Johnson v. Dillman

RAMON JOHNSON, 1424434, Petitioner,

v.JEFFERY DILLMAN, et al., Respondents.

2:11-cv-29

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: May 31, 2011

MEMORANDUM and ORDER

Mitchell, M.J.:

Ramon Johnson, an inmate at the Green Rock Correctional Center in Chatham, Virginia, has presented a petition for a writ of habeas which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Johnson is presently serving a twenty to forty year sentence imposed following his conviction by a jury of rape, involuntary deviate sexual intercourse, indecent assault and simple assault at No. 200211596 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on September 2, 2003.¹ An appeal was taken to the Superior Court in which the questions presented were:

I. When the defense is that someone else raped the complainant and DNA evidence matches someone other than the defendant, can the Rape Shield Law be used to violate the defendant's rights to present a defense, to confront witnesses, and to due process by precluding the jury from hearing this evidence?

II. (A). When imposing consecutive, statutory-maximum sentences, must the sentencing court state sufficient and appropriate reasons for [ ] why it deemed consecutive sentences necessary?

II. (B). Is a sentence clearly unreasonable and manifestly excessive when it is comprised of consecutive, statutory-maximum sentences for what is essentially they typical type of crime for these charges?²

On January 26, 2005 the Superior Court affirmed the judgment of sentence.³

A petition for allowance of appeal was filed in which the following issues were raised:

I. When the defense is that someone else raped the complainant and DNA evidence matches someone other than the defendant, can the Rape Shield Law be used to violate the defendant's rights to present a defense, to confront witnesses, and to due process by precluding the jury from hearing this evidence?

II. Is Superior Court correct that this Court's cases that pre-date DNA testing no longer control whether evidence is admissible in a Rape-Shield-Law case?

III. In determining whether evidence is admissible, is Superior Court correct that the standard should be that the evidence is proof of the defendant's innocence or should the standard instead remain one of relevance?⁴

On April 18, 2006, leave to appeal was denied⁵ and certiorari was denied by the United States Supreme Court on October 2, 2006.⁶

On April 25, 2007, Johnson filed a timely post-conviction petition.⁷ That petition was dismissed without a hearing on June 17, 2008.⁸ An appeal was filed in the Superior Court in which the issues presented were:

I. Whether trial counsel gave ineffective assistance for failing to object to the testimony of facts surrounding Appellant's arrest?

II. Whether trial counsel gave ineffective assistance for failing to question Mary Brown at trial about being on probation at the time of the alleged offense?

III. Whether trial counsel gave ineffective assistance for failing to object to the prosecutor's closing arguments?⁹

On September 23, 2009, the denial of post-conviction relief was affirmed.¹⁰ Leave to appeal to the Pennsylvania Supreme Court raising these same issues was sought and subsequently denied on September 8, 2010.¹¹

The instant petition was executed on March 2, 2011, and in it, petitioner contends he is entitled to relief on the following grounds:

1. The exclusion of evidence of another's DNA because of the Rape Shield Law violated Mr. Johnson's constitutional right to due process and present a defense. Trial Judge did not allow jury to see or hear exculpatory evidence that would exonerate petitioner, thus violating petitioner's due process rights.

2. The consecutively imposed statutory maximum sentences should be vacated because they were imposed without sufficient reason for the need of consecutive sentences. Only one sentence should have been imposed. The crimes of rape [and] IDSI merge for sentencing purposes. Trial judge sentenced petitioner to the statutory maximum without sufficient reason.

3. Violation of petitioner's 6th Amendment right to counsel. Trial counsel failed to object to the testimony of the facts surrounding petitioner's arrest.

4. Violation of petitioner's Sixth Amendment right to counsel . Trial counsel failed to question Commonwealth's witness in regards to being on probation for a prostitution charge. Counsel never challenged accus[or]'s credibility.

5. Violation of petitioner's Sixth Amendment right to counsel. Trial counsel was ineffective for failing to object to the prosecution's closing arguments.¹²

The factual background to this prosecution is set forth in the January 26, 2005 Memorandum of the Superior Court.

On July 22, 2002, in Braddock, Allegheny County, Pennsylvania, Appellant attempted to gain sexual favors from the complainant, Mary Brown, who, at the time, was addicted to crack cocaine and had been in the practice of exchangingsex for money or cocaine. As Appellant did not possess the crack Ms. Brown craved, Appellant pretended to have two rocks of crack cocaine. The encounter that followed led to the filing of rape charges against Appellant, and ultimately to his conviction...

Prior to the encounter in question, Appellant had been inside a house overlooking Braddock Avenue and observed Ms. Brown below him on the street talking to a woman Appellant knew. Appellant came out of the house and engaged Ms. Brown in conversation. The two talked briefly, struck a bargain and proceeded down an alleyway looking for a more private location where the deal could be consummated. On these salient points, both parties generally agree. However, their accounts of the event of that evening diverge from this point forward.

According to Appellant, after the two reached a secluded spot in the alleyway, the complainant began to perform oral sex upon him. After performing fellatio upon Appellant for several minutes, the complainant stopped and tasted the substance Appellant had passed off as crack and became doubtful that the substance was cocaine. Appellant assured Ms. Brown that the substance was cocaine. Apparently Ms. Brown remained skeptical as, after she resumed her prior activity, she unexpectedly bit Appellant's penis hard enough to break the skin. Enraged over this affront, Appellant responded by striking Ms. Brown two or three times in the face with his open hand. The two then exchanged angry words and the complainant threated Appellant with unspecified retaliation for his subterfuge. Appellant then left the alleyway where he observed another man enter the alley and begin addressing Ms. Brown. The next day, Appellant found himself the focus of a rape investigation.

According to Ms. Brown, upon arriving at a porch located in the alleyway, she demanded to be "paid" by Appellant before beginning any sexual activity. Appellant replied that he would "take care of her." However, Ms. Brown remained adamant that she be paid first stating "Yeah, well, I heard that before." Appellant then pulled out a baggie tied around two stones or rocks of purported crack cocaine. Ms. Brown did not like the look of the two rocks and pulled one out and tasted it whereupon she concluded that the rocks were not crack cocaine. Ms. Brown, protesting that they were not real, then told Appellant she did not want the rocks. Appellant then punched Ms. Brown in the face and told Ms. Brown that she was going to do what he said and she would stay as long as he wanted her to. Appellant then pulled his penis from his pants and told Ms. Brown to "give him head."

Because she was afraid of Appellant, Ms. Brown did as requested and began performing fellatio upon Appellant. As she did, she was crying which prompted Appellant to tell her to be quiet and do as she was told. Despite being warned to be quiet, Ms. Brown continued to cry. In response to the continued crying, Appellant stated "I know you ain't still making noise," and then hit Ms. Brown again. Appellant then ordered Ms. Brown to remove her clothes. After shecomplied, Appellant ordered Ms. Brown to turn around whereupon Appellant inserted his penis in here vagina and proceeded to engage in sexual intercourse. While Appellant continued to thrust himself inside her, Ms. Brown continued to cry, prompting Appellant to strike her once more in the face.

Appellant then ordered Ms. Brown to bend over further so that he could engage in anal intercourse. In response to this request, Ms. Brown turned and faced Appellant and began pleading for him not to hurt her. Appellant then pushed Ms. Brown down and began to choke her. Ms. Brown struggled free, scrambled to the edge of the porch and jumped down over the railing to a recessed area below the ground level. In pain from the fall, Ms. Brown crawled up the stairs to the ground level only to be kicked by Appellant who had made his way down from the porch. At this point, Ms. Brown could see down the alleyway to Braddock Avenue. Ms. Brown observed a man and screamed for help. When she turned back in the direction where Appellant had been, Appellant was gone. Ms. Brown got up and ran, naked, into the street where she came across a police car. The police stopped and helped Ms. Brown into the police car. Ms. Brown was later transported to the hospital where she received treatment for her injuries.

While hospitalized, a rape kit test was conducted upon Ms. Brown. The results revealed no physical evidence linking Appellant to Ms. Brown. However, semen was found inside Ms. Brown which DNA test results excluded Appellant as a possible donor. Despite the absence of physical evidence linking Appellant to a sexual assault upon Ms. Brown, Appellant was subsequently arrested and charged, inter alia, with rape, IDSI, and aggravated

...