Petition for Writ of Certiorari — Pennsylvania, Petitioner v. Roderick Andre Johnson

No. 00-0000

InN THE SUPREME COURT OF

THE UNITED STATES

COMMONWEALTH OF PENNSYLVANIA

Petitioner

v.

RODERICK JOHNSON

Respondent

ON PETITION FOR WRIT OF CERTIORARITO THE

SUPREME COURT OF PENNSYLVANIA

PETITION FOR WRIT OF CERTIORARI

JOSH SHAPIRO

Attorney General

Commonwealth of Pennsylvania

JAMES BARKER

Chief Deputy Attorney General

Appeals & Legal Services Section

WILLIAM R. STOYCOS*

Senior Deputy Attorney General

Counsel of Record

Office of Attorney General

16th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 787-1401

CAPITAL CASE

QUESTIONS PRESENTED

1. Whether the prosecution’s nondisclosure of

arguably impeaching information relating to a witness

who linked the defendant with two murders can be

material for purposes of a Brady analysis when the

trial record establishes via the unrefuted testimony of

other witnesses that the defendant twice knowingly

and voluntarily confessed to police to being an

accomplice to both murders with an intent to kill,

which confessions were corroborated by other

evidence?

2. Whether it is permissible for a court conducting

a Brady analysis to find that undisclosed information

is material based upon speculation regarding how the

information might have been used by the defense at

trial when a record was developed on the Brady claim

on state collateral review that establishes how the

reports would have been used at trial and compels the

conclusion that no difference in the outcome is

reasonably probable?

8. Whether this Court will countenance the

transformation of Brady and its progeny by convicted

criminals from a due process shield into a litigation

sword that can be used to invalidate lawful judgments

of sentence?

PARTIES TO THE PROCEEDING

All parties appear in the caption of the case on the

cover page.

ti

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING uu... cesses i

TABLE OF CONTENTS. .......cccccsccssseseeeeteseeeenreeeeeaee iii

TABLE OF CITED AUTHORITIES 000... eeeee v

OPINIONS BELOW ........ccccsssccssetsecesessersceeveeereaeeneeses 1

STATEMENT OF JURISDICTION... cceeccseseeeees 3

CONSTITUTIONAL PROVISION INVOLVED.......... 3

STATEMENT OF THE CASE oo csecceceenesteeneeeeeees 4

REASONS FOR GRANTING THE WRIT... 31

A. The Pennsylvania Supreme Court’s

determination that the undisclosed police

reports are material under Brady

notwithstanding the unrebutted evidence that

Johnson twice confessed to first-degree

murder as an accomplice directly conflicts

with this Court’s holdings that: (1) the

materiality determination must be made in

the context of the entire record rather than in

a vacuum; (2) a defendant’s confession is a

significant factor in determining whether

undisclosed evidence is material under Brady;

and (3) the purpose of the Brady rule is to

prevent a miscarriage of justice.

iii

B. The Pennsylvania Supreme Court's

determination that the police reports are

material under Brady based on speculation

regarding how the defense might have used

the reports at trial requires reversal because

a record was developed on the Brady claim

which establishes how the reports would have

been used at trial and compels the conclusion

that a different outcome is not reasonably

PVrobable ....... ee ceeseeeeteeteceaceeneeseneseaeenseaneereseees 36

C. Persons convicted of crimes should not be

permitted to transform Brady and its progeny

from a due process shield into a litigation

sword to invalidate lawful judgments of

SONTCTICE 0... ceeeescceececsssneceeeerreesteeaeseens 37

CONCLUSION

iv

TABLE OF CITED AUTHORITIES

Page

Cases

Arizona v. Fulminante, 111 S.Ct. 1246 (1991).......... 33

Brady v. Maryland, 373 U.S. 83 (1968) ........... 1, 3, 14

Commonwealth of Pennsylvania v. Roderick Andre

Johnson, 174 A.3d 1050 (Pa. 2017) ..ccecccccsccccscerseeees 1

Commonwealth of Pennsylvania v. Roderick Andre

Johnson, 72°7 A.2d 1089 (Pa. 1999) ....ccecccceseeseeeeees 2

Commonwealth of Pennsylvania v. Roderick Andre

Johnson, 863 A.2d 423 (Pa. 2004)... ccccceccseseseeseees 2

Commonwealth v. Bennett, 57 A.3d 1185(Pa.2012).. 32

Commonwealth v. Chmiel, 889 A.2d 501(Pa. 2005)..28

Commonwealth v. Hanible, 30 A.3d 426 (Pa. 2011)..28

Commonwealth v. Knox, 105 A.3d 1194 (Pa. 2014) ..32

Cox Broadcasting Corp. v. Cohn, 420 U.S.469 (1975).3

Cruz v. New York, 107 8.Ct. 1714 (1987)... 33, 34

Johnson v. Beard, No. 03°CV-2156 (U.S. District

Court, ELD. Pa.) ccccccccccscssessscessssssecssseesscsseseeserse 15

Johnson v. Folino et al. 671 F.Supp.2d 658 (E.D.Pa.

seceeesseeceneecsateosaeceeeecnasenaeesegeeaesaes soeetsnnnnaeeetenecenenseeeee 22

Johnson v. Folino, No. 04-CV-2835 (U.S. District

Court, E.D. Pa.) ween geseeeeesseeeseeeeseeseeessees 16

Johnson v. Pennsylvania, 528 U.S. 1163 (2000)........ 14

Kyles v. Whitley, 514 U.S. 419, 484 (1995)... 33, 35

Milton v. Wainwright, 92 8.Ct. 2174 (1972)... eee 33

Pennsylvania v. Roderick Andre Johnson, 815 A.2d

563 (Pa. 2002) vcccccccccccscscssccsesssscsscsseceseeseessesserseeseees 2

Schneble v. Florida, 92 S.Ct. 1056 (1972) ....cccesccees 33

Smith v. Cain, 565 U.S. 78 (2012) 0. eee seeeenee 32

Turner, et al. v. United States, 137 S.Ct. 1885 (2017)

deeceaceaeenaeeaesseesseusecessessesceeesssansssaaaanaaeeneneeeeeenen 32, 33, 37

United States v. Agurs, 427 U.S. 97, 112-113 and n.

D1 (1976) scesscsescsecsecseseveccessoneessuessnuvesseesevessesssveees 32, 37

United States v. Bagley, 473 U.S. 667 (1988)......33, 37

vi

Rules

Pa.R.E. 608 o..cesccesessssssssssenecseversnesesneeesneesaneesteanensneees 28

Statutes

28 U.S.C. § 1257) ceceecssescsssscsesseseeseseseseeseseeseneneseseeeees 3

Constitutional Provisions

U.S.C.A. Const. Amend. XIV Sect. Liwscc cc ceeeseeneeee 3

vii

OPINIONS BELOW

The majority opinion of the Supreme Court of

Pennsylvania (“the state supreme court”) affirming the

state collateral review court’s grant of a new trial is

published at Commonwealth of Pennsylvania v.

Roderick Andre Johnson, 174 A.3d 1050, 1050-1059

(Pa. 2017) and is reprinted at Pet. App. la. The

minority opinion of the state supreme court dissenting

from the majority’s determination is published at

Commonwealth of Pennsylvania v. Roderick Andre

Johnson, 174 A.3d 1050, 1059-1060 (Pa. 2017) and is

reprinted at Pet. App. 1b. The opinion and order of the

Berks County Court of Common Pleas (“the state

collateral review court”) following remand granting a

new trial on the grounds that the prosecution violated

the defendant’s due process rights pursuant to Brady

v, Maryland, 373 U.S. 83 (1963) is unpublished and

reprinted at Pet. App. lc.

The state supreme court’s order reversing in part

the state collateral review court’s dismissal of the

Respondent’s third petition for collateral review relief

and remand for the conduct of an evidentiary hearing

on the merits of Respondent's Brady claim is

unpublished and reprinted at Pet. App. 1d. The

opinion of the state collateral review court dismissing

the Respondent’s third petition for collateral review

relief is unpublished and reprinted at Pet. App. le. The

state collateral review court’s first and second orders

and notices of intent to dismiss Respondent’s third

petition for collateral review relief are unpublished and

reprinted at Pet. App. 1f and Pet. App. 1g, respectively.

The state supreme court’s opinion affirming the

state collateral review court's dismissal of

Respondent’s second petition for collateral review relief

is published at Commonwealth of Pennsylvania v.

Roderick Andre Johnson, 863 A.2d 423 (Pa. 2004) and

reprinted at Pet. App. 1h. The state collateral review

court’s notice of intent to dismiss and order dismissing

Respondent’s second petition for collateral review relief

are unpublished and reprinted at Pet. App. li and Jj,

respectively.

The state supreme court’s opinion affirming the

state collateral review court's dismissal of

Respondent’s amended first petition for collateral

review relief is published at Commonwealth of

Pennsylvania v. Roderick Andre Johnson, 815 A.2d 563

(Pa. 2002) and reprinted at Pet. App. 1k. The state

collateral review court’s first and second orders and

notices of intent to dismiss Respondent’s amended first

petition for collateral review relief are unpublished and

reprinted at Pet. App. 11 and Im, respectively.. The

state collateral review court’s order/opinion denying a

stay of execution and addressing Respondent’s initial

petition for collateral review relief is unpublished and

reprinted at Pet. App. In.

The state supreme court’s opinion affirming the

judgment of sentence on direct appeal is published at

Commonwealth of Pennsylvania v. Roderick Andre

Johnson, 727 A.2d 1089 (Pa. 1999) and reprinted at

Pet. App. lo. The state trial court’s opinion denying

Respondent's post-sentence motions in their entirety is

unpublished and reprinted at Pet. App. Ip.

STATEMENT OF JURISDICTION

On December 19, 2017, the Supreme Court of

Pennsylvania filed a decision which affirmed the state

collateral review court’s grant of a new trial based ona

finding that the Commonwealth of Pennsylvania had

violated Respondent’s federal due process rights as set

forth in Brady v. Maryland, 373 U.S. 83 (1963). The

jurisdiction of this Court is invoked under 28 U.S.C. §

1257(a); see Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 479 (1975) Gudgment of the highest state court on

a federal issue is “final” for purposes of Supreme Court

review).

CONSTITUTIONAL PROVISION INVOLVED

All persons born or naturalized in the

United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the laws.

U.S.C.A. Const. Amend. XIV Sect. 1 (emphasis added).

STATEMENT OF THE CASE

More than 20 years ago, Respondent Roderick

Johnson (“Johnson”) was convicted by. a jury of two

counts of first-degree murder. The jury heard

unrebutted evidence that Johnson confessed to police

on two separate occasions to being an accomplice to the

two murders in question with an intent to kill. Those

confessions were corroborated by and supplemented

with other evidence. The jury also heard testimony

from Commonwealth witness George Robles (“Robles”)

that directly tied Johnson to the murders. The state

trial judge instructed the jury on the law governing

liability for first-degree murder as an accomplice.

Today, the parties are before this Court disputing

whether, under these circumstances, the nondisclosure

of tangential information relating to Robles’ own prior

interactions with police can be impeaching and

material under the Brady rule.

In December 1996, cousins Damon Banks and

Gregory Banks were shot to death in Berks County,

Pennsylvania in retaliation for a robbery they had

committed. Three days after the murders, Johnson

was interviewed by police officers at a hospital where

he was recovering from a gunshot wound, at which

time he confessed to the officers that he had been

involved in the murders. Specifically, he informed the

officers both orally and via a signed written statement

following the provision of Miranda warnings that he,

Shawn Bridges (“Bridges”), and Richard Morales

(“Morales”) had jointly planned and carried out the

execution of the Banks cousins as an act of revenge for

the Banks’ robbery of Bridge’s girlfriend. Johnson

denied that he had shot anyone but admitted that he

had driven the van that transported the victims to the

4

murder scene with knowledge that the shootings would

take place, that he believed the victims should be shot,

and that he served as the getaway driver.

Johnsgon’s lengthy and detailed confession was read

to the jury at trial and stated in pertinent part:

Saturday night we were in George Robles’

house playing cards. I went to sleep because I

was drunk. Jason and Tahir...stopped by a

club... They...came back to the house.

While they were at the club, they spoke to

Shawn Bridges... They [subsequently] told me

what happened. They said that Shawn told

them that somebody broke into the house with

guns and masks on...

...1 immediately got dressed and went to the

club with them at five o’clock a.m...

wee

. 1 saw Shawn...

He said that some guys had come to the

house and had a girl knock on the door by the

name of Betsy. Madelyn asked who it was, and

they rushed in. They pushed Madelyn on the

floor and put a gun to her head. She asked

them what they were there for, and they said

that they weren’t stupid, they wanted the

drugs and the money. She said she had no idea

what they were talking about. She said the

baby was there and was crying; she asked them

5

if she could get the baby, and they said, no.

They weren't going to be there long.

They took the play station and the

camcorder and left. They ransacked the house,

bathroom, bedroom everything. I asked Shawn

if he had any ideas who did it. At that point,

he said, no.

That’s when he mentioned to me about the

visit earlier that day by Damon and Gregory

Banks. I also mentioned the visit I had on Pear

Street. When I saw Gregory, he had on a green

mask and a green hoodie and a black army

flight jacket. When I mentioned that to Shawn,

he was, like, there’s too much of a coincidence

that they would come by the house and Pear

Street right after leaving the house. I asked

him, what did the guys have on at the house?

He said, a mask and a hoodie with no mention

of color.

Later on in the day, he came by the house,

George Robles’, Shawn, and picked me up in an

ice-blue Plymouth Voyager...

eR *

We went up the street...We saw Madelyn

walking up the block. I pulled the van over.

Shawn got out and was talking to Madelyn. He

was asking her questions about what happened

the previous night, about the robbery. What

colors did the guys have on and what were they

wearing. She said that he had on a green mask

and a green hoodie.

Once she said that, we automatically knew

who it was, who did the robbery...

Me and Shawn, from there, we went to

Richie's house, Richard Morales...We went

back to Shawn's house...From there, Shawn

grabbed a shotgun. Shawn was going to get

back at them for doing what they did.

He was asked what he meant about getting

back, he said he was going to shoot them. We

said fine. Shawn said that he had a Glock nine

millimeter on him, which I saw. He said that

he was going to go talk to Gregory and Damon

Banks to see their reaction to what he had to

say to them. //ff /h/is reaction was what he

expected, he was going to shoot them.

He grabbed a shotgun, Shawn, out of the

closet. We had no shells, so we went to Kmart

on Fifth Street Highway. Bought a box of .410

shotgun shells...

Got back to Shawn's house, Shawn pulled

out the Glock, cocked it and put one in the

chamber. He pulled out the shotgun and loaded

it and handed it to Rambo [Morales]. Richie

wrapped the shotgun up in his jacket and we

went to the van. I was driving, Shawn was in

the passenger seat, Richie was directly behind

me,

We got to Gregory and Damon's house at 545

South Seventeenth-and-a-half Street. We sat

outside and Shawn went and knocked on the

door...Gregory and Damon came out of the

house...

Gregory, Damon and Shawn walked into the

house. About two, five minutes later, Shawn

came walking out of the house by himself. He

said that they was coming with us. They

followed out of the house. They got into the van

and Shawn said to drive to Mount Penn.

I was driving, Shawn was in the passenger

seat, Rambo was directly behind me. Damon

was in the middle and Gregory was on the end

by the door. We proceeded out to Mount Penn

to pick up the drugs that Shawn “so-called” had

out there. Shawn told Gregory and Damon that

he was going out of the town for three to five

days and he wanted them to watch over his

business until he came back. He was going to

show them where the drugs was at...

...We stopped in the cemetery...

wR K

Then I made a U-turn and drove out of the

cemetery. As I am driving out the cemetery,

Shawn tells me to drive to his uncle's car lot,

Battle's Salvage. As we were driving up to the

car lot...we went onto a little road...that's

where we stopped.

We stopped there, Shawn and Rambo got out

of the van and walked ahead. Gregory and

Damon asked where they was going. They said

8

to get the drugs. Shawn came back emptyhanded. They asked again, where is the drugs?

Shawn told them, come with me, I am going to

show you where they're at.

That's when the three of us -- me, Gregory

and Damon ~ got out of the van and started

walking. Gregory and Damon started

complaining that they wasn't going to go over

there. They didn't know why he had his drugs

over there and it didn't make sense. It was too

cold and they was going to sit in the van. So we

got back in the van, me, Gregory and

Damon...We was in the van talking, Shawn

was asking them why they didn't want to come

down there where the drugs were. They was,

like, no, it was too cold and it didn't make no

sense to have the drugs down there like that.

He told them, Gregory and Damon, that it

wasn't in the woods, it was in his cousin's

house. So, they told him, go get it and bring it

so we could leave. He told them, no, just come

on, I'm going to - - gonna show you where it’s

at.

So, they got out of the van again, and was

standing by the side door, me, Rambo, Gregory,

Damon and Shawn...

woke

As I am getting back in the van, Shawn says

to me, on three I am gonna start shooting.

Shawn was walking around the front of the

van. I just got back in the van, tells me at the

count of three, I'm going to start shooting, and

I say, okay...

I'm in the driver's seat, Damon is directly

behind me and Gregory beside Damon. Shawn

figured, since he couldn't get them out of the

van, he was going to shoot them in the van.

That's why he told me to get back in the van

and start it up...

Shawn, from there, said to me, what's on

stations two and three? When he said that, I

pushed “three” on the radio, turned to get out

of the van because my door was opened, as I'm

turning to get out, Shawn pulled out the gun...

He looks directly at me and shoots. The first

bullet hits me on my side. I grabbed my

stomach and said, I been shot. Then I ran. As I

looked back, he's shooting in the van at Gregory

and Damon...

See Pet. App. Tp.

Thereafter, Johnson was released from the hospital

and went to Robles’s house. Around midnight, police

officers contacted him via telephone to inform him that

friends of the victims were threatening to harm him, at

which time Johnson agreed to meet with police officers

a second time to elaborate on his prior statement. At

the ensuing meeting, Johnson again informed the

police that he, Bridges, and Morales had jointly

planned and executed the murders of the Banks

cousins with the intent to kill.

Johnson provided the following additional details:

(1) upon seeing Bridges after the robbery, Johnson

10

stated “we should take care of this business right

away;” (2) the initial plan was for Bridges to approach

the Banks’ residence with the Glock pistol and to shoot

the victims on the porch with Morales standing behind

with the shotgun as “backup” (8) Johnson’s role was

the driver of the getaway van and “he had pulled the

van into a position so that...he could drive away

quickly;”(4) while Bridges was talking with the victims

on the porch, a neighbor woman approached them

carrying groceries and Johnson thought to himself that

he (Johnson) would have shot the Banks cousins on the

porch and shot the woman in the head “so there would

be no witnesses;” and (5) when driving to the cemetery,

Johnson thought to himself that the cemetery “would

have been a good place to do the shooting...”

Johnson’s two confessions were corroborated by

’ physical evidence found by detectives during their

investigation. Robles told the police that:

,..he went to visit the Defendant in the hospital

after the surgery. While there, the Defendant

recounted the story of the murders of Greg and

Damon Banks, saying that he, along with

Shawn Bridges and Richard Morales, took the

Banks cousins and murdered them and left

them on West Neversink Road. The Defendant

further told Mr. Robles that he had a .38 caliber

gun with him the night of the shooting. The

Defendant said that he took the gun; wiped it

off with his shirt and threw it on the side of the

road, within a quarter mile of the murder

scene.

See Pet. App. lip (citations to record omitted).

11

On direct appeal, the state supreme court

summarized the relevant facts of record. The opinion

tracked Johnson’s confessions admitted into evidence.!

It further stated that:

...At trial, the Commonwealth presented a

crucial piece of evidence that contradicted

Appellant's claims that he was not involved as

a shooter. The Commonwealth presented

testimony from a forensic pathologist that one

of the bullets recovered from the body of Damon

Banks was a .88 caliber bullet. A .38 caliber

handgun was recovered close to the murder

scene and, according to the testimony of the

Commonwealth's ballistics expert, was the

weapon used to fire that bullet. George Robles

testified at trial that Appellant possessed a .38

caliber handgun like the one found at the

murder scene. Robles testified that Appellant

told him, while he was visiting Appellant at the

hospital, that he had taken the .38 caliber

handgun with him, had wiped it off with his

shirt and threw it on the side of the road within

a quarter mile of the murder scene.

See Pet. App. At 20-40.

The following additional evidence of guilt was

presented to the jury:

1 To read the entirety of the summary, see Pet. App. lo.

12

1. Johnson appeared at the restaurant on the

night of the murders with a bullet in his

stomach and told a false story that reflected

consciousness of guilt;

2. Johnson was shot with a .382 caliber

handgun. According to Courtney Johnson,

Damon Banks had a .82 caliber gun in his

possession on the day of the murder, a fact

contradicting Johnson’s story that he had been

shot by Bridges, who was carrying a 9-mm

Glock pistol; and

8. Police officers found a .88 caliber handgun a

quarter-mile from where the victims’ bodies

were found, consistent with Johnson’s

statement to Robles.

On November 25, 1997, following the presentation

of evidence in Johnson’s guilt phase jury trial, the state

trial court accurately instructed the jury as to the

governing law. Specifically, the court explained: (1)

that Johnson had been charged with first-degree

murder as an accomplice; (2) what the elements of firstdegree murder were; and (3) what the law governing

accomplice liability for first-degree murder was. The

jury found Johnson guilty of two counts of first-degree

murder. The following day, after a penalty stage jury

trial, the state trial court imposed two sentences of

death upon Johnson. ,

Johnson’s convictions were affirmed by the state

supreme court on direct appeal on March 26, 1999. See

Pet. App. lo. One of Johnson’s unsuccessful claims on

direct appeal was that the Commonwealth had violated

13

his due process rights per Brady by failing to disclose

prior to trial evidence ofa corrupt relationship between

Commonwealth witness Robles and local police which

could have been used to impeach Robles at trial. The

claim was based on the fact that after Robles was

arrested on a material witness warrant shortly before

trial in order to ensure that he would appear and

testify for the Commonwealth at the trial, Robles wrote

a letter to the police from his prison cell indicating that

he would do anything to obtain his release. The state

courts determined that Brady was not violated because

the defense had been notified prior to trial about the

existence of this letter. This Court declined Johnson’s

request to issue a writ of certiorari. See Johnson v.

Pennsylvania, 528 U.S. 1168 (2000).

On April 11, 2000, Johnson filed in the trial court a

motion for stay of execution as well as a petition for

collateral review relief pursuant to Pennsylvania’s

post-conviction relief statute. The state trial court

refused to stay the execution. See Pet. App. In.

Thereafter, the state supreme court granted an

emergency stay of execution.

On April 26, 2000, Johnson filed a counseled

amended collateral review petition. That petition

again alleged that the Commonwealth had violated the

Brady rule by failing to disclose in pretrial discovery

evidence of a corrupt relationship between Robles and

local police officers which could have been used to

impeach Robles (“the Robles/Brady claim”). The state

collateral review court on February 23, 2001 entered

an order denying Johnson’s first collateral review

petition. See Pet. App. ll. It found that the

Robles{Brady claim had been previously litigated on

14

direct appeal. The state supreme court affirmed. See

Pet. App. 1k.

On September 11, 2003, Johnson filed a second

collateral review petition. That petition continued to

advance the Robles/Brady claim. On October 28, 2003,

while the second collateral review petition was

pending, Johnson filed a counseled petition for writ of:

habeas corpus in the United States District Court for

the Eastern District of Pennsylvania (‘the District

Court”) seeking relief from his judgment of sentence in

this capital case. See Johnson v. Beard, No. 03-CV-

2156 (U.S. District Court, E.D. Pa.). In that petition,

Johnson raised the same Robles/Brady claim.

Shortly thereafter, on November 26, 2003, the state

collateral review court dismissed the second collateral

review petition as being untimely and thereby

depriving the court of jurisdiction to conduct a merits

review. See Pet. App. 1j. The state supreme court

affirmed. See Pet. App. 1h.

On March 15, 2004, the District Court in the capital

murder habeas corpus proceedings entered an order

suspending Johnson’s federal habeas proceedings until

his state court claims had been exhausted. In April of

2005, Johnson filed a third state court collateral review

petition. That petition again advanced the

Robles/Brady claim.

Meanwhile, in other federal court proceedings,

Johnson was engaged in a challenge via habeas corpus

petition of a life imprisonment judgment of sentence

that had been imposed upon him in 1998 by the Court

of Common Pleas of Berks County. This was for his

15

separate conviction by a jury on July 14, 1998 of firstdegree murder for the 1996 fatal shooting of a man

named Jose Martinez. See Johnson v. Folino, No. 04°

CV-2835 (U.S. District Court, E.D. Pa.). Among the

claims advanced by Johnson in his non-capital habeas

corpus petition — which has not yet been disposed of --

is the Robles/Brady claim. This is because Robles was

called as a witness by the Commonwealth in both the

capital and non-capital murder trials.

During the years 2008 and 2009, in the non-capital

habeas corpus proceedings, Johnson sought and

obtained discovery from the Commonwealth.

Specifically, the Commonwealth produced five police

reports unrelated to Johnson’s cases that referenced

George Robles in one form or another. The reports

were prepared by the Reading Police Department and

documented five separate investigations in the twoyear period prior to Johnson’s capital murder trial

where Robles’ name came up but insufficient evidence

was found to justify the filing of criminal charges

against anyone.

A report dated February 27, 1996 documents

that approximately 21 months prior to Johnson’s

capital murder trial, two people accused Robles of

threatening them with a gun in an episode unrelated

to Johnson’s criminal charges, an accusation that

Robles denied and his accusers refused to cooperate

with police on. Hence, no criminal charges were filed

against Robles, no criminal conviction ensued, and no

16

charges were pending at the time Robles testified in

Johnson’s trial.2

A report dated April 25, 1996 documents that

approximately 19 months prior to Johnson’s capital

murder trial, police conducted an investigation of a

reported shooting unrelated to Johnson’s criminal

charges and discovered a bag containing a cigar box

that contained drugs and also had Robles’ fingerprint

on its exterior surface. The cigar box had been in the

physical possession of multiple people other than and

after Robles before its discovery by police that day.

The report also indicates that a third party reported

that Robles maintained drugs and a gun in a safe that

he kept at a location other than his residence, but when

police subsequently located the safe it was empty. No

criminal charges were filed against Robles, no criminal

conviction ensued, and no charges were pending at the

time Robles testified in Johnson’s trial.

A report dated August 1, 1997 documents that

approximately three months prior to Johnson’s capital

murder trial, police responded to a report of shots fired

2 The state supreme court majority opinion omits any mention

of the record fact that the accusers of Robles refused to

cooperate in a criminal prosecution for the incident. Moreover,

at the state court collateral review evidentiary hearing, Robles

gave unrebutted testimony that he did not utilize a firearm

during his interaction with his accusers, a fact ignored by the

state supreme court.

3 The state supreme court majority opinion omits reference to

this record fact and instead adopts Johnson’s characterization

of the cigar box’s significance.

17

unrelated to Johnson’s criminal charges, at which time

a person refusing to identify himself alleged that a

person other than Robles had fired a firearm. The

other person denied the claim and the approximately

20 people in the vicinity at the time of the alleged

shooting said they knew nothing. Hence, no criminal

charges were filed against Robles, no criminal

conviction ensued, and no charges were pending at the

time Robles testified in Johnson’s trial.*

A report dated September 18, 1997 documents

that approximately two months prior to Johnson’s

capital murder trial, police responded to a report of

shots fired unrelated to Johnson’s criminal charges, at

which time the witness stated that she heard gunshots

but did not see anyone at the time of the shooting.

Robles was questioned about the event and denied

having any knowledge about it. Hence, no criminal

charges were filed against Robles, no criminal

conviction ensued, and no charges were pending at the

time Robles testified in Johnson’s trial.®

4 Strangely, although someone other than Robles was accused,

the state supreme court majority opinion mystifyingly

characterizes this as a criminal investigation of Robles.

5 Disturbingly, the state supreme court majority opinion notes

that the author of the police report “suspected Robles was

involved in drug dealing” but fails to acknowledge that the

same police officer unambiguously testified at the state court

collateral review hearing that he had no proof to substantiate

his suspicions and he wanted to charge Robles but lacked

sufficient evidence to file drug-related charges against the man.

18

A report dated November 7, 1997 documents

that six days prior to the commencement of Johnson’s

trial, police responded to a report of shots fired

unrelated to Johnson’s criminal charges, at which time

no witness identified who the shooter was. Although

officers subsequently went to Robles’ residence and

found a freshly-fired firearm with shells that matched

the casings found at the shooting scene, Robles was

located at a bar at the time of the shooting and denied

any knowledge of who had fired the weapon. Because

there was insufficient evidence to prove that Robles

had fired the gun, no criminal charges were filed

against Robles, no criminal conviction ensued, and no

charges were pending at the time Robles testified in

Johnson’s trial.6

Following the production of these reports, the

parties in the non-capital habeas corpus proceedings

filed briefs in the District Court addressing the

significance of the five police reports to Johnson’s

Brady claim in that case. Meanwhile, Johnson

amended his state court collateral review petition in

the capital case four more times and cited the police

reports in support of his Robles/Brady claim.

On November 238, 2009, the District Court filed an

opinion denying relief on Johnson’s Robles/Brady

claim. See Johnson v. Folino et al, 671 F.Supp.2d 658

(E.D. Pa. 2009), reversed, 705 F.3d 117 (8*4 Cir. 2013).

In its opinion, the District Court determined that

6 The state supreme court majority opinion omits mention of

the record fact that many individuals had access to Roble’s

residence on the day in question.

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Johnson’s Robles/Brady claim was procedurally

defaulted and ineligible for merits review. In reaching

its procedural default determination, the Court

analyzed the potential prejudice caused by Johnson’s

failure to raise his Brady claim in a timely manner in

the state courts and found that Johnson suffered no

prejudice because the information contained in the

police reports was not “material” under Brady. In the

words of that Court:

Petitioner cannot establish prejudice with

respect to any of the allegedly withheld

evidence regarding Robles because it does not

satisfy the materiality standard under Brady.

Petitioner relies upon a litany of evidence

demonstrating Robles was at least tangentially

involved in criminal investigations in order to

assert that a corrupt relationship existed

between Robles and the Reading Police

Department. It is true that information

regarding a witness’ arrangement with the

prosecution regarding criminal charges can

affect the credibility of the witness and may

satisfy Brady. Petitioner, however, cannot

point to any express or implied agreement

between Robles and Commonwealth

prosecutors which resulted in the dismissal of

any charges against Robles. Instead,

Petitioner emphasizes that Robles' “uncharged.

. criminal conduct” demonstrates the existence

of a corrupt relationship and constitutes

material impeachment evidence under Brady.

Petitioner fails to recognize, however, that

because this evidence pertaining to “uncharged

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criminal conduct” is inadmissible under

Pennsylvania law to impeach a witness, it

cannot be considered material for purposes of

Brady.,.It is clear that under Pennsylvania

law, uncharged criminal conduct may not be

used to test the veracity of a witness, where

such prior conduct has not led to convictions.

Here, none of the evidence presented by

Petitioner with respect to Robles' run-ins with

law enforcement resulted in any convictions,

let alone any formal charges being filed.

Therefore, the uncharged criminal conduct

asserted by Petitioner cannot be considered

material under Brady and its progeny.

Furthermore, assuming arguendo that the

evidence alleged by Petitioner with respect to

Robles' interaction with Reading police would

have been available to impeach Robles, it does

not rise to the level of materiality required

under Brady...

KKK

...Petitioner argues that a trier of fact could

have drawn the inference that the Reading

Police documented these alleged criminal

activities in the police incident reports in order

to hold them over Robles' head in the event he

refused to cooperate in the future. An equally

plausible inference that could be drawn is that

Robles was investigated with respect to several

criminal matters, but that insufficient evidence

existed to initiate any formal charges against

him. Thus, since this evidence is subject to

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equally plausible inferences, it would not “put

the whole case in such a different light as to

undermine confidence in the verdict,” and the

required showing of materiality is absent.

Johnson, 671 F.Supp.2d at 669-670 (emphasis added)

(citations omitted).

Johnson obtained review of that determination by

the United States Court of Appeals for the Third

Circuit (“the Third Circuit”). Meanwhile, on February

29, 2012, the state collateral review court in the capital

case dismissed the third collateral review petition as

untimely. See Pet. App. le. Johnson appealed that

decision to the state supreme court.

On January 16, 2018, following briefing and

argument, a panel of the Third Circuit filed an opinion

in the non-capital murder habeas corpus case reversing

the District Court’s decision and remanding to that

Court with instructions to reassess Johnson's

Robles/Brady claim based on information referencing

George Robles that was not of record, prepared by

Johnson's counsel, and simply attached to Johnson's

pleadings in the District Court. See Johnson v. Folino

et al, 705 F.3d 117 (3"4 Cir. 2013).7 The Third Circuit

panel directed the District Court to re-determine

whether the police reports would be admissible under

7 The District Court did not conduct an evidentiary hearing in

connection with Johnson’s Robles/Brady claim. The only court to

have developed a record on the Robles/Brady issue is the state

collateral review court in the instant capital case, subsequent to

the Third Circuit panel’s ruling.

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