Com. v. Robinson, J. ( 2015 )


Menu:
  • J-S14010-15
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
    :      PENNSYLVANIA
    Appellee            :
    :
    v.                          :
    :
    JAMES ROBINSON,                          :
    :
    Appellant           : No. 3612 EDA 2013
    Appeal from the Judgment of Sentence December 6, 2013,
    Court of Common Pleas, Philadelphia County,
    Criminal Division at No. CP-51-CR-0001552-2007
    BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.
    MEMORANDUM BY DONOHUE, J.:                            FILED APRIL 14, 2015
    Appellant, James Robinson (“Robinson”), appeals from the judgment of
    sentence entered on December 6, 2013 by the Court of Common Pleas of
    Philadelphia County, Criminal Division, following his convictions for third-
    degree murder, persons not to possess a firearm, and carrying a firearm on
    public streets or public property in Philadelphia.1     For the reasons that
    follow, we affirm.
    We summarize the relevant facts and procedural history of this case as
    follows.   On the afternoon of June 11, 2004, Robinson, Michael Brooks
    (“Brooks”), Jarrett Stiff (“Stiff”), Hassan East (“East”), and Heath Caudle
    (“Caudle”) were playing a game of craps on Caudle’s porch.        During the
    course of the afternoon, Robinson won a significant amount of money from
    1
    18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), 6108.
    J-S14010-15
    the other participants. As the game continued, Brooks began arguing with
    and berating Robinson, referring to him as an “ass bettor”2 and accusing him
    of failing to pay back a prior gambling debt. Eyewitness testimony indicated
    that in the midst of this argument, Robinson left Caudle’s porch and walked
    to his pickup truck.   A couple of minutes later, as he was walking back
    towards Caudle’s porch, Robinson pulled out a nine-millimeter handgun and
    fired approximately three to five shots in the direction of the porch. One of
    the shots struck Brooks in the neck, severing his spinal cord, several veins
    and arteries, and killing him within minutes.
    Robinson’s first jury trial took place in February and March of 2012
    before the Honorable Lillian H. Ransom.     Robinson’s first trial ended in a
    mistrial on March 8, 2012, after the jury indicated that it was unable to
    reach a verdict. Robinson’s second jury trial took place in September 2013
    before the Honorable Jeffrey Minehart.      At this trial, the Commonwealth
    presented the eyewitness testimony of Stiff, East, and Caudle, each of whom
    identified Robinson as the individual who shot Brooks.       While Stiff and
    Caudle testified at Robinson’s second trial that they did not observe the
    shooting, the Commonwealth presented as substantive evidence their signed
    statements to police and testimony from Robinson’s first trial that they saw
    Robinson shoot Brooks. The Commonwealth also presented the testimony of
    2
    In gambling parlance, an “ass bettor” is someone who bets money that he
    or she does not have. See N.T., 9/19/13, at 26.
    -2-
    J-S14010-15
    Tallena Chesney (“Chesney”), Robinson’s girlfriend at the time of the
    shooting, who testified that Robinson admitted to her that he shot Brooks.
    On September 24, 2013, the jury found Robinson guilty of third-
    degree murder and carrying a firearm on public streets or public property in
    Philadelphia.   A nonjury proceeding immediately followed during which the
    Commonwealth presented evidence that Robinson had a prior conviction of
    burglary. Therefore, the trial court found Robinson guilty of persons not to
    possess a firearm, the prohibition against convicted felons carrying firearms.
    On December 6, 2013, the trial court sentenced Robinson to eighteen to
    thirty-six years of incarceration. On December 16, 2013, Robinson filed a
    timely notice of appeal.
    On appeal, Robinson raises the following issues for our review and
    determination:
    1.   Did not the trial court err in allowing the
    prosecutor to elicit testimony from [Stiff] that he and
    [Robinson] were codefendants in an unrelated
    federal case, even though the motion in limine court
    ruled that such testimony was inadmissible?
    2. Did not the trial court err in preventing defense
    counsel from fully exploring the benefits [East] could
    receive from testifying for the government,
    specifically by preventing defense counsel from
    exploring the drug possession charges against [East]
    that were withdrawn as well as the further
    reductions in sentence that he may receive?
    3. Did not the trial court deny [Robinson] his right to
    present a defense, by restricting defense counsel
    from presenting relevant admissible evidence,
    -3-
    J-S14010-15
    specifically evidence concerning the statements of
    Robert Larry and Barbara Dantzler to police, that
    cast [Robinson]’s guilt into doubt?
    4. Did not the trial court err in refusing to grant a
    mistrial due to the prosecutor’s misconduct in closing
    arguments?
    Robinson’s Brief at 3-4.
    The first three issues that Robinson raises on appeal each relate to
    evidentiary decisions made by the trial court.       Our standard of review
    regarding evidentiary issues is as follows:
    “The admissibility of evidence is at the discretion of
    the trial court and only a showing of an abuse of that
    discretion, and resulting prejudice, constitutes
    reversible error.” Commonwealth v. Sanchez, 
    36 A.3d 24
    , 48 (Pa. 2011) (citations omitted). “An
    abuse of discretion is not merely an error of
    judgment, but is rather the overriding or
    misapplication of the law, or the exercise of
    judgment that is manifestly unreasonable, or the
    result of bias, prejudice, ill-will or partiality, as
    shown by the evidence of record.” Commonwealth
    v. Hanford, 
    937 A.2d 1094
    , 1098 (Pa. Super. 2007)
    (citation omitted), appeal denied, [] 
    956 A.2d 432
    (Pa. 2008). Furthermore, “if in reaching a conclusion
    the trial court overrides or misapplies the law,
    discretion is then abused and it is the duty of the
    appellate     court     to    correct   the    error.”
    Commonwealth v. Weakley, 
    972 A.2d 1182
    , 1188
    (Pa. Super. 2009) (citation omitted), appeal denied,
    [] 
    986 A.2d 150
     (Pa. 2009).
    Commonwealth v. Glass, 
    50 A.3d 720
    , 724-25 (Pa. Super. 2012).
    For his first issue on appeal, Robinson argues that the trial court
    violated the coordinate jurisdiction rule.    Robinson’s Brief at 22-26.   The
    -4-
    J-S14010-15
    record reflects that at a pretrial motion in limine hearing held prior to
    Robinson’s first trial, Judge Ransom ruled that while Stiff could testify
    against Robinson, he could not testify that he was Robinson’s codefendant in
    an unrelated federal case. N.T., 2/21/12, at 25-33. Robinson asserts that
    the trial court erred by allowing Stiff to testify at Robinson’s second trial that
    he was Robinson’s codefendant in the unrelated case.         Robinson’s Brief at
    22-26.
    Our Court has stated the following in regards to the coordinate
    jurisdiction rule:
    The coordinate jurisdiction rule, put simply, states
    that “judges of coordinate jurisdiction should not
    overrule each other’s decisions.” Zane v. Friends
    Hosp., [] 
    836 A.2d 25
    , 29 ([Pa.] 2003). The rule,
    applicable in both civil and criminal cases, “falls
    within the ambit of the ‘law of the case doctrine.’”
    Riccio v. American Republic Ins. Co., [] 
    683 A.2d 1226
    ,     1230     ([Pa.    Super.]    1996)     (citing
    Commonwealth v. Starr, [] 
    664 A.2d 1326
    , 1331
    ([Pa.] 1995)).     Our Supreme Court explained in
    Starr that the law of the case doctrine “refers to a
    family of rules which embody the concept that a
    court involved in the later phases of a litigated
    matter should not reopen questions decided by
    another judge of that same court or by a higher
    court in the earlier phases of the matter.” Id. at
    1331. “Among the related but distinct rules which
    make up the law of the case doctrine” is the rule that
    “upon transfer of a matter between trial judges of
    coordinate jurisdiction, the transferee trial court may
    not alter the resolution of a legal question previously
    decided by the transferor trial court.” Id.
    Commonwealth v. King, 
    999 A.2d 598
    , 600 (Pa. Super. 2010).
    -5-
    J-S14010-15
    We conclude that this issue is meritless because the coordinate
    jurisdiction rule is inapplicable to this issue.      Our Supreme Court has long
    held:
    When a court grants a new trial, the necessary effect
    thereof is to set aside the prior judgment and leave
    the case as though no trial had been held. … By the
    operation of an order granting a new trial, the cause,
    in contemplation of law, is precisely in the same
    condition as if no previous trial had been held.
    Commonwealth v. Hart, 
    387 A.2d 845
    , 847 (Pa. 1978) (quoting
    Commonwealth ex rel. Wallace v. Burke, 
    45 A.2d 871
     (Pa. Super.
    1951)).
    This case is procedurally similar to Commonwealth v. Paddy, 
    800 A.2d 294
     (Pa. 2002). In that case, at defense counsel’s request pretrial, the
    trial court excluded statements made by a homicide victim regarding threats
    made to her prior to her death as being inadmissible hearsay. 
    Id.
     at 301-
    02. The jury ultimately was unable to reach a verdict in the case, resulting
    in a mistrial. Id. at 302. At retrial, counsel did not seek to exclude these
    statements, and the Commonwealth presented this testimony. Id.
    Following   his   conviction   of    first-degree   murder,   the   defendant
    appealed, asserting that counsel was ineffective, inter alia, for failing to
    exclude the victim’s statements, as the trial court’s exclusion of those
    statements in the first trial precluded their admission in the second trial
    pursuant to the law of the case doctrine. Id. at 309. Our Supreme Court
    -6-
    J-S14010-15
    disagreed, concluding:      “Because the grant of a new trial ‘wipes the slate
    clean,’ so that a previous court’s ruling on the admissibility of evidence
    generally does not bind a new court upon retrial, it is not evident that the
    [law of the case] doctrine applies in the present procedural context.” Id. at
    311 (internal citations omitted).
    The case at bar, like Paddy, was a retrial following a mistrial that
    resulted from a hung jury. As the coordinate jurisdiction rule is inapplicable
    upon retrial, this issue is meritless and does not entitle Robinson to any
    relief.
    For his second issue on appeal, Robinson argues that the trial court
    improperly prevented defense counsel from fully questioning East about the
    benefits he was receiving for testifying on behalf of the Commonwealth.
    Robinson’s Brief at 27-31.      Specifically, Robinson complains that the trial
    court erred by preventing defense counsel from questioning East about drug
    possession charges against him that the federal government withdrew and
    the possible sentencing reductions that he could receive in an unrelated
    criminal matter for testifying. Id. at 27-29.
    We conclude that this argument is meritless. The record reflects that
    the trial court did sustain defense counsel’s objection to the question: “So
    what happened actually is the marijuana case was withdrawn?”              N.T.,
    9/18/13, at 140-41.       However, the trial court also permitted the following
    two questions: “Were you arrested for having drugs in prison?” and “While
    -7-
    J-S14010-15
    you are a witness against [Robinson], you have committed crimes in jail that
    were withdrawn, is that correct, where the charges were withdrawn against
    you?” Id.
    Furthermore, during Robinson’s second trial, the jury heard extensive
    testimony relating to past and potential future benefits East either received
    or hoped to receive in exchange for his cooperation with the federal
    government. Both East and an FBI agent testified that by cooperating with
    the federal government, East had been able to avoid a life sentence on his
    federal robbery charges, and instead received a lesser sentence of thirty
    years of incarceration. N.T., 9/18/13, at 94-97, 115-20; N.T., 9/19/13, at
    135-44. Additionally, both East and the FBI agent testified that East could
    receive additional sentencing reductions based on his testimony in this case.
    N.T., 9/18/13, at 116-20, 125; N.T., 9/19/13, at 144-45, 154-55. Thus, the
    jury heard a significant amount of evidence that East’s testimony was
    potentially motivated by benefits promised to him by the federal government
    in his own criminal matters.       Accordingly, Robinson’s second issue is
    meritless.
    For his third issue on appeal, Robinson argues that the trial court erred
    by preventing him from presenting to the jury statements made to police by
    Robert Larry (“Larry”) and Barbara Dantzler (“Dantzler”).     Robinson’s Brief
    at 31-38. Robinson asserts that he should have been able to present this
    -8-
    J-S14010-15
    evidence to the jury because it implicates other persons in Brooks’ murder.
    Id. at 31-32, 35-38.
    The record reflects that Larry informed the police in his statement that
    Timothy Alfonzo (“Alfonzo”) told him that Alfonzo heard that a “young boy”
    had shot and killed Brooks while they were gambling on Caudle’s porch.
    Larry’s Statement, 6/12/04, at 1-2.      Dantzler told police in her statement
    that she originally told her employer that her grandson, Henry Brown, may
    have been responsible for shooting Brooks. Dantzler’s Statement, 6/17/04,
    at 1. In that same statement, however, Dantzler also told police that she
    had lied about her grandson being involved in the shooting to avoid getting
    into trouble for missing work. Id. at 3. Dantzler informed police that she
    had heard about the murder from people she was with the night she missed
    work.      Id.    Because these statements represent multiple layers of
    inadmissible hearsay, we agree with the trial court’s decision to exclude this
    evidence.3
    Hearsay is an out of court statement made by the declarant that a
    party offers into evidence to prove the truth of the matter asserted in the
    statement. Pa.R.E. 801(c). In general, hearsay is not admissible, except as
    provided by the Pennsylvania Rules of Evidence, by other rules prescribed by
    the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale
    3
    We note that “[w]e can affirm the [trial] court’s decision if there is any
    basis to support it, even if we rely on different grounds to affirm.”
    Commonwealth v. Lewis, 
    39 A.3d 341
    , 345 (Pa. Super. 2012).
    -9-
    J-S14010-15
    for the hearsay rule is that hearsay is too untrustworthy to be considered by
    the trier of fact.”   Commonwealth v. Charlton, 
    902 A.2d 554
    , 559 (Pa.
    Super. 2006) (quotations and citation omitted).
    Additionally, “[a]n out-of-court declaration containing another out-of-
    court declaration is double hearsay.” Commonwealth v. Laich, 
    777 A.2d 1057
    , 1060 (Pa. 2001) (citation omitted). “In order for double hearsay to be
    admissible, the reliability and trustworthiness of each declarant must be
    independently established.      This requirement is satisfied when each
    statement comes within an exception to the hearsay rule.” 
    Id.
     (quotations
    and citations omitted).   Thus, “[d]ouble hearsay is admissible if each part
    conforms to a hearsay exception.”     Commonwealth v. Hardy, 
    918 A.2d 766
    , 777 (Pa. Super. 2007) (citing Pa.R.E. 805).
    After reviewing Larry’s and Dantzler’s statements, we conclude that
    the trial court did not abuse its discretion by excluding both statements.
    Larry’s and Dantzler’s statements include multiple levels of hearsay. Neither
    Larry nor Dantzler testified at trial. In the statements they gave to police,
    Larry and Dantzler provided police with information about Brooks’ murder
    that they received from other sources. See Larry’s Statement, 6/12/04, at
    1; Dantzler’s Statement, 6/17/04, at 3.      In turn, those sources are either
    completely unidentified or did not witness Brooks’ murder first-hand. See
    
    id.
       Larry’s statement conveyed information about Brooks’ murder that he
    learned from Alfonzo, who did not witness the shooting first-hand.        See
    - 10 -
    J-S14010-15
    Larry’s Statement, 6/12/04, at 1-2.              Dantzler’s statement conveyed
    information about Brooks’ murder that she learned from unidentified people
    she was with the night of Brooks’ death. Dantzler’s Statement, 6/17/04, at
    3. Additionally, Robinson sought to introduce both statements at Robinson’s
    trial to prove the truth of the matter asserted in the statements, that
    someone else was responsible for Brooks’ murder. See id. at 31-32, 35-38.
    Furthermore, each of the multiple levels of hearsay present in both
    statements do not conform to any hearsay exception.            Thus, we have no
    basis on which to conclude that Larry’s and Dantzler’s statements were not
    prohibited by the rule against hearsay. Accordingly, the trial court properly
    excluded both statements.
    For his final issue on appeal, Robinson argues that the trial court erred
    in refusing to grant a mistrial because of prosecutorial misconduct that
    occurred during closing arguments.         Robinson’s Brief at 38-44.    Robinson
    claims that the prosecutor improperly referenced his decision not to testify,
    which served no other purpose than to distract the jury from its proper
    focus.     Id.     Therefore, Robinson contends that the trial court erred in
    denying his request for a mistrial. Id. at 44.
    Our standard of review for claims of prosecutorial misconduct is as
    follows:
    Our standard of review for a claim of prosecutorial
    misconduct is limited to whether the trial court
    abused its discretion. In considering this claim, our
    - 11 -
    J-S14010-15
    attention is focused on whether the defendant was
    deprived of a fair trial, not a perfect one. Not every
    inappropriate remark by a prosecutor constitutes
    reversible error. A prosecutor’s statements to a jury
    do not occur in a vacuum, and we must view them in
    context. Even if the prosecutor’s arguments are
    improper, they generally will not form the basis for a
    new trial unless the comments unavoidably
    prejudiced the jury and prevented a true verdict.
    Commonwealth v. Toritto, 
    67 A.3d 29
    , 37 (Pa. Super. 2013) (en banc),
    appeal denied, 
    80 A.3d 777
     (Pa. 2013) (quoting Commonwealth v. Lewis,
    
    39 A.3d 341
    , 352 (Pa. Super. 2012)).           Therefore, “we focus not on the
    culpability of the prosecutor but rather on whether his actions deprived [the
    appellant] of a fair trial by prejudicially rendering the jury incapable of fairly
    weighing the evidence and entering an objective verdict.” Commonwealth
    v. Melvin, 
    103 A.3d 1
    , 27 (Pa. Super. 2014). Additionally, this Court has
    stated that a “remark by a prosecutor, otherwise improper, may be
    appropriate if it is in [fair] response to the argument and comment of
    defense counsel.”    Commonwealth v. Collins, 
    70 A.3d 1245
    , 1253 (Pa.
    Super. 2013) (brackets in original) (quoting Commonwealth v. Chmiel,
    
    889 A.2d 501
    , 543-44 (Pa. 2005)), appeal denied, 
    80 A.3d 774
     (Pa. 2013).
    Robinson takes issue with the following portion of the prosecutor’s
    closing argument:
    [PROSECUTOR]: Folks, the evidence here is
    overwhelming and the fact of the matter is -- and
    the judge is going to [instruct] about the burden of
    proof and reasonable doubt. The defense counsel
    stood up here and told you that [Robinson] said he’s
    - 12 -
    J-S14010-15
    not guilt[y], and the truth of the matter is … that
    when [Robinson] gets arraigned on the charges,
    that’s not testimony --
    [DEFENSE COUNSEL]: Objection, Your Honor.
    THE COURT:       Well, no, he said it’s not testimony.
    Go ahead.
    [PROSECUTOR]: Now, [Robinson] has no burden to
    testify --
    [DEFENSE COUNSEL]: Objection.
    [PROSECUTOR]: He’s not required to testify.
    THE COURT:        Overruled. We’re going to charge
    them.
    [PROSECUTOR]: You can’t hold it against him if he
    doesn’t testify. You can’t infer anything from that,
    but he doesn’t get anything special for that
    arraignment. That arraignment is not testimonial.
    It’s not subject to cross-examination. And the fact
    of the matter is that -- it doesn’t -- it’s a nonentity
    as far as the evidence in this case is concerned.
    The reality is [] if you think about it -- let’s say
    [Robinson] when we’re talking about Hassan East
    and Tallena Chesney, I mean, do you think that
    [defense counsel] as much outrage as he shows
    about witnesses cooperating, do you think that if he
    thought that his client had information that was
    [worthwhile] that he wouldn’t recommend to him
    you should tell what you know --
    [DEFENSE COUNSEL]: Objection.
    THE COURT: Objection sustained.        The jury is to
    disregard it. Let’s move on.
    N.T., 9/23/13, at 178-80.
    - 13 -
    J-S14010-15
    We conclude that the trial court did not abuse its discretion in denying
    Robinson’s request for a mistrial.      First, the prosecutor made the above-
    referenced remarks relating       to   Robinson pleading not guilty at          his
    arraignment in fair response to arguments made by defense counsel in his
    closing argument.      During his closing, defense counsel referred to the fact
    that Robinson, at his arraignment, swore under oath that he was not guilty.
    
    Id. at 112
    . Thus, it was a fair response for the prosecutor to argue that the
    fact that Robinson pled not guilty at his arraignment does not constitute
    evidence of his innocence. See id. at 178-79.
    Second,    the    prosecutor’s   remaining   remarks,    stating   that    if
    defendant’s counsel thought Robinson had information that was worthwhile,
    that he would recommend to him that he should tell what he knows, did not
    prejudice Robinson.     Defense counsel’s objection prevented the prosecutor
    from completing his statement and the trial court sustained the objection,
    instructing the jury to disregard the prosecutor’s remarks. Id. at 180. “A
    jury is presumed to follow a trial court’s instructions[.]” Commonwealth v.
    Reid, 
    99 A.3d 470
    , 501 (Pa. 2014). Following closing arguments, the trial
    court further instructed the jury as follows:
    First of all, ladies and gentlemen, and I will
    emphasize this again, [Robinson] is presumed to be
    innocent and has certain rights and one of those
    rights is not to testify. It’s a Constitutional right and
    there can be no inference of guilt or any other
    inference adverse to [Robinson] from the fact that he
    - 14 -
    J-S14010-15
    didn’t testify, nor can any argument -- and the
    lawyer’s arguments are just that, arguments.
    Any arguments about what [Robinson] knew or
    would have said, you must disregard and I sustained
    that objection. I want you to put that out of your
    mind, because the one thing you have to keep in
    mind is [Robinson] is presumed innocent and has an
    absolute right to remain silent.
    N.T., 9/23/13, at 183-84. Our Supreme Court has held that “[a] mistrial is
    not necessary where cautionary instructions are adequate to overcome
    prejudice.”     Commonwealth v. Chamberlain, 
    30 A.3d 381
    , 422 (Pa.
    2011).      Therefore, there was no abuse of discretion in the trial court’s
    determination that the challenged remarks did not require the remedy of a
    mistrial.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/14/2015
    - 15 -