Commonwealth v. Johnson, M, Aplt.

[J-31-2025] [MO: Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

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 :

CONCURRING AND DISSENTING OPINION

JUSTICE McCAFFERY DECIDED: March 26, 2026

I concur with the Majority’s conclusion that Appellant, Marcel Emanuel Johnson, is

not entitled to collateral relief on his guilt-phase claims. However, I believe trial counsel’s

unreasonable failure to investigate and impeach a jailhouse informant, whose testimony

provided the only direct evidence supporting the witness-killing aggravator in 42 Pa.C.S.

§ 9711(d)(5),1 caused Johnson prejudice. I therefore join the Dissent’s analysis and

conclusion that Johnson’s death sentence should be vacated and that his case should be

remanded for a new penalty phase. I write separately to further explain why Johnson was

prejudiced.

1 “The victim was a prosecution witness to a murder or other felony committed by the

defendant and was killed for the purpose of preventing [her] testimony against the

defendant in any grand jury or criminal proceeding involving such offenses.” 42 Pa.C.S.

§ 9711(d)(5).

I. Ineffective Assistance of Counsel: Prejudice and Capital Sentencing

To prevail on an ineffectiveness claim, a petitioner must demonstrate that his claim

has arguable merit, that defense counsel had no reasonable strategic basis for the

challenged action or inaction, and that counsel’s deficient performance resulted in

prejudice. See Commonwealth v. Daniels, 104 A.3d 267, 281 (Pa. 2014). Failure to meet

any one prong — arguable merit, deficient performance, or prejudice — is fatal to the

claim. See Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014). With respect to

Johnson’s claim challenging his trial counsel’s failure to investigate and impeach the

jailhouse informant (George Lewis), the Court’s focus should be on the prejudice prong.2

Prejudice exists if there is a “reasonable probability that the outcome of the

proceeding would have been different but for counsel’s constitutionally deficient

performance.” Daniels, 104 A.3d at 281 (citations omitted). A reasonable probability is

less than “more likely than not[.]” Harrington v. Richter, 562 U.S. 86, 112 (2011) (citing

Strickland v. Washington, 466 U.S. 668, 693, 697 (1984)). It is “a probability that is

sufficient to undermine confidence in the outcome of the proceeding.” Daniels, 104 A.3d

at 281 (citing Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014)).

When assessing prejudice in the penalty phase of a capital trial, “the question is

whether there is a reasonable probability that, absent the errors, the sentencer —

2 I agree with the Dissent that Johnson’s claim has arguable merit and that his trial

counsel’s performance was constitutionally deficient. See Dissent at 9–10. The Majority

ostensibly agrees this particular claim hinges on prejudice. See Majority Opinion at 51–

52 (“[C]ounsel’s avowed failure to investigate must have been informed by a reasonable

strategy, and it is not at all clear that such a strategy is present here.”) (footnote omitted);

id. at 54–55 (affirming dismissal of guilt-phase claim challenging counsel’s ineffectiveness

in failing to impeach Lewis on prejudice grounds because “we cannot conclude that under

such impeachment it is reasonably probable not only that the 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.”); id. at 77–78 & n.200

(reweighing the aggravators and mitigators and declining to find prejudice).

[J-31-2025] [MO: Wecht, J.] - 2

including an appellate court, to the extent it independently reweighs the evidence —

would have concluded that the balance of aggravating and mitigating circumstances did

not warrant death.” Strickland, 466 U.S. at 695. See also Wiggins v. Smith, 539 U.S.

510, 534 (2003) (“In assessing prejudice, we reweigh the evidence in aggravation against

the totality of available mitigating evidence.”).

The court “must consider the totality of the evidence before the judge or jury[,]”

while “[t]aking the unaffected findings as a given, and taking due account of the effect of

the errors on the remaining findings[.]” Strickland, 466 U.S. at 695–696. Prejudice may

exist even if another aggravator remains. See Porter v. McCollum, 558 U.S. 30, 40–44

(2009) (per curiam);3 Wiggins, 539 U.S. at 534–538; Williams v. Taylor, 529 U.S. 362,

396–399 (2000). Prejudice must always be assessed “in the context of the entire case,”

regardless of whether the reviewing court ultimately affirms the death sentence.

Commonwealth v. Bomar, 104 A.3d 1179, 1204 (Pa. 2014) (citation omitted). See also

Thornell v. Jones, 602 U.S. 154, 165–172 (2024) (holding, after extensively examining

the aggravators and mitigators, that the defendant failed to show prejudice under

Strickland).4

3 A per curiam opinion’s precedential value depends on the degree of its reasoning.

Generally, a summary affirmance or reversal lacks precedential value, but a reasoned

opinion is given the same weight as a signed opinion. See Bryan A. Garner et al., The

Law of Judicial Precedent 214–217 (2016). The Court often issues such opinions in the

federal habeas context. See, e.g., Klein v. Martin, 146 S. Ct. 589, 593 ( 2026) (citing

examples).

4 I note that “the resolution of capital-sentencing ineffectiveness claims is frequently fact-

intensive, so that, other than in terms of the pronouncement of overarching standards,

the precedential effect of individual decisions may be limited.” Commonwealth v. Gibson,

19 A.3d 512, 526 (Pa. 2011) (citation and internal quotation marks omitted); cf. Shinn v.

Kayer, 592 U.S. 111, 123 (2020) (“[B]ecause the facts in each capital sentencing case

are unique, the weighing of aggravating and mitigating evidence in a prior published

decision is unlikely to provide clear guidance about how a state court would weigh the

evidence in a later case.”).

[J-31-2025] [MO: Wecht, J.] - 3

Because capital sentencing requires a moral judgment of whether an eligible

defendant deserves death, the prejudice analysis demands a close assessment of the

remaining aggravators and the mitigating evidence. See Wiggins, 539 U.S. at 538

(explaining that, in capital sentencing cases, the prejudice inquiry asks whether counsel’s

deficient performance “influenced the jury’s appraisal of [the defendant’s] moral

culpability”) (citation and internal quotation marks omitted); cf. Richmond v. Lewis, 506

U.S. 40, 48 (1992) (“‘[W]hen the sentencing body is told to weigh an invalid factor in its

decision, a reviewing court may not assume it would have made no difference if the thumb

had been removed from death’s side of the scale,’ nor can a court ‘cure’ the error without

deciding, itself, that the valid aggravating factors are weightier than the mitigating

factors.”) (citing Stringer v. Black, 503 U.S. 222, 232 (1992), holding modified by Brown

v. Sanders, 546 U.S. 212 (2006)).5 Strickland and its progeny demand a “probing and

fact-specific analysis.” Sears v. Upton, 561 U.S. 945, 955 (2010) (per curiam) (citation

omitted).

The prejudice analysis requires that the court evaluate the qualitative weight of the

remaining aggravators and balance it against overall strength and character of the

mitigating evidence:

[F]or purposes of assessing Strickland prejudice, the question is whether

the defendant has shown a reasonable probability that … the outcome of

5 Sanders eliminated the distinction drawn in Stringer between “weighing States” and

“non-weighing States” for purposes of assessing “the skewing that could result from the

jury’s considering as aggravation properly admitted evidence that should not have

weighed in favor of the death penalty.” See Sanders, 546 U.S. at 221 (emphasis and

citation omitted). In a “weighing” State, “after a jury has found a defendant guilty of capital

murder and found the existence of at least one statutory aggravating factor, it must weigh

the aggravating factor or factors against the mitigating evidence.” Stringer, 503 U.S. at

229. By contrast, “[i]n a nonweighing State, so long as the sentencing body finds at least

one valid aggravating factor, the fact that it also finds an invalid aggravating factor does

not infect the formal process of deciding whether death is an appropriate penalty.” Id. at

231. Pennsylvania is a weighing State. See 42 Pa.C.S. § 9711(c)(1).

[J-31-2025] [MO: Wecht, J.] - 4

the proceedings would have been different because at least one juror would

have found that the mitigating circumstances collectively outweighed (or

were as weighty as) the aggravating circumstances, or … that the overall

quality of the case in mitigation warranted a sentence of life in prison.

Daniels, 104 A.3d at 303–304 (citation omitted). In evaluating the remaining aggravators,

the court must assess the role that the subtracted aggravator played in the government’s

theory of prosecution, including whether that aggravator overlapped factually with one of

the other remaining aggravators, and whether it added special moral force or merely

cumulative weight. Cf. Sanders, 546 U.S. at 221 (holding that, if at least one juror

determines that the prosecution did not prove an enumerated aggravator beyond a

reasonable doubt, the jury cannot weigh the evidence proffered to support that aggravator

“unless one of the other sentencing factors enables the sentencer to give aggravating

weight to the same facts and circumstances”) (emphasis in original); Stringer, 503 U.S.

at 230 (“In order for a state appellate court to affirm a death sentence after the sentencer

was instructed to consider an invalid factor, the court must determine what the sentencer

would have done absent the factor.”).6 On the mitigation side of the scale, the court must

consider not only the number of mitigators found but also the depth and moral force of all

the mitigating evidence. See Porter, 558 U.S. at 40–44; Rompilla v. Beard, 545 U.S. 374,

6 I have found no binding precedent, by either our Court or the United States Supreme

Court, addressing how to reweigh the mitigators and aggravators where there is a

reasonable probability that, but for counsel’s error, at least one juror would have found

them in equipoise based on the prosecution’s failure to prove one of them beyond a

reasonable doubt. In my view, the closest comparators are cases, like Sanders and

Stringer, addressing how to reweigh aggravators and mitigators upon subtracting an

aggravator later deemed invalid. With the caveat that harmless-error review under the

Eighth Amendment and the Strickland prejudice standard under the Sixth Amendment

are not coextensive, I would follow the general legal principles articulated in Sanders and

its predecessors. Cf. Andrew v. White, 604 U.S. 86, 95 (2025) (per curiam) (reaffirming

that “certain principles are fundamental enough that when new factual permutations arise,

the necessity to apply the earlier rule will be beyond doubt”) (citations omitted); id. at 94–

95 (recognizing the overlap between general legal principle underlying state prisoner’s

Fourteenth Amendment due process claim and “the Eighth Amendment principle that a

sentence may not be grossly disproportionate to the offense”) (citation omitted).

[J-31-2025] [MO: Wecht, J.] - 5

378, 390–393 (2005); Wiggins, 539 U.S. at 534–538; Williams, 529 U.S. at 395–396.

Even “where the aggravating factors greatly outweigh the mitigating evidence [such that]

there may be no ‘reasonable probability’ of a different result[,]” the reviewing court must

still show its work. Jones, 602 U.S. at 165. Most importantly, prejudice must be assessed

through the lens of Pennsylvania’s death penalty statute. See Daniels, 104 A.3d at 303.

Under Pennsylvania law,

[t]he capital sentencing process implicates two discrete determinations; the

first is eligibility, in which the statutory scheme narrows the class of persons

who may be subject to the death penalty; the second is selection, at which

point the sentencer decides whether a person who is eligible for the death

penalty should receive such punishment. Aggravating circumstances

provide the means of narrowing the class for purposes of eligibility and,

under the Pennsylvania statute, along with mitigating circumstances and

victim impact evidence, serve as the bases for the selection decision.

Commonwealth v. Hughes, 865 A.2d 761, 798 n.41 (Pa. 2004) (citations omitted).

Death is permitted only if the jury unanimously finds that (1) the Commonwealth

proved, for eligibility purposes, at least one statutorily enumerated aggravating

circumstance beyond a reasonable doubt; and (2) for selection purposes, either (a) there

are “no mitigating circumstances,” or (b) “one or more aggravating circumstances …

outweigh any mitigating circumstances.” 42 Pa.C.S. § 9711(c)(1)(iv). Death is prohibited

if one or more jurors determine the aggravators and mitigators are in equipoise. See id.

Crucially, the death penalty statute “does not provide for consideration of factors outside

those denominated as aggravating or mitigating circumstances or victim impact

evidence.” Hughes, 865 A.2d at 799 n.44. See also 42 Pa.C.S. § 9711(d) (“Aggravating

circumstances shall be limited to the [enumerated statutory factors.]”).

For the selection determination, “a mere mathematical finding of more aggravating

or mitigating circumstances is not dispositive; a jury may weigh one factor more heavily

[J-31-2025] [MO: Wecht, J.] - 6

than multiple other factors.” Commonwealth v. Speight, 854 A.2d 450, 461 n.10 (Pa.

2004) (citing 42 Pa.C.S. § 9711(c)). The death penalty statute does not “provide an

express standard to be applied in weighing mitigating factors against aggravating

factors[.]” Commonwealth v. Beasley, 475 A.2d 730, 737 (Pa. 1984). The determination

involves an inherently moral question of whether the defendant deserves the death

penalty. See Saffle v. Parks, 494 U.S. 484, 495 (1990) (noting the weighing of aggravators

and mitigators boils down to “whether the defendant, in the eyes of the community, is

morally deserving of the death sentence”); cf. Abdul-Kabir v. Quarterman, 550 U.S. 233,

263 (2007) (reaffirming “that before a jury can undertake the grave task of imposing a

death sentence, it must be allowed to consider a defendant’s moral culpability”).

So, when assessing prejudice on collateral review, “the weighing process involves

an assessment of the relative strength and weakness of the aggravating and mitigating

evidence, which is necessarily a qualitative and not a quantitative approach, especially

when the catchall mitigator is at issue.” Daniels, 104 A.3d at 304 (citations omitted). The

reviewing court “must also keep in mind how tailored death penalty proceedings are

toward life sentences, … not only in the channeling of aggravators and the differing

burdens of proof governing aggravators and mitigators, but also in the fact that a single

juror can effectively negate the prospect of a death sentence.” Id. at 303 (citations

omitted). If one juror would have found that the Commonwealth failed to prove a statutory

aggravator beyond a reasonable doubt, the evidence proffered in support of that

aggravator may not be included in the jury’s moral calculus during the selection process

unless another aggravator found by the jury allowed it “to give aggravating weight to the

same facts and circumstances.” Sanders, 546 U.S. at 220.

[J-31-2025] [MO: Wecht, J.] - 7

II. Johnson Suffered Prejudice at Sentencing

In Johnson’s case, the jury found three aggravators and three mitigators in relation

to R.R.’s murder. The aggravating circumstances were that the victim was a prosecution

witness to another murder (Ebony Talley’s), that Johnson was convicted of another

murder (Talley’s) committed at the same time, and that the victim was a child under 12

years old. See 42 Pa.C.S. § 9711(d)(5), (11), (16). The mitigating circumstances

included Johnson’s lack of significant prior criminal history, his young age, and the

catchall mitigator. See 42 Pa.C.S. § 9711(e)(1), (4), (8).

The catchall mitigator is especially important in the prejudice analysis. See

Daniels, 104 A.3d at 256 (citations omitted). It covers “[a]ny other evidence of mitigation

concerning the character and record of the defendant and the circumstances of his

offense.” 42 Pa.C.S. § 9711(e)(8). “Evidence concerning the catchall mitigator tends to

be subjective, and the value of that evidence no doubt varies depending upon the

context.” Commonwealth v. Ballard, 80 A.3d 380, 411 (Pa. 2013). As pertinent here,

Johnson presented evidence that his “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.” Commonwealth v. Johnson, 160 A.3d 127, 136 (Pa. 2017).

In my view, for the reasons set forth in the Dissent, “there is a reasonable possibility

that one or more of the jurors would have found that Lewis’s testimony was not credible

and therefore, that the Commonwealth did not establish the aggravating circumstance [in

Section 9711(d)(5)] beyond a reasonable doubt[.]” Dissent at 11. I also agree “there is

a reasonable possibility that one or more of the jurors would have found that … the two

remaining aggravating circumstances did not outweigh the three mitigating

[J-31-2025] [MO: Wecht, J.] - 8

circumstances.” Id. Based on the unique circumstances of Johnson’s case, I am not

confident that, without the witness-killing aggravator in their moral calculus, all twelve

jurors would have struck the same moral balance and unanimously sentenced him to

death for R.R.’s murder.

As the Majority observes, “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[.]” Majority Opinion at 77.

While the numerical decrease in the aggravators is not dispositive, even the Majority

recognizes 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.” Id. Yet rather than conduct a probing, fact-intensive inquiry, the

Majority hastily concludes there is no “reasonabl[e] probab[ility], 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.” Id. at 78. The Majority

reasons only that “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 putative witness in question.” Id. at 77–78. As such, I dissent from

the Majority’s analysis and conclusion.

I agree with the Majority that, when assessing prejudice on collateral review, the

“task of reweighing” involves “a degree of difficult speculation.” Majority Opinion at 78

n.200 (citation omitted). Our Court inevitably must decide “how a jury would review the

evidence remaining in light of changes imposed on appeal[.]” Id. (citation omitted). See

also Strickland, 466 U.S. at 695–696. However, little speculation is needed where, as

here, the jury found multiple mitigating circumstances and its final moral judgment

included an improper aggravator. See Commonwealth v. Holcomb, 498 A.2d 833, 849

[J-31-2025] [MO: Wecht, J.] - 9

n.16 (Pa. 1985) (plurality opinion) (recognizing, on direct appeal, that if the jury imposes

the death penalty based on “several aggravating circumstances, one of which was

improper under state law,” then our Court “would be required to vacate the death

sentence, at least where, as here, mitigating circumstances were present”) (citations

omitted); cf. Commonwealth v. Karabin, 559 A.2d 19, 24 (Pa. 1989) (“[T]he jury’s finding

of two aggravating circumstances, one of which is unsupported by the evidence, and

unspecified mitigating circumstances requires that the death sentence imposed on the

[defendant] be vacated.”) (citations omitted); Commonwealth v. Caldwell, 532 A.2d 813,

817–818 (Pa. 1987) (“The jury’s finding of four aggravating circumstances, two of which

are unsupported by the evidence, and unspecified mitigating circumstances requires that

the death sentences imposed on the [defendant] be vacated.”) (citations omitted). In my

view, “if there is an improper aggravating circumstance presented to the jury[,] it is

impossible to tell from the record how the jury would have decided absent the improperly

presented circumstance.” Holcomb, 498 A.2d at 850.

Johnson’s death sentence was not a foregone conclusion. “This is not a case

where a jury expressly found that no mitigating circumstances were present, such that,

upon declaring invalid one of multiple aggravating circumstances found by the jury, this

Court could nevertheless affirm the death sentence on grounds that the death penalty is

required so long as there remains at least one valid aggravating circumstance.”

Commonwealth v. Aulisio, 522 A.2d 1075, 1080 (Pa. 1987) (citation omitted). On the

contrary, the jury clearly judged that Johnson’s character weighed in favor of life. The

jury sentenced him to life imprisonment for Talley’s murder, despite finding the multiple-

murders aggravator.7 The jury’s verdict with respect to her murder is significant because

7 In relation to Talley’s murder, the Commonwealth attempted to prove four statutory

aggravators, including torture, see 42 Pa.C.S. § 9711(d)(8); conviction of another murder

at the same time as her murder, see 42 Pa.C.S. § 9711(d)(11); Johnson’s commission of

(continued…)

[J-31-2025] [MO: Wecht, J.] - 10

the multiple-murder aggravator “is widely considered to be the ‘most powerful imaginable

aggravating evidence.’” Bomar, 104 A.3d at 1204 (citing Commonwealth v. Simpson, 66

A.3d 253, 278 (Pa. 2013)). So, in their moral calculus, the jurors clearly gave substantial

weight to Johnson’s mitigation. See Johnson, 160 A.3d at 151 n.27, 153 n.29 (discussing

the jury’s sentencing verdicts). At the very least, the jury’s imposition of different

punishments for each murder establishes that one or more jurors concluded that the

multiple-murders aggravator was in equipoise with Johnson’s mitigation. Otherwise, the

jury would have sentenced Johnson to death twice instead of only once. So, the witness-

killing aggravator and the child-killing aggravator were the only ones that could have

tipped the scale towards death.

It is impossible for us to know for certain which one tipped the scales. However,

the killing of a child eyewitness to a murder to prevent her from testifying against the

murderer is, without question, morally reprehensible. It also seems clear that, since the

killing a child and the killing a witness are two independent aggravators, the killing of a

child eyewitness is more morally bankrupt than the killing of an adult eyewitness. But if

we subtract the witness-killing aggravator, that leaves the child-killing aggravator as the

only one with the potential to tip the balance in favor of death. Although merely

subtracting the witness-killing aggravator is not enough when assessing prejudice in a

vacuum, it is significant in Johnson’s case given the jury’s decision to sentence him to life

imprisonment for Talley’s murder based on his mitigating circumstances. It is a factor

supporting a reasonable probability that, had the impeachment evidence been presented

and used by competent defense counsel, at least one juror would have found not only

a felony drug offense in connection with her murder, see 42 Pa.C.S. § 9711(d)(13); and

Johnson’s knowledge of her pregnancy, see 42 Pa.C.S. § 9711(d)(17).

[J-31-2025] [MO: Wecht, J.] - 11

that the Commonwealth failed to prove the witness-killing aggravator but also that the

remaining aggravators did not outweigh Johnson’s mitigating circumstances.

The witness-killing aggravator played a vital role in the Commonwealth’s theory of

prosecution. The lead prosecutor consistently stressed that Lewis’ jailhouse informant

testimony was “very important” and “critical to the case.” Majority Opinion at 10 n.17

(citation omitted). It was the “linchpin” of the case.8 Id. (citation omitted). In fact, in his

closing argument during the penalty phase, the lead prosecutor explicitly told the jurors

that the witness-killing aggravator was “probably one of the heaviest” they had to

consider. N.T., 6/8/2015, at 124. The prosecutor argued Johnson “chose to murder

[R.R.], too, because in the words of George Lewis — and that is direct evidence . . . not

circumstantial evidence . . . the baby was smart, the baby knew me, and could identify

me. That’s what makes this an aggravating circumstance.” Id. at 125–126. Thus, it is

impossible to ignore that Lewis’ testimony was critical to the jury’s assessment of

Johnson’s moral culpability; it fundamentally “alter[ed] the entire evidentiary picture.”

Strickland, 466 U.S. at 695–696.

Upon reading the cold trial transcript, I cannot shake the gut-wrenching moral

reaction to Lewis’ testimony that Johnson stabbed and killed a four-year-old girl to prevent

her from identifying him as the culprit. That he killed R.R. is an aggravating circumstance

due to her age, but evidence that he killed her to prevent her from identifying him invokes

such a powerful moral and emotional response that I cannot fathom what went through

the jurors’ minds (or what chills went down their spines) as they heard Lewis’ testimony.

But, had at least one juror deemed Lewis uncredible based on a competent counsel’s

effective use of the impeachment evidence, that testimony would not have been

8 The Commonwealth maintains that same position on appeal. See Commonwealth Brief

at 70 (acknowledging that the prosecutors “hitch[ed] their wagon to Lewis’ confession”).

[J-31-2025] [MO: Wecht, J.] - 12

weighable in aggravation.9 The Majority seems to overlook this nuance.10 I take the

Commonwealth’s stated position on the importance of Lewis’ chilling testimony at face

value.

For the foregoing reasons, I conclude that, upon a meaningful reweighing of the

multiple-murders and child-killing aggravators and the three mitigators found by the jury,

there is a reasonable probability that at least one juror would have concluded that the

aggravators did not outweigh the mitigating circumstances.

To be clear, I agree with the Majority that “the jury is a black box” and that “we can

only (but must) speculate as to its contents.” Majority Opinion at 78 n.200. However, the

Majority’s claim that my opinion “writes the multiple-murder aggravator out of the verdict”

is spurious. Id. To repeat what I just wrote above: “[U]pon a meaningful reweighing of

9 Since Lewis’ testimony was not probative of the remaining aggravators for committing

multiple murders and killing a child, the jury could not have given aggravating weight to

that evidence unless it found the witness-killing aggravator beyond a reasonable doubt.

See infra note 10. Crucially, had at least one juror found the evidence insufficient to prove

the witness-killing aggravator beyond a reasonable doubt, the entire jury would have been

precluded from weighing Lewis’ testimony in aggravation. That is because his testimony

would not have been admissible through one of the two remaining aggravators. See 42

Pa.C.S. § 9711(d); Hughes, 865 A.2d at 799 n.44; cf. Sanders, 546 U.S. at 220–221.

10 The Majority says it “reviewed the evidence in aggravation and mitigation, taking careful

account of what we can glean from the jury’s consideration of that evidence, as reflected

in the aggravators and mitigators the jury properly found and in its verdict.” Majority

Opinion at 78 n.200. But, due to the Majority’s clandestine reweighing, it is unclear if that

“evidence” includes Lewis’ testimony on the aggravation side of the scale. Although

Lewis’ testimony would have been admissible in the Commonwealth’s presentation of the

aggravating circumstances for purposes of determining Johnson’s death-eligibility, our

Court must assume that, had one or more jurors found insufficient proof of the witness-

killing aggravator, the jurors would have followed the court’s instructions and omitted that

evidence from the selection process. See Commonwealth v. Reid, 99 A.3d 470, 514 (Pa.

2014) (“[A] jury is presumed to follow a trial court’s instructions.”) (citation omitted). So,

even if eleven of twelve jurors heard Lewis’ testimony and found the witness-killing

aggravator beyond a reasonable doubt, none of them would have been permitted to weigh

that testimony in aggravation during the selection process. See supra note 9. Thus,

insofar as the Majority incorporated Lewis’ testimony into the prejudice analysis, the

Majority’s reliance thereon is misplaced.

[J-31-2025] [MO: Wecht, J.] - 13

the multiple-murders and child-killing aggravators and the three mitigators found by the

jury, there is a reasonable probability that at least one juror would have concluded that

the aggravators did not outweigh the mitigating circumstances.” See supra p. 13

(emphasis added).

The Majority and I disagree on whether that reweighing must be done by a jury. I

conclude it must, because (1) there is a reasonable possibility that, but for counsel’s

deficient performance, at least one juror would have found Lewis’s testimony not credible,

and thus that the Commonwealth failed to prove the witness-killing aggravator beyond a

reasonable doubt; (2) that aggravator played a vital role in the Commonwealth’s case; (3)

the jury did not find the multiple-murders aggravator alone was sufficient to justify the

death penalty; (4) the jury found three mitigators; (5) no jury ever weighed those three

mitigators, the multiple-murders aggravator, and the child-killing aggravator without the

witness-killing aggravator in the moral equation; and (6) there is a reasonable probability

that, without the witness-killing aggravator, one or more jurors would have voted not to

impose the death penalty. Cf. Commonwealth v. Brown, 648 A.2d 1177, 1186 (Pa. 1994)

(“The jury’s weighing of aggravating and mitigating circumstances is a subjective

process.”) (emphasis added); Commonwealth v. Fahy, 516 A.2d 689, 698 (Pa. 1986) (“[I]t

is exclusively a jury question whether any mitigating factor is to be given determinative

weight when balanced with other mitigating and aggravating circumstances in the case.”).

Although the jury could have imposed the death penalty based on the child-killing

aggravator and multiple-murders aggravator, the test for prejudice is not whether the jury

could “still have decided on the death penalty.” Rompilla, 545 U.S. at 393. Nor is it

whether the jury “more likely than not” would still have imposed death. Porter, 558 U.S.

at 44 (citing Strickland, 466 U.S. at 693–694). The test is whether “the likelihood of a

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different result … is ‘sufficient to undermine confidence in the outcome’ actually reached

at sentencing.” Rompilla, 545 U.S. at 393 (citing Strickland, 466 U.S. at 694).

Since “execution is the most irremediable and unfathomable of penalties[,]”

remand is the proper course to ensure that Johnson’s death sentence is legally and

morally sound. Ford v. Wainwright, 477 U.S. 399, 411 (1986). See also Dissent at 11–

12 n.8 (criticizing the Majority for “acting as a super jury without engaging in the

individualized weighing of the remaining aggravating circumstances and the mitigating

circumstances — a weighing process that is constitutionally and statutorily mandated in

capital sentencing”) (citations omitted); Daniels, 104 A.3d at 321 (Saylor, J., concurring

and dissenting) (expressing concern about “the speculativeness inherent in no-prejudice

determinations” in capital cases, and stating that this Court “should err on the side of

providing defendants with one trial at which the defense is guided by a competent,

prepared lawyer”) (citing Commonwealth v. Koehler, 36 A.3d 121, 162 (Pa. 2012) (Saylor,

J., concurring)).

In short, because trial counsel’s deficient performance undermines my confidence

that all twelve jurors would have reached the same moral judgment absent the witness-

killing aggravator, I would hold that Johnson suffered prejudice and would remand for a

new penalty phase.

[J-31-2025] [MO: Wecht, J.] - 15