Commonwealth v. Johnson

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered October 2, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008132-2018.

Joseph D. Seletyn, Esq.

BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.^[*]

MEMORANDUM

LAZARUS, J.:

Jahquill Johnson appeals from the judgment of sentence, entered^[1] in the Court of Common Pleas of Philadelphia County, following his convictions for third-degree murder, ^[2] carrying a firearm without a license, ^[3] carrying firearms

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in public in Philadelphia, ^[4] and possessing an instrument of crime.^[5] After careful consideration, we affirm.

On February 15, 2018, around 7:42 p.m., at the intersection of Rosalie Street and Rising Sun Avenue, Johnson argued with, and later shot, Rahman Cunningham in the neck, which eventually caused Cunningham's death. See N.T. Jury Trial, 2/11/20, at 55-56, 60-62.

At trial, Karon Nichols testified that, on the night of the shooting, Nichols was approached by Cunningham on the corner of Rosalie Street and Rising Sun Avenue at the house of his then-girlfriend, Saleema Shabazz. Id. at 75-80. While outside, Cunningham stated to Nichols that he had an argument with someone. Id. Nichols testified that, as he and Cunningham were talking, they entered Shabazz's house. Id. at 79. Nichols told Cunningham to wait outside, but Cunningham entered the residence with a panicked look while two people approached the doorway. Id. at 79-80. The two approaching individuals-one of whom was Johnson-argued with Cunningham as Nichols directed them all outside of Shabazz's house to the alleyway. Id. at 80-81. Nichols testified that Johnson pulled out a revolver and told Cunningham, "I should have f[*c@]ed you up the last situation." Id. at 81, 125-26.

Nichols also testified that, while in the alleyway, Johnson pointed the revolver at Nichols after he tried to defuse the situation, which caused him to

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back up and retreat. Id. at 81. While Nichols was backing up, he saw Johnson take items out of Cunningham's pocket, and "the split second that [Nichols] turn[ed his] back to make the left and completely be out of the alleyway, a gunshot went off." Id. at 82. Nichols turned back around and saw Cunningham bleeding, so Nichols called 911. Id. at 83. Officer John Taggart of the Philadelphia Police Department, a ballistics expert, later testified that the use of a revolver would be consistent with the fact that the police found no shell casing at the scene of the shooting, despite searching for one. Id. at 144-46. Expert testimony from the medical examiner, Lyndsey Emery, M.D., Ph.D., suggested the muzzle of the gun was pressed to Cunningham's skin at the time it was fired, and Cunningham was shot just once. Id., 2/12/20, at 7-36.

Khiana Stewart testified that, on the night of the shooting, she was sitting across from both Shabazz's house and the alleyway when Johnson and an unidentified individual confronted Cunningham. Id., 2/11/20, at 239-49. Stewart remembered Johnson introducing the unidentified individual as his brother, Hyfeese.^[6] Id. at 267-68. Stewart testified that she saw Nichols walk over to the alleyway and try to calm Johnson and Cunningham. Id. at 256-67, 273; id., 2/12/20, at 15. Stewart further testified that Johnson drew a gun shortly before she heard a gunshot while she was turned away. Id., 2/11/20, at 267-68. Stewart later identified Johnson in a photo array as well

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as at trial in court. Id. at 247, 253-54. Stewart told the police that Johnson told Cunningham to "give him everything" he had, took his money, shot him, and walked away yelling, "F[*c@] that [N-word]." Id. at 263.

During direct examination, the Commonwealth questioned Stewart based on the discrepancy between her statements to the police-which included what Johnson yelled and descriptions of Johnson mugging Cunningham-and Stewart's trial testimony claiming to have forgotten such details. Id. at 256, 263-67. Stewart clarified that the reason for her discrepancies was that the crime occurred "a while ago" so she could not "remember every little thing" and she was under the influence of alcohol both during the shooting and when she made statements to police. Id. at 264; id., 2/12/20, at 41-42. Detective Jamal Rodriguez, who conducted Stewart's police interview, testified that she did not seem drunk, and had he known Stewart was drunk, he would not have conducted the interview. Id., 2/13/20, at 6.

The Commonwealth also presented a compilation of video surveillance from multiple cameras at a store on the corner of Rosalie Street and Rising Sun Avenue. Id. at 29-71. The Commonwealth argued that the video showed: (1) Hyfeese made a drug sale in Cunningham's presence ten minutes before the murder; (2) Stewart sat across from Shabazz's house and the alleyway at the time of the murder; (3) Johnson and Hyfeese walked to and entered Shabazz's house on Rosalie Street; (4) Johnson, Hyfeese, Nichols, and Cunningham came out of Shabazz's house on Rosalie Street and met in

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the alleyway; (5) Nichols attempted to intervene in the argument between Johnson and Cunningham; (6) Nichols retreated; (7) Johnson and Hyfeese knocked Cunningham to the ground and jumped on top of him; (8) the revolver fired; and (9) Johnson fled. Id. at 41-76, 183-200, 223-34.

Lieutenant Christopher Bullick^[7] of the Narcotics Strike Force, proceeded to the area of the shooting on Rosalie Street around 7:42 p.m., and while driving there, he saw two individuals running full speed, eastbound through the alleyway between Anchor Street and Cheltenham Avenue, just a few blocks from the shooting. Id., 2/12/20, at 66-74. After uniformed officers stopped the two individuals, Lieutenant Bullick identified them as Johnson and Hyfeese. Id. at 78-80, 95-96.

At trial, the parties stipulated that Johnson was not licensed to carry a firearm. Id., 2/13/20, at 130.

During trial, Johnson made two motions for mistrial. Johnson first moved for a mistrial after the Commonwealth asked Nichols whether he was relocated for witness protection and implied that Nichols was afraid to testify. Id., 2/11/20, at 140-42. The trial court sustained Johnson's objections to each question but refused to grant a mistrial because "[n]othing came out" as Nichols never answered, and the court offered to give the jury a cautionary instruction instead. Id. at 143-46. However, Johnson declined the cautionary instruction because, "that line of questioning is not going further anymore[, ]

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and I will put on the record I do not want to highlight or draw any further attention to it." Id. at 147.

Outside the presence of the jury, Nichols later testified that individuals observing the trial contacted him through social media and threatened to kill him. Trial Court Opinion, 2/19/21, at 14-15; N.T. Jury Trial, 2/11/20, at 149. Nichols testified that while he was parked along a street in Lawncrest, Nichols noticed someone running up to the side of his car, "as if they [were] about to do something." Id. at 150. Nichols later received a message from one of Johnson's relatives, which stated, "the boy said he [had] seen you parked at the corner store[, ] and he was trying to run up to you to talk about the situation but you sped off." Id. The court then removed the individuals threatening Nichols from observing the trial. Id.

Regarding Johnson's second motion for mistrial, Juror Number Three informed the court that the night before the jury was to be instructed on the law and given the case for deliberation, Juror Number Three was approached by an unknown relative of Johnson who greeted him on a bus and said, "I know we are not supposed to talk about the trial." Id., 2/14/20, at 3-5. The unknown relative continued saying, "yeah, that is my little brother[, ]" but Juror Number Three remained silent and the individual exited the bus at the next stop. Id. Juror Number Three then told all the other jurors of the incident and that the unknown relative was previously in the trial audience. Id. Consequently, the trial court conducted individual colloquies of every juror regarding what they heard, if they were frightened, and whether they would

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still be able to deliberate fairly and impartially in this matter. Id. at 3-5, 13. Juror Number Eleven, when questioned about the incident, stated, "I think it looks bad for [Johnson]." Id. at 25.

Juror Number Two indicated that all the jurors were concerned with whether there would be sheriffs and protection at the conclusion of trial. Id. at 10. Juror Number Two also stated:

I think we are all thinking about things a little differently than we were before[, ] but when somebody is sitting in that room and they see who you are all day long for five days frankly, against your will, it doesn't really matter[, ] right[?] They already know who you are if they wanted to pursue [something]

Id. at 9.

Juror Number Six stated they were very uncomfortable continuing the case. Id. at 16. Juror Number Six also stated that someone approached them in the courthouse the day before, inquiring whether that juror was going to the Broad Street Line. Id. at 16-17. After conducting the individual colloquies, the court excused Jurors Number Three and Number Eleven and replaced them with the alternate jurors. Id. at 25.

Johnson moved for a mistrial afterwards, arguing that the jury had "been poisoned" and the events could "influence [the jury] in some way during jury deliberations." Id. at 32. The trial court denied Johnson's motion, stating the remaining jurors had all confirmed they were not scared and were still able to be fair and impartial. Id. The court presented a cautionary instruction to the jury to not hold Johnson accountable for actions of the third parties...