using the phone,

Johnson asked Padilla if he could leave a bag at her apartment. She

refused his request. Johnson, who was at Padilla’s apartment for

[J-31-2025] - 4

approximately thirty minutes, used the bathroom before leaving. He was in

the bathroom for five to ten minutes.

While police and fire crews were still on scene, Brittany Coles, Talley’s

cousin, received multiple cell phone calls from Johnson at five to ten minute

intervals. During those calls, Coles told Johnson that the apartment was on

fire, that R.R. might be in the apartment, that Talley could not be located

and, ultimately, that R.R. had been rushed to the hospital. Coles asked

Johnson to return to the apartment to find out what was happening.

Although Johnson admitted that he was at Levittown Trace Apartments, less

than a mile from the scene, and that he had Talley's car and her Xbox, he

refused Coles’ request for help. Talley's sister, Paulina Burke, also received

calls from Johnson while he was at Levittown Trace Apartments. Burke told

Johnson that there was a fire at the apartment and that the family was being

told that Talley and R.R. were killed. She told him that she and the family

were at the police station and that he needed to come to the station as well.

Johnson, who was less than half a mile from the police station, refused to

cooperate.

Based on this information, investigators proceeded to Levittown Trace

Apartments. In several common areas of the complex, they found

belongings of Johnson that had been stored in Talley's apartment prior to

the murders. At 6:20 p.m., police located Talley’s burgundy Cadillac behind

H Building, a secluded area of the complex. Police kept the car under

surveillance until 7:08 p.m., at which time Johnson got into the car and

began to drive away. Police immediately stopped the car. Johnson, the

sole occupant of the vehicle, was no longer wearing the clothing he had

worn earlier in the day. He had fresh injuries to his right hand. A bottle of

Clorox bleach was found on the right rear passenger floor of the car.

At 7:37 p.m., Johnson agreed to speak with investigating detectives. During

that interview, Johnson admitted that he knew Talley was pregnant. He

admitted that he had been at Talley's apartment earlier in the day. He stated

that he left the apartment because Talley asked him to leave. He initially

claimed that after leaving the apartment, he walked to a local Burger King

and that, while there, he contacted a friend he identified as “Eric Stahl” who,

Johnson said, arrived at the Burger King driving the victim’s Cadillac.

Johnson stated that he and Stahl then drove to Levittown Trace Apartments.

He claimed that Stahl gave him the keys to the car and left on foot. Johnson

claimed that he then tried to enter H Building and that when he could not do

so, he returned to the car, began to drive and was then immediately stopped

by police. After being advised that there were numerous surveillance

systems in the area of the Burger King where Johnson claimed to have met

Stahl, Johnson admitted that he had taken the victim’s car from the Avalon

Court Apartments, and that, while doing so, he hit a parked car and left at a

high rate of speed. Johnson admitted that Talley’s sister had urged him to

come to the police station and that he refused to do so. His excuse for

[J-31-2025] - 5

refusing to assist the victims’ family and investigators was that he had

outstanding non-traffic summary citation warrants for sleeping in a vehicle.

He later stated that he did not want to get involved and that, “It was every

man for himself.” During the course of the interview, Johnson was

shivering, shaking and sweating.

While Johnson was at the police station, the investigating detectives

executed a search warrant issued for Johnson’s person. Buccal swabs and

fingernail scraping[s] were taken from Johnson at that time. DNA analysis

of the scrapings from Johnson’s right hand revealed the presence of

Talley’s DNA. Johnson’s DNA was compared with DNA obtained from

various pieces of evidence. . . .[7]

In the area between the kitchen and living room of the crime scene, police

found large blood stains, Talley’s tooth, one earring which matched the

earring found on Talley’s body and a wireless Xbox controller to Talley’s

Xbox which Johnson had in his possession immediately after the murders.

In that same area, police found a personalized dog tag inscribed “Tashia

loves you forever.” Johnson’s girlfriend, Natashia Martinez, testified that

the dog tag belonged to Johnson and that Johnson always wore that dog

tag. Johnson’s cell phone was also found at the crime scene.[8] Images of

Johnson wearing that dog tag were downloaded from that phone.9

Even this account, while thorough, leaves out a handful of items of circumstantial

evidence that further incriminated Johnson. For instance, Detective Jack Slattery testified

that, during the police station interview of Johnson, without any prompting, Johnson

raised the prospect of cooking grease as a fire hazard present in the apartment:

Q. Do you know—did you either question [Johnson] or did he say

anything about the burners on the stove and pots of grease?

7 Omitted here is reference to a partial match with DNA obtained from a frying pan

handle found near Talley’s body, with the pan, itself, found nearby. Talley was missing

two teeth; one was found in her mouth, the other on the floor near her body. As discussed

below, the quality and relevance of the supposed partial match is very much in question,

hence its omission from this portion of our factual recital.

8 The testimony established that Johnson made the aforesaid phone calls from

phone numbers unfamiliar to the recipients, who knew Johnson’s personal number.

9 Tr. Ct. Op., 3/23/2016, at 1-9 (names modified; citations to notes of testimony and

exhibits omitted).

[J-31-2025] - 6

A. Once the fire was disclosed by him, the knowledge that there had

been a fire in apartment 604 was disclosed by him, not by us, he almost

seemed to be making excuses as to why this fire would have happened

accidentally.

****

He began to explain that [Talley] would leave a burner on the stove

on in the apartment as a source of heat, and that she would leave pots or

pans of grease or oil right next to the open flame. And he began to tell us

that this is something that he tried to address with her, that he had told her

about this, that it was dangerous.

Q. So he mentioned pots of grease to you?

A. He did.

Q. Was that before you had even—did you ever say anything to him

about the grease?

A. No. To be clear, at the time I was unaware that grease was an

issue. I had never set foot inside the scene.10

Undisputedly, the fire did not start in the kitchen.

Furthermore, the instances of Johnson’s shifting story reviewed by the trial court

alone were not the only ones. For example, Johnson’s explanation as to what prompted

him to contact Talley’s cousin, Brittany Coles, shortly after leaving Avalon Court was

inconsistent:

Q. . . . Did he say that he knew whether Brittany Coles was related

to [Talley]?

A. He did. He told us that he was aware that Brittany Coles was

[Talley’s] cousin.

Q. Did you ask him about that phone call?

A. Yes. An obvious question that Detective Fuhrmann and I had

would have been why he thought it was necessary to contact Brittany Coles,

[Talley’s] cousin; if it was just out of the blue or if there was a purpose behind

it. What he explained to us initially was that he had saw police and fire

10 Notes of Testimony at Trial (“N.T.T.”), 5/29/2015, at 287-88.

[J-31-2025] - 7

personnel responding to Avalon Court. He quickly changed that and said

that he didn’t see them actually responding, but he saw them going in the

direction of Avalon Court.

And then this next part was confusing to me. He saw that the police

department responded to a subject that he knew in the Levittown Trace

Apartments, and that caused him some concern for something in Avalon

Court.11

On direct appeal, this Court noted additional evidence regarding details of the burgundy

Cadillac and its contents:

[Investigators] noticed that the [Cadillac’s] license plate had been changed,

but the VIN number, which is visible through the windshield, verified that it

was Talley’s vehicle. . . . 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.12

Finally, this Court summarized the procedural history:

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. . . .

In January 2014, Johnson was charged with the murders of Talley, R.R.,

Talley’s unborn child and related crimes.

****

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.13

11 Id. at 289.

12 Johnson, 160 A.3d at 135.

13 Id. (footnote omitted)

[J-31-2025] - 8

B. The Other Evidence of Guilt

The trial court also summarized additional evidence that is the subject of the legal

issues raised by Johnson in his PCRA petition and before this Court on appeal:

Within days of the murders, Johnson made a number of statements at the

Bucks County Correctional Facility [“BCCF”] to a fellow inmate [George

Lewis]. Johnson told Lewis, “She made me kill her.” Lewis asked, “Who?”

Johnson responded, “Ebony.” Johnson further stated that he had “killed the

baby.” Johnson explained that he “had to stab her” because she was “very

smart and she can identify me.” Johnson told Lewis that he stabbed “the

baby” in the upper chest and that he “put the baby on fire” and then fled the

scene.

Johnson also spoke to his brother, Marquis Johnson, by telephone from the

prison. During one recorded conversation, Johnson directed Marquis to

retrieve “evidence” that Johnson said he had hidden in a box on the wall of

a laundry room in F Building of Levittown Trace Apartments. [Marquis] went

to that location and retrieved a blue latex glove containing small yellow bags

and a money order. Johnson’s brother cashed the money order and hid the

glove containing the packets in a crawl space in his home.

Police later retrieved the glove and determined that it contained 167 small

yellow packets of heroin. The 167 yellow heroin packets were stamped with

a red “#1” with “way to go” printed inside the number. Empty yellow packets

containing the same stamp were found at the crime scene scattered on the

floor near the body of Talley, in a shoe box found in the bedroom where her

body was found, in the living room of the apartment and in the Cadillac. The

glove also contained a clear plastic bag. Eleven identical clear plastic bags

were found on Johnson’s person when he was stopped by police the day of

the murders. Johnson’s DNA was found on that glove.14

The money order that Marquis retrieved from the box found at Levittown was for “[a]bout

$80,”15 which corresponded to the amount of the money order that Talley obtained the

morning before she was killed.16

14 Tr. Ct. Op., 3/23/2016, at 9-10 (names modified; citations to notes of testimony

and exhibits omitted).

15 N.T.T., 6/1/2015, at 70.

16 See N.T.T., 5/27/2015, at 111 (Talley’s mother, Pearline Burke, testified that the

morning before the killing she rode with Talley to get a money order for $80).

[J-31-2025] - 9

The confession to Lewis was the only direct evidence of Johnson’s guilt introduced

at trial. And the lead prosecuting attorney, ADA Matthew Weintraub, characterized

Johnson’s confession as the “linchpin” of his case (and other words to similar effect). 17

Also admissible but at issue herein was the Commonwealth’s DNA evidence. That

evidence as presented arguably was broadly favorable to Johnson because there was

very little DNA evidence implicating him in the murders. But it wasn’t all favorable. The

Commonwealth’s DNA expert, Dr. Alex Glessner, testified that genetic material found

under Johnson’s fingernails matched Talley’s DNA, and that her DNA would only be found

under Johnson’s nails as a consequence of intimate contact.18 Trial counsel did nothing

to undermine this conclusion either in cross-examination or with the assistance of a DNA

expert for the defense, despite the fact that counsel consulted an expert who discerned

numerous flaws in the Commonwealth’s expert’s methods and conclusions. The article

that the Commonwealth’s expert cited in support of his conclusion contradicted the

proposition that only intimate contact could have resulted in the DNA match. Rather, the

article indicated that genetic material could have found its way under Johnson’s nails

through co-occupancy of an apartment with Talley. Dr. Glessner admitted as much at a

17 See, e.g., Notes of Testimony at PCRA Hearing (“N.T.P.”), 6/28/2023, at 112-13

(ADA Weintraub describing counsel’s use of “linchpin” as “literally true” and adding that

Lewis was “very important” and ”critical to the case”).

18 See N.T.T., 5/29/2015, at 179 (“DNA that does not belong to the person whose

fingernails they are under, it needs to be more than just casual contact. So you need to

have some kind of intimate contact with another person to deposit enough DNA under

your fingernails to render a test result at the end showing more than one person.”).

[J-31-2025] - 10

later PCRA hearing.19 The evidence indicated that Johnson spent significant time in

Talley’s apartment and perhaps sometimes stayed the night.

C. The Penalty Phase

This Court summarized the penalty-phase evidence on direct appeal:

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.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.

8 42 Pa.C.S. §§ 9711(d)(8), (11), (13), (17).

9 Id. §§ 9711(d)(5), (11), (16).

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.

10 Id. §§ 9711(e)(1), (2), (4).20

19 See N.T.P., 8/10/2023, at 132-33.

20 Johnson, 160 A.3d at 135-36 (some footnotes omitted; some citations modified).

[J-31-2025] - 11

D. Direct Appeal

On direct appeal this Court considered (among other things omitted from this

account) the sufficiency of the evidence as a matter of course.21 Next, the Court

considered and rejected various challenges to the trial court’s refusal to suppress

evidence at trial. Additionally, Johnson challenged the trial court’s admission of Marquis’

testimony that, shortly before the murders, Johnson asserted in conversation with

Marquis that Johnson was “willing to do anything to make a come up,”22 which Marquis

indicated was a way of signaling Johnson’s ambitions to improve his situation

economically.

The Court then turned to issues raised by Johnson relative to the penalty phase of

his trial. First, this Court considered and rejected Johnson’s assertion that the trial court

wrongfully excluded his mitigation expert’s testimony regarding a multi-generational

history of abuse, poverty, drug abuse, and mental illness. That court had deemed such

evidence relevant only to the extent that it “was somehow made part of the family structure

or . . . was made known to [Johnson], and therefore could be said to have had an impact

upon him.”23 Correlatively, the trial court had excluded the subset of such evidence for

which Johnson was not present, or of which he was never made aware.

21 On direct appeal of a capital conviction, this Court considers the sufficiency of the

evidence regardless of whether the defendant raises a sufficiency challenge. See

Johnson, 160 A.3d at 136 (citing Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005)).

22 Id. at 145 (quoting N.T.T., 6/1/2015, at 63-64). In testimony excerpted by this Court

in the same connection, Marquis elaborated that Johnson “said that if you have to shoot

someone to make a come up or be involved in anything to make that come up, he will do

so.” N.T.T., 6/1/2015, at 64.

23 Johnson, 150 A.3d at 147.

[J-31-2025] - 12

Finally, fulfilling another obligation of this Court that is peculiar to capital direct

appeals, this Court tested the imposition of the death penalty for bias engendered by

passion, prejudice, or another arbitrary factor, as well as for the sufficiency of the evidence

of the aggravating factors found by the jury.24 The evidentiary basis for the aggravators

was ample, and this Court found that the sentence was not the result of any arbitrary

factor.

For all these reasons and others, this Court affirmed the conviction and judgment

of sentence.

II. Legal Standards

This case comes before us now on collateral review under the PCRA, which

“provides for an action by which persons convicted of crimes they did not commit and

persons serving illegal sentences may obtain collateral relief.”25 Relevant to this case,

Johnson can establish a right to PCRA relief if he pleads and proves by a preponderance

of the evidence that he has been convicted of a crime in Pennsylvania and is awaiting

execution of a sentence of death for that crime, and that his conviction resulted from one

or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution

or laws of the United States which, in the circumstances of the particular

case, so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place.

(ii) Ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.

24 See id. at 153.

25 42 Pa.C.S. § 9542.

[J-31-2025] - 13

****

(vi) The unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of

the trial if it had been introduced.26

Additionally, Johnson must prove that his issues have not been previously litigated

or waived because he failed to raise them at the earliest time he could.

An issue has been previously litigated if the highest appellate court in which

the petitioner was entitled to review as a matter of right has ruled on the

merits of the issue. . . . A PCRA claim is waived “if the petitioner could have

raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state post[]conviction proceeding.”27

“On appeal from the denial of PCRA relief, our standard of review calls for us to

determine whether the ruling of the PCRA court is supported by the record and free of

legal error.”28 We review questions of law de novo, and “our scope of review is limited to

the PCRA court’s findings and the evidence of record, viewed in the light most favorable

to the Commonwealth as the prevailing party.”29

III. PCRA Proceedings

These proceedings commenced when Johnson filed a timely pro se PCRA petition

on January 9, 2018. Present counsel filed an amended PCRA petition on Johnson’s

behalf on July 15, 2019. The Commonwealth responded with an “Answer and

Memorandum of Law in Opposition to Johnson’s Petition.” Various other motions

followed, including a Motion for an Evidentiary Hearing, which the PCRA court granted.

26 42 Pa.C.S. § 9543(a)(2).

27 Commonwealth v. Washington, 927 A.2d 586, 593-94 (Pa. 2007) (quoting 42

Pa.C.S. § 9544(b)) (cleaned up).

28 Id. at 593.

29 Commonwealth v. Chmiel, 173 A.3d 617, 625 (Pa. 2017).

[J-31-2025] - 14

The PCRA court held evidentiary hearings from June 28 through June 30, 2023,

and again on August 9 and August 10, 2023. In November 2023, Johnson moved to

amend his PCRA petition, and the PCRA court granted the motion. An amended petition

and additional filings followed. The PCRA court denied Johnson’s final amended petition

on December 29, 2023, and Johnson filed the instant, timely appeal in this Court. The

PCRA court issued its Pa.R.A.P. 1925(a) opinion on April 5, 2024.

IV. Guilt Phase Issues and Analysis

A. The Issues and the Necessity of Prejudice

As noted, supra, Johnson cannot establish a basis for relief under the PCRA

unless he establishes that the trial deficiencies asserted “so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could have taken

place.”30 As well, under the guises of both “materiality” and “prejudice,” this question—

the likely effect of the error on the outcome of the trial—pertains individually to all of the

specific assertions of error raised by Johnson in this case. Importantly, with respect to

claims of constitutional ineffectiveness of counsel, this Court has held that, “[w]hen the

failure of individual [constitutional ineffectiveness of counsel] claims is grounded in lack

of prejudice, then the cumulative prejudice from those individual claims may properly be

30 42 Pa.C.S. §§ 9543(a)(2)(i), (ii); cf. id. § 9543(a)(2)(vi) (providing for collateral relief

based upon “[t]he unavailability at the time of trial of exculpatory evidence that has

subsequently become available and would have changed the outcome of the trial if it had

been introduced” (emphasis added)).

[J-31-2025] - 15

assessed.”31 Thus, “a new trial may be awarded due to cumulative prejudice accrued

through multiple instances of trial counsel’s ineffective representation.”32

In the order presented, Johnson presents the following challenges to the conduct

and outcome of his guilt-phase trial:

(1) that the prosecution violated its obligation to disclose exculpatory or

witness impeachment evidence under Brady v. Maryland;33

(2) that the prosecution failed to correct the false trial testimony of its

primary witness, George Lewis, a jailhouse informant who claimed that

Johnson confessed to him the killings at issue in this case;

These two issues implicate both materiality and prejudice. “It is well-settled that

Brady and subsequent precedent flowing therefrom impose[] upon a prosecutor the

obligation to disclose all favorable evidence that is material to the guilt or punishment of

an accused . . . .”34 Relief for a Brady violation is due when a court determines that “the

evidence was material, meaning that prejudice must have ensued.”35 Relatedly, the

knowing and willful failure to correct false testimony implicates due process protections.

Such a violation requires relief if there is “any reasonable likelihood” that the uncorrected

testimony could have “affected the judgment of the jury.”36

31 Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).

32 Id. at 321 (describing our holding in Commonwealth v. Perry, 644 A.2d 705, 709

(Pa. 1994)).

33 373 U.S. 83 (1963).

34 Commonwealth v. Bagnall, 235 A.3d 1075, 1085-86 (Pa. 2020) (citing

Commonwealth v. Strong, 761 A.2d 1167, 1171 & n.5 (Pa. 2000)).

35 Id. at 1086.

36 Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360

U.S. 264, 271 (1959)).

[J-31-2025] - 16

The next four issues that Johnson raises involve allegations of constitutionally

ineffective assistance of trial counsel, Craig Penglase and John Fioravanti.37 They are

as follows:

(3) that trial counsel was constitutionally ineffective for failing to sufficiently

investigate Lewis’ putative history of trading cooperation with investigators,

including allegedly false jailhouse confessions, for favorable treatment, and

to use this information to impeach Lewis’ trial testimony;

(4) that trial counsel “was ineffective for failing to understand, investigate

and impeach the Commonwealth’s DNA evidence”;38

(5) that trial counsel failed to undermine the Commonwealth’s case by

highlighting alleged deficiencies in the Commonwealth’s investigation; and

(6) that trial counsel failed to present character evidence favorable to the

defense.

To support a claim for ineffective assistance of counsel, a PCRA petitioner must

plead and prove three things: first, that the claim has arguable merit; second, that counsel

could have had no reasonable basis for the challenged action or omission (subject to the

presumption that counsel is acting effectively); and third that the ineffectiveness caused

him prejudice.39 Prejudice occurs where “there is a reasonable probability that, but for

37 Attorney Fioravanti was appointed first to the case, did most of the writing, and

was primarily responsible for retaining and supervising court-appointed investigator Sean

Hawke. As trial approached, Attorney Penglase assumed the role of lead attorney for the

guilt phase, while Attorney Fioravanti primarily handled preparation for, and eventual trial

of, the penalty phase.

38 Johnson’s Br. at iii.

39 See Commonwealth v. Buehl, 658 A.2d 771, 777 (Pa. 1995); Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa. 1987).

[J-31-2025] - 17

counsel’s unprofessional errors, the result of the proceeding would have been different.”40

Failure to prove any one prong of the test will defeat the claim.41

The applicable materiality and/or prejudice requirements loom large among these

issues. In the absence of the prescribed showing of materiality and/or prejudice, no relief

is due under the PCRA. With respect to prison informant Lewis’ damning testimony

regarding Johnson’s alleged confession and the somewhat less damning, but still

problematic, testimony of Marquis hinting at Johnson’s possible motive for killing Talley,

as well as with respect to the way in which counsel met the Commonwealth’s DNA

evidence, there are two questions bearing upon materiality and prejudice. First, whether

a trial conducted wholly without either or both witness’ testimony and without the DNA

evidence would likely have led to the same result. Second, whether there is a reasonable

probability that a trial conducted including the testimony of Lewis and Marquis, and

including the DNA evidence, but in which counsel engaged in more vigorous and effective

impeachment with the advantage of the allegedly withheld and/or wrongfully unfound

and/or unused impeachment evidence would likely have led to a different verdict.

B. The Circumstantial Case Against Johnson

It is axiomatic that guilt may be proved beyond a reasonable doubt by

circumstantial evidence alone.42 And here, there is a circumstantial case to consider that

40 Commonwealth v. (Raymond) Johnson, 966 A.2d 523, 533 (Pa. 2009) (quoting

Strickland v. Washington, 466 U.S. 688, 694 (1984)).

41 Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014).

42 Commonwealth v. Kloiber, 106 A.2d 820, 827 (Pa. 1954) (“[I]t is clearly settled that

a man may be convicted on circumstantial evidence alone, provided his guilt is proved

beyond a reasonable doubt.”).

[J-31-2025] - 18

in no way hinges upon the evidence that Johnson maintains should have been disclosed

by the Commonwealth and/or should have been leveraged in impeachment against

certain witnesses. Thus, we highlight what in the foregoing account of the circumstantial

case against Johnson is unchallenged and points to Johnson’s guilt of murdering the

victims in this case.

• Johnson was engaged in the drug trade with Talley.

• Johnson had expressed dissatisfaction with his circumstances and sought to

improve his fortunes.43

• Johnson was alone with Talley about a half-hour or even less before the fire in

Talley’s apartment was discovered. At that time, Johnson was wearing a dark

hoodie, dark pants, and dark shoes.

• Moments before a fire was detected in Talley’s apartment, Johnson was seen

hastily leaving the apartment complex parking lot in Talley’s car, striking

another parked car as he went. Attached to the car was a license plate that

was not associated with the vehicle registration.

• Shortly after leaving the apartment, Talley’s vehicle was observed heading in

the direction of the sprawling Levittown Trace Apartments complex. There,

Johnson parked the car in a very remote part of the parking lot.

• Johnson then visited the Levittown Trace apartment of an acquaintance,

appeared to be worried and nervous, and asked to use her phone. She gave

him her phone, and he made calls in the bedroom with the door closed, out of

the acquaintance’s hearing. Afterward, he spent five to ten minutes in the

bathroom. Johnson asked to leave a bag of his belongings with the

acquaintance, who refused.

• Johnson made repeated calls to Talley’s cousin and sister in the hours after the

killings, inquiring as to the situation at Avalon Court. But he refused to return

to check on the situation or to turn over Talley’s vehicle to police, citing in

response to both requests a dubious concern regarding outstanding bench

warrants for non-traffic-related summary offenses.

43 As detailed above, his most forceful alleged statement on this point was made to

Marquis, which we exclude for present purposes. But he also made similar comments to

his girlfriend, who testified that he told her that “he had to do something about making

money.” N.T.T., 6/1/2015, at 45.

[J-31-2025] - 19

• In the car with Johnson were numerous bags that bore the same stamp as

identical bags containing heroin found at Avalon Court around Talley’s dead

body. Also in the car was a bottle of bleach.

• At the time of Johnson’s apprehension he was no longer wearing a dark hoodie.

Instead, he was wearing a wrinkled blue sweater and different shoes.

• Johnson was observed by investigators to have two apparently recent

lacerations to his hands.

• During Johnson’s police interview, he behaved nervously; he was shivering and

sweaty.

• Johnson lied repeatedly to investigators, his story shifting in ways material to

the investigation. For example, only when confronted with the threat of

contradictory video evidence did Johnson withdraw his claim that Talley’s car

was brought to him by a friend44 and acknowledge that he had driven it from

the Avalon Court lot, striking another car as he did so.

• During his interview, Johnson specifically raised the prospect that the fire was

caused by Talley’s propensity for leaving a stove burner on in close proximity

to pots and pans of cooking grease. At that time, even investigators had yet to

learn that cooking oil was present in and around the two fires, neither of which

began in the kitchen.

• Johnson’s phone was found in Talley’s apartment, and his belongings later

were found in various locations around the Levittown Trace apartment

complex.45

Viewed in its entirety and in isolation, this evidence creates a strong circumstantial

case for guilt. Johnson’s observed behavior not only is compatible with guilt but is

incompatible with any other reasonably imaginable sequence of events. Then there is

Johnson’s general evasiveness with Talley’s family members. And, during his interview,

Johnson made the improbable allusion to cooking oil as a potential fire hazard, which is

almost too on-the-nose to believe.

44 Police efforts to confirm the existence of the friend Johnson named were

unsuccessful.

45 For present purposes, we exclude the items Marquis retrieved from Levittown

Trace at Johnson’s request. Other bags of belongings were found by investigators.

[J-31-2025] - 20

There is no evidence to support an alternate account, one that explains how

someone else committed the crimes in the half-hour or less that separated Johnson’s

hasty departure from Talley’s apartment and the discovery of the fire. The combination

of the two—the effort to conceive an alternate explanation for Johnson’s behavior and the

difficulty conceiving of another perpetrator—make it surpassingly difficult to conclude that

a jury would acquit Johnson even without Lewis’ testimony regarding Johnson’s alleged

confession, Marquis’ testimony as to motive and certain items retrieved at Johnson’s

request, and the limited incriminating DNA evidence introduced at trial.

In short, the circumstantial case against Johnson was sufficiently compelling that

it is difficult to perceive a reasonable probability that the trial outcome would have differed

had the jury simply been denied Lewis’ and Marquis’ testimony and the relatively modest,

equivocal DNA evidence entirely.

C. The Claims

The above discussion, which presupposes that the jury never heard from Lewis or

Marquis, or were given the DNA evidence, does not end our inquiry. Johnson’s

intertwined arguments about deficient Brady disclosures and trial counsel ineffectiveness

are based upon the proposition that trial attorneys Penglase and Fioravanti failed to

receive from the Commonwealth—and failed to obtain—and/or failed to utilize certain

putatively damning impeachment evidence against Lewis, Marquis, and the

Commonwealth’s DNA expert. Thus, we must consider the likelihood that more effective

impeachment of these witnesses at trial—rather than their absence—not only would have

discredited their testimony, but would so adversely have affected the prosecution’s

credibility before the jury that the jury was reasonably likely to have reached a different

[J-31-2025] - 21

verdict. In order to make this assessment, we must review the evidence upon which

Johnson’s claims are based.

1. Disclosure Violations Under Brady v. Maryland

It is well-settled that Brady and subsequent precedent flowing therefrom

impose[] upon a prosecutor the obligation to disclose all favorable evidence

that is material to the guilt or punishment of an accused, even in the

absence of a specific request by the accused. Commonwealth v. Strong,

761 A.2d 1167, 1171 & n.5 (Pa. 2000). This Court has held that, to

establish a Brady violation, a defendant has the burden to prove that: (1) the

evidence at issue was favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the prosecution has suppressed

the evidence, either willfully or inadvertently; and (3) the evidence was

material, meaning that prejudice must have ensued. Commonwealth v.

Chambers, 807 A.2d 872, 887 (Pa. 2002); Commonwealth v. Burke, 781

A.2d 1136, 1141 (Pa. 2001).46

“Under Brady, prejudice occurs when a defendant shows a ‘reasonable probability

that[,] had the evidence been disclosed to the defense, the result of the proceeding would

have been different.’”47 “A reasonable probability does not mean that the defendant would

more likely than not have received a different verdict with the evidence; it means only that

the likelihood of a different result is great enough to undermine confidence in the outcome

of the trial.”48 This Court has held that, “as a matter of law, a court reviewing multiple

pieces of exculpatory evidence that the prosecution failed to disclose is required to view

the effect of the non-disclosures cumulatively.”49

46 Bagnall, 235 A.3d at 1086 (citations modified).

47 Commonwealth v. Conforti, 303 A.3d 715, 730 (Pa. 2023) (quoting Commonwealth

v. Bomar, 104 A.3d 1179, 1189 (Pa. 2014)).

48 Commonwealth v. (Andre) Johnson, 174 A.3d 1050, 1056 (Pa. 2017) (cleaned up).

49 Commonwealth v. Natividad, 200 A.3d 11, 39 (Pa. 2019) (cleaned up).

[J-31-2025] - 22

The Brady obligation extends to information that may be used to impeach

prosecution witnesses.50 “Any implication, promise or understanding that the government

would extend leniency in exchange for a witness’ testimony is relevant to the witness’

credibility.”51 However, “Brady is not violated when the appellant knew or, with

reasonable diligence, could have uncovered the evidence in question, or when the

evidence was available to the defense from other sources.”52 “[I]n order to be entitled to

a new trial for failure to disclose evidence affecting a witness’ credibility, the defendant

must demonstrate that the reliability of the witness may well be determinative of his guilt

or innocence.”53

The alleged Brady material at issue with respect to Lewis’ attempt to serve his own

interests by testifying against Johnson broadly involves information and documents,

allegedly in the Commonwealth’s possession in advance of Johnson’s trial, which

established that Lewis was a serial informant with a history of providing information,

including potentially false information, to law enforcement in order to curry favor.

Johnson’s own summary of the evidence that he contends was withheld in violation of

Brady provides a useful structure for discussion:

50 (Andre) Johnson, 174 A.3d at 1056.

51 Bagnall, 235 A.3d at 1085-86 (cleaned up); see (Andre) Johnson, 174 A.3d

at 1056-57 (finding impeachment evidence subject to Brady where withheld police reports

“suggest[ed] that the [the witness] sought to curry favor with the police in the face of

ongoing criminal investigations and mounting evidence of his own criminal conduct”).

52 Commonwealth v. Roney, 79 A.3d 595, 608 (Pa. 2013).

53 Commonwealth v. Marinelli, 810 A.2d 1257, 1273-74 (Pa. 2002) (quoting

Commonwealth v. (Roderick) Johnson, 727 A.2d 1089, 1094 (Pa. 1999)).

[J-31-2025] - 23

The prosecution had, or could have readily obtained,[54] a plethora of

evidence showing that Lewis, a jailhouse informant, had motives to curry

favor with the prosecution in order to limit his liability and potential jail time

for various charges against him. This evidence included: 1) Lewis’s

repeated offers to work as an informant for the police and District Attorney

Office; 2) a letter Lewis sent to the DAO [i.e., District Attorney’s Office]

seeking benefits in exchange for his cooperation; 3) efforts made by the

prosecutor to advocate on Lewis’s behalf with New Jersey authorities who

were prosecuting Lewis for criminal offenses; 4) that Lewis would receive

consideration on his open cases in exchange for his cooperation; and

5) Lewis lied to prison authorities about the supposed funeral of his

granddaughter in an attempt to obtain a furlough.55

In sum, Johnson argues, Lewis’ offer to provide information about this case to law

enforcement was but one among serial “attempts to cooperate with Bucks County law

enforcement since arriving” at BCCF in return for favorable treatment in Pennsylvania and

relative to certain then-pending charges in New Jersey.56

In the leading example cited by Johnson, the Commonwealth allegedly failed to

disclose evidence in its possession of ADA Weintraub’s email and telephone

communications with Attorney Ward, the New Jersey prosecutor overseeing the aforesaid

New Jersey charges, which included felony burglary, theft, and domestic violence, which

could incur substantial prison terms. Attorney Ward had “agreed to give Mr. Lewis

sentencing consideration on his open charges in New Jersey due to his cooperation and

54 Johnson cites no case law, and we are not aware of any, to suggest that the

Commonwealth is responsible for obtaining Brady evidence not already in its possession,

except when the source in question obtained the information subject to disclosure as an

agent for the Commonwealth. See Kyles v. Whitley, 514 U.S. 419, 437-38 (1995); see

infra n.70 & accompanying text. There is no evidence that BCCF officials were

investigating any matters here at issue at the behest of the Commonwealth, as such.

Accordingly, we focus only upon what Johnson can establish was in the Commonwealth’s

possession before and during Johnson’s trial.

55 Johnson’s Br. at 17-18.

56 Id. at 20.

[J-31-2025] - 24

testimony in the Bucks County homicide case.”57 Attorney Ward attested that he

confirmed this by May 27, 2015 email to ADA Weintraub.58 Attorney Ward also noted that

ADA Weintraub asked him to look into $635 seized from Lewis in connection with his New

Jersey arrest. Ultimately, evidently after Johnson’s trial had run its course, Attorney Ward

dismissed some of Lewis’ open charges and offered time served and a return of the

seized money.

To be clear, ADA Weintraub testified that he had no recollection of asking Attorney

Ward for any such consideration.59 But in Johnson’s characterization, ADA Weintraub

acknowledged his awareness, in advance of Lewis’ testimony, that Attorney Ward

intended to grant Lewis favorable consideration in New Jersey for his testimony against

Johnson.60 ADA Weintraub further admitted discussing the status of Lewis’ New Jersey

cases with Lewis when he prepared Lewis for trial, and that Lewis asked for assistance.

Again, though, ADA Weintraub indicated that he did not recall whether he told Lewis that

he would try to assist him with his New Jersey cases, but he asserted that he would not

have promised Lewis any particular benefit. Rather, it was his custom to promise

57 Id. at 22.

58 See Email, Attorney Ward to ADA Weintraub, 5/27/2015, Amended Petition for

Writ of Habeas Corpus and for Collateral Relief from Criminal Conviction Pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. § 9541, et seq., Appendix at A-03664 (“Did Mr.

Lewis testify as expected? He is scheduled to be back with us on Monday and I will factor

his cooperation level with you into his plea agreement here.”) (hereinafter “PCRA

Appendix”).

59 See, e.g., N.T.P., 6/28/2023, at 96-98.

60 Johnson’s Br. at 23 (citing N.T.P., 6/28/2023, at 97).

[J-31-2025] - 25

cooperating witnesses only that he would be “an ally” relative to pending prosecutions.61

Johnson also claims that Lewis was aware of a potentially favorable plea deal before he

testified in Johnson’s case, although it is not clear from the averment and citation that

Lewis had any reason to understand that prospect as arising from, or contingent upon,

his testimony in this case or any effort on his behalf by ADA Weintraub.62

ADA Weintraub testified that it was generally his practice to turn information

pertaining to such discussions over to the defense.63 But Attorneys Penglase and

Fioravanti both testified that they were unaware of ADA Weintraub’s interactions with

Attorney Ward regarding the New Jersey cases or of Attorney Ward’s pre-trial indication

that he would consider Johnson’s cooperation in this case.64

Johnson separately asserts that Lewis made very similar accusations to BCCF

investigators regarding another inmate with whom he served, Shaquel Rock. There,

Lewis alleged that Rock had confessed to Lewis that he killed an off-duty corrections

officer in Trenton, NJ.65 This killing and the fact that Rock was a person of interest in the

case were reported in mainstream media available to BCCF inmates. New Jersey

61 See N.T.P., 6/28/2023, at 91 (indicating that he will generally tell cooperating

witnesses “that they will gain an ally in me”).

62 See Johnson’s Br. at 24-25. The hearing excerpts cited by Johnson subtly differ

from his characterization, indicating only that Lewis’ attorney believed they were in

position to make a deal in New Jersey that would result in a sentence of time-served.

Nothing in the excerpts suggests any causative factor without which such a sentence

would not be offered.

63 See, e.g., N.T.P., 6/28/2023, at 98.

64 See id. at 173-74 (Attorney Penglase); See id., 6/29/2023, at 70-71 (Attorney

Fioravanti).

65 See Johnson’s Br. at 26-28; PCRA App. at 06358-59 (BCCF Incident Report of

Chief Investigator Frank Bochenek, 10/30/2013).

[J-31-2025] - 26

investigators found Lewis’ claim incredible, and eventually cleared Rock.66 The

Commonwealth did not dispute that this report existed or was disclosable Brady

impeachment evidence, had it been in the Commonwealth’s possession. But the

Commonwealth claimed that it was not in its possession at the relevant time. Rather, it

was in BCCF’s possession—and, as such, was available to Johnson’s trial counsel for

the asking in any event.67

Nonetheless, asserting that BCCF was acting on behalf of the Commonwealth

when it received Lewis’ report of Rock’s alleged confession, Johnson asserts that the

failure to obtain and disclose this information violated the United States Supreme Court’s

holding in Kyles that the prosecution has “a duty to learn of any favorable evidence known

to the others acting on the government’s behalf in the case[,] including the police.”68 ADA

Weintraub’s co-counsel and de facto discovery manager, ADA Thomas Gannon, testified

that the DAO sometimes directed prison investigators to work on pending cases and

those investigators reported to the DAO.69 Thus, on Johnson’s account, the prosecution

had a duty to obtain and disclose this information.70 Notably, there is no evidence that

66 See PCRA App. at 06359 (BCCF Incident Report).

67 In Commonwealth v. Hannibal, 156 A.3d 197, 210-211 (Pa. 2016), this Court found

no Brady violation where prison record evidence in the Commonwealth’s possession was

available to the defense by subpoena.

68 Johnson’s Br. at 27 (quoting Kyles, 514 U.S. at 437).

69 See generally N.T.P., 6/30/2023, at 87-88. In context, ADA Gannon indicated that

in cases where he was cooperating with a prison investigator—e.g., prosecutions

associated with crimes committed in prison—he might direct the investigator to follow up

on one lead or another.

70 Johnson cites as additional support for this obligation the Ninth Circuit decision

Carriger v. Stewart, 132 F.3d 463 (9th Cir. 1997), in which the court held that the lack of

actual possession of prison records establishing witness cooperation was no excuse for

(continued…)

[J-31-2025] - 27

BCCF officials were acting at the behest of the DAO in this case. Nor was there any

evidence that government control of the records in question was exclusive.

To these detailed allegations of critical omissions relative to Lewis’ testimony,

Johnson briefly asserts additional omissions. He cites Lewis’ alleged lie to the court

regarding either the fact or the timing of his granddaughter’s funeral in order to gain a

furlough.71 The court granted the furlough, but when authorities “looked into Lewis’s

request, they discovered that Lewis was lying.”72

Separately, Johnson asserts that the prosecution violated Brady relative to the

circumstances of the testimony of Johnson’s brother, Marquis Johnson. As set forth

above, Marquis testified at trial that, shortly before the killings, Johnson had indicated that

he was willing to act precipitously to “make a come up,” the salient implication being that

Johnson was willing to kill to advance his interests. According to Johnson, in order to

extract Marquis’ testimony, prosecutors threatened Marquis with prosecution connected

to the Talley killing should he refuse to testify.73 ADA Weintraub was present during that

interview, and he acknowledged that Marquis openly worried about his criminal

the prosecution’s failure to disclose impeachment evidence of a bargain for information,

because the prosecution has a duty to learn of exculpatory evidence and “is in a unique

position to obtain information known to other agents of the government.” Id. at 480. Thus,

“[t]he state had an obligation, before putting [the informant] on the stand, to obtain and

review [his] corrections file, and to treat its contents in accordance with the requirements

of Brady and Giglio.” Id. Notably, Giglio speaks only to the circumstance where one

prosecutor falsely represented to a jury that no promise of leniency had been made in

exchange for a critical witness’ testimony when, in fact, another prosecutor in the same

office had made such a promise.

71 See Johnson’s Br. at 11.

72 Id. at 57.

73 See id. at 28-29.

[J-31-2025] - 28

exposure.74 The prosecution also failed to disclose a pending alleged violation of

Marquis’ probation for domestic violence against his girlfriend that happened shortly

before trial.75

The PCRA court rejected these claims in turn. With regard to Lewis, the court

underscored that ADA Weintraub did not offer to assist him relative to his New Jersey

cases. Although ADA Weintraub inquired as to the seized $635, he did not ask for its

return and he never followed up on his initial inquiry.76 With regard to the May 27, 2015

email from Attorney Ward, the court noted the absence of evidence that Lewis was aware

of the email or its substance before he testified. Furthermore, the email suggested no

agreement between ADA Weintraub and Attorney Ward. The mere hope of leniency is

not Brady material.77 The court further noted that the Commonwealth turned New Jersey-

related material over to Attorney Penglase in discovery even before the preliminary

hearing in this case, and that Attorney Penglase cross-examined Lewis on the information

at that hearing. As to additional information, including a letter Lewis sent to prison

authorities offering information about other charges, the Commonwealth admitted that it

would have been disclosable if it hadn’t inadvertently overlooked it, but the court deemed

it immaterial because it was cumulative of other evidence, noting, inter alia, that the

Commonwealth adduced several instances of Lewis’ effort to trade information for special

consideration at the outset of its direct examination of Lewis.

74 N.T.P., 6/28/2023, at 122-23.

75 See Johnson’s Br. at 29.

76 PCRA Ct. Op., 4/5/2024, at 30-31.

77 Id. at 31 (citing, inter alia, Bomar, 104 A.3d at 1193-94; Commonwealth v. Spotz,

896 A.2d 1191, 1214-16 (Pa. 2006)).

[J-31-2025] - 29

Supporting this claim is the information ADA Weintraub elicited from Lewis on

direct testimony regarding Lewis’ self-interested basis for testifying:

[ADA WEINTRAUB]. Do you have a—two convictions in 1996 for

burglary and theft?

[LEWIS]. Yes.

Q. Is that in New Jersey?

A. Yes.

Q. You have a conviction in 2010 for hindering apprehension?

A. Yes.

Q. Do you have a pending shoplifting case in New Jersey?

A. Yes.

Q. Are you expecting to resolve that case when you get returned

from here back to New Jersey?

A. Yes.

Q. You also have a charge over in New Jersey that’s pending for

burglary?

A. Yes.

Q. In addition, you have some charges that are even older than the

ones that we have talked about for crimes of dishonesty in New Jersey?

A. Yes.

Q. Are you currently also facing a parole violation for a fleeing and

eluding case here in Bucks County?

A. Yes.

Q. Did you receive an original sentence on this fleeing and eluding

from the police case here of 11 and a half to 23 months in [BCCF]?

A. Yes.

Q. At some point, Mr. Lewis, did you receive some additional time

on that case the last time you were here because of misconducts?

[J-31-2025] - 30

A. Yes.

Q. And are you currently awaiting to see what will happen for your

parole violations?

A. Yes.

Q. When you are done testifying in this case, what is your

understanding of what we will do for you?

A. Try and help me out with my parole violation.

****

Q. Have we made any promises to you as to what your sentence is

going to be?

A. No.

Q. Will that ultimately be up to a judge?

A. Yes.

Q. Have you testified in a prior proceeding relating to this case?

A. Yes.

Q. And prior to—either before or after that did we give you any

assistance?

A. Yes.

Q. What did we do?

A. Helped me out with my—my detainer I had.

Q. Okay. Did you—when you first reported—did you report

information that you knew to the jail?

A. Yes.

Q. When you first reported that information that you knew about this

case to the jail, did you have those misconducts that we just talked about?

A. Yes.

Q. Was it your hope that you were going to get help with those

misconducts?

[J-31-2025] - 31

A. Yes.

Q. Did you, in fact, get any help with those misconducts?

A. No.78

As set forth above, there is no question that the prospect of leniency in return for

testimony implicates Brady. In Napue, the United States Supreme Court made comments

especially salient to the instant case, because there, as here, some information had been

given to the jury to indicate that the informant might have been motivated by self-interest

to testify against the defendant.

In Napue, the state’s “principal witness” testified that he had received no promise

of consideration for his testimony at the trial in question.79 In point of fact, the state’s

attorney had promised to recommend a reduction in the witness’ sentence for the murder

that was the subject of the case at issue. But the prosecutor did not correct the false

testimony. The jury was told, however, that an unnamed public defender had promised

to “do what he could” for the witness.80 The question was not specifically a Brady

question—a decision that was still a few years away when Napue was decided—but

framed instead as a matter of due process arising from the uncontested failure to flag

and/or correct the witness’ false testimony. The Illinois court found no basis for relief; in

its view the testimony regarding the public defender’s intention to seek a benefit for the

78 N.T.T., 6/1/2015, at 220-23. BCCF investigator Frank Davis also testified that

Lewis sought favorable treatment on his pending misconducts in exchange for

information. See id., 6/2/2015, at 23-24.

79 Napue, 360 U.S. at 265-66.

80 Id. at 268.

[J-31-2025] - 32

witness was sufficient to apprise the jury of the witness’ potential motive to falsify

testimony.

The Supreme Court found otherwise. The Court noted that the prosecutor’s choice

to ask the informant at trial whether any official source promised the informant

consideration, itself, indicated the prosecution’s recognition that the presence or absence

of such consideration might sway a jury’s credibility determination. “Had the jury been

apprised of the true facts,” the Court concluded, “it might well have concluded that [the

informant] had fabricated testimony in order to curry the favor of the very representative

of the State who was prosecuting the case in which [the informant] was testifying, for [the

informant] might have believed that such a representative was in a position to

implement . . . any promise of consideration.”81 This Court in (Andre) Johnson effectively

imported this principle into the Brady context, when it quoted Napue vis-à-vis prejudice:

“The jury’s estimate of the truthfulness and reliability of a given witness may well be

determinative of guilt or innocence, and it is upon such subtle factors as the possible

interest of the witness in testifying falsely that a defendant’s life or liberty may depend.”82

Regarding the materiality component of the Brady test, Johnson underscored

Lewis’ central role in the prosecution, a role that ADA Weintraub characterized as such

at the PCRA hearing.83 Nor is this characterization a post hoc assessment. As Johnson

highlights, ADA Weintraub in his opening statement referred to Lewis as “one of the most

81 Id. at 270.

82 (Andre) Johnson, 174 A.3d at 1057 n.6 (quoting Napue, 360 U.S. at 269).

83 See, e.g., N.T.P., 6/28/2023, at 112-13.

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important people in this case” due to Johnson’s confession.84 On ADA Weintraub’s own

post-trial account, Lewis was an ”excellent witness,” and the only witness “who gave

direct testimony relating to [Johnson’s] commission of the murders.”85

Attorney Penglase admitted that a dominant theme of the defense required

discrediting Lewis; “[if] we didn’t make him a liar, then Mr. Johnson confessed.”86 Attorney

Penglase indicated that he would have used the report regarding Rock had he been

aware of it, because the information Lewis was “trying to sell was wrong,” and it was

“another example of him trying to sell information for benefit.”87

The Commonwealth does not categorically dispute that disclosable documents

regarding Lewis’ history of cooperation were not disclosed. Instead, it argues that the

omission was immaterial because it was “cumulative of what trial counsel already knew”88

and had communicated to the jury.89 On the Commonwealth’s account, trial counsel was

aware of numerous instances of Lewis’ cooperation with law enforcement and conveyed

that fact to the jury through cross-examination and in its closing argument.

84 Johnson Br. at 30 (quoting N.T.T., 5/27/2015, at 42-43).

85 Id. Tellingly, at the end of ADA Weintraub’s concluding narrative, with which he

opened his closing argument, ADA Weintraub repeatedly invoked Lewis’ putative

validation of the ADA’s account. See generally N.T.T., 6/2/2015, at 78 (“George Lewis

knew that fact.”), 79 (“What did George Lewis also tell you?”), 89 (“Another interesting

point I’d like to make regarding George Lewis . . .”), 90 (“And that is . . . one of the reasons

why [Lewis] is credible and why you should believe him.”).

86 Johnson’s Br. at 30 (quoting N.T.P., 6/28/23, at 247); see N.T.P., 6/29/2023, at 5

(“I needed to prove that George Lewis was lying. If I didn’t, Marcel Johnson confessed

to him.”).

87 Johnson’s Br. at 31 (quoting N.T.P., 6/28/2023, at 204).

88 Cmwlth.’s Br. at 27 (capitalization normalized).

89 Id. at 28.

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It is true that Attorney Penglase spoke only briefly about Lewis’ history of

cooperation in closing: “The only evidence that we have in this case that directly suggests

that Marcel was involved in these murders is George Lewis. George Lewis is a liar.

George Lewis has a lifetime of dishonesty. He is a career liar.” 90 Thus, while Attorney

Penglase argued that Lewis lied in his testimony about aspects of his interactions with

Johnson, the above quotation is all Attorney Penglase had to say about Lewis’ lengthy,

now-undisputed history of informing on fellow inmates and others for personal

advantage—evidence that ADA Weintraub admitted he would consider disclosable, and

that Attorney Penglase indicated he would have liked to have had in his possession and

might have used in impeachment, given the opportunity.

The PCRA court was unconvinced. First, it underscored a categorical lack of

evidence that the Commonwealth offered Lewis assistance with his then-pending New

Jersey charges. While ADA Weintraub passed on Lewis’ inquiry regarding his seized

cash, in no way did he seek its return. And he never followed up on his request. Similarly,

while Attorney Ward in an email to ADA Weintraub indicated that he would grant

consideration of Johnson’s testimony in connection with those outstanding New Jersey

charges, there was no evidence that Lewis was aware of this email or the sentiment

Attorney Ward conveyed in it. ADA Weintraub acknowledged uncertainty in the details

but was confident that he promised nothing as to the charges pending in New Jersey or

90 N.T.T., 6/2/2015, at 71.

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otherwise.91 The PCRA court emphasized that an informant’s “hope is certainly not Brady

material.”92

Among things that were admittedly not disclosed, the court acknowledged the

Commonwealth’s admission that it inadvertently withheld a letter that Lewis sent to Bucks

County authorities offering to cooperate in a prior case in that county in exchange for

leniency in a then-pending case against him. The ADAs in this case testified that they

were not aware of the letter in question. Noting that ignorance is not a defense against a

Brady violation, the court then turned to materiality. The court found that the letter would

have been no more than cumulative, because the jury was conscious of numerous

attempts Lewis had made to cooperate in exchange for personal advantage. To impeach

using the letter merely would have contributed to the sense that Lewis had an incentive

to lie, but the jury was made well aware of this prospect in any event by the prosecution

at trial. As well, trial counsel testified that Lewis was effective on the stand, and counsel

91 In a candid moment, ADA Gannon indicated that the DAO’s “practice was not to

make promises to anyone, because if you make a promise, obviously, you have to

disclose that. And I believe there was no specific promise made to Mr. Lewis . . . .”

N.T.P., 6/30/2023, at 51.

92 PCRA Ct. Op. at 31 (citing to similar effect Bomar, 104 A.3d at 1193;

Commonwealth v. Santiago, 654 A.2d 1062, 1081-82 (Pa. Super. 1994)). The court was

similarly dismissive of Johnson’s claim that the prosecution knew but did not disclose a

prior connection between Lewis and Talley. But the evidence of this was found in prison

phone calls the records of which (a) were not in the Commonwealth’s possession but (b)

were in the defense’s possession. Id. at 32. The court further added that Attorney

Penglase had a reasonable basis for not cross-examining Lewis on the possible

connection. In this regard, the court indicated that “[e]vidence at trial established that

George Lewis did not know of Ms. Talley or her family prior to meeting [Johnson] in

[BCCF]. Therefore, George Lewis’ lack of connection to Ms. Talley was already known

to the jury and any additional questioning would have been futile.” Id. On this basis as

well, the court found, Johnson was not prejudiced.

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had no interest in extending his testimony, lest counsel’s own credibility be undermined.93

Instead, counsel relied upon the testimony of a prison investigator to confirm that Lewis

offered to come forward in tandem with a request for assistance with his prison

misconducts.94

Finally and generally, the court found that, to the extent that Johnson’s claims

involved information contained in prison records, including the aforesaid letter regarding

Shaquel Rock, the Commonwealth neither had possession of those records nor had any

obligation to obtain them and turn them over. Rather, those records were equally

available to the defense, and when that is the case, no Brady violation occurs.95

Next, the PCRA court considered Johnson’s claims regarding impeachment

evidence as to Marquis, evidence which suggested that the police had threatened

Marquis, explicitly or implicitly, with the specter of prosecution in association with his role

in events underlying this case. Johnson’s allegation in the PCRA court was that a promise

of leniency on various pending charges to extract from Marquis testimony about Johnson

wanting “to make a come up” contributed to a jury finding that Johnson had a motive for

the crimes. The most compelling support for this claim was ADA Weintraub’s own

testimony regarding an interrogation at which he was present. There, he agreed with

PCRA counsel that information was communicated to Marquis that he “could be

potentially charged or criminally responsible for destroying evidence or lying to or

93 Id. at 34.

94 Id.

95 See Roney, 79 A.3d at 608 (“Brady is not violated when the appellant knew or,

with reasonable diligence, could have uncovered the evidence in question, or when the

evidence was available to the defense from other sources.”).

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obstructing justice.”96 On Johnson’s account, evidence that the prosecution had

threatened Marquis shortly before he offered his account of Johnson’s alleged statement

about making “a come up” might have been worthy impeachment evidence that trial

counsel could have used had it been in his possession.97

The PCRA court found that Johnson had waived this claim by failing to call Marquis

Johnson to testify at the PCRA hearing. On the PCRA court’s account, rendered

problematic by the record, the only outstanding issues for Marquis were pending

probation and parole violations, as to which he was not contacted until after trial. Because

leniency could only have been promised with the cooperation of the probation and parole

officials, and they had yet to contact Marquis, no such offer could have been extended.

Accordingly, no relief was due.98

We find no error in the result reached by the PCRA court.

[W]e have observed that “due process requires the jury to be informed of

any promise or understanding that the government would extend leniency

in exchange for a witness's testimony.” Commonwealth v. Chmiel,

30 A.3d 1111, 1131 (Pa. 2011). Indeed, “[a]ny implication, promise or

understanding that the government would extend leniency in exchange for

a witness’ testimony is relevant to the witness’ credibility.” Strong, 761 A.2d

at 1171. Notably, we have further explained that the promise or

“understanding between the prosecution and its testifying witness need not

be in the form of a signed contract or a completed, ironclad agreement in

order to qualify as Brady material,” Chmiel, 30 A.3d at 1131, as

96 N.T.P., 6/28/2023, at 122-23.

97 Johnson’s Br. at 31.

98 As noted above, the fact that the specter of criminal liability was dangled before

Marquis during police question is established in the PCRA record by the testimony of ADA

Weintraub, who was present at the interview in question. As well, the record contains a

2019 declaration by Marquis, which largely concerns what Marquis could have testified

to relative to mitigation, but also contains an allegation that police threatened to implicate

him in the murders of Talley and R.R. if he did not cooperate. See PCRA App. at A-

00421-22.

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impeachment evidence relating to “the credibility of a primary witness

against the accused is critical evidence and it is material to the case whether

that evidence is merely a promise or an understanding between the

prosecution and the witness.” Strong, 761 A.2d at 117.99

Here, the testimony does not establish that any promise of leniency, express or implied,

was made in this case, at least not to Lewis.100 Furthermore, we agree with the PCRA

court that the evidence in question by and large would have been cumulative of evidence

admitted at trial—or possessed by the defense, which elected not to introduce it—that

made clear that Lewis had a history of seeking assistance in exchange for information

concerning other criminality.

In seeking to establish materiality, Johnson underscores Lewis’ apparently false

claim to prison officials that Shaquel Rock confessed to a nightclub shooting in New

Jersey, highlighting Attorney Penglase’s PCRA testimony that it would have served as

useful impeachment evidence because “it appears that the information that Lewis was

trying to sell was wrong. And, two, it’s another example of him trying to sell information

for benefit.”101 And regarding Marquis, Johnson argues that “[e]vidence that Marquis

Johnson was threatened with being charged in the murder of Ebony Talley immediately

before he provided an incriminating statement against Mr. Johnson could have been used

by competent counsel to show that Marquis had fabricated this story about the ‘come up’

to . . . avoid being charged in the homicide.”102

99 Bagnall, 235 A.3d at 1086 (citations modified).

100 Marquis presents a more complicated case, in this regard.

101 Johnson’s Br. at 31 (quoting N.T.P., 6/28/2023, at 204).

102 Id.

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Undoubtedly, the evidence Johnson highlights would have been of at least some

superficial benefit to Attorney Penglase in fortifying Johnson’s defense, inasmuch as it

would have reflected poorly on both Lewis and Marquis. This, in turn, might have dented

the principal evidence of motive (Marquis) and the only direct evidence of guilt (Lewis).

But we must conclude that Johnson has failed to establish materiality. We already

established that a trial totally devoid of this challenged evidence would have led to the

same result on the strength of the circumstantial case for guilt. Assessing the probable

outcome of a trial at which Attorney Penglase’s cross-examinations of Lewis and Marquis

proceeded with the benefit of potentially omitted Brady information, we arrive at the same

conclusion. As to Lewis, in general terms, his effort to cooperate with law enforcement in

service of his own self-interest was established by the Commonwealth on direct

examination. Marquis’ testimony in a sense was cumulative of Martinez’s testimony to

similar effect, albeit lacking the evocative “make a come up” language. As well, informing

Marquis of the mere prospect of criminal exposure neither is a promise of leniency nor

can it be assumed to have extracted his materially corroborated testimony. And even if

Marquis had been discredited in the eyes of the jury, Martinez’s unchallenged testimony

was to similar effect. Finally, evidence of motive is not necessary to a homicide

prosecution.103

Here as well, the strength of the circumstantial case and the other evidence

(assuming for this analysis that ineffectiveness claims against that evidence are

unsuccessful) overwhelms the prospect of prejudice. And in this regard, we merely advert

103 Cf. Commonwealth v. De Petro, 39 A.2d 838, 840 (Pa. 1944) (“Proof of motive is

never necessary . . .[,] but it is always relevant.”).

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to the trial court’s original account of the voluminous circumstantial case against Johnson

as supplemented and distilled above. Regardless of the vigor and rigor of the cross-

examinations of Lewis and Marquis with the benefit of the allegedly undisclosed Brady

evidence, our confidence in the jury verdict is not sufficiently undermined. Consequently,

even assuming Johnson’s account of the Brady violations bears out, he cannot obtain

relief on that claim for want of a showing of materiality and of prejudice.104

2. Failure to Correct False Testimony

In a closely related, narrower issue, Johnson argues that the Commonwealth

violated his due process rights when it knowingly failed to correct false testimony—

specifically Lewis’ allegedly too-narrow account of what he hoped to gain from testifying

against Johnson in this case.

Recently, the Supreme Court addressed the subject of uncorrected false testimony

in Glossip v. Oklahoma.105 There, the Court explained the governing standard as follows:

In Napue, this Court held that a conviction knowingly “obtained through use

of false evidence” violates the Fourteenth Amendment's Due Process

Clause. 360 U.S. at 269. To establish a Napue violation, a defendant must

show that the prosecution knowingly solicited false testimony or knowingly

allowed it “to go uncorrected when it appear[ed].” Ibid. If the defendant

makes that showing, a new trial is warranted so long as the false testimony

“may have had an effect on the outcome of the trial,” id. at 272—that is, if it

“‘in any reasonable likelihood [could] have affected the judgment of the

jury,’” Giglio, 405 U.S. at 154 (quoting Napue, 360 U.S. at 271). In effect,

104 See Commonwealth v. Abdul-Salaam, 42 A.3d 983, 987 (Pa. 2012) (even

assuming a cumulative analysis of multiple items of Brady non-disclosure, concluding that

materiality was not established due to a failure to show a reasonable probability of a

different outcome with the benefit of the Brady evidence in question).

105 145 S. Ct. 612 (U.S. 2025). This decision is the subject of a Motion to Allow Post-

Submission Communication that Johnson filed pursuant to Pa.R.A.P. 2501. The

Commonwealth does not oppose this Motion, though it contests the utility of Glossip to

Johnson’s appeal. We hereby grant Johnson’s Motion to Allow Post-Submission

Communication.

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this materiality standard requires “‘“the beneficiary of [the] constitutional

error to prove beyond a reasonable doubt that the error complained of did

not contribute to the verdict obtained.”’” United States v. Bagley, 473 U.S.

667, 680, n. 9 (1985) (quoting Chapman v. California, 386 U.S. 18, 24

(1967)).106

In so many words, if the defendant establishes that the prosecutor knowingly allowed

false testimony to stand uncorrected, the burden rests with the Commonwealth to

establish lack of prejudice.

We have addressed the evidence Johnson relies upon for this issue previously. It

includes evidence that he maintains was discoverable under Brady (as discussed above)

and information that Attorney Penglase might have discovered given due investigation

(as discussed below). In short, Johnson contends that Lewis testified falsely about “the

benefits he expected to receive for his cooperation.”107 When asked whether he hoped

to gain anything by his testimony, Lewis specifically alluded to help with his parole

violation, an associated detainer, and institutional misconducts he had had at BCCF—all

as related in the lengthy excerpt of his testimony set forth above in connection with his

Brady argument.

This testimony about what Lewis hoped to gain, on Johnson’s account, was not

false in itself. But Johnson maintains that it was effectively false inasmuch as it omitted

aspirations to leniency of which the prosecutor was aware. In particular, Johnson alleges,

ADA Weintraub knew that Lewis stood to gain favorable consideration for his cooperation

in connection with open charges pending in New Jersey. At the PCRA hearing, ADA

Weintraub acknowledged that he knew, before Lewis testified at Johnson’s trial, that

106 Glossip, 145 S.Ct. at 626-27 (citations modified).

107 Johnson’s Br. at 38.

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Attorney Ward intended to consider Lewis’s Pennsylvania cooperation in fashioning a

plea agreement disposing of Johnson’s New Jersey charges. Nor was ADA Weintraub’s

willingness to raise his cooperation with New Jersey prosecutors unknown to Lewis: to

the contrary, Lewis asked ADA Weintraub to inquire of New Jersey prosecutors regarding

$635 seized from him at the time of his New Jersey arrest, and ADA Weintraub

undisputedly did so.

The PCRA court, relegating its discussion of this claim to a footnote, adverted

directly to its review of the Brady allegations. “In short,” it explained, “while [Johnson]

believes Mr. Lewis did not accurately mention the assistance with his pending New Jersey

matter he expected to receive in return for his testimony, this Court finds that no such

promise by the Commonwealth was made to Mr. Lewis.”108 With no such promise comes

no false testimony.

Having set forth in full ADA Weintraub’s direct examination with regard to Lewis’

outstanding charges at the time of his testimony and what he hoped to gain by his

cooperation, we reiterate only the general points. First, ADA Weintraub adduced

testimony regarding the charges against Lewis outstanding in New Jersey. Then ADA

Weintraub inquired regarding an outstanding parole violation in Bucks County awaiting

disposition as well as prison misconducts. “When you are done testifying in this case,”

ADA Weintraub then asked, “what is your understanding of what we will do for you?”

Lewis replied, “Try and help me out with my parole violation.”109 Lewis further indicated

that he had not been promised any particular sentence. Lewis also acknowledged prior

108 PCRA Ct. Op. at 29 n.7.

109 N.T.T., 6/1/2015, at 222.

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prosecutorial assistance with an outstanding detainer. Finally, Lewis admitted that, in

bringing information to prison authorities, he hoped to gain assistance with outstanding

prison misconducts, but indicated that he received no such help.110

What we take from this testimony is that the jury was adequately informed that

Lewis had offered information and testimony for personal benefits in this case. The jury

also knew that Lewis could anticipate that cooperation sometimes invites prosecutorial

assistance in pending matters. The jury was aware that Lewis had serious criminal

charges outstanding in New Jersey. What we do not perceive in Lewis’ testimony is any

lie of commission or omission. ADA Weintraub asked specific questions to which he

received focused, evidently true answers. As to the open-ended question concerning

Lewis’ expectation of any further assistance after his testimony, the only arguable

omission raised by Johnson pertains to the New Jersey prosecution. Setting aside that

the jury had been informed generally about Lewis’ outstanding New Jersey charges, the

PCRA court found that no promise of assistance, express or implied, had been extended

with respect to these charges. This finding of fact is supported by the record; we may not

disturb it.

We note as well that a due process violation for failure to correct false testimony

is subject to the materiality analysis that applies to other Brady violations.111 And here,

given the overlap—the harm asserted ultimately being the want of more vigorous direct

and/or cross-examination regarding the prospect of assistance with the New Jersey

110 Id. at 223.

111 See Commonwealth v. Wallace, 455 A.2d 1187, 1190-91 (Pa. 1983). It bears

mention that, as in Wallace, this Court has treated a failure to correct false testimony as

one among several categories of Brady violation.

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charges—our materiality analysis is the same. There is no reason to question the jury’s

verdict due to the strength of the circumstantial case against Johnson.

3. Ineffective Assistance of Counsel, General Failure to Investigate

and Impeach

As set forth above, to support a claim for ineffective assistance of counsel, a PCRA

petitioner must plead and prove three things: first, that the claim has arguable merit;

second, that counsel could have had no reasonable basis for the challenged action or

omission (subject to the presumption that counsel is acting effectively); and third that the

ineffectiveness caused him prejudice.112 Prejudice occurs where “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.”113 Failure to prove any one prong of the test will defeat the claim.114

Principally at issue are deficiencies in trial counsel’s investigation and

impeachment of Lewis, Johnson, and the DNA evidence. This Court has explained:

Counsel has a general duty to undertake reasonable investigations or make

reasonable decisions that render particular investigations unnecessary.

Commonwealth v. Basemore, 744 A.2d 717, 735 (Pa. 2000) (citing

Strickland, 466 U.S. at 691). Counsel’s unreasonable failure to prepare for

trial is “an abdication of the minimum performance required of defense

counsel.” Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003) (quoting

Perry, 644 A.2d at 709). The duty to investigate, of course, may include a

duty to interview certain potential witnesses; and a prejudicial failure to fulfill

this duty, unless pursuant to a reasonable strategic decision, may lead to a

finding of ineffective assistance. Recently summarizing cases in

Commonwealth v. Dennis, 950 A.2d 945 (Pa. 2008), this Court stated that:

These cases . . . arguably stand for the proposition that, at least

where there is a limited amount of evidence of guilt, it is per se

unreasonable not to attempt to investigate and interview known

eyewitnesses in connection with defenses that hinge on the

112 See Buehl, 658 A.2d at 777; Pierce, 527 A.2d at 975.

113 (Raymond) Johnson, 966 A.2d at 533 (quoting Strickland, 466 U.S. at 694).

114 Fears, 86 A.3d at 804.

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credibility of other witnesses. They do not stand, however, for the

proposition that such an omission is per se prejudicial.

Id. at 960 (citing Perry, supra; Commonwealth v. Weiss, 606 A.2d 439, 442-

43 (Pa. 1992); Commonwealth v. (Harold) Jones, 437 A.2d 958 (Pa. 1981);

Commonwealth v. Mabie, 359 A.2d 369 (Pa. 1976)) (emphasis omitted).115

In short, as Johnson frames it, “counsel’s strategy at trial is only as reasonable as his

investigation that supported such strategy.”116 Nonetheless, we must grant a “heavy

measure of deference to counsel’s judgments.”117

We address the alleged deficiencies in Attorney Penglase’s investigation and

impeachment in turn, concluding by considering the cumulative prejudicial effect of what

we find to be several troubling deficiencies in Attorney Penglase’s approach to preparing

Johnson’s defense.

Although Johnson leads with a discussion of Attorney Penglase’s alleged

prejudicial failure to investigate Lewis specifically, we first take up Johnson’s contention

that Attorney Penglase’s pre-trial investigation was categorically deficient. This issue

focuses upon alleged deficiencies in the police investigation that counsel failed to exploit

in service of his “empty chair” defense, by which Attorney Penglase indicated that he

sought to create an open question as to who killed the victims by suggesting or implying

an unspecified cohort of shadowy, deliberately unnamed potential killers.

Johnson underscores Talley’s drug dealing business and the risks to which that

exposed her. According to Johnson, she was known to sell fake drugs and had a

reputation as a snitch, both perilous behaviors in the drug business. Police did not

115 (Raymond) Johnson, 966 A.2d at 535-36 (citations modified).

116 Johnson’s Reply Br. at 19-20 (citing Wiggins v. Smith, 539 U.S. 510, 528 (2003)).

117 Wiggins, 539 U.S. at 521-22.

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investigate those aspects of her life or fully explore the people she interacted with the day

she was killed. For one thing, police did not timely request Talley’s phone records, despite

the facts that the killer took her phone and that she was known to have used it frequently

up to very shortly before her death. Because police waited six months to request the

phone records, they could not obtain the substance of her text messages immediately

before her death, which might have been available had they acted more promptly. What

they did obtain was a general log of the calls and texts to and from her phone in the days

before and the day of her murder. But they never sought to identify or interview the

individuals to whom the numbers corresponded—i.e., the people with whom she

communicated, especially on the day of her killing.

Johnson had told investigators that, when he left the apartment before the killings,

Talley had a drug customer on the way. Johnson offered the same information to Attorney

Penglase and allegedly asked him to review Talley’s phone traffic from the day of the

killing, but Attorney Penglase failed to do so. At first, he did not even request the records

from the Commonwealth, but when eventually he obtained them, he did nothing more.

Neither he nor Attorney Fioravanti directed investigator Sean Hawke to follow up on the

numbers.

Police also had information regarding several people who frequented Talley’s

apartment and allegedly were involved in Talley’s drug business. They were associated

with a white Crown Victoria like one the police seized outside the apartment, which was

registered to Kevin Kerkula, with whom police had reason to believe Talley was

romantically involved. No one ever claimed the car, but police made no effort to perform

a forensic analysis of the car or to interview Kerkula.

[J-31-2025] - 47

Evidence suggested Talley had several recurring sexual partners, and she was

found dead in the apartment with her pants down and her underwear ripped. But counsel

made no effort to investigate these relationships.

When asked to explain why he did not follow up on—or at least highlight at trial—

these deficiencies in the police investigators’ efforts, Attorney Penglase expressed that,

in pursuing an “empty chair” defense, he did not want to identify specific candidates for

fear that the prosecution could obtain rebuttal evidence that effectively proved that each

specific alternative killer could not be guilty.118 Johnson disagrees; in his view this is

incoherent, because counsel did not need to identify any one suspect to highlight the

investigative deficiencies. It would have sufficed simply to elicit at trial all the leads police

investigators did not pursue. The prosecution would have been more or less incapable

of rebutting that evidence.

As critically, counsel effectively confessed to conducting no material investigation

in this case. He “didn’t interview any witnesses.”119 He did not tell his investigator to

interview a single witness.120 He declined to follow up on any of the leads Johnson

provided him because much of Johnson’s voluminous narrative “wasn’t even internally

consistent.”121

118 N.T.P., 6/28/2023, at 159.

119 Id. at 158.

120 Id. To be clear, investigator Hawke did canvass Avalon Court, speak with various

residents, and report back to Attorney Fioravanti. See id., 6/29/2023, at 9-10, 16. So it

cannot fairly be said that he did nothing.

121 Id., 6/28/2023, at 161.

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The only reason Attorney Penglase offered for his failure to investigate was his

claim that doing so would have disserved his empty chair defense, though it is not entirely

clear how. It seems he was concerned about reciprocal discovery obligations122—

ostensibly that he would have to disclose any leads he pursued that turned out to be dead

ends or to be compatible with Johnson’s guilt—but it is not clear what authority would

require disclosure of defense counsel’s investigative dead ends. 123 This

misunderstanding of the law and the failure to disabuse himself of it, Johnson argues, “is

a quintessential example of unreasonable performance under Strickland.”124

122 See id. at 153 (explaining failure to request prison files that he did not receive in

discovery because he “did not want to obtain a document that [he] would have to turn

over in reciprocal discovery”).

123 In criminal cases, the defendant’s discovery obligations are limited to what the

prosecution shows to be “material[] to the preparation of the Commonwealth’s case . . .,

subject to the defendant’s rights against compulsory self-incrimination,” among the

following items: (1) “results or reports of physical or mental examinations, and of scientific

tests or experiments made in connection with the particular case, . . . that the defendant

intends to introduce as evidence in chief, or were prepared by a witness whom the

defendant intends to call at the trial”; and (2) “the names and addresses of eyewitnesses

whom the defendant intends to call in its case-in-chief.” Pa.R.Crim.P. 573(C)(1). Notably,

there is no rule-based discovery obligation to produce the results of investigations that

the defense does not intend to introduce in its case-in-chief. And this Court, at least, has

never suggested otherwise. See generally Commonwealth v. Kennedy, 876 A.2d 939,

946-49 (Pa. 2005) (reviewing generally the requirements and limitations of

Pa.R.Crim.P. 573(C) and its interaction with the work-product doctrine). Which is to say

that Attorney Penglase was free to investigate any leads he chose without fear that the

mere fact or results of his investigations would be discoverable to the prosecution if he

chose not to present them at trial. Thus, at least arguably, no harm could have come

from more rigorous investigation.

124 Johnson’s Br. at 88 (quoting Hinton v. Alabama, 571 U.S. 263, 274 (2014) (“An

attorney’s ignorance of a point of law that is fundamental to his case combined with his

failure to perform basic research on that point is a quintessential example of unreasonable

performance under Strickland.”)).

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Johnson correctly asserts that counsel “has a general duty to undertake

reasonable investigations or make reasonable decision[s] that render particular

investigations unnecessary.”125 Here, he maintains, Attorney Penglase had no

reasonable basis to forego an entire array of available investigative leads that might have

led to at least hints of other parties with motive and opportunity to have killed the victims.

Among people the police failed to identify from phone records and that both

counsel and police failed to investigate were John Clinton, who stipulated for purposes of

the PCRA hearing that Johnson was not in competition with Talley for drug business and

that both obtained drugs from the same supplier. Clinton also would have testified that

Kerkula contacted him the day of the murder; Kerkula was the next to last person Talley

communicated with that day. At a minimum, counsel could have challenged investigators’

failure to investigate Kerkula. Another person who appeared on Talley’s phone log from

the day of the killing was Mark Wilson. Wilson had a criminal record for setting fire to his

parent’s house while his mother was home—and taking her cell phone. This information

is suggestive, at the very least.

In sum, cell phone records at least implied that a drug customer may have been

on the way to visit Talley at the same time that Johnson allegedly killed her, that Talley

had informed numerous people the morning of her killing that she had a large volume of

heroin to sell, and that Johnson had no apparent motive to kill a business associate.

The PCRA court accepted Attorney Penglase’s explanation that his strategy

actually comported with Johnson’s desired defense—that he highlighted Talley’s

“dangerous lifestyle” and that Johnson’s own litany to counsel of potential leads was

125 Id. (citing Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009)).

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internally inconsistent and therefore was insufficient to warrant further exploration. The

court also rejected suggestions that the defense investigator’s efforts were wanting: on

the PCRA court’s account, “Hawke interviewed key witnesses uncovered by police,

canvassed the Avalon Court apartment complex in search of additional witnesses, and

effectively neutralized Commonwealth witnesses. . . . [He] was not required to investigate

every drug dealer, every drug user, or every criminal with whom Ms. Talley

associated. . . .”126 The court further indicated that Johnson’s “own, new investigation

has not produced anything of value other than inadmissible conjecture, rumor, and

speculation.”127

The PCRA court also rejected the claim that counsel should have done more to

reveal the alleged deficiencies in the police investigation. “[I]f he would have done so,”

the court concluded, “he would have opened the door to the testimony regarding the

number of witnesses interviewed and the number of other individuals investigated and

eliminated as suspects by the Commonwealth,” undermining the empty chair strategy.128

Thus, trial counsel’s strategy was reasonable.

We find the PCRA court’s dismissive response to these issues nearly as

unsatisfying as counsel’s minimal investigation and effort to call into question what may

have been an insufficient police investigation. As noted, counsel’s avowed failure to

126 PCRA Ct. Op. at 14.

127 Id. at 15.

128 Id. (echoing, inter alia, Attorney Penglase’s testimony that he “was much happier

to present the jury with an empty chair of potential killers rather than present them with

the name of someone the Commonwealth could contradict,” N.T.P., 6/28/2023, at 159).

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investigate must have been informed by a reasonable strategy,129 and it is not at all clear

that such a strategy is present here.

Having said that, we cannot reject out of hand the PCRA court’s suggestion that

the putative evidence counsel could have uncovered—even assuming the individuals in

question were available to testify—would not have been useful to the defense. Similarly,

while it may be the case that the police investigation was thin enough that the prosecution

would have had no way of rebutting criticism of its investigative efforts, the question

whether counsel had a reasonable basis for fearing this to be the case does not depend

on what hindsight suggests could have happened had counsel pursued this line of inquiry.

We cannot allow 20/20 hindsight to cloud our consideration of the context in which

counsel made tactical and strategic decisions.130

Finally, there is the question of prejudice. The unpursued prospect of obtaining

the evidence identified above—at least as characterized by Johnson—which might call

into question the identity of the killer to some degree undermines confidence in the verdict.

Detective Jack Slattery testified at the PCRA hearing that there was no reason not to

have obtained the phone records sooner, because the absence of Talley’s phone from

the scene suggested that it had been taken by the killer to hide incriminating evidence

129 See (Raymond) Johnson, 966 A.2d at 535-36.

130 See Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016) (determining

“whether counsel’s decision had any basis reasonably designed to effectuate his client’s

interest” “cannot be a hindsight evaluation of counsel’s performance, but requires an

examination of whether counsel made an informed choice, which[,] at the time the

decision was made[,] reasonably could have been considered to advance and protect the

defendant’s interests” (cleaned up)).

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that might be found on it.131 Had the records been sought sooner after the murder, there

was some chance that they would have contained the content of text messages sent the

day of the murder.132 This was especially problematic inasmuch as Talley had used her

phone the day of her murder as late as 2:49 p.m., minutes before her death.133

Having said as much, we must also acknowledge that a handful of drug-dealing or

drug-consuming witnesses who might muddy the waters of the case for Johnson’s guilt

by hinting at alternative killers does not affect, in our view, the strength of the

circumstantial case for Johnson’s guilt. Even if someone else might have had opportunity,

that does not explain Johnson’s frantic behavior at the relevant time, his persistent

inquiries regarding the fire, his serial refusals to cooperate with family and police who

enlisted his assistance, his shifting stories under police questioning, Talley’s DNA under

Johnson’s fingernails,134 and so on.

On balance we cannot find sufficient prejudice arising from these allegations to

sustain an ineffective assistance claim arising from the facially deficient quality of

counsel’s investigation. The law counsels against applying a per se rule finding prejudice

any time counsel’s investigation is wanting,135 and here it would take such a rule to

overcome the circumstantial case against Johnson.

131 N.T.P., 8/9/2023, at 12-14, 23.

132 Id. at 12.

133 Johnson’s Br. at 90.

134 As set forth below, this evidence may have been subject to more effective

impeachment than Attorney Penglase managed. But it still had an evidentiary foundation,

and the jury may well have found the Commonwealth’s expert convincing even in the face

of a more effective attack.

135 See Dennis, 950 A.2d at 960.

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4. Ineffective Assistance, Failure to Impeach George Lewis

With respect to Lewis, counsel’s alleged omissions largely pertain to obtaining

and/or utilizing prison records—those obtained, those overlooked, the distinction between

which is blurry at times—and potentially available records concerning the New Jersey

prosecutions. We have already reviewed the direct and cross-examinations at trial of

Lewis regarding the pending New Jersey matters; ADA Weintraub’s PCRA testimony

regarding the limited extent to which he offered assistance with those charges; the PCRA

court’s sustainable finding of fact that ADA Weintraub never promised anything relative

to New Jersey in return for Lewis’ testimony; and the allegations regarding prejudice

arising from any failure to disclose records in the Commonwealth’s possession that

pertained to the outstanding New Jersey matter. We found no prejudice, and the same

applies here, even to the extent that counsel could have conducted a more rigorous

examination and could have utilized the records thus obtained to enhance his efforts to

impeach Lewis.

There also appears to be some confusion in the PCRA record concerning what

prison records Attorney Penglase had in his possession, though there is little dispute that

he neglected to use the New Jersey-related material they contain at trial. These records

could not be the subject of the above Brady analysis, because we find that ADA Weintraub

had no obligation to produce them.

This does not change the analysis. Inasmuch as all of the evidence in question

would have gone to Lewis’ veracity, the frequency of his efforts to curry favor, and the

degree to which he sought or expected consideration for his testimony in this case, we

cannot conclude that under such impeachment it is reasonably probable not only that the

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jury would have rejected the substance of Lewis’ testimony but that, in so doing, it would

have found the prosecution in its entirety so flawed as to reach a different verdict.

For want of prejudice, this claim fails.

5. Ineffective Assistance, Failure to Impeach Marquis Johnson

Here, too, our analysis is materially the same as it was in connection with

Johnson’s parallel Brady claim. Even if we assume that Attorney Penglase was aware

of—and had vigorously cross-examined Marquis concerning—the alleged threats of

prosecution that investigators leveled in an effort to extract testimony against Johnson,

Marquis’ evidence was substantially similar to Martinez’s and was less than essential to

the circumstantial case, as fortified by other evidence, including DNA, Johnson’s jailhouse

confession, and so on.

In short, on our reading, Marquis’ testimony was of only secondary benefit to the

prosecution, adding cumulative evidence of Johnson’s effectively undisputed involvement

with Talley in the drug trade. His lone distinctive contribution was relative to asserting a

putative motive, which is neither necessary nor, in this case, terribly beneficial, given the

strength of the circumstantial case. Here as well, the ineffectiveness claim fails due to

Johnson’s failure to establish the reasonable probability of a different outcome had trial

counsel impeached Marquis relative to his own criminal exposure.

6. Ineffective Assistance, Failure to Challenge DNA Evidence

At issue here is Johnson’s contention that trial counsel failed “to investigate,

consult with an expert, or otherwise properly prepare to confront the Commonwealth’s

DNA testimony.”136 At the outset, it is important to note that the only substantial DNA

136 Johnson’s Br. at 65.

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evidence linking Johnson to Talley was the presence of Talley’s DNA under Johnson’s

fingernails, which allegedly signaled “intimate contact.” No serology analysis had been

performed to determine the source of that DNA, i.e., skin, blood, etc. Arthur Young, an

expert whom both defense attorneys consulted, indicated in his declaration that “it was

likely that the victim’s DNA was due to transfer, as [Johnson] was an occupant in [Talley’s]

residence and only needed to come in contact with objects in that residence to pick up

detectable levels of her DNA on or under his fingernails.” 137 In the same declaration he

highlighted other potential weaknesses in the Commonwealth’s DNA expert’s analysis

and indicated that he was, at the time of trial, available and willing to prepare a report and

testify as to these flaws.138

Attorney Penglase undisputedly had maintained some contact with Young. And

he undisputedly sought and was granted permission to have Young in the courtroom

during the Commonwealth’s expert’s testimony, ostensibly to ensure adequate

preparation for cross-examining that witness.139 However, very shortly before trial,

Attorney Penglase cut off contact with Young, evidently because he learned that Young

had been discredited in New York for lying under oath.140

Regarding his decision to proceed to trial without a DNA expert in the courtroom,

Attorney Penglase testified as follows:

Q. Well, without an expert in the room, what was your plan to attack the

DNA information that was testified to.

137 Decl. of Arthur Young, 7/11/2019, at 4 ¶16, PCRA Appendix at A-05988.

138 Id. at 7-8 ¶26, PCRA Appendix at A-05991-92.

139 See Johnson’s Br. at 66-67.

140 N.T.P., 6/29/2023, at 79-80.

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A. My plan was to use the information that I had been gathering from

Mr. Young and Ms. [Katherine] Cross [Young’s then-business partner141]

throughout the pendency of the matters, to use my own knowledge as an

attorney working with DNA evidence and, quite frankly, the Cross-

Examination of the Commonwealth’s expert. That expert gave me almost

every piece of evidence and concession that I needed.

****

Q. Did you have any strategic reason for not challenging the admissibility

of some of the DNA opinions under the Pennsylvania Frye standard?

A. My opinion was that the DNA evidence was very good for the defense,

and my recollection of it is that I wanted it all in. The Commonwealth’s

expert did her best to color that evidence in the light favorable to the

Commonwealth but, frankly, as I said, I think that at the end of the day the

DNA evidence was the defense’s best exhibits.142

Johnson notes that the Commonwealth’s expert testified that the only way Talley’s

DNA would have come to be under Johnson’s fingernails was through “more than just

casual contact”—rather “some kind of intimate contact.”143 But that testimony was

“wrong,” in Johnson’s formulation, or perhaps just incomplete. In support of that

testimony, the Commonwealth’s expert cited an article that complicated the unequivocal

trial testimony by indicating that such a DNA deposit might also arise where two

individuals share accommodations. At the PCRA hearing, the same investigator

conceded the point.144 Penglase evidently did not read this article, and did not cross-

examine the expert on this point—this, despite the fact that he indicated that his goal at

141 Cross testified that she provided no substantive information regarding Johnson’s

case to Attorney Penglase, and at most offered only general information about DNA

testing and analysis. Id., 8/9/2023, at 136.

142 Id., 6/29/2023, at 79-82.

143 Johnson’s Br. at 68 (quoting N.T.T., 5/29/2015, at 179-80).

144 Id. at 68-69 (citing N.T.P., 8/10/2023, at 132-33, 144).

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trial was “to minimize [the Commonwealth expert’s] opinion of intimate versus casual

contact.”145

Johnson argues that the insufficiency of Attorney Penglase’s investigation, and his

failure to have a DNA expert in the room during the Commonwealth’s DNA testimony,

lack any reasonable basis. And this is evidenced by the materially undisputed fact that

the expert’s own cited article undermined the superficial certainty of his testimony, a fact

even that expert concedes now. Given that, on his present account, Attorney Penglase’s

entire strategy for defending against the DNA evidence was to impeach the expert’s

testimony, his utter failure to prepare to do so effectively was unreasonable.

The result, Johnson argues, was prejudicial. In effect, the Commonwealth’s

expert’s testimony that the only way Talley’s DNA could have ended up under Johnson’s

fingernails was through intimate contact went unrebutted by the compelling evidence that

was available to the defense, and, as the principal physical evidence inculpating Johnson,

it was critically important to the jury’s verdict. The evidence that Johnson had handled

the skillet found near Talley’s body—the one that investigators speculated had been used

to knock out two of Talley’s teeth—for want of rebuttal could only have further damaged

Johnson’s defense. Thus, according to Johnson, there is a reasonable probability that

without even that modest amount of physical evidence, the jury would have reached the

contrary verdict.

The PCRA court, crediting Attorney Penglase’s stated strategy of highlighting the

relative lack of physical evidence, noted the various potential sources of DNA that did not

disclose any identifiable trace of Johnson’s genetic material. Citing the defense’s opening

145 Id. at 72 (quoting N.T.P., 6/29/2023, at 130).

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argument, the court observed that Attorney Penglase presented the Commonwealth’s

own theory of the case—that Talley had struggled with her attacker, clutching and fighting

him, and during that struggle the attacker ripped off her wig and do-rag—and noted that

the various items associated with that struggle bore none of Johnson’s DNA, even though

it bore male chromosomal material. “[Talley] probably didn’t know she was [d]oing it, but

she tried her best to give you evidence of her attacker. She left it in lots of places. None

of it belongs to [Johnson].”146

The PCRA court noted that there is no obligation to counter expert testimony with

countervailing expert testimony if counsel “is able effectively to cross-examine

prosecution witnesses and elicit helpful testimony.”147 And the court cited one important

instance where Attorney Penglase elicited from a Commonwealth expert that a given

result from the scene excluded Johnson, albeit divorced from the context of which item

was in question.148 In another instance, Attorney Penglase elicited an admission that the

supposed match with the skillet handle in fact failed definitively to link Johnson to that

item.149 These and other instances, on the PCRA court’s account, demonstrated that

Attorney Penglase sufficiently cross-examined the Commonwealth’s DNA experts without

the benefit of a defense expert.

146 PCRA Ct. Op. at 26 (quoting N.T.T., 5/27/2015, at 48).

147 Id. at 27 (quoting Commonwealth v. Treiber, 121 A.3d 435, 454 (Pa. 2015)).

148 Id. The evidence under discussion in this instance was a hair recovered from the

back of the victim’s hand that was determined not to be Talley’s own. See N.T.T.,

5/28/2015, at 105-06.

149 N.T.T., 5/29/2015, at 191-92.

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Regarding prejudice, the PCRA court opined that a defense expert “would have

only muddied the waters and confused the jury” to no clear benefit.150 Moreover, it is not

clear that the defense would have been able to locate an expert witness to testify in

effective impeachment of the Commonwealth’s evidence.

There is no question that counsel can be deemed ineffective for failing to educate

himself with respect to the import and credibility of DNA evidence introduced by the

Commonwealth in a criminal trial. Such evidence is especially potent when it points an

accusatory finger at the defendant, which makes it especially important that counsel

prepare to meet such evidence armed with whatever means of rebuttal are available.

In Commonwealth v. Pruitt, this Court acknowledged the “potency of DNA

evidence.”151 In that case, as here, counsel had failed to rely upon a countervailing expert

witness to challenge the Commonwealth’s DNA evidence, had materially failed to educate

himself on the subject, and, in the words of the appellant in that case, effectively

conducted cross-examination “on the fly.”152 This Court found no prejudice sufficient to

sustain an ineffectiveness claim on this basis. However, in making that determination,

we observed that the defendant’s “identity as the robber and killer has never seriously

been put into contest,” and “the fact of [the] crime was apparent from the physical

evidence, and [the defendant] ha[d] never provided any plausible explanation that would

persuasively suggest any other person’s involvement in the relevant events.”153

150 PCRA Ct. Op. at 28.

151 162 A.3d 394, 401 (Pa. 2017).

152 Id. at 400.

153 Id. at 401.

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Here, by contrast, identity is central to Johnson’s defense, and the DNA evidence

in question is the only physical evidence that may tie him to the crime. The very theory

that Johnson was a regular in Talley’s house suggests that more DNA evidence would

have been found than actually was. That said, in this case, for purposes of the present

analysis, there also is a jailhouse confession and a damning circumstantial case.

To find prejudice, we must find that, had Attorney Penglase taken the steps

Johnson would have had him take, there is a reasonable probability that the verdict would

have differed. Given the sum and substance of the non-DNA evidence, we cannot so

find. In effect, against a volume of inconclusive and therefore unhelpful evidence to the

prosecution—which, as such, arguably was beneficial to the defense—stood one

especially problematic finding of Talley’s DNA under Johnson’s fingernails. We cannot

conclude that, without that genetic evidence, the jury was reasonably likely not to convict

Johnson.

7. Ineffective Assistance, Failure to Introduce Character Evidence

Johnson contends that, in this case, his “reputation for being a peaceful citizen

was relevant to the murder charges against him and would have constituted substantive

evidence of his innocence of these charges.”154 Characterizing this case as “a close

one,”155 Johnson points to the prosecution’s heavy reliance upon Lewis’ testimony,

infirmities in the evidence of motive, and the absence of incriminating DNA evidence. 156

He underscores that the parties stipulated that several witnesses were available and

154 Johnson’s Br. at 95.

155 Id.

156 Id. at 96.

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willing to testify as to Johnson’s good character and non-violent reputation, including a

bishop at Johnson’s church and a number of Johnson’s close friends.

Evidently taking arguable merit for granted—and we will do the same157—Johnson

proceeds directly to the question of the reasonableness of counsel’s decision not to call

character witnesses. Counsel testified that he elected not to do so first because he feared

opening the door to incriminating evidence. As well, he avowedly preferred to reserve

those witnesses (if necessary) for the penalty phase, and worried that, if he presented

them during the guilt phase and the jury found Johnson guilty, the witnesses’ credibility

would be compromised for the penalty phase.

There is no question that counsel may be deemed ineffective for failing to present

character witnesses. In Weiss, for example, this Court found ineffectiveness for the

failure to call such witnesses when the trial evidence was in the nature of he-said / she-

said, and the PCRA court determined that there were numerous witnesses who had years

of familiarity with the defendant, all of whom would testify to the defendant’s good

reputation in the community. These circumstances created an “overwhelming need for

character evidence,” and counsel’s “limited investigation into the quantity and/or quality

of potential character witnesses on behalf of appellant, and counsel’s prejudice toward

familial witnesses,” as well as his ultimate decision not to call any character witnesses,

157 See Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992) (holding that, where

direct evidence is in short supply, character evidence “is substantive, not mere

makeweight evidence,” and a claim regarding the failure to present same has arguable

merit); see generally Commonwealth v. Neely, 561 A.2d 1, 3 (Pa. 1989) (holding that

character evidence “may, in and of itself, (by itself or alone) create a reasonable doubt of

guilt and, thus, require a verdict of not guilty”).

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lacked a reasonable basis under the circumstances of that case and prejudiced the

defendant at trial.158

In rejecting this claim in this case, the PCRA court focused upon what it took to be

counsel’s reasonable basis for declining to call character witnesses. It underscored that,

where character evidence is introduced, it may be rebutted with countervailing evidence

regarding the defendant’s reputation in the community or specific instances of the

defendant’s conduct that are at odds with his purported reputation.159 Thus, when

counsel has grounds to fear such rebuttal evidence, he “ha[s] an objectively reasonable

basis for determining that the evidence would have done more harm than good, [and the]

claim fails.”160

During his PCRA testimony, Attorney Penglase cited this concern.161 Less

convincingly, he also cited his concern that he would risk discrediting character witnesses

who might be useful for mitigation purposes during the penalty phase, if Johnson was

found guilty of the alleged murders.162 But his concern for rebuttal evidence appears valid

on the record. For example, Hawke testified during the PCRA hearing that he had

interviewed Coles before trial, who indicated that Johnson had committed armed

robberies around the Avalon Court Area.163 As noted above, Coles, Talley’s cousin and

158 Weiss, 606 A.2d at 443.

159 PCRA Ct. Op. at 48.

160 Id. (quoting Commonwealth v. Busanet, 817 A.2d 1060, 1070 (Pa. 2002)).

161 Id. at 48-49 (citing N.T.P., 6/29/2023, at 134-35).

162 Id. at 49.

163 N.T.P., 6/29/2023, at 20.

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Johnson’s friend, appeared at trial as a witness for the prosecution, whom Johnson called

several times the afternoon of the killings.164

While counsel may be deemed ineffective for failing to present character evidence,

we find few instances in which this Court has granted relief on that basis; Johnson cites

only Weiss. The attorney in Weiss was far more neglectful of the prospective benefit of

investigating and calling available character witnesses in that case. As well, the potential

benefit of character testimony appears to have been greater there than in this case.

Where an impeccable reputation in the community may well be a dispositive factor in a

he-said/she-sexual assault case like Weiss, here it is less clear how even the most

positive of community reputations might have played against Lewis’ testimony and/or with

the circumstantial evidence of Johnson’s guilt. And there is evidence that his reputation

was not impeccable or irrebuttable in any event.

Ultimately, albeit with ongoing reservations about the rigor of Attorney Penglase’s

investigatory efforts, we cannot conclude that he lacked a reasonable basis for declining

to present character witnesses. Moreover, even if we found fault in his decision, we would

be hard pressed to find prejudice in it. Having a good reputation in the community would

not change the fact of Johnson’s conduct during the afternoon and evening of the day in

question, from his reckless flight to the instability of the stories he told investigators. And

it is unlikely that it would fatally undermine the combination of Johnson’s putative

confession, the presence of Talley’s DNA under his nails, and the evidence exhibiting his

consciousness of guilt.

164 See generally N.T.T., 5/28/2015, at 245-68.

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8. Ineffective Assistance, Cumulative Prejudice

We have found that each of the foregoing ineffective assistance claims by itself

does not undermines confidence in the verdict or create a reasonable probability that a

jury would have reached a different result. However, where numerous ineffective

assistance claims fail for want of prejudice, we must consider their cumulative prejudicial

effect before we reject the claims in toto.165

Our misgivings regarding Attorney Penglase’s investigative diligence give us

pause. In his PCRA testimony, Attorney Penglase conceded an alarming number of the

deficiencies that Johnson identified, and not infrequently conceded that he lacked a

reasonable basis for his decisions. It appears to us that, even granting Attorney Penglase

the assumption that his decisions were considered at the time they were made, time after

time his review led him to the conclusion that little or no investigation was called for.

We cannot gainsay the difficulties this presents. Counterposed against a

compelling circumstantial case for Johnson’s guilt, we nonetheless must acknowledge

that the only direct evidence of Johnson’s guilt came in the form of an inherently suspect,

and only modestly tested, report of a jailhouse confession. We also have what appears

to be a pervasive pattern of deficiencies in trial counsel’s investigation and preparation

for Johnson’s guilt-phase trial—not just as to Lewis, but as to the quality and rigor of the

Commonwealth’s investigation and counsel’s failure to fully test the DNA evidence that,

165 See Spotz, 18 A.3d at 321. Because this applies only to claims that fail for want

of prejudice, we will not consider the alleged ineffectiveness for failing to present

character evidence, which we have determined failed because counsel had a reasonable

basis for declining to present such evidence.

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to a limited but not negligible extent, tied Johnson to some physical encounter with the

victim. We have on occasion granted relief for deficiencies in trial preparation like these.

But while we must consider the prejudice occasioned by these shortcomings

cumulatively, our inquiry is probabilistic, and “[a] defendant is entitled to a fair trial, not a

perfect one.”166 We have little difficulty anticipating a guilty verdict despite Attorney

Penglase’s alleged deficiencies with respect to his investigation and impeachment of

either of George Lewis or Marquis Johnson standing alone, or with regard (standing

alone) to the apparent weakness of his treatment of the Commonwealth’s DNA evidence.

It is with great misgivings that we can implicitly bless legal representation that seemed

often to select the least burdensome option, venturing only a handful of post hoc

rationalizations for the investigated avenues untraveled.

Nonetheless, we must not allow our discomfiture to overwhelm our reticence to

second-guess counsel’s decisions, let alone to overturn a jury’s verdicts of guilt of three

homicides. Nor can it eclipse what we have underscored is a strong circumstantial case

against Johnson.

On balance, the strength of the circumstantial case must prevail over the several

weaknesses in Attorney Penglase’s efforts on Johnson’s behalf. In several instances

where counsel lacked a reasonable basis for his chosen course, the resultant prejudice

is not enough to overcome the undisturbed evidence of guilt. Accordingly, we find no

grounds for relief from the guilt-phase verdict rendered by the jury, and we proceed to

consider the penalty-phase issues that Johnson raises.

166 See Commonwealth v. Wright, 961 A.2d 119, 135 (Pa. 2008).

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V. Penalty Phase

A. Aggravators and Mitigators and the Standard of Review

Capital sentencing is governed by statute. 42 Pa.C.S. § 9711 provides for what

amounts to a second trial in which the jury determines whether the circumstances of a

first-degree murder warrant imposition of the death penalty. In the course of that trial, the

prosecution introduces some number of enumerated aggravating circumstances and the

defense counters with evidence of mitigating circumstances. A lengthy and exclusive list

of eighteen aggravating circumstances is provided in Section 9711(d). A less lengthy list

of mitigating circumstances is provided for in Section 9711(e).

The jury is instructed on all aggravating and mitigating circumstances as to which

there is some competent evidence. Aggravating circumstances must be proved beyond

a reasonable doubt, while mitigating circumstances need be proved only by a

preponderance of the evidence. The jury may impose the death penalty only upon

unanimous accord. But it is instructed that it must impose the death penalty if (a) it finds

at least one statutory aggravator and no statutory mitigators or (b) it finds at least one of

each and concludes that the aggravating circumstances outweigh the mitigating

circumstances.167 In this case, the jury unanimously found that the aggravating factors in

Sections 9711(d)(5), (11), and (16) outweighed the mitigating factors found in Sections

9711(e)(1), (4), and (8).168 The jury did not find that Johnson “was under the influence of

167 See generally 42 Pa.C.S. § 9711(c).

168 Respectively, the enumerated aggravating circumstances were that the victim

(R.R.) was a prosecution witness to the murder of Talley; the victim was convicted of

another murder (Talley); and the victim was a child under twelve years of age.

Respectively, the mitigating factors were that the defendant had no significant prior

criminal history; the defendant’s young age; and the “catch-all mitigator,” which applies to

(continued…)

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extreme mental or emotional disturbance” at the time of the killings, a mitigator that

Johnson sought to establish through evidence of his “traumatic upbringing and serious

mental health impairments.”169

To reiterate before we take up our discussion, on review of an order denying relief

under the PCRA, this Court reviews the PCRA court’s decision for an error of law or an

abuse of discretion. This Court further is bound by any findings of fact that are supported

by the PCRA record, viewed in the light most favorable to the prevailing party.170

B. Ineffective Assistance, Failure to Resist Exclusion of Mitigating Evidence

Johnson argues that the trial court erred in excluding what he describes as

“mitigating evidence of [Johnson’s] multigenerational history of trauma and mental illness

and the effects of [Johnson’s] brain damage on his emotional and mental

development.”171 As an example of the former, he notes that the trial court restrained

mitigation expert Carol Krych from testifying as to any evidence of generational trauma

that Johnson, himself, did not experience. In Johnson’s opinion, this precluded Krych

from testifying regarding precisely the information she and other mitigation experts rely

upon in formulating their opinions. Genetics and environment are important factors in

mental and emotional development and the diagnosis of mental illness. Similarly, the

court precluded neuropsychologist Dr. Carol Armstrong from “testifying about how

“[a]ny other [unenumerated] evidence of mitigation concerning the character and record

of the defendant and the circumstances of his offense.” 42 Pa.C.S. § 9711(e)(8).

169 Johnson’s Br. at 100 (quoting 42 Pa.C.S. § 9711(e)(2)).

170 See Spotz, 84 A.3d at 311.

171 Johnson’s Br. at 123.

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[Johnson’s] deficits in executive functioning impacted his behavior.”172 As evidence of

the trial court’s “reprimanding” tone in rejecting Dr. Armstrong’s testimony, he cites two

incidents in which the court pointedly instructed Dr. Armstrong to answer the question

posed.173 Johnson also argues that the trial judge’s allegedly intemperate trial demeanor

during sentencing reflected a lack of impartiality. On Johnson’s account, the court “openly

criticized [Krych’s and Dr. Armstrong’s] testimony and implied that their credibility was

suspect.”174 As stand-alone issues, these either were or could have been litigated on

direct appeal. Accordingly, we may not consider them on their own terms on collateral

review.175

But Johnson also seeks to frame this as an ineffectiveness claim. Specifically, he

argues that Attorney Fioravanti was ineffective for failing to object to the limitations the

court imposed upon Dr. Armstrong’s testimony. Similarly, counsel was ineffective for not

objecting to the suggestions of partiality that met Krych’s and Dr. Armstrong’s testimony.

Counsel raised the issue on direct appeal, Johnson concedes, but on his account

appellate counsel Attorney Fioravanti’s appellate argument was enfeebled by a lack of

172 Id. at 125.

173 See id.

174 Id. at 126.

175 See 42 Pa.C.S. § 9543(a)(3) (providing that eligibility for PCRA relief is unavailable

when the issue has been “previously litigated or waived”); id. § 9544 (providing that an

issue has been previously litigated if “the highest appellate court in which the petitioner

could have had review as a matter of right has ruled on the merits of the issue,” and that

it is waived “if the petitioner could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state postconvinction proceeding”); see

generally Commonwealth v. Vandivner, 130 A.3d 676, 683 (Pa. 2015) (PCRA claim

properly denied where it had been litigated on direct appeal).

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examination of binding precedent in favor of a broader understanding of the scope of

mitigating evidence that is relevant in capital sentencing proceedings.

Johnson’s argument as to this issue is perplexing. Asserting first that “[c]ounsel

posed no objection at trial to the limitation on Dr. Armstrong’s testimony,” 176 he goes on

to acknowledge that counsel did object to limitations on Krych’s testimony, but contends

that Attorney Fioravanti was ineffective for how he objected, failing to cite any applicable

law at the time of the objection. He then acknowledges that Attorney Fioravanti raised

the underlying evidentiary issue on direct appeal to this Court, and that this court

considered and rejected it, but faults the way in which Attorney Fioravanti argued the

issue. Ultimately, we find Johnson’s arguments as to Attorney Fioravanti’s alleged

deficiencies at trial and on appeal too vague to credit or treat as a basis for relief, and

Johnson’s perfunctory claims of prejudice wholly unconvincing. The jury was given ample

evidence of the regrettable circumstances of Johnson’s upbringing and was unpersuaded

that he had established the Section 9711(e)(2) mitigator.

Accordingly, Johnson’s allegations of Attorney Fioravanti’s ineffectiveness at trial

and on appeal with respect to these evidentiary questions fail.

C. Ineffective Assistance, Failure to Develop Mitigating Evidence

Johnson also argues that Attorney Fioravanti constitutionally was ineffective for

failing adequately to develop mitigation evidence in advance of sentencing, particularly

as to the Section 9711(e)(2) mitigator (defendant “under the influence of extreme mental

or emotional disturbance”). He notes that the defense relied exclusively upon the

testimony of Dr. Armstrong, a neuropsychologist, and Dr. Steven Berkowitz, a

176 Johnson’s Br. at 127.

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psychiatrist. On Johnson’s account, Attorney Fioravanti knew that the prosecution would

rely in rebuttal upon the report of John O’Brien, M.D., but failed either to obtain or perhaps

seek to preclude Dr. O’Brien’s report because the defense experts were given insufficient

time to prepare to meet the report. Regarding Dr. O’Brien’s report, it allegedly was

provided on June 5, 2015, the day after penalty proceedings commenced and after

Dr. Armstrong already had testified. Johnson also contends that Attorney Fioravanti

categorically failed to investigate and present family witnesses to a legacy of family

trauma, who have declared in connection with these proceedings that they were available

and would have testified if asked.

Dr. Armstrong testified that Johnson had various impairments that interfered with

his availability to learn from social cues.177 She testified that childhood trauma had

caused him brain damage, and a person with his impairments could not live a normal

life.178 Dr. Berkowitz testified that Johnson met nine of ten factors provided for by the

Adverse Childhood Experiences (“ACE”) study.179 High ACE scores are associated with

a heightened risk of poor physical and mental health and increased criminal behavior. 180

Dr. Berkowitz also testified that Johnson suffered from bipolar disorder, and this,

combined with his childhood trauma, affected brain development and made him more

impulsive.181

177 N.T.T., 6/4/2015, at 132.

178 Id. at 140-41.

179 Id., 6/5/2015, at 206.

180 Id. at 205.

181 Id. at 207, 212, 223.

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Dr. O’Brien attacked the bipolar diagnosis and the conclusion that Johnson

suffered from any brain damage. Indeed, he challenged the proposition that childhood

trauma can cause brain damage at all.182 According to Johnson, on cross-examination,

Attorney Fioravanti failed entirely to address Dr. O’Brien’s rejection of the bipolar disorder

and simply elicited that Dr. O’Brien was not a neuropsychologist.183

As noted, Attorney Fioravanti retained Krych, a seasoned mitigation specialist, to

assist in gathering records and preparing a life history. He was sufficiently aware of the

sheer volume of potential evidence that the defense sought a continuance of the trial to

conduct a thorough investigation. Most of Johnson’s extended family lived in Georgia,

but counsel delayed until only weeks before the delayed trial commenced to seek funding

for travel to investigate those potential witnesses. On Johnson’s account, Krych deemed

it important to establish a multigenerational history of family dysfunction and of mental

disorders that may be hereditary.

In particular, Krych believed that Johnson’s aunt, Regina Baskett, would be a

strong mitigation witness. But Attorney Fioravanti made only minimal effort to secure her

attendance at trial and never advised the trial court that he was encountering difficulty in

that endeavor. As well, of Johnson’s six siblings, two of whom were juveniles, counsel

spoke with Marquis and Mitchell, but Marquis was a witness for the prosecution and

182 Id., 6/8/2015, at 87-89.

183 This is, to say the least, a parsimonious account of Attorney Fioravanti’s cross-

examination of Dr. O’Brien, which elicited significantly more information designed to

undercut Dr. O’Brien’s bases for disagreeing with Drs. Armstrong and Berkowitz. See

N.T.T., 6/8/2015, at 101-13.

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counsel was aware that Mitchell would be unavailable for trial. A third brother, Montel,

was on parole, but counsel made no effort to track him down.

For purposes of this appeal, we are limited to consider what Johnson highlights.

To that end, we will consider only the failure to secure Baskett’s and Montel’s testimonies.

In Baskett’s PCRA declaration, she indicated that Johnson grew up in squalor and was

subject to regular physical and mental abuse at the hands of his parents.184 Montel, too,

attested that he was witness (and party) to the severe childhood abuse inflicted upon

Johnson at home.185 This evidence cannot be mistaken for the remote proposed

mitigating evidence the exclusion of which this Court affirmed on direct appeal.186 Which

is to say, even on the trial court’s own terms, this presumably would (or at least should)

have been treated as relevant evidence.

This makes it problematic that counsel failed fully to explore these avenues and

seek to present these witnesses at trial. Montel attested that he lived in Philadelphia at

the time of Johnson’s trial and would have made himself available if asked.

The PCRA court was unpersuaded. It cited the United States Supreme Court for

the proposition that “strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.”187 The court must “apply[] a heavy measure of deference to

184 See Decl. of Regina Baskett, 5/15/2019, at ¶¶ 28-31, PCRA App. at 00462-63.

185 See, e.g., N.T.P., 8/9/2023, at 188-201.

186 As noted, that subject is waived as previously litigated, and ineffectiveness will not

lie for failing to investigate or present evidence that the court deemed inadmissible.

187 PCRA Ct. Op. at 51 (quoting Strickland, 466 U.S. at 691).

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counsel’s judgments.”188 This Court has elaborated to similar effect specifically in the

context of investigations in furtherance of mitigation in capital cases.189 “Where, as here,

the jury finds both aggravating and mitigating factors,” the PCRA court continued, “‘the

prejudice inquiry considers whether there is a reasonable probability that, had the PCRA

evidence been adduced at the penalty phase at least one juror would have concluded

that the mitigating circumstances collectively outweighed the aggravating ones.’” 190

Contrary to Johnson’s present characterization, the PCRA court cited Attorney

Fioravanti’s testimony that he had pursued mitigation evidence at some length and had

run into a wall. He testified that he felt as though he had “exhausted” his avenues. Neither

of Johnson’s (allegedly abusive) mother or stepfather would cooperate, and on counsel’s

account, the brothers had come to a dead end. He also came to the conclusion that

traveling to Georgia wouldn’t change “what we already had.”191

On the PCRA court’s account, this established that counsel’s “investigation was

not only reasonable, but was thorough and complete.”192 In lieu of more direct witnesses

to Johnson’s allegedly abusive, traumatizing childhood, the court allowed Krych to read

directly from her detailed mitigation report, and that was the only available way Attorney

Fioravanti could present to the jury the aforesaid history. Regarding the allegedly

compromised opportunity to rebut Dr. O’Brien’s testimony, the court opined that Attorney

188 Id. (quoting Strickland, 466 U.S. at 691).

189 See Commonwealth v. Brown, 196 A.3d 130, 151 (Pa. 2018).

190 PCRA Ct. Op. at 51-52 (quoting Commonwealth v. Daniels, 104 A.3d 267, 297

(Pa. 2014)).

191 N.T.P., 8/10/2023, at 44-45.

192 PCRA Ct. Op. at 52.

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Fioravanti “effectively cross-examined the Commonwealth’s expert witness on his lack of

expertise in specific areas important to Trial Counsel’s arguments.”193

For these reasons, the court declined to find the degree of Attorney Fioravanti’s

investigation constitutionally defective, and it hinted at the conclusion that any such

deficiency had caused insufficient prejudice to warrant relief.

The PCRA court’s finding of reasonableness is, itself, reasonable and supported

by the record. Notwithstanding counsel’s indication that he would have used Baskett’s

testimony if he had the opportunity, it is not clear on the PCRA court’s assessment that

the opportunity was there, given the limited evidence that she was available and would

have testified at the time. As for prejudice, as we have noted herein, Johnson is entitled

to a fair trial, not a perfect trial. Here, mitigating and aggravating factors were determined

based upon a combination of the facts of the underlying crimes as found by the jury and

a conventional battle of experts primarily regarding Johnson’s mental health, as

anticipated and enriched by Krych’s detailed account of his history of abuse and family

trauma. Prejudice must be assessed in light of the numerous aggravators that the jury

found, and we simply do not find that any modest deficiency in counsel’s investigation

creates a reasonable probability of a divergent outcome in sentencing. Accordingly, this

issue fails.

D. Ineffective Assistance, Failure to Challenge Witness-Killing Aggravator

Johnson would have had trial and appellate counsel argue that Lewis’ testimony

alone, as the sole evidence that Johnson killed R.R. to silence her as a witness who could

identify him as Talley’s killer, “did not meet the reliability requirement necessary to

193 Id. at 53-54.

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establish the [corresponding] aggravating circumstance” found at 42 Pa.C.S. § 9711(d)(5)

“where, as here there was no pending prosecution at the time of the killing.”194 By way of

arguable merit, Johnson notes that the aggravator on its face suggests that it applies only

where the victim was established as a prosecution witness, and he cites this Court’s

decision to that effect in Commonwealth v. Crawley.195 But Johnson also acknowledges

that we effectively nullified that narrow holding in Commonwealth v. Appel, decided the

following year, holding that the Section 9711(d)(5) aggravator could apply to the killing of

a potential witness.196 In Appel, Johnson acknowledges, we held that with direct evidence

of the intention to silence a witness to a crime, it is unnecessary that the witness be part

of a pending prosecution, as such.

Here, however, he argues that the direct evidence is insufficiently credible,

because the direct evidence was Lewis’ testimony regarding Johnson’s alleged prison

confession. Citing former Chief Justice Saylor’s stated skepticism of jailhouse informants,

Johnson argues that Lewis’ testimony simply wasn’t enough—evidently because,

whether the evidence he offered was “direct” or not, it was inherently incredible. 197

Aside from the subjective comments of one Justice, albeit as fortified by a modicum

of common sense, the simple fact is that Appel opened the door to the sort of evidence

194 Johnson’s Br. at 132.

195 526 A.2d 334 (Pa. 1987).

196 539 A.2d 780 (Pa. 1988).

197 See Johnson’s Br. at 134; Commonwealth v. Crispell, 193 A.3d 919, 956 n.2

(Pa. 2018) (Saylor, J., concurring) (“I take this opportunity to note my agreement with

those jurisdiction which have found [jailhouse informant] testimony to be ‘inherently

suspect.’” (citation omitted)); cf. Commonwealth v. Dowling, 316 A.3d 32, 49 (Pa. 2024)

(conceding “that there is a reasonable debate to be had concerning the reliability of

jailhouse informant testimony”).

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of the intent to silence a witness that was proffered in this case. The jury was entitled to

credit that testimony. For those reasons alone, we find no arguable merit to Johnson’s

claim.

Moreover, if we found arguable merit, and found no reasonable basis for counsel

not to raise the objection to the reliability of a jailhouse informant’s testimony that Johnson

believes was warranted at trial and on appeal, we nonetheless would find no prejudice.

In order to find prejudice in this context, we must discern “a reasonable probability that,

had the PCRA evidence been adduced at the penalty phase”—or, here, used to impeach

Lewis’ trial testimony—"at least one juror would have concluded that the mitigating

circumstances collectively outweighed the aggravating ones.” 198 We find no such

probability even if, as Justice Donohue hypothesizes, Lewis’s testimony was categorically

discredited by at least one juror.199 It is true that, had the impeachment had the desired

effect, it would have reduced the aggravators found unanimously from three to two, for

want of direct evidence of the Section 9711(d)(5) witness-killing aggravator (which, as

noted above, must be proved beyond a reasonable doubt by direct evidence). And we

acknowledge that there is some appeal to treating the fact that (in that scenario) the

statutory mitigators would outnumber the statutory aggravators as dispositive in

Johnson’s favor. But no case law suggests that the analysis is a counting exercise.

Section 9711(d)(5) was but one of three aggravators in a multiple-murder case, and one

of the remaining aggravators was for the killing of a victim under twelve years old, the

198 Daniels, 104 A.3d at 297.

199 See Diss. Op. at 12 (Donohue, J.) (finding “a reasonable possibility that one or

more of the jurors would have found that Lewis’s testimony was not credible”).

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putative witness in question. We cannot deem it reasonably probable, in light of the two

other aggravators found by the jury, that one or more members of the jury would have

retreated from imposing a death sentence under these circumstances. Accordingly, this

claim fails.200

E. Failure to Provide the Jury with a “Simmons Instruction”

In Simmons v. South Carolina, during closing argument in a capital case, the

prosecution “raised the specter of petitioner’s future dangerousness generally, but then

200 Justice Donohue criticizes us for acting as a “super jury” that has failed to engage

in the weighing process prescribed by Daniels. Diss. Op. at 11-12 n.8 (Donohue, J.).

That is an odd criticism, as it fails to explain how we can at the same time have

transgressed by acting “super”-deliberatively and by failing to deliberate. In any event,

Daniels requires a degree of difficult speculation on this Court’s part regarding how a jury

would review the evidence remaining in light of changes imposed on appeal, a “task of

reweighing” that “is not an exact science.” See Daniels, 104 A.3d at 304. Were it not so,

the law would provide that, in any circumstance in which an aggravator is removed from

the calculus, the case must be remanded for a new sentencing proceeding. For his part,

Justice McCaffery asserts that “little speculation is needed where, as here, the jury found

multiple mitigating circumstances and its final moral judgment included an improper

aggravator.” Conc. & Diss. Op. at 9 (McCaffery, J.). But he also engages in his own

critical speculation. For example, based upon what seem to be mechanistic assumptions

about the jury, Justice McCaffery writes the multiple-murder aggravator out of the verdict.

In his view, the fact that the jury declined to impose the death penalty for Talley’s

murder—implicitly finding that aggravator alone insufficient as to Talley—necessarily

means that the jury could not have relied upon that aggravator at all in imposing the death

penalty for R.R.’s murder. See Conc. & Diss. Op. at 10-11 (McCaffery, J.). This bald

inference excludes any number of alternate explanations for the jury’s divergent

sentencing choices between the two victims. That the multiple-murder aggravator was

not enough to impose death for Talley’s murder hardly excludes the prospect that it was

deemed sufficient

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