                                                               NOT PRECEDENTIAL

                   THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                ___________

                                       No. 08-2477
                                       ___________

                               LORENZO JOHNSON,
                                          Appellant
                                      v.

                     NEAL MECHLING, SUPERINTENDENT;
                     COMMONWEALTH OF PENNSYLVANIA
                               ___________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania

                               (D.C. No. 4-04-cv-01564)
                   District Judge: The Honorable John E. Jones, III
                                     ___________

                          ARGUED SEPTEMBER 30, 2009

                    BEFORE: McKEE, Chief Judge, CHAGARES,
                         and NYGAARD, Circuit Judges.

                               (Filed October 4, 2011)
                                    ___________

Michael Wiseman, Esq. (Argued)
P. O. Box 120
Swarthmore, PA 19081

Amy G. Donella, Esq.
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street

                                            1
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
      Counsel for Appellant


William R. Stoycos, Esq. (Argued)
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
       Counsel for Appellee
                                     ___________

                               OPINION OF THE COURT
                                    ___________
NYGAARD, Circuit Judge.

       Corey Walker murdered Taraja Williams. At a joint trial, Petitioner Lorenzo

Johnson was convicted as Walker=s accomplice and co-conspirator in this murder.

Johnson appeals the District Court=s denial of his petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. ' 2254. The sole question certified to us on appeal is whether the

evidence was sufficient to prove Johnson guilty of first degree murder and conspiracy to

commit murder.

                                             I.

       Because the only issue before us is the sufficiency of the evidence, we must

recount the evidence that was developed at trial in some detail. We state the facts in the

light most favorable to the Commonwealth, and will draw all reasonable inferences from

those facts in the Commonwealth=s favor. See United States v. Dent, 149 F.3d 180, 187

(3d Cir. 1998). With this standard of review in mind, we turn to the District Court=s


                                              2
recitation and summary of the trial evidence.

       The first witness to testify was Laura Davis, a patrol officer with the Harrisburg

Bureau of Police. Officer Davis testified that she was on patrol in the early morning

hours of December 15, 1995, when she heard a loud booming sound nearby. Officer

Davis began to search for the source of the sound and encountered individuals who told

her that someone had been shot in an alley between two houses on Market Street. Officer

Davis then encountered a crowd of people in front of the Midnight Special bar, located on

14th and Market Streets, and an individual there indicated he heard a shot in the 1400

block of Market Street. After Officer Davis searched further, an individual waved her

over to an alley between 1420 and 1422 Market Street where she discovered the body of

Taraja Williams. The alley was about four feet wide and extended eight to ten feet back

to a fence. The body was just inside the alley.

       The next witness was Leroy Lucas, a member of the Harrisburg police

department=s forensics unit. When Officer Lucas arrived at the crime scene, he saw many

footprints leading from the victim into the alley toward the six-foot fence and on the other

side of the fence through the alley. Officer Lucas also recovered from the scene a partial

shotgun with the barrel missing. The officer testified that the body of the victim lay

approximately ten feet from the fence, relatively close to the sidewalk at the entrance to

the alley.

       Gary Miller, the son of the owner of the Midnight Special bar, testified that he was


                                             3
working at the bar the night of December 14-15, 2005, and recalled seeing Williams and

Corey Walker in the bar. He did not recall seeing Lorenzo Johnson. Miller testified that

he was working when he heard the doorman yelling Ayou all got to take that out of here@

and then went to the door where he saw Walker and Williams leaving.

       Carla Brown, a friend of the victim, testified next. Brown testified that she was in

the bar on the night of December 14-15, 2005, and saw Walker, Johnson, and Williams

engaged in an argument. Brown could not hear what was said or who was speaking, but

the argument involved Aa lot of arm movements.@ Before long, the bouncer told them to

leave. Brown followed Walker, Johnson, and Williams as they left the bar Abecause she

wanted to know what was going on.@ Brown recalled that Walker was wearing a long

leather coat and walked as if he had something hidden under it. The three men walked in

a single-file line with Walker in the front, Williams in the middle, and Johnson in the

back. Brown followed slowly behind with her hood up. Walker and Johnson did not

notice her, but Williams, who knew her, did. The three men continued walking single file

until they reached the alley where Walker entered first, Williams entered next, and

Johnson remained at the entrance. As she approached the alley, Williams told Brown to

keep going. Brown walked a few feet beyond the alley when she heard a loud boom and

ran.

       Brown admitted that she had been addicted to drugs and that she was high on

cocaine at the time of the killing. According to Brown, the amount of drugs in her system


                                             4
on the night of the murder, on a scale of one to ten, was a seven. She also stated that after

the incident she ran to a friend=s house and got high. Brown testified, however, that she

had been clean for nine months and was currently employed. Brown admitted that, at the

preliminary hearing, she had testified that she was drunk at the time of the incident but

not on drugs. Brown testified that she did not contact police because she was scared that

she would be killed. Brown admitted that, when she was first contacted by police, she

told them she knew nothing about the incident. Brown also testified that although she

knew who Victoria Doubs (another trial witness) was after being shown a photograph of

her, she was not friends with Doubs and had never talked to Doubs about the incident.

       The next witness was Aaron Dews, an in-house advisor at Visions Youth Works

which was located in one of the buildings bordering the alley. Dews testified that he and

another staff member heard a loud boom on the night of the incident. After first checking

to see if it was the furnace, Dews looked out the window and saw two silhouettes running

up the driveway away from the house. Dews stated that he could not see the two

individuals in detail because there was plastic over the window.

       Brian Ramsey, a friend of the victim, was the next witness. Ramsey testified that

Williams was a cocaine addict who sometimes sold drugs to support his habit. He stated

that he knew who Walker and Johnson were and that he had seen them together most of

the time. Ramsey testified that on the night of the incident, he was selling drugs on

Market Street near the Midnight Special bar. Williams was also out on Market Street


                                              5
making runs for drug dealers that night. Ramsey first testified that, when he last saw

Williams, he was moving into an alley with two individuals. On cross-examination,

Ramsey corrected himself, stating that he saw three individuals with Williams, one female

and two males. This testimony was consistent with the statement he gave police on the

night of the incident. Ramsey testified that one of the individuals with Williams walked

with a limp, so Ramsey assumed it was a Acrippled guy@ whom he knew to be a drug

dealer. Ramsey stated he assumed Williams was in the alley to make a drug deal.

       A minute after Ramsey saw Williams and the other individuals enter the alley, he

heard a loud boom. After Ramsey heard the sound, he walked around the block. When

he returned, he noticed Walker and Johnson among the crowd of people in front of the

Midnight Special bar. Ramsey testified that Walker and Johnson seemed stunned, Alike

sort of maced like what happened, Taraja has been killed . . . are you serious?@ Ramsey

admitted that he was serving a sentence in Dauphin County Prison, that he was under the

influence of cocaine on the night of the incident, and that although he was still a drug

addict, he was in recovery.

       The next witness was Detective Kevin Duffin of the Harrisburg Bureau of Police,

who investigated the Williams murder. Detective Duffin testified that, about twelve

hours later, on December 15, 1995, he was in an unmarked car when he approached three

individuals in a brown Ford. The Ford sped away at a high rate of speed. Detective

Duffin placed a flashing light on the roof of his car and followed the Ford. When the


                                             6
Ford struck another car, the three occupants fled on foot. Two of the individuals were

apprehended. One of them was Lorenzo Johnson, the petitioner.

       The next witness, Victoria Doubs, testified that she, Walker, and Johnson were

Aclose friends@ who Aran the streets together.@ On December 14, 1995, Doubs, Walker,

and Johnson woke up together in a house at 18th and Carnation Streets. They went out to

buy some marijuana and then went to a Kentucky Fried Chicken restaurant near 14th and

Market Streets. When Williams approached, Walker went over to talk to him and the two

of them walked back toward Johnson and Doubs. Doubs testified that Walker and

Williams Awere talking about the money that Taraja [Williams] had owed us.@ Walker

continued to confront Williams about the money. Williams Astarted getting smart,@ began

Acussing out@ Walker, and told Ahim he=d give it to him when he felt like and he ain=t

scared of him.@ Walker hit Williams and they started to fight. Williams won the fight,

beating Walker with a broomstick.

       Many people saw Williams beat Walker, which made Walker angry. After the

fight, Walker, Johnson, and Doubs left. Doubs and others laughed at Walker and made

jokes. Walker stated AI=m going to kill that crackhead. I=m going to kill that kid.@ Doubs

testified that Walker Awas hot. He was heated.@ Johnson was present when Walker made

these statements. Walker, Johnson, and Doubs returned to the house at 18th and

Carnation Streets where others were told about the fight and also made fun of Walker.

This made Walker angry and he repeated that he was Agoing to kill that kid.@


                                             7
        Doubs testified that she first told police that late on the night of December 14,

1995, she, Johnson, Suquan Ripply, Aa guy named Cliff, and a girl named ReeRee@ were

on their way to New York. The next time Doubs met with police, however, she told them

that she had lied and did not actually recall being in New York on the night of the murder.

Doubs told police that she had made up her initial statement because Ashe was going to be

paid to tell that story.... [M]y bail was supposed to be paid.@ Doubs explained that one of

Walker and Johnson=s friends named Larry was going to pay her to tell the story to police.

Doubs stated that she went to New York with this same group Atwo to three times a

week,@ but could not say that she was in New York with Johnson on December 14 or 15,

1995.

        Finally, Doubs testified that sometime after Williams= death, she ran into Carla

Brown and that the two of them got high together. Doubs testified that, while they were

smoking crack together, Brown stated that Walker had given her a couple of crack rocks

to take Williams into the alley on the night of the murder. On cross-examination, Doubs

admitted that she had a conviction for forgery in connection with stolen checks. Doubs

also admitted that she was in Dauphin County Prison on a robbery conviction.

        Sergeant Frederick Wentling of the Pennsylvania State Police testified about the

partial shotgun recovered from the crime scene. Suquan Ripply also testified. Ripply was

one of the individuals who fled from Detective Duffin on December 15, 1995. Ripply

first testified that he, Johnson, David Hairston, Vicki Doubs, a man named Clifton, and


                                               8
woman named Ree-Ree left Harrisburg for New York around 4:00 p.m. on December 14,

1995 and did not return until 4:00 a.m. on December 15, 1995. Ripply admitted that he

had initially told police this same story, but later told police that this story was false and

that he was not in New York with Johnson on the night of the murder. On the stand,

Ripply testified that his first statement was actually correct and that he told Detective

Duffin Awhat he wanted to hear@ after the detective told him he would be charged with

perjury if he was lying. On re-cross examination, Ripply admitted that he made the trip to

New York with Johnson many times, that he was Aoff with the dates@ when he made his

first statement to police, and was Anot exactly@ sure whether he was with Johnson in New

York on December 14 or December 15.

       Dr. Wayne Ross, a medical examiner, testified next and related that the cause of

Williams= death was a shotgun wound to the chest. Eric Chambers, the bouncer at the

Midnight Special bar on the night of the incident, saw Williams and others get kicked out,

but did not see Johnson there that night.

       The next witness, Lashawyn Jackson, was Walker=s girlfriend and testified that

Walker was with her in the Midnight Special bar all night on December 14-15, 1995. On

cross-examination, however, Jackson was uncertain of the date that she and Walker were

in the bar. Jackson also admitted that she never contacted the police to provide this

information after Walker=s arrest. The final witness, Clifton Germaine, was a friend of

Walker and Johnson who testified that on a date he could not remember Johnson, and a


                                               9
woman whose name he could not remember went with him to New York. Germaine did

not know who Suquan Ripply or Victoria Doubs were.

                                           II.

      Following a joint three-day jury trial in the Dauphin County Court of Common

Pleas, Walker was found guilty of murder in the first degree and criminal conspiracy to

commit murder. Johnson was found guilty as Walker=s accomplice on the murder charge

and guilty on the conspiracy charge as well. Johnson and Walker were both sentenced to

mandatory life imprisonment on the murder conviction and concurrent terms of five to ten

years of imprisonment on the conspiracy conviction.

      In a post-trial motion to the Court of Common Pleas, Johnson challenged the

Commonwealth=s evidence as insufficient to convict him of homicide and conspiracy.

The Common Pleas Court denied Johnson=s motion, holding:

      We have reviewed the evidence as outlined above and conclude that the
      evidence was sufficient to sustain the verdicts. The Commonwealth
      presented the testimony of Carla Brown who followed the two defendants
      and the victim in the alley where the victim was ultimately shot. She stated
      that Corey Walker was walking with a limp and it looked to her as if he was
      concealing something under his coat. Victoria Doubs= testimony provides a
      motive for the defendants= attack. She stated that earlier on the day of the
      incident, the victim and Corey Walker had an altercation and that the victim
      embarrassed the defendant [Walker] in front of his friends and associates.
      She stated that the defendant [Walker] repeatedly remarked that he was
      going to kill the victim. Although both defense counsel tried to discredit
      this witness= testimony based on her character, prior convictions and current
      incarceration, it was solely within the province of the jury to determine
      whether her testimony was credible. Both defendants presented alibi
      witnesses who testified that they were not in the vicinity of the shooting at
      the time of incident. Suquan Ripply testified that Lorenzo Johnson was with

                                           10
       him in New York at the time of the incident and Corey Walker=s girlfriend,
       Lashawnyn [sic] Jackson, testified that Corey was with her at the Midnight
       Special Bar the entire evening of the incident. Again, it was for the jury to
       determine whether the purported alibi defenses were meritorious.

       Johnson and Walker jointly appealed. Johnson argued that the evidence adduced

at trial was insufficient as a matter of law to sustain a guilty verdict and that the verdict

was against the weight of evidence. After adopting the Common Pleas Court=s

recapitulation of the evidence, the Superior Court affirmed both convictions and

sentences, holding:

       We conclude that sufficient evidence was presented to support the jury=s
       verdict. The various witnesses= statements revealed that Lorenzo Johnson,
       Corey Walker and the victim were arguing inside the Midnight Special bar
       and were told to leave. The trio walked out, with the victim between
       Lorenzo Johnson and Corey Walker. They proceeded into an alley, and a
       shot was heard. Two men were observed fleeing the scene, and the victim=s
       body was discovered in the alley. Presented with this evidence, the jury had
       a sound basis upon which to conclude that a conspiracy existed between
       Lorenzo Johnson and Corey Walker to murder Taraja Williams.

Commonwealth v. Johnson, 726 A.2d 1079 (Pa. Super. Ct. 1998). One Superior Court

Judge dissented, finding the evidence against Johnson insufficient:

       I dissent from that portion of the Majority=s decision which upholds the
       conviction of Lorenzo Johnson for first degree murder and criminal
       conspiracy . . . I believe that there is no direct evidence, nor can any be
       inferred, linking defendant Johnson to the death of Taraja Williams nor any
       agreement with defendant Walker which resulted in Williams= death.

Id. Like the trial court, the Superior Court did not mention or analyze the elements of the

offense of first-degree murder--the foregoing is the extent of its sufficiency of the

evidence analysis.

                                              11
       Johnson next filed a petition for allowance of appeal with the Pennsylvania

Supreme Court, again arguing that the evidence was insufficient to support his

convictions and that the verdict was against the weight of the evidence. The

Pennsylvania Supreme Court denied the petition without opinion. Commonwealth v.

Johnson, 737 A.2d 741 (Pa. 1999).

       Johnson petitioned for relief under Pennsylvania=s Post Conviction Relief Act

(PCRA), raising several grounds for relief. Following an evidentiary hearing, the Court

of Common Pleas denied each of Johnson=s claims and Johnson appealed to the Superior

Court, reasserting the same grounds for relief. The Superior Court affirmed the denial of

Johnson=s PCRA petition.1 Johnson filed a petition for allowance of appeal with the

Pennsylvania Supreme Court which was denied without opinion.

       After exhausting his available remedies in state court, Johnson filed a petition for a

writ of habeas corpus in the United States District Court. In his petition, Johnson alleged

that: (1) the evidence presented at trial was insufficient to support the guilty verdicts,

thereby violating his rights to due process under Jackson v. Virginia, 443 U.S. 307


       1.
         While an appeal of his first PCRA petition was pending in the Superior Court,
Johnson filed a second petition in the trial court, raising a claim of after-discovered
evidence. An affidavit had been obtained from Brian Ramsey, one of the
Commonwealth=s trial witnesses. In this affidavit, Ramsey recants his trial testimony. He
avers that while he told police he saw both Walker and Johnson at the scene of the crime,
he really only saw Walker. Ramsey indicated that he Ajust assumed that since I saw Mr.
Walker, that Mr. Johnson was somewhere in the midst of the crowd, but I actually never
saw Mr. Johnson.@

                                              12
(1979); (2) that the Commonwealth failed to disclose the existence of a plea agreement

with its trial witness, Victoria Doubs, thereby violating his rights to due process under

Brady v. Maryland, 373 U.S. 83 (1963); and (3) that his trial counsel=s performance was

ineffective, violating his Sixth Amendment rights. The District Court denied relief on all

three of Johnson=s claims. The District Court later amended its judgment, and granted

Johnson a certificate of appealability on the question of whether there was sufficient

evidence to convict him of first-degree murder and conspiracy, a question we now

address.

                                             III.

                                             A.

       Our jurisdiction is based on 28 U.S.C. '' 1291 and 2253. The District Court had

jurisdiction pursuant to 28 U.S.C. '' 2241 and 2254. Because the District Court ruled on

Johnson=s habeas corpus petition without conducting an evidentiary hearing, our review

of the District Court=s decision is plenary. Marshall v. Hendricks, 307 F.3d 36, 50 (3d

Cir. 2002). Review of state court determinations is governed by the Antiterrorism and

Effective Death Penalty Act (AAEDPA@), codified at 28 U.S.C. ' 2254(d). AEDPA

provides that

       [a]n application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect to
       any claim that was adjudicated on the merits in State court proceedings
       unless the adjudication of the claim

       (1) resulted in a decision that was contrary to, or involved an unreasonable

                                             13
       application of, clearly established Federal law, as determined by the
       Supreme Court of the United States; or
       (2) resulted in a decision that was based on an unreasonable determination
       of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. ' 2254(d). State court application of federal law is contrary to clearly

established federal law under ' 2254(d)(1) Aif the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.@ Marshall, 307 F.3d at 51 quoting Williams v. Taylor, 529 U.S.

362, 413 (2000) (O=Connor, J., concurring). The state court=s application of federal law is

unreasonable where Athe state court identifies the correct governing legal principle from

[the Supreme] Court=s decisions but unreasonably applies that principle to the facts of the

prisoner=s case.@ Williams, 529 U.S. at 413; see also Lambert v. Blackwell, 387 F.3d 210,

234 (3d Cir. 2004). The state court=s decision must also have been objectively

unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Williams, 529 U.S. at 409

(AStated simply, a federal habeas court making the >unreasonable application= inquiry

should ask whether the state court=s application of clearly established federal law was

objectively unreasonable.@).

                                             B.

       Following the standard set forth in AEDPA, we must first determine whether the

Pennsylvania Superior Court=s denial of Johnson=s adjudication of the merits of the

sufficiency of the evidence claim was contrary to, or an unreasonable application of,

                                             14
clearly established federal law.2 We agree with the District Court that the state court

incorporated the proper federal standard; therefore, it was not contrary to clearly

established law. The question remains whether the Superior Court=s determination that

there was sufficient evidence for a rational trier of fact to infer intent was an unreasonable

application of that federal standard.

       The applicable clearly established federal standard is set out by the Supreme Court

in Jackson v. Virginia, 443 U.S. 307 (1979). AThe Constitution prohibits the criminal

conviction of any person except upon proof of guilt beyond a reasonable doubt@ of each

element of the offense. Id. at 309. However, Aa properly instructed jury may occasionally


       2.
          AWe have interpreted ' 2254(d)=s adjudication on the merits language to mean
that >when, although properly preserved by the defendant, the state court has not reached
the merits of a claim thereafter presented to a federal habeas court, the deferential
standards provided by AEDPA . . . do not apply.=@ Holloway v. Horn, 355 F.3d 707, 718
(3d Cir. 2004) (quoting Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)) (additional
citations omitted). The Superior Court=s opinion notes that Johnson challenges the
sufficiency of the evidence and applies the correct standard of review: Ain addressing a
challenge to the sufficiency of the evidence, this court must view the evidence admitted at
trial in the light most favorable to the Commonwealth, as verdict winner, and draw all
reasonable inferences therefrom.@ 726 A.2d 1079. Although the Superior Court=s
discussion was sparse and its analysis conclusory, we find that the Superior Court
adjudicated Johnson=s sufficiency claims on the merits. The Superior Court=s opinion
concluded that the evidence was sufficient to uphold the Averdicts@ and also noted that
circumstantial evidence can be sufficient to convict a defendant of first degree murder.
The dissenting judge disagreed with the majority=s decision which Aupholds the
conviction of Lorenzo Johnson for first degree murder and criminal conspiracy,@ clearly
contemplating sufficiency claims as to both charges. Consequently, AEDPA standards
govern and we will review the sufficiency challenge to Johnson=s conviction under those
rubrics.




                                             15
convict even when it can be said that no rational trier of fact could find guilt beyond a

reasonable doubt.@ Id. at 317. A[W]hen such a conviction occurs in a state trial, it cannot

constitutionally stand.@ Id. at 318. A reviewing court must determine Awhether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.@ Id.

at 319 (emphasis in original). This Astandard must be applied with explicit reference to

the substantive elements of the criminal offense as defined by state law.@ Id. at 324 n.16.3

We look to Pennsylvania law only to establish the elements of the offense and then we

turn to the federal question of whether the Superior Court was objectively unreasonable in

concluding that sufficient evidence supported Johnson=s convictions. See id. at 324 n.16.

                                             C.

       A Pennsylvania statute defines first-degree murder as an Aintentional killing.@ 18

Pa. Con. Stat. Ann. ' 2502(a). An Aintentional killing@ is further defined by statute as

killing Aby means of poison, or by lying in wait, or by any other kind of willful, deliberate

and premeditated killing.@ 18 Pa. Con. Stat. Ann. ' 2592(d). Johnson was found guilty of


       3.
          The Commonwealth argues that Johnson waived the issue of the sufficiency of
the evidence to establish his intent to kill by not specifically raising it in the District
Court. Johnson has preserved this issue. He argued to the District Court that in order to
establish his intent to kill, the Commonwealth needed to show that Johnson Apossessed a
shared criminal intent with Walker, and that acting with such intent, he [Johnson] aided or
abetted the commission or planning of the offense.@ Petitioner=s Memorandum of Law in
Support of Petition for a Writ of Habeas Corpus. We therefore reject the
Commonwealth=s waiver argument.

                                             16
first-degree murder as an accomplice. Under Pennsylvania law, one is an accomplice if,

Awith the intent of promoting or facilitating the commission of the offense,@ he or she

either Asolicits such other person to commit [the crime],@ or Aaids or agrees or attempts to

aid such other person in planning or committing [the offense].@ 18 Pa. Con. Stat. Ann. '

306(c)(1)(i) and (ii); see also Everett v. Beard, 290 F.3d 500, 512 (3d Cir. 2002) (to find

an accomplice guilty of first-degree murder, the jury must find that the accomplice shared

the killer=s specific intent to kill); Commonwealth v. Cox, 863 A.2d 536, 551 (Pa. 2004)

(Commonwealth must prove beyond a reasonable doubt that the person charged as an

accomplice was an active partner in the crime who shared with the principal the criminal

intent necessary to convict for the underlying crime and who actively induced,

encouraged or aided the principal in the commission of the underlying crime). Viewing

the evidence in a light most favorable to the Commonwealth, and drawing all reasonable

inferences from the evidence, we conclude that no Arational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.@ Jackson, 443 U.S. at 319.

       As we have indicated, a conviction will survive a due process challenge if the

record contains sufficient evidence to permit any reasonable fact finder to conclude that

Johnson, as an active partner, shared Walker=s intent to kill Williams and that Johnson

acted in such a way as to encourage or facilitate Williams= murder. See Smith v. Horn,

120 F.3d 400, 410 (3d Cir. 1997) (citing 18 Pa. Con. Stat. Ann. ' 2502(a)). In cases like

this, where Johnson was not the shooter, the Pennsylvania Supreme Court has noted the


                                             17
difficulty in securing a first-degree murder conviction based solely on accomplice

liability: Awhere the accomplice was not the shooter, proof of that shared intent generally

is no easy task.@ Commonwealth v. Raymond Johnson, 966 A.2d 523, 543 (Pa. 2009).

       Not surprisingly, the Commonwealth offered no direct proof of Johnson=s

intentions relying instead on circumstantial evidence and the inferences that can be drawn

therefrom. See, e.g., Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004);

Commonwealth v. Ford, 650 A.2d 433, 437 (Pa. 1994) (specific intent to commit crime

may be established through defendant=s words or acts, or circumstantial evidence,

considered with all reasonable inferences from that evidence). It is essential Athat there

be a logical and convincing connection between the facts established and the conclusion

inferred.@ United States v. Bycer, 593 F.2d 549, 550 (3d Cir. 1979). Put another way,

A[t]he difference between an inference and a speculation is that an inference is a reasoned

deduction from the evidence, a speculation is a guess.@ Commonwealth v. Konz, 402

A.2d 692, 700 (Pa. Super. Ct. 1979). AIf an inference is merely one of two or more

possibilities of roughly equal appeal or probability, then the proposition has not been

proven beyond reasonable doubt and the verdict is a product of speculation and

conjecture.@ Commonwealth v. Gruff, 822 A.2d 773, 788 (Pa. Super. Ct. 2003).

       For an inference to be reasonable, it Amust flow from facts and circumstances

proven in the record, and must be of such volume and quality as to overcome the

presumption of innocence and satisfy the jury of an accused=s guilt beyond a reasonable


                                             18
doubt.@ Commonwealth v. Bostick, 958 A.2d 543, 560 (Pa. Super. Ct. 2008). That is to

say, a reasonable inference is one where the fact inferred is Amore likely than not to flow

from the proved fact on which it is made to depend.@ Commonwealth v. McFarland, 308

A.2d 592, 594 (Pa. 1973) quoting Turner v. United States, 395 U.S. 398, 405 (1970). The

trier of fact cannot base a conviction on conjecture and speculation and a verdict which is

premised on suspicion will fail even under the limited scrutiny of appellate review. Id.

quoting Commonwealth v. Smith, 956 A.2d 1029, 1035-36 (Pa. Super. Ct. 2008)). See

also Commonwealth v. Wodjak, 466 A.2d 991, 996 (Pa. 1983) (inferences must be

reasonable and establish a prima facie case of criminal culpability; anything less would

rise no higher than suspicion).

       When reviewing a habeas petition, we look to the Alast reasoned decision@ of the

state courts on the petitioner=s claims. Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir.

2008). Here, that Alast reasoned decision@ on Johnson=s sufficiency of the evidence claim

was the Superior Court=s memorandum opinion on direct appeal. In affirming Johnson=s

convictions, the Superior Court relied on the following evidence as proof of Johnson=s

intent: (1) Johnson, Walker and Williams were seen arguing in the Midnight Special bar

and were told to leave the premises on the night of the murder; (2) they left the bar, with

the victim walking between Walker and Johnson; (3) they proceeded to an alley and a

shot was heard; (4) two individuals were seen running from the alley; and (5) the victim=s

body was discovered in the alley, along with a shotgun. Of course, the Commonwealth


                                             19
may sustain its burden of proving every element of the crime beyond a reasonable doubt

by relying on wholly circumstantial evidence. Commonwealth v. Gibbs, 981 A.2d 274,

281 (Pa. Super. Ct. 2009). However, Pennsylvania courts have instructed that when

Aapplying the above test, the entire record must be evaluated and all evidence actually

received must be considered.@ Id.

       We find the record lacking in sufficient evidence to support the necessary

conclusion that Johnson shared Walker=s intent to murder Williams and that Johnson

acted in a manner that encouraged or facilitated the murder. Viewing, as we must, the

evidence in the light most favorable to the Commonwealth, such evidence does not permit

any reasonable fact finder to reasonably infer Johnson=s specific intent to kill Williams.

       Let us be clear about the findings of fact the record does and does not support. A

trier of fact could reasonably infer from these facts that Johnson and Walker shared a

common intent to confront, threaten or harass Williams, but the statute requires Johnson

and Walker to have a shared intent to kill Williams. Perhaps it can be speculated from

this record that Johnson shared Walker=s intent to kill Williams, but we do not find it

reasonable to infer an element of the offense based on mere speculation. Although such

speculation may be possible, it is Constitutionally insufficient to support a conviction.

See, e.g., Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008), cert denied sub nom.

Metrish v. Newman, 130 S.Ct. 1134 (2010); Parker v. Renico, 506 F.3d 444, 452 (6th Cir.

2007) (distinguishing reasonable speculation from sufficient evidence in finding a state


                                             20
court=s application of standard set forth in Jackson to be objectively unreasonable).

                                             D.

       We start with the argument in the bar on the night of the murder, mindful that a

defendant=s presence at the scene of the crime, mere knowledge of that crime or

association with the criminal actor cannot be a basis for accomplice liability.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004). Gary Miller, the bar

owner=s son, did not recall Johnson being at the bar, but did recall the bar=s doorman

ordering Walker and the victim to leave the premises. Chambers, the doorman, recalls

ejecting Williams and Walker from the bar, but testified he did not see Johnson. The

Commonwealth maintains that Johnson, Walker and the victim engaged in a heated

argument at a local tavern on the night of the murder. The difficulty, however, is that the

lone witness to this event C Carla Brown C testified only that she Asaw@ an argument and

did not Ahear@ the contents of the discussion. Brown does not testify that Johnson spoke

during this argument, and indeed, does not testify that Johnson was actively involved in

the argument. She demonstrated various gestures she witnessed, but did not identify who

made these gestures. Brown does not affirmatively identify Johnson as even participating

in the argument. Indeed, Brown=s testimony tells us nothing of Johnson=s actions during

this argument. Without knowing the content of the argument, and whether Johnson was

involved in it, Brown=s testimony adds nothing on the question of intent; any inference

drawn therefrom as to Johnson=s intent to kill Williams would only be speculation.


                                             21
       Likewise, evidence that Johnson walked with Walker and the victim to an alley is

not evidence of his specific intent to kill Williams. Brown, who also followed the three

men out of the bar and down the street, testified that they walked in a Asingle file line.@

She testified that Johnson Anever went in [to the alley],@ but at another point in her

testimony related that Athey walked him in that alley.@ Later, in a summary of her

testimony, she related that Aall I know is who walked him [into] that alley and who stood

in front of the alley.@ The Commonwealth relied on Brown=s testimony that the victim

was Awalked@ into the alley as evidence of Johnson=s specific intent. If Brown had

testified that Johnson actively pushed, shoved, ordered or otherwise forced the victim into

the alley, or prevented him from leaving it, it would be reasonable to infer Johnson=s

specific intent. Brown does not so testify, nor does her testimony reasonably permit any

such inference. Any inference drawn from this testimony as to Johnson=s specific intent

to kill is an unreasonable one.

       Further, the Commonwealth relied on Brian Ramsey=s opinion that Williams was

Aforced@ into the alley as evidence of Johnson=s intent. Reliance on Ramsey=s testimony

to establish intent is unreasonable. Brian Ramsey testified that he did not see the victim

enter the alley and did not describe any physical action in his testimony that would lead to

a reasonable inference that anyone Aforced@ the victim into the alley. Ramsey testified

that

       I didn=t see them go down the street with Taraja [Williams]. I saw, when I
       looked, Taraja was walking into the alley first, and there were two other

                                              22
       people behind him, and one was - - stayed there by the sidewalk. But, like I
       said, I really only glanced, you know. And after I looked, I figured he was
       all right, so I just turned back around.

App. at 233. Ramsey also does not identify who Aforced@ the victim into the alley:

       Q:     Were these people walking down 14th Street in a line, were they like
              one after the other, or were they side by side, or how were they when
              you saw them at the alley?
       A:     When I saw these people, they were on Market Street.
       Q:     I=m sorry, Market Street.
       A:     I wouldn=t really say. I would say they were just B I looked, you
              know. One person was already B Taraja had already walked into the
              alley. The second person was walking in behind him.
       Q:     So Taraja went in first?
       A:     Yes.
       Q:     Okay.
       A:     So to my B I would say that he was forced in that alley.
       Q:     But all you saw is that he walked in there on his own?
       A:     Yes.

App. at 246. Ramsey contradicts himself. First he comments that the victim was forced

into the alley, and then testifies that he only saw the victim walk into the alley. Although

not mentioned as evidence by the Superior Court, the District Court accepted Ramsey=s

opinion that Williams was Aforced@ into the alley as fact. Here, the problem is that

Ramsey=s opinion is unsupported by his own testimony. Ramsey provided no facts to

back up his opinion, nor did he identify who Aforced@ the victim into the alley. Without

more, it is unreasonable to rely on this evidence to establish an inference that Johnson

intended to kill Williams.4


       4.
        The District Court opined that AJohnson completely ignored Brown=s testimony
that he walked Williams into the alley and Ramsey=s testimony that Williams was forced

                                             23
       The Commonwealth argues that Johnson=s intent to kill can be reasonably inferred

from the fact that he purposefully blocked the entrance to the alley. The District Court

found this evidence to be an important inference to be drawn as to Johnson=s specific

intent. The difficulty is, however, that there is no record evidence indicating that Johnson

blocked the entrance to this alley. There is no evidence that Williams, the victim,

attempted to flee the alley and Johnson prevented him from doing so. All the evidence

shows is that Johnson stopped walking at the entrance to the alley when the people he was

followingCWalker and WilliamsCentered it. Although one could speculate that Johnson

stopped at the entrance to prevent Williams from escaping, such a picture of the night=s

events cannot be reasonably inferred from the evidence without engaging in the type of

speculation prohibited by the Due Process clause.

       The Superior Court lastly identified the fact that two men were seen fleeing the

scene of the crime as evidence of Johnson=s intent. Here, the Superior Court most likely

was relying on the testimony of Aaron Dews. While working in a building bordering the

alley where the murder took place, Dews heard a noise he originally thought was a

furnace. After checking the furnace, Dews looked out a window and saw two people


into the alley. Further, in light of the multiple altercations with Williams that day,
including the heated argument in the bar only moments before, it is certainly a rational
inference that Johnson intentionally walked Williams toward the alley and the
purposefully stood blocking the entrance.@ 541 F.Supp.2d at 674. The problem, however,
is that the District Court misreads Brown=s testimony. She did not testify that Johnson
walked Williams into the alley or blocked his exit therefrom. Ramsey testified that the
victim walked into the alley Aon his own.@

                                             24
running up the driveway. He could not see anything more. This is not evidence of

Johnson=s specific intent to commit murder. Dews cannot identify the people who ran

down the driveway, he did not witness anyone going into the driveway, he could not

identify Johnson as one of the individuals in the driveway C indeed, he admitted that his

view was obstructed by plastic sheeting on the window. It is not reasonable, therefore, to

infer from Dews= testimony that Johnson was one of these individuals running in the

driveway.

          Moreover, that Johnson was in a car that fled from the police is not evidence of his

intent to commit murder. Pennsylvania courts have held that flight from the scene of the

crime may evidence a consciousness of guilt, Aalong with other proof, from which guilt

may be inferred.@ Commonwealth v. Bruce, 717 A.2d 1033, 1037-38 (Pa. Super. Ct.

1998); see also Commonwealth v. Moore, 937 A.2d 1062, 1067 (Pa. 2007). However,

Athis only holds true in cases in which the other evidence of guilt consists of more than

mere presence at the scene.@ Commonwealth v. Hargrave, 745 A.2d 20, 24 (Pa. Super.

Ct. 2000). The Pennsylvania Supreme Court has instructed that Amere presence on the

scene both immediately prior to and subsequent to the commission of a crime and flight

therefrom is not sufficient evidence to prove involvement in the crime.@ Commonwealth

v. Goodman, 350 A.2d 810, 811-12 (Pa. 1976). AThe additional element of flight, which

is as consistent with fear as with guilt, does not convert presence into proof of guilt.@ Id.

at 811.


                                               25
       Harrisburg police detective Kevin Duffin testified that, while on patrol in an

unmarked police car, he encountered another vehicle containing three African-American

males. Duffin followed this vehicle until it hit another car and stopped. Duffin testified

that the vehicle=s occupants fled and that two of them were later apprehended C one of

them was petitioner Johnson. Duffin, however, was not at the scene of the crime during

this time, nor was Johnson fleeing the scene of the crime when he was apprehended

approximately twelve hours later. Any inference that Johnson=s flight from Duffin is

evidence of his specific intent to kill is an unreasonable one.

       Although not specifically discussed, or indeed even mentioned by the Superior

Court, the Commonwealth points to testimony concerning a debt that it argues was owed

to Johnson by Williams as evidence of motive, which in turn, would reasonably permit a

fact finder to infer Johnson=s specific intent to aid and abet Williams= murder. The

problem for the Commonwealth, however, is that the state trial court specifically found

that this debt was owed only to Walker, not to Johnson. Indeed, the prosecutor argued at

the trial that the debt was owed only to Walker. Any inference drawn from this debt to

establish Johnson=s specific intent is unreasonable because it is foreclosed by the trial

court=s specific finding of fact that the debt was not owed to him. We accord a

presumption of correctness to the state court=s factual findings and the Commonwealth

has presented nothing to overcome this presumption. See Lewis v. Horn, 581 F.3d 92,

100 (3d Cir. 2009); 28 U.S.C. ' 2254(e)(1).


                                              26
       The District Court implied that, taken separately, the pieces of evidence presented

by the Commonwealth were insufficient to convict Johnson. 541 F.Supp.2d at 674-75.

We agree. However, we must view each piece of evidence as if it is connected to the

whole and determine if the totality of the evidence, viewed in a light most favorable to the

Commonwealth, establishes criminal intent beyond a reasonable doubt. We have done so

and are convinced that the evidence produced here simply would not allow a reasonable

juror to conclude beyond a reasonable doubt that Johnson intended to kill Williams. The

web of evidence in this case is composed of strands of evidence that lead, more likely

than not, to the conclusion that Johnson neither possessed the intent to kill Williams, nor

assisted in the killing.

       Nor is the evidence sufficient to support the necessary conclusion that Johnson

acted in such a way that he intended to encourage, solicit, aid or facilitate Walker in

killing Williams. See 18 Pa. Con. Stat. Ann. ' 306(c)(1)(i) and (ii). The evidence simply

does not permit any reasonable factfinder to find Johnson guilty on charges of aiding and

abetting first degree murder as that crime is defined by Pennsylvania statute.

                                             E.

       To convict a defendant of conspiracy in Pennsylvania, the trier of fact must find

three things from the evidence: A(1) the defendant intended to commit or aid in the

commission of the criminal act; (2) the defendant entered into an agreement with another

... to engage in the crime; and (3) the defendant or one or more of the other


                                             27
co-conspirators committed an overt act in furtherance of the agreed upon crime.@

Commonwealth v. Montalvo, 956 A.2d 926, 932 (2008), cert. denied, B U.S. B, 129 S.Ct.

1989 (2009). First-degree murder requires the specific intent to kill, and that mens rea is

also required of accomplices and co-conspirators. See 18 Pa. Con. Stat. Ann. ' 2502(a);

Smith v. Horn, 120 F.3d 400, 410 (3d Cir. 1997), citing Commonwealth v. Huffman, 536

Pa. 196, 638 A.2d 961 (1994).

        Inasmuch as we have already determined that the Commonwealth failed to produce

sufficient evidence to allow a rational jury to find specific intent to kill on the first-degree

murder charge, it necessarily follows that they failed to do so on the conspiracy charge as

well.

                                              IV.

        The Superior Court=s decision on the merits of Johnson=s sufficiency challenge was

an erroneous application of Jackson. We must still determine, however, whether that

court=s decision was also Aunreasonable@ under AEDPA. We have undertaken a careful

and detailed review of the evidence and have made an assessment of the evidence

produced for each element of the offense charged. We have determined that there was

insufficient evidence to prove Johnson=s specific intent to commit murder. The Superior

Court unreasonably applied the standard governing when inferences may be relied upon

to establish elements of a criminal offense beyond a reasonable doubt. That standard

requires that the inference in question must be Amore likely than not to flow@ from the


                                              28
facts already established. Leary v. United States, 395 U.S. 6, 36 (1969). The Amore likely

than not standard@ is well established. It cannot be satisfied here because the record

simply does not allow a reasonable juror to infer that Johnson intended to kill Williams.

The District Court erred by concluding that the Superior Court=s decision was a

reasonable application of Supreme Court precedent to the facts of this case. The Superior

Court relied on speculation and unreasonable inferences when it reviewed the

circumstantial evidence proffered by the Commonwealth against Johnson. Doing so was

not only error, but was unreasonable because it allowed Johnson to be convicted on

something less than proof of Aevery element of the offense@ of conviction beyond a

reasonable doubt. Jackson, 443 U.S. at 316.

                                             V.

       The Pennsylvania Superior Court=s decision affirming Johnson=s conviction was an

unreasonable application of the Constitutional requirement that the Commonwealth

present evidence sufficient to prove every element of a crime beyond a reasonable doubt.

28 U.S.C. ' 2254(d)(1); In re Winship, 397 U.S. 358, 365-68 (1970); Jackson, 443 U.S. at

319.

       Accordingly, for all the reasons we have set forth above, we will reverse the

District Court=s order denying habeas relief and remand to that court with instructions for

it to issue the writ.




                                             29
CHAGARES, Circuit Judge, dissenting.

       I agree with my learned colleagues‟ explanation of the
legal standards in this case. However, I disagree with the
majority‟s application of the law and I therefore respectfully
dissent. I would affirm the District Court‟s denial of Lorenzo
Johnson‟s petition for a writ of habeas corpus because the
state courts‟ rejection of his sufficiency of the evidence claim
was not contrary to, or an unreasonable application of,
Jackson v. Virginia, 443 U.S. 307 (1979).

       Viewing the evidence, as we must, in its totality and in
the light most favorable to the Commonwealth, I believe the
state court reasonably determined that a rational juror could
infer that Johnson had a specific intent to aid Walker in
murdering Taraja Williams. Weaving together the testimony
of Carla Brown, Gary Miller, Jr., Victoria Doubs, Brian
Ramsey, Detective Kevin Duffin, and Aaron Dews, the
Commonwealth was able to paint the following picture. On
the morning of December 14, 1995, Johnson and Walker,
who were always together, woke up in the same house and
went with Doubs to the Kentucky Fried Chicken (“KFC”)
near the intersection of 14th and Market Streets in Harrisburg,
Pennsylvania. Per Doubs‟s testimony, Williams approached,
and Walker went to confront him about the debt that he owed
“us.”1

      Defiant, Williams told Walker that he would get the
money when Williams felt like it and that he was not scared
of Walker. A fight ensued, and Williams beat Walker with a
broomstick. As a result – and in Johnson‟s presence –
Walker was laughed at and embarrassed by his peers. In
response, Walker furiously and repeatedly stated – again in
Johnson‟s presence – that he intended to kill Williams.2

1
   Emphasizing the ambiguity of Doubs‟s statement that
Williams owed a debt to “us,” Johnson argues that an
inference that Williams owed a debt to Walker, Doubs, and
Johnson (as opposed to only Walker and Doubs) was
impermissible because the trial court made a finding that the
debt was owed only to Walker. Because, he says, it was just
as likely that Doubs‟s reference to “us” was to only herself
and Walker, an inference that the debt was owed to Johnson
as well is impermissible. The Commonwealth is ultimately
correct in its argument, however, that the debate does not
much matter: whether Williams owed money to all three or
only to Doubs and Walker is beside the point because the
testimony concerning the debt provided Johnson with
knowledge of Walker‟s motive to kill Williams. Together
with other evidence discussed in this opinion, I believe that it
was reasonable for the state court to find that Johnson‟s intent
to aid Walker can be inferred from his prior knowledge
combined with his actions at the time of the murder.
2
  Given this testimony, it is perplexing that Johnson can argue
that “[e]ntirely missing from the Commonwealth‟s proof is
any evidence that [he] knew that Walker planned to kill
Williams in advance of it happening.” Johnson Br. 24, 30-31.




                               2
       Upon returning to the area together later that evening,
Brown saw Johnson, Walker, and Williams arguing in the
Midnight Special bar.3 After being thrown out of the bar, the
three men proceeded in a single-file line down the street, with
Walker in front, Williams in the middle, and Johnson in the
rear. Walker was wearing a long, leather overcoat and
noticeably walking like he had an object (presumably a
shotgun) hidden in his overcoat. When they arrived at an
alley between the buildings at 1420 and 1422 Market Street,
Johnson stood outside the entrance while Walker, followed by
Williams, entered the alley. There was testimony from both
Brown and Ramsey that Williams did not willingly enter the
alley. Upon entering the alley, Walker shot and killed
Williams with a shotgun.

       The aftermath of the crime is also consistent with
Johnson‟s guilty mind. Aaron Dews testified that he saw two
silhouettes running up the driveway from the direction of the
alley. Although he could not make out the silhouettes‟
gender, from other evidence it flows more likely than not that


Quite to the contrary, the most logical inference from
Walker‟s statement (in Johnson‟s presence) that he planned to
kill Williams is that Johnson knew very well that Walker had
such intentions.
3
  The majority posits that because Brown could not hear what
was being said during the argument, no inferences may be
drawn therefrom. I disagree. Certainly one may perceive
individuals engaged in an argument without knowing the
actual content of the argument.




                              3
the running silhouettes were indeed Johnson and Walker.
Brown testified that she passed the alley and upon hearing the
gun shot ran up Market Street and cut through another alley to
get to Regina Street. Although this is the general direction
that the two silhouettes were running, Brown ran through a
different alley. Since Williams had been killed and Brown
had run through a different alley, a logical inference existed
that Johnson and Walker were the “silhouettes” that Dews
saw fleeing up the driveway between the buildings at 1420
and 1422 Market Street. Johnson also fled from Detective
Duffin the very next afternoon. Finally, there was testimony
from Doubs that Johnson‟s friend attempted to bribe her into
giving false alibi information to Duffin on Johnson‟s behalf.
All of this post-offense conduct further supports the
reasonableness of the state court‟s ultimate determination.
See Commonwealth v. Harvey, 526 A.2d 330, 334 (Pa. 1987)
(“It is a well-settled rule of law that if a person has reason to
know he is wanted in connection with a crime, and proceeds
to flee or conceal himself from the law enforcement
authorities, such evasive conduct is evidence of guilt and may
form a basis, in connection with other proof, from which guilt
may be inferred.”); Commonwealth v. Tinsley, 350 A.2d 791,
792 (Pa. 1976) (same).

        Johnson has never argued that Walker lacked a
specific and premeditated intent to kill Williams. The only
issue – whether phrased in terms of specific intent to commit
first-degree murder or specific intent to aid in the commission
of first-degree murder – is Johnson‟s state of mind at the time
of the homicide. Piecing together the constituent parts of the
Commonwealth‟s evidence, I believe that the state court was
not unreasonable in finding that a rational jury could properly
infer Johnson‟s specific intent to aid Walker in the murder.




                               4
      The majority is correct that although each strand of
evidence need not support an inference of guilt by itself, we
must consider each strand of evidence as if woven or
entwined “to the whole and determine if the totality of the
evidence, viewed in a light most favorable to the
Commonwealth, establishes criminal intent beyond a
reasonable doubt.” Majority Op. 27. I believe, however, that
the majority has improperly isolated certain strands of
circumstantial evidence to reach its conclusion.

       For instance, the majority holds that the mere fact that
“Johnson walked with Walker and the victim to an alley” has
no evidentiary value. Majority Op. 22. However, the
testimony was that Walker, Williams, and Johnson proceeded
in a single-file line down the street, with Walker in front
(noticeably walking with an object concealed in his overcoat),
Williams in the middle, and Johnson in the back. This, of
course, occurred within hours of Johnson witnessing
Williams beating Walker, resulting in embarrassment and
humiliation to Walker, and Walker repeatedly stating that he
intended to kill Williams. The single-file line brings to mind
an “execution-style” killing, and undercuts any inference that
the three might have been proceeding down the alley to do a
drug deal or for some other late-night jaunt. Moreover, the
manner in which they proceeded down the street
demonstrates, more likely than not, that Johnson knew what
was coming and was aiding Walker in escorting him and the
victim to the place of execution, especially given the fact that
the shooting occurred immediately upon entering the alley.
Finally, the coercive nature of the single-file line is
corroborated by Brian Ramsey‟s testimony that Williams was
“forced” in the alley. Johnson‟s participation in the escorting
helps demonstrate concert between him and Walker. I




                               5
believe the nature of the procession itself, in conjunction with
other evidence, is helpful in demonstrating Johnson‟s specific
intent.

       In addition, the majority discounts as speculation any
inference that Johnson‟s presence at the entrance to the alley
where Walker killed Williams demonstrated Johnson‟s intent.
Taken in isolation, Johnson‟s mere presence at the scene of a
crime cannot be a basis for accomplice liability. See
Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004).
But in conjunction with other evidence, it was certainly
reasonable for the state court to find that Johnson‟s presence
outside the alley – taken together with the evidence of his
prior knowledge of Walker‟s intent to kill Williams, the
evidence that he had just participated in an argument with
Williams, and the single-file procession to the alley – could
be viewed by a rational juror as standing guard outside the
alley while Walker consummated the murder.4                See

4
 Whether there was a need for a lookout, or whether
Johnson‟s effectiveness as one was only slight, however, is
not the point. See Murphy, 844 A.2d at 1234 (“There must be
some additional evidence that the defendant intended to aid in
the commission of the underlying crime, and then did or
attempted to do so. With regard to the amount of aid, it need
not be substantial so long as it was offered to the principal to
assist him in committing or attempting to commit the
crime.”). In any event, Brown‟s testimony strongly implies
that Johnson was standing outside of the alley not by
happenstance, but with a specific purpose. See Joint
Appendix (“JA”) 200, 203 (“But one thing for sure, they
walked him in that alley. . . . All I know is who walked him
in that alley and who stood in front of the alley.”). She also




                               6
Commonwealth v. Ulatoski, 371 A.2d 186, 190 (Pa. 1977)
(“[E]vidence concerning the previous relations between a
defendant and a homicide victim is relevant and admissible
for the purpose of proving ill will, motive, or malice.
Evidence of prior occurrences in which the accused
threatened, assaulted, or quarreled with the decedent may be
admissible for this purpose.” (footnote omitted)). I submit
that it was reasonable to conclude that Walker‟s stance
outside the alley demonstrated both his specific intent to have
Williams killed and his attempt to aid Walker in doing so.

                        *    *       *   *

       When considered in its totality, the evidence supports
the inference that Johnson was assisting Walker in escorting
Williams to the alley to be killed: a single-file procession,
immediately followed by Johnson taking a position just
outside the alley, immediately followed by the murder with a
shotgun, immediately followed by Johnson and Walker
fleeing from the scene.         Together with the evidence
concerning the trio‟s interactions outside the KFC and in the
Midnight Special bar, I believe the ultimate inference – that
Johnson acted with a specific intent to facilitate a first-degree
murder – flows logically and reasonably from the evidence.
Accordingly, I would hold that the state courts‟ rejection of



stated that she was scared that “they‟d kill me too,” further
implying that Johnson and Walker were acting collectively.
JA 168 (emphasis added). Given the other evidence, it seems
perfectly reasonable for one to conclude more likely than not
that Johnson‟s not-so-fortuitous stance outside the alley was
an overt attempt to aid in the crime.




                                 7
Johnson‟s sufficiency of the evidence claim was not contrary
to, or an unreasonable application of, Jackson.5

      For the above reasons, I respectfully dissent, and
would affirm the judgment of the District Court.




5
  Johnson did not advance separate arguments with regarding
his criminal conspiracy conviction, although he did mention
there was a lack of evidence “upon which a rational jury
could have found that he possessed specific intent to kill, as
required for the homicide or criminal conspiracy
convictions.” See Johnson Br. 4. Perhaps this was because
“the „intent‟ element required to be proven by the
Commonwealth is the same for accomplice liability as for
conspiracy.” Commonwealth v. Stein, 585 A.2d 1048, 1050
n.6 (Pa. Super. Ct. 1991). As a result, the above discussion
applies equally to Johnson‟s murder and conspiracy
convictions.




                              8
