Com. v. Roseboro, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KARL ROSEBORO :
:
Appellant : No. 123 EDA 2020
Appeal from the PCRA Order Entered November 25, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0001397-2013.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY KUNSELMAN, J.: Filed: May 20, 2021
Karl Roseboro appeals from the order denying his first timely petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§
9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
On August 4, 2012, [Roseboro] shot Rhonda Williams
(the “decedent”) four times, in an alley behind the 4200
block of Wayne Avenue and Brunner Street. [Roseboro] was
a crack dealer who stored his drugs in the alley near where
the decedent’s body was found. Additionally, video
evidence depicted [Roseboro] and the decedent walking in
the direction of the alley just before the murder.
Approximately thirty seconds after [Roseboro] and the
decedent are last seen on camera which is approximately
fifty-five feet from the alley, four gunshots are heard.
On September 16, 2014, [Roseboro] was found guilty by
a jury, presided over by this [c]ourt, of first-degree murder,
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[two firearm violations, and possession of an instrument of
crime]. [Roseboro] was sentenced that same day to life
without the possibility of parole for first-degree murder,
[and was sentenced to concurrent sentences for the
remaining convictions].
On September 2, 2014, [Roseboro] filed a notice of
appeal to the Superior Court. The Superior Court affirmed
the judgment of sentence on March 9, 2016. On April 4,
2016, [Roseboro] filed a petition for allowance of appeal
with the Pennsylvania Supreme Court. Allocatur was denied
on July 27, 2016.
PCRA Court Opinion, 3/13/20, at 1-2 (excess capitalization and footnotes
omitted)
On March 9, 2017, Roseboro filed a pro se PCRA petition. The PCRA
court originally appointed counsel, who later was replaced. On October 10,
2018, PCRA counsel filed an amended PCRA petition. Thereafter, the
Commonwealth filed a motion to dismiss and PCRA counsel filed a response.
Following an evidentiary hearing, the PCRA court denied Roseboro’s petition
on November 25, 2019. This timely appeal followed. Both Roseboro and the
PCRA court have complied with Pa.R.A.P. 1925.
Roseboro now raises the following five issues on appeal:
1. Did the prosecutor present false evidence related to the
timing of the shooting; was trial counsel ineffective for
failing to object on this basis, for failing to request a pre-
trial report from the Commonwealth’s expert witnesses
and for not moving in limine to preclude the evidence?
2. Was trial counsel ineffective for failing to object to the
admission of hearsay evidence and for not requesting an
instruction on what use the jury could make of the
evidence?
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3. Was trial counsel ineffective for failing to move for a
mistrial as a result of sixteen sustained objections during
the prosecutor’s closing argument; for failing to object to
three other objectionable comments; and was appellate
counsel ineffective for the manner in which he litigated a
portion of this issue on direct appeal?
4. Was trial counsel ineffective for failing to call Detective
Dove at trial?
5. Did the [PCRA] court err in denying a hearing on several
of the issues presented to it?
Roseboro’s Brief at 1-2.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
In his fifth issue, Roseboro asserts that the PCRA court erred in failing
to hold an evidentiary hearing regarding some of his claims.
The PCRA court has discretion to dismiss a petition without
a hearing when the court is satisfied that there are no
genuine issues concerning any material fact, the defendant
is not entitled to post-conviction collateral relief, and no
legitimate purpose would be served by further proceedings.
To obtain a reversal of a PCRA court’s decision to dismiss a
petition without a hearing, an appellant must show that he
raised a genuine issue of material fact which, if resolved in
his favor, would have entitled him to relief, or that the court
otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014) (citations
omitted).
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In his four other issues, Roseboro essentially challenges the
effectiveness of trial and/or appellate counsel. To obtain relief under the PCRA
premised on a claim that counsel was ineffective, a petitioner must establish
by a preponderance of the evidence that counsel’s ineffectiveness so
undermined the truth determining process that no reliable adjudication of guilt
or innocence could have taken place. Commonwealth v. Johnson, 966 A.2d
523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed ineffective upon a
sufficient showing by the petitioner.” Id. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3) the
petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding
of "prejudice" requires the petitioner to show "that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different." Id. A failure to satisfy any prong of
the test for ineffectiveness will require rejection of the claim.
Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).
Here, the PCRA court has authored a thorough and well-reasoned
opinion pursuant to Rule 1925(a). The Honorable Rose Marie DeFino-Nastasi
has addressed each of Roseboro’s ineffectiveness claims with proper citation
to legal authorities and citation to the certified record. In addition, she has
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explained why an evidentiary hearing was not necessary for some of
Roseboro’s claims.
We discern no legal errors in Judge DeFino-Nastasi’s analysis, and we
find her factual findings and credibility determinations fully supported by our
review of the record. As such, we adopt Judge DeFino-Nastasi’s 1925(a)
opinion as our own in affirming the order denying Roseboro post-conviction
relief. See PCRA Court’s Opinion, 3/13/20, at 8-11 (concluding that because
the Commonwealth’s expert did not testify falsely, a motion in limine would
have failed; an expert report was not necessary because trial counsel was
aware of the Commonwealth’s theory and presented an alternative theory
which the jury discredited); at 11-13 (rejecting as meritless Roseboro’s claim
that trial counsel should have objected and requested an instruction regarding
the use of hearsay evidence; this evidence did not affect the outcome of the
case given the overwhelming evidence of Roseboro’s guilt); at 14-23
(concluding that Roseboro’s prosecutorial misconduct claim was
underdeveloped and, because the challenged comments by the prosecutor
were fair responses to the closing of the defense, the court would not have
granted a mistrial; appellate counsel was not ineffective); at 29-31 (rejecting
as meritless Roseboro’s claim that trial counsel was ineffective for failing to
call former Detective Ronald Dove because he did not establish how this
testimony would have benefitted his defense; trial counsel never mentioned
Detective Dove by name in his opening statement); and at 31 (stating that a
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hearing was held on those claims that involved a material issue of fact and
that other claims were properly decided based on the record).1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/21
____________________________________________
1The parties are directed to attach Judge DeFino-Nastasi’s March 13, 2020
opinion to this memorandum in any future appeal.
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