Commonwealth v. Johnson

1

COMMONWEALTH OF PENNSYLVANIA v. JAYSHAWN MALIK JOHNSON Appellant

No. 63 MDA 2023

Superior Court of Pennsylvania

March 19, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered January 4, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001846-2021

Benjamin D. Kohler, Esq.

BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

LAZARUS, J.

Jayshawn Malik Johnson appeals from the judgment of sentence, entered in the Court of Common Pleas of Luzerne County, following his convictions of two counts of homicide,^[1] and one count each of aggravated assault,^[2] aggravated assault with a deadly weapon,^[3] criminal attempt- homicide,^[4] and firearms not to be carried without a license.^[5] After careful review, we affirm.

On January 30, 2021, Johnson shot Damien Thomas, Maurice Chapman, and Alquan Cade outside of Bo's on Main, a bar located at 215 South Main Street in Wilkes-Barre. Police were dispatched for reports of gunshots and multiple injuries. When police arrived, Thomas, Chapman, and Cade had all suffered gunshot injuries. Thomas and Chapman died as a result of their wounds.

Police recovered surveillance footage from 15 cameras^[6] located throughout the interior and exterior of Bo's on Main. Additionally, police obtained video surveillance from two cameras from a neighboring business, Ali Baba Lounge. Police reviewed the January 30, 2021 video surveillance at timestamps of 7:50 p.m. to 11:33 p.m.^[7] At 7:50 p.m., the video depicted a black sedan arrive and park across the street from Bo's on Main, and shows three people exit the vehicle and enter the bar. One of the individuals was identified as Johnson, a second individual was identified as Tamara Dixon, and the third individual was not identified.

A short time later, Johnson, dressed in dark clothing, left the bar with the unidentified individual. At 8:42 p.m., the video depicted Johnson, now wearing a dark jacket with stripes on the sleeve and the word "White" written across the back, as he returned to Bo's on Main with the unidentified individual in a dark vehicle. This excerpt depicted Johnson wearing the same sneakers as he was wearing earlier in the evening.

At 10:17 p.m., Thomas entered Bo's on Main. At this point, Johnson was wearing a plain black jacket. The unidentified individual exited Bo's on Main, walked to the vehicle, retrieved a backpack, and reentered Bo's on Main without interacting with the bar security personnel positioned at the entrance. Moments later, Johnson is seen on video taking the backpack from the unidentified individual and covering the backpack with the dark jacket with the word "White" on the back.

Shortly thereafter, Johnson entered the bathroom with the backpack. Johnson, now wearing a different jacket, returned to his seat, placed the dark jacket with the word "White" onto Dixon, and adjusted a large bulge in his waistline. At this point, Dixon gave her face mask to Johnson, who put it on.^[8]Johnson and the unidentified individual proceeded to the bar. Thomas walked past the two, and Johnson tapped the unidentified individual. Thomas and Cade exited Bo's on Main and Johnson and the unidentified individual followed him. The unidentified individual entered the vehicle he and Johnson had arrived in and turned it on. At the same time, Johnson continued after Thomas and Cade, pulled a firearm from the right side of his waistband, and shot Thomas three times.^[9] Johnson then shot Cade.^[10] As a result of the gunfire, Chapman, who was already outside, attempted to flee the scene. Unfortunately, Chapman inadvertently ran towards Johnson, who turned, aimed the firearm at Chapman, and fired, striking Chapman and killing him.^[11]The surveillance footage then depicted Johnson enter the dark vehicle, and leave the area with the unidentified individual. After the car left the scene, Dixon is seen on camera wearing the dark jacket with "White" written on it and fleeing on foot. Shortly thereafter, police arrived on scene. Cade was transported to Wilkes-Barre General Hospital.

As it is related to Johnson's claims on appeal, we additionally summarize the relevant factual history relating to the police investigation. Detective James Conmy assisted in the investigation.^[12] See N.T. Pre-Trial Hearing, 8/4/22, at 5-49 (Detective Conmy testifying he investigated shooter's identity). Detective Conmy viewed the surveillance footage and identified Johnson as the shooter. See id. at 14-18. Detective Conmy confirmed Johnson's identity by checking the Facebook page of a person known to Detective Conmy as "Times Too," and by checking Johnson's personal Facebook page. See id. at 15-16 (Detective Conmy testifying about "Times Too's" Facebook page); see id. at 40-41 (Detective Conmy testifying, on redirect, about Johnson's personal Facebook page); see also id. at 40-42 (Detective Conmy testifying that both "Times Too's" and Johnson's personal Facebook pages contain multiple photos of Johnson). Detective Conmy believed "Times Too" and Johnson to be the same person. See id. at 14-15. Detective Conmy compared stills from the above-recovered videos with photos of "Times Too" from Facebook, as well as photos of Johnson on his personal Facebook page, JNET, and CPIN. See id. at 14-16, 40-41. Detective Conmy was familiar with Johnson based on two previous encounters with him.^[13] See id. at 10-14.

While Detective Conmy reviewed "Times Too's" Facebook page, he noted mention of a female named "Diamond Cashington." See id. at 16-17. Detective Conmy was able to determine that "Diamond Cashington" was, in fact, Dixon. See id. at 16-18. Detective Conmy testified that "Diamond Cashington's" Facebook page URL listed "Tamara Dixon." See id. at 16. Detective Conmy cross-referenced still images taken from the surveillance footage, with images of "Tamara Dixon" in the police department's database. See id. at 16-17. Utilizing this method, Detective Conmy learned that Dixon had a last known address of 324 Parkview Circle, apartment 705, at the Sherman Hills Apartment complex. See id. at 17-18. Detective Conmy retrieved video from the Sherman Hills Apartment complex for January 30, 2021, and January 31, 2021. See id. at 17. On the video, police saw Johnson and Dixon leave prior to the shooting on January 30, 2021, and return around 3:30 and 4:00 a.m., respectively, on January 31, 2021. See id. at 17-18. The video depicted Johnson wearing the same clothing and sneakers as seen in the videos from Bo's on Main and Ali Baba Lounge. See id. at 18, 20-21. The video depicted Dixon wearing the dark jacket with the word "White" on the back. See id. at 21-22. Detective Conmy testified that video surveillance depicted Johnson leaving Sherman Hills Apartments between 10 and 11 a.m. on January 31, 2021. Id. at 49.

Based upon the foregoing, police sought and obtained a search warrant for Dixon's apartment in order to find the dark jacket with the word "White" on it, as well as a "dark colored baseball style hat, dark colored pants, dark and light colored Nike sneakers that [] Johnson was wearing on January 30, 2021, firearms, ammunition[,] and any paperwork identifying or belonging to [] Johnson, cellular telephone or any digital storage media that would depict [] Johnson's locations or contacts on the night of the homicide." Id. at 22-23. During the search, police recovered the dark jacket with the word "White" on it. See id. at 23-24. Police did not recover any of the other items sought in the warrant. See id.

Subsequently, police obtained an arrest warrant for Johnson, alleging inter alia, homicide. Police were unable to obtain any additional information from the "Times Too" Facebook page, because the page had been deleted during the investigation.^[14] See id. at 41-42. Ultimately, Johnson was apprehended by the United States Marshals in Miami, Florida.

The dark jacket with "White" written on the back was sent for DNA testing to the Pennsylvania State Police (PSP) Laboratory and then to Bode Labs in Virginia for further DNA testing. Bode Labs concluded that Johnson could not be ruled out as a contributor of DNA on the cuff of the jacket. In particular, Bode Labs' results indicated that there was a mixture of DNA present on the cuffs and neckline of the jacket. See id. at 411-60 (Lyndsey Sanney, Commonwealth's DNA expert, testifying regarding DNA mixture and presence of Johnson's DNA).

Upon Johnson's return to Pennsylvania, the Commonwealth filed Criminal Information against him, charging him with the above-mentioned offenses. On June 17, 2022, Johnson filed a suppression motion challenging various statements he made before and after being administered his Miranda^[15] warnings.^[16] Additionally, on June 30, 2022, Johnson filed a second suppression motion challenging the search warrant. In his June 30, 2022 suppression motion, Johnson argued that the search warrant was based upon a misstatement of fact in violation of Franks v. Delaware, 438 U.S. 154 (1978).^[17] Additionally, Johnson challenged the search warrant as overbroad, and challenged the search warrant's purported lack of probable cause.

On August 4, 2022, the trial court conducted a pre-trial hearing, at which the Commonwealth presented testimony of Detective Conmy, described supra, as well as evidence of his investigation to support the search warrant. At the end of the pre-trial hearing, the trial court ordered Johnson to file a brief in support of his suppression motion and afforded the Commonwealth fifteen days to respond. Both parties complied, and, on October 26, 2022, the trial court issued an order and opinion denying Johnson's June 30, 2022 suppression motion.

On October 31, 2022,...