Comm v. Johnson, 2018 PA Super 28 (Feb. 13, 2018)

This was an appeal out of Philadelphia County.  The appeal resulted from the lower court denying a Post Conviction Relief Act (PCRA) petition. The Superior Court affirmed that decision.  In his PCRA, Johnson had claimed that his trial attorney rendered ineffective assistance in five separate ways, and he also claimed that new evidence emerged after trial that would’ve changed the outcome.  Notwithstanding all of those issues, the opinion really was interesting for this single issue—was Johnson’s counsel ineffective for not challenging, on appeal, statements the prosecutor made during closing. Specifically, Johnson contended that the prosecutor engaged in misconduct by “vouching” for one of the detectives, bolstering his credibility.  In front of the jury, the prosecutor had referred to the detective as a “smart detective,” and said the following:

“Detective Fetters spent almost a year trying to bring Christopher’s killer to justice.  Bring him before you so that you could hear the evidence against him.  He did everything that we would ask a detective to do.  he kept following up leads.  He got people who knew [Johnson] who were out there that night to tell him in their statements what happened.”

By Johnson’s estimations, this amounted to improper bolstering.  It was placing the government’s prestige behind a witness, through personal assurances as to the witness’s truthfulness, rather than allowing the witness’s truthfulness to be assessed by the testimony alone.  The Superior Court had this to say on this point:

We find the prosecutor’s comments characterizing Detective Fetters as a “smart detective” who diligently investigated the shooting death of Mr. Lomax did not amount to vouching for the credibility of a Commonwealth witness.  In doing so, the prosecutor did not interject her personal belief into the detective’s intelligence or the veracity of his testimony, but simply commented thereon, as she was permitted to do.

On the whole, therefore, Johnson’s first-degree murder conviction was affirmed.