Lawyers argue over admissibility of evidence in the re-trial of Terrell Johnson, who claims that he was wrongfully convicted in the 1994 murder of a Hazelwood police informant
By Marie DoRego
April 26, 2011
As much as she tried in 1994, Barbara Robinson told police and others she could not identify any of the men who left her daughter Verna, a would be witness in an upcoming murder case, dead on the violent streets of Pittsburgh’s Hazelwood neighborhood, the second of her children to be gunned down.
Despite those longstanding claims, in March 2011 she told an Allegheny County Common Pleas Court judge she actually saw Terrell Johnson hovering over her dying daughter seconds after she was shot twice in an alley.
After an hour of grilling by a defense lawyer about the contradictory statements, Barbara Robinson sat on the stand sobbing. She pointed a shaking finger at the shackled Johnson, who is awaiting a second trial in the killing, shouting:
“You know you were there. You saw me!”
Now, Judge Donald Machen has to decide whether or not to allow testimony from Barbara Robinson in a second trial for Johnson, who has maintained his innocence during 17 years in prison. The judge’s pretrial ruling on whether Barbara Robinson is lying for vengeance or other pursuits will be a critical factor in the final of three disparate cases over who murdered Verna Robinson.
Robinson, recovering from crack cocaine abuse, was waiting to testify against two Homewood men in a murder case when she was gunned down outside her mother’s house. Virtually no one — including Barbara Robinson — provided information about the killing to police in the immediate aftermath of the killing, but weeks later, a long-time Hazelwood crack addict emerged to say she saw Johnson and two other men commit the crime. Johnson was convicted on the testimony of Evelyn “Dolly” McBryde, but both of his co-defendants were acquitted after McBryde’s record of more than 50 criminal convictions was revealed and her supposed eyewitness identification left in tatters. Johnson won a new trial shortly after his conviction, but the conviction was reinstated by the Pennsylvania Superior Court. In 2008, Johnson again won a new trial when a new witness emerged stating he was with McBryde smoking crack cocaine several blocks away at the exact time of the killing. While the Allegheny County District Attorney’s office has offered several plea bargains that would lead to immediate freedom for Johnson, he has steadfastly refused to accept guilt for a crime he says he did not do. The hearing involving Barbara Robinson set the stage for the trial that is expected to begin in September.
A Grieving Mother’s Controversial Testimony
Johnson’s lawyer methodically walked Barbara Robinson through an assortment of statements to police, reporters, and testimony in all three previous trials about her daughter’s murder when she emphatically stated she neither saw the murder nor could she identify Johnson as one of the men she saw running away from her daughter’s lifeless corpse.
In fact, during a pretrial hearing before Johnson’s initial trial, Assistant District Attorney Kim Berkeley Clark, who is now a Common Pleas Judge, said Barbara Robinson could only identify Harold Cabbagestalk, one of Johnson’s co-defendants later acquitted in the murder. Also acquitted in the killing was Dorian Moorfield.
“It’s my understanding that Barbara Robinson — the only identification she has made and can make is that of Harold Cabbagestalk. I asked her if she could identify anyone else. I talked to her on the telephone. She indicated no……So it’s my understanding at this time that the only person that she could possibly identify is Harold Cabbagestalk and no others,” Berkeley Clark stated to Allegheny County Common Pleas Judge Lawrence O’Toole before Johnson’s first trial.
The prosecutor also noted that Barbara Robinson may have been prejudiced as a witness involving Johnson because she saw him being led to a hearing in handcuffs and shackles.
“And at this point, even if she should tell me that she could identify Mr. Johnson, I’m not so sure whether I would even attempt to use that unless I was convinced that prior to that night she had some independent basis because ….she did get to see him at the preliminary hearing when he was escorted in by deputy sheriffs and in shackles and so forth….so without some other independent basis, I’m not sure that, even if she could, that I would try to elicit that from her anyway,” Berkeley Clark said.
In an interview with reporters from the Innocence Institute of Point Park University for a September 2003 story about the case, Barbara Robinson said she was in her bedroom out of sight of the killing when she heard the gunshots shortly after 1 a.m.
“BANG! Oh my God. Before I could get to the door, I heard another shot,” she said. “Somebody was banging on my door, ‘Miss Barb, Verna’s in the street, she’s done been shot.’ I ran back through the house and went out the front door and saw her lying there,” Barbara Robinson said at the time. As she approached her daughter, she said she could hear the faint sounds of Gospel music from her daughter’s Walkman waft through the air.
“I couldn’t say nothing. I just picked up her hand… the music was playing, then I went back into the house,” Barbara Robinson told the Innocence Institute reporters for a story published in the Pittsburgh Post-Gazette.
At the recent hearing, however, 18 years after the killing, she alleged she did remember the identities of the three men, and they were Cabbagestalk, Moorefield and “Horseface,” who she later learned was Johnson.
“Isn’t it true ma’am that in [Johnson’s] trial you said you couldn’t identify anyone?” asked William Brennan, Johnson’s lawyer.
“No way,” she said. “No way.”
Brennan gave Robinson a copy of her testimony in Johnson’s initial trial.
“No. It’s not right,” she said.
“All of these transcripts are in error?” Brennan asked.
“That’s what I’m saying,” she said. “There was only one I couldn’t name.”
“Were you interviewed by Mr. Moushey at Point Park University?” Brennan asked.
“Yes,” Robinson said.
“Did you tell him you recognized my client in front of your house with Moorefield and Cabbagestalk?”
“Yes,” Robinson said.
“Is it your testimony that you identified the three men consistently in court and to Point Park?” Brennan asked.
“Yes,” responded Robinson, sobbing. Then, pointing at Johnson, she said: “You know you were there. You saw me.”
Johnson sat at the table by his lawyer and shook his head.
Brennan argued that Robinson and her statements were incredible and she should not be allowed to testify in Johnson’s upcoming trial.
Allegheny County Assistant District Attorney Russell Broman countered that Robinson’s testimony should be allowed because she was never before asked specifically if she could identify Johnson as one of the killers and she did not identify him earlier because she only knew Johnson by his nickname.
Evidence in Dispute
There were two other arguments at the March hearing over whether other evidence should be admitted at the new trial. The first included a series of taped prison phone calls between Johnson and his wife and son. In one call, Johnson told his teenage son Cory not “to end up in the same place as me and make the same mistakes I did.”
Broman argued the statement was an implicit confession to killing Verna Robinson while Brennan said the statement was simply Johnson giving his son fatherly advice.
Broman also wanted to introduce at trial statements made by Johnson’s wife, Sondra McKamey, during a telephone call from a state prison concerning McBryde, the controversial eyewitness. Broman claims her statement that she had retained a private investigator to find McBryde constituted witness tampering, while Brennan said it was simply normal preparation for a case.
The lawyers also sparred over the admissability of statements Verna Robinson made to a police officer about Johnson days before she was gunned down. Johnson, a street-level drug dealer, was charged with assault of Robinson over an unpaid drug debt just before she was killed. Johnson claims he did not assault her, but says Verna Robinson hurt herself after falling down city steps trying to elude him. Police Officer Sandra McGuigan testified that Verna Robinson picked Johnson out of a photo array and said Johnson beat her, saying, “I should just kill you now.”
Judge Machen asked that each attorney submit briefs. A hearing is scheduled for May 24, 2011. He said that after he makes a determination on what evidence is suitable for inclusion at trial, a date will be set for Johnson’s new trial which has been postponed four times.
Marie DoRego, a former graduate assistant and reporter for the Innocence Institute of Point Park University, earned her Masters of Arts from Point Park University in 2011. She can be reached at (412)765-3164 or firstname.lastname@example.org.