Com. v. Robinson, O. ( 2022 )

J-S37027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR ROBINSON :
:
Appellant : No. 497 EDA 2021
Appeal from the PCRA Order Entered January 27, 2021
In the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0001347-2015
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 10, 2022
Omar Robinson (Appellant) appeals pro se from the order dismissing his
first petition seeking relief pursuant to the Post Conviction Relief Act (PCRA).
See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously detailed the case history as follows:
On November 23, 2012, the narcotics division of the Easton
Police Department was involved in an ongoing investigation
targeting the home of Corey Reavis [(Reavis)]. That day, officers
conducted a controlled purchase of heroin from Patrick Hughes
[(Hughes)] using a confidential informant. Police officers
observed Hughes leave Reavis’s home, walk to the informant,
engage in a brief hand-to-hand transaction, and return to Reavis’s
home. When Hughes returned to Reavis’s home, police observed
Hughes interact with individuals on the front porch, including
Appellant. Police took photographs of Appellant, Hughes, and the
transaction. Police also observed Appellant’s minivan parked
outside the residence.
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S37027-21
Later that day, Appellant and Hughes shot and killed Ervin
Holton (“Victim”) in Easton.2 A witness who was driving near the
scene called 911 to report the shooting. She stated that, after
hearing the gunshots, she saw two individuals in dark clothing
running toward a nearby minivan. The Victim died from multiple
gunshot wounds; ballistics evidence confirmed that there were
two shooters.
2 The Victim and Hughes were rival drug dealers and may
have been in a dispute about Nicole Greene [(Greene)],
the woman they both dated. N.T. Trial, 1/10/17, at 31-
32.
During the subsequent investigation, detectives from the
Easton Police Department obtained consistent surveillance video
that showed two individuals exit a minivan one block from the
crime scene, walk towards the location of the shooting, and
shortly thereafter, run back towards the minivan and drive away.
Police officers also learned that Appellant’s girlfriend, Lisa Doorley
[(Doorley)], owned the minivan.
When police officers located the minivan at Appellant’s
home, which he shared with Doorley, Appellant confirmed that
only he and Doorley drive the minivan, and that he did not
allow anyone else to drive the minivan. Upon confirming that he
had been driving the minivan on the night of the murder, Appellant
started crying. Police searched the minivan with Doorley’s
consent and found gunshot residue on the steering wheel and the
driver’s side interior door handle.
Homicide detectives also learned that Appellant and Hughes
had spent much of the day together before the murder. Reavis
confirmed that he had been hanging out with Appellant and
Hughes that day. Reavis admitted that he had driven and dropped
off the Victim at a store near the scene of the murder shortly
before Appellant and Hughes murdered him.
Also, cell phone records from Appellant and Hughes
confirmed their whereabouts in south Easton, where the shooting
occurred, and their close proximity to the area and each other
when they placed the calls. The eyewitness called 911 at 5:39
P.M., and the cell phone records showed that Appellant and
Hughes made numerous calls to Reavis before and after the
-2-
J-S37027-21
murder. All calls stopped at the precise time of the shooting,
consistent with the surveillance video.
During the investigation, Hughes provided several different,
inconsistent, and unsubstantiated alibis to police investigators.
After his arrest, Hughes made several incriminating statements to
fellow inmates (1) regarding his motive for the murder, and (2)
claiming that he and his men were responsible for the murder.
Thereafter, the Commonwealth charged Appellant with
Criminal Homicide and Criminal Conspiracy. In October 2015, the
trial court granted the Commonwealth’s Motion to try Appellant
and Hughes jointly[, after having denied Appellant’s pretrial
motion to sever].
***
In January 2017, Appellant and Hughes proceeded to an
eight-day jury trial. . . .
The Commonwealth presented testimony from numerous
witnesses, including Reavis, Greene, the Northampton County
coroner, and numerous detectives and police officers. Appellant
and Hughes did not testify and presented no evidence.
On January 20, 2017, the jury convicted Appellant of First-
Degree Murder and Criminal Conspiracy. On February 28, 2017,
the trial court sentenced Appellant to life imprisonment without
parole. Appellant filed a timely Post-Sentence Motion, which the
trial court denied on August 4, 2017.
Commonwealth v. Robinson, 216 A.3d 343 (Pa. Super. 2019) (unpublished
memorandum at **1-6) (footnote 2 in original, remaining footnotes omitted).
On direct appeal, Appellant was represented by Attorney James Brose
(Attorney Brose or direct appeal counsel). This Court affirmed the judgment
of sentence, rejecting Appellant’s claims that the trial court erred in: (1)
admitting evidence that Appellant was present at a drug transaction shortly
before the murder; and (2) failing to declare a mistrial after the prosecutor
-3-
J-S37027-21
identified Appellant as a drug dealer in the opening statement. See id. at
**6-13. The Pennsylvania Supreme Court denied allowance of appeal.
Commonwealth v. Robinson, 217 A.3d 788 (Pa. 2019) (Table).
On April 30, 2020, Appellant filed a timely pro se PCRA petition raising
several claims of ineffectiveness of trial counsel, Liam Riley, Esquire (Attorney
Riley or trial counsel), and direct appeal counsel. The PCRA court appointed
Talia Mazza, Esquire (PCRA counsel), who filed an amended PCRA petition on
October 20, 2020, raising five claims of ineffectiveness of counsel. The first
claim alleged trial counsel was ineffective for failing to file a supplemental brief
raising issues pertinent to Appellant’s pretrial motion for severance. See
Amended PCRA Petition, 10/20/20, at ¶¶ 10-11 (“At a hearing on the merits
for [Appellant’s] Motion for Severance, [the trial court] asked that [trial]
counsel file a supplemental brief regarding [Appellant’s] legal basis for asking
for severance. No supplemental brief was ever filed. The Court denied [the]
Motion for Severance.”). The PCRA court summarized Appellant’s remaining
four claims, which alleged ineffectiveness of direct appeal counsel:
1) that Attorney Brose failed to advance on appeal a sufficiency of
the evidence claim[;] 2) that Attorney Brose failed to advance on
appeal [the trial c]ourt’s denial of Appellant’s Motion for
Severance[;] 3) that Attorney Brose failed to advance on appeal
a prosecutorial misconduct claim due to the Assistant District
Attorney’s closing argument in which the Assistant District
Attorney stated that Appellant was “caught in a lie” to a detective
regarding his location during the murder; and 4) that Attorney
Brose failed to advance on appeal a claim relative to [the trial
court’s] ruling that a 911 call, identifying a Honda Odyssey as
being present at the crime scene, was admissible evidence.
-4-
J-S37027-21
PCRA Court Opinion, 4/30/21, at 4-5.
The PCRA court conducted an evidentiary hearing on November 23,
2020, at which Appellant, trial counsel, and direct appeal counsel testified.
PCRA counsel subsequently filed a “no-merit” letter and motion to withdraw
as counsel, pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc), asserting that all of Appellant’s issues were frivolous and no meritorious
claims existed.
By order entered January 27, 2021, the PCRA court dismissed
Appellant’s petition and granted PCRA counsel leave to withdraw.1 On
February 25, 2021, Appellant filed two pro se documents (collectively,
“objections”), respectively titled “Objection to PCRA Court’s Notice Pursuant
to Pa.R.Crim.P. 907 of Intention to Dismiss,” and “Objections to PCRA
Attorney’s ‘No-Merit’ Brief Letter.” In the objections, Appellant argued, inter
____________________________________________
1 An indigent PCRA petitioner is entitled to appointment of counsel during
litigation of a first PCRA petition, including any appeal. See Pa.R.Crim.P.
904(C), (F)(2) (PCRA court must appoint counsel to represent indigent
defendant during litigation of first PCRA petition; the appointment is effective
throughout collateral proceedings, including any appeal from denial of PCRA
petition). However, where the PCRA court accepts a Turner/Finley no-merit
letter and permits counsel to withdraw, the petitioner is not entitled to the
appointment of new PCRA counsel, and he or she must retain private counsel
or proceed pro se in future proceedings. See Commonwealth v. Rykard,
55 A.3d 1177, 1183 n.1 (Pa. Super. 2012); Commonwealth v. Maple, 559
A.2d 953, 958 (Pa. Super. 1989) (where appointed PCRA counsel has been
permitted to withdraw pursuant to Turner/Finley, the appointment of new
counsel is unnecessary and improper).
-5-
J-S37027-21
alia, that PCRA counsel was ineffective for (1) failing to address all of the
issues Appellant raised in his pro se PCRA petition; and (2) petitioning to
withdraw as counsel without conducting a diligent review of Appellant’s
claims.2 The PCRA court denied the objections, concluding they were “moot
and procedurally improper.” Order, 3/3/21 (footnote omitted).
Appellant timely filed a pro se notice of appeal,3 followed by a court-
ordered Pa.R.A.P. 1925(b) statement. On April 30, 2021, the Honorable
Jennifer R. Sletvold, sitting as the PCRA court, issued a comprehensive 31-
page opinion addressing the ten errors alleged by Appellant in the Rule
1925(b) statement. Appellant has abandoned the tenth issue in his appellate
brief; Appellant presents nine issues:
1. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim of criminal homicide,
where the Commonwealth failed to present sufficient evidence
to identify the Appellant as the perpetrator of this homicide
beyond a reasonable doubt.
2. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim of criminal conspiracy to
____________________________________________
2 Recently, in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), the
Pennsylvania Supreme Court held, “a PCRA petitioner may, after a PCRA court
denies relief, and after obtaining new counsel or acting pro se, raise claims of
PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on
appeal.” Id. at 401 (footnote omitted).
3Appellant was not served with a copy of the January 27, 2021 dismissal order
until February 5, 2021. Appellant timely filed his notice of appeal on March 1,
2021. See Pa.R.A.P. 108(a)(1) (computation of appeal period begins on the
date the clerk of court “mails or delivers copies of the order to the parties”);
Pa.R.A.P. 903(a) (30-day appeal period); see also Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining “prisoner mailbox rule”).
-6-
J-S37027-21
commit homicide, where the Commonwealth failed to establish
beyond a reasonable doubt, the existence of a conspiratorial
agreement.
3. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim that the redaction of the
non-testif[y]ing co-defendant’s statement and confession,
along with statements by the prosecutor in closing arguments,
was insufficient to preclude the jury’s inference that the
Appellant was the co-conspirator in violation of Bruton v
United States, 391 U.S. 123, 88 S.Ct. 1620 L.Ed.2d. 476
(1968). 1/13/17 at pg 91, 1/17/17 at pg 92, 1/13/17 at 178,
and 1/19/17 at pg 66, 69, 87-88.
4. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim that trial counsel was
ineffective for failure to argue and file supplement brief in
support of Motion for Severance.
5. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim that the Appellant’s
Sixth Amendment Confrontation Clause rights were violated by
not allowing the Appellant to cross-examine Mr. Sandt as to his
identification of what he believed to be a Honda Odyssey, on
the night of the homicide.
6. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim that trial court erred in
failing to grant a mistrial on prosecutorial misconduct, when
the prosecutor[’s] reference to unrelated infamous crimes,
Boston bomber 1/19/17 at pg 73, and the O.J. Simpson Case
1/19/17 at pg 71.
7. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim that trial court erred in
failing to grant a mistrial on prosecutorial misconduct when
prosecutor expressed his personal belief [Appellant] “gets
caught in a lie,” 1/19/17 at pg 83.
8. Whether direct appeal counsel and PCRA counsel w[ere]
ineffective for failure to advance claim that trial court erred in
failing to grant a mistrial on prosecutorial misconduct when
prosecutor repeatedly made misstatements of the facts as to
-7-
J-S37027-21
the Appellant’s alleged confession stating that he said “I really
wasn’t out there.” 1/19/17 at pg 83,85.
9. Whether PCRA court and PCRA counsel failed to comply with
the requirements of Turner/Finley prior to counsel’s “No-Merit
brief letter,” and Motion to Withdraw, and PCRA court’s order
to dismiss, when PCRA counsel failed to add claim 5, 6 in
original PCRA petition 4/30/20 at pg 55-57, and 58-60.
Appellant’s Brief at 4-5.4
Our review of Appellant’s issues,
is limited to the examination of whether the PCRA court’s
determination is supported by the record and 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. This Court grants
great deference to the findings of the PCRA court, and we will not
disturb those findings merely because the record could support a
contrary holding.
Commonwealth v. Maxwell, 232 A.3d 739, 744 (Pa. Super. 2020) (en banc)
(citations omitted). We review the PCRA court’s decision for an abuse of
discretion. Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013).
Further,
[w]e view the evidence of record in a light most favorable to the
Commonwealth, as the prevailing party below. We are bound by
the PCRA court’s credibility determinations, unless those
determinations are not supported by the record; however, we
review the PCRA court’s legal conclusions de novo.
Commonwealth v. Flor, 259 A.3d 891, 902 (Pa. 2021) (citations omitted).
____________________________________________
4As we discuss below, these 9 issues differ from the issues raised in the Rule
1925(b) Statement.
-8-
J-S37027-21
Preliminarily, we note that Appellant’s pro se brief (excluding tables and
appendices) is 80 pages long and does not contain a word count. Pursuant
to Pa.R.A.P. 2135, a principal brief is limited to 14,000 words; when the brief
exceeds 30 pages, the appellant must certify with the appellate court that the
brief complies with the word limitation. See Pa.R.A.P. 2135(a), (d). “The
certification requirement is not limited to counsel: Pro se litigants, too,
are obliged to provide a certification for a primary brief that exceeds thirty
pages.” In re Delevie, 204 A.3d 505, 510-11 (Pa. Super. 2019) (citations
omitted). Here, Appellant’s brief exceeds 14,000 words, and he has failed to
file a certificate of compliance pursuant to Rule 2135. Moreover, in violation
of Pa.R.A.P. 2111(a)(11), Appellant has failed to attach a copy of the Rule
1925(b) statement. While we construe pro se filings liberally, we remind
Appellant that pro se litigants must comply substantially with our rules of
procedure, and “pro se status confers no special benefit[.]” Commonwealth
v. Blakeney, 108 A.3d 739, 766 (Pa. 2014); see also In re Delevie, 204
A.3d at 511 (same). However, as the brief does not hamper our review, we
consider the merits of Appellant’s claims.
We address Appellant’s first two issues together, where Appellant
argues direct appeal counsel was ineffective for failing to raise a challenge to
the sufficiency of the evidence supporting his convictions, and PCRA counsel
was ineffective for failing to raise the issue of direct appeal counsel’s
ineffectiveness in this regard. See Appellant’s Brief at 10-32.
-9-
J-S37027-21
To be entitled to relief based on a claim of ineffective assistance of
counsel, a PCRA petitioner must establish that: (1) the underlying claim is of
arguable merit; (2) there was no reasonable basis for counsel’s action or
failure to act; and (3) but for counsel’s error, there is a “reasonable probability
the result of the proceeding would have been different.” Commonwealth v.
Treiber, 121 A.3d 435, 444 (Pa. 2015). Failure to satisfy any of the three
prongs is fatal to a claim of ineffective assistance of counsel.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). Counsel is
presumed to provide effective assistance, and it is the petitioner’s burden to
advance sufficient evidence to overcome this presumption. Commonwealth
v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016). “Finally, counsel cannot be
deemed ineffective for failing to raise a meritless claim.” Id. (citation
omitted).
Appellant argues the evidence failed to establish his identity as a
perpetrator. See Appellant’s Brief at 14 (“The eyewitnesses in this case
provided no evidentiary value, when it comes to identifying the two
[perpetrators] in this case.”), 20 (“The scientific analysis did not reveal any
evidentiary evidence as it relates to the identification of the unknown alleged
suspected shooters.”). Appellant further asserts the Commonwealth “failed
to present any testimonial evidence, direct, and/or circumstantial evidence
that the Appellant conspired to commit this crime, other than association with
the [co]defendant in this case,” i.e., Hughes. Id. at 29.
- 10 -
J-S37027-21
In his Rule 1925(b) statement, Appellant did not claim that direct appeal
counsel and/or PCRA counsel was ineffective with respect to sufficiency of the
evidence. Rather, he solely challenged the sufficiency of the evidence
supporting his convictions, which is distinct from an ineffectiveness claim.
See Rule 1925(b) statement, 3/29/21, at 1 (unnumbered); see also PCRA
Court Opinion, 4/30/21, at 9 n.6 (noting Appellant’s claims in the 1925(b)
statement challenged “the sufficiency of the evidence and [are] not claims of
ineffective assistance of counsel by, for example, failing to timely raise such
claims on appeal.”); Commonwealth v. Bond, 819 A.2d 33, 40 (Pa. 2002)
(a PCRA petitioner must pursue a distinct ineffectiveness claim to circumvent
waiver of underlying claim of trial court error that could have been previously
litigated). Accordingly, Appellant waived his first two claims. See
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (superseded on other
grounds) (“any issues not raised in a Rule 1925(b) statement will be deemed
waived”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement …
are waived”); see also Hill, supra (“the Rule’s provisions are not subject to
ad hoc exceptions or selective enforcement”); Greater Erie Indus. Dev.
Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en
- 11 -
J-S37027-21
banc) (“it is no longer within this Court’s discretion to ignore the internal
deficiencies of Rule 1925(b) statements.”); Bond, supra.5
In his third issue, Appellant argues direct appeal counsel and PCRA
counsel were ineffective for failing to challenge the admission at trial of an
inculpatory statement made by his co-defendant, Hughes, in violation of
Bruton v. United States, 391 U.S. 123 (1968). See Appellant’s Brief at 33-
41; see also Bruton, 391 U.S. at 135-37 (a confession from non-testifying
co-defendant that directly incriminates defendant in a joint trial is of such a
powerfully incriminating nature that an instruction to the jury limiting its
consideration of the confession is insufficient to cure prejudice to defendant
from the confession’s admission at trial).
Again, Appellant failed to raise this ineffectiveness claim in his Rule
1925(b) statement; rather, he raised a general Bruton claim alleging trial
court error. See Rule 1925(b) statement, 3/29/21, at 1 (unnumbered); see
also PCRA Court Opinion, 4/30/21, at 14 (“it is unclear as to what Appellant
is objecting. Appellant does not specify any statement of his co-
____________________________________________
5 Even if not waived, Appellant’s ineffectiveness claims would not warrant
relief, as there is no arguable merit to his sufficiency challenge. Johnson,
supra (counsel cannot be deemed ineffective for failing to raise a meritless
claim). See also PCRA Court Opinion, 4/30/21, at 8-14.
- 12 -
J-S37027-21
defendant[.]”). Accordingly, for the same reasons discussed above, Appellant
waived this claim. See Hill, supra; Bond, supra.6
Appellant next contends trial counsel was ineffective for failing to file a
supplemental brief concerning the pretrial motion for severance. See
Appellant’s Brief at 42-49.7 Appellant asserts trial counsel’s failure caused
him “to be tried along[]side of his co-defendant and convicted of first degree
murder and conspiracy to commit murder, on evidence that could not be used
against [] Appellant if he was tried alone.” Id. at 43.
The PCRA court, in its opinion, disposed of this claim by concluding trial
counsel had a reasonable basis for not filing a supplemental brief on the
severance issue. See PCRA Court Opinion, 4/30/21, at 17-21. Our review
discloses that the PCRA court’s analysis is supported by the record and the
law, and we agree with its conclusion. We therefore adopt the PCRA court’s
reasoning as our own. See id.
____________________________________________
6 Even if not waived, Appellant’s ineffectiveness challenge would not warrant
relief, as there is no arguable merit to an underlying Bruton challenge. See
Johnson, supra. In reaching this conclusion, we rely on the PCRA court’s
reasoning. See PCRA Court Opinion, 4/30/21, at 14-16.
7 To the extent Appellant argues direct appeal counsel and PCRA counsel were
ineffective in this regard, the claim is waived because Appellant did not raise
it with the PCRA court in his PCRA petition, Rule 1925(b) statement, or
otherwise. See Pa.R.A.P. 302(a) (issues cannot be raised for the first time on
appeal); Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007)
(“Any claim not raised in the PCRA petition is waived and not cognizable on
appeal.”); Hill, supra.
- 13 -
J-S37027-21
In his fifth issue, Appellant argues the PCRA court erred in failing to find
that direct appeal counsel and/or PCRA counsel were ineffective for failing to
advance a claim regarding the allegedly improper admission of an eyewitness
911 call at trial, in violation Appellant’s right to confrontation. See Appellant’s
Brief at 50-60.
Appellant waived this ineffectiveness claim because he did not raise it
in his Rule 1925(b) statement or PCRA petition (Appellant alleged only trial
court error in admitting evidence violating his Sixth Amendment Confrontation
Clause rights). See Rule 1925(b) statement, 3/29/21, at 2 (unnumbered);
Hill, supra; Bond, supra; see also PCRA Court Opinion, 4/30/21, at 21 (“in
Appellant’s Amended PCRA Petition, Appellant raised a claim of ineffective
assistance of counsel against his [direct appeal] counsel, Attorney Brose, for
failing to advance on appeal the ruling of admissible hearsay regarding the
911 call. However, Appellant’s issue as presented in the instant appeal is not
an ineffective assistance of counsel claim, but appears to solely allege an error
on behalf of the [trial c]ourt.” (emphasis added)).8
We next address together Appellant’s issues numbered 6 – 8. Appellant
contends the PCRA court erred by failing to find direct appeal counsel
ineffective for not raising a claim of prosecutorial misconduct related to the
____________________________________________
8 Even if not waived, Appellant’s ineffectiveness challenge would not warrant
relief, as there is no arguable merit to his underlying Confrontation Clause
challenge. See Johnson, supra. In reaching this conclusion, we rely on the
PCRA court’s sound reasoning. See PCRA Court Opinion, 4/30/21, at 21-24.
- 14 -
J-S37027-21
prosecutor’s: (a) improper reference to unrelated “infamous crimes” in closing
argument; (b) reference in closing to Appellant getting “caught in a lie”; and
(c) misstatements of fact in closing regarding Appellant’s alleged confession.
See Appellant’s Brief at 61-71.9
Appellant did not raise these ineffectiveness claims in his Rule 1925(b)
statement. Rather, he asserted claims of trial court error in failing to grant
a mistrial based on prosecutorial misconduct in closing argument. See Rule
1925(b) statement, 3/29/21, at 2 (unnumbered). Thus, we again find waiver.
See Hill, supra; Pa.R.A.P. 1925(b)(4)(vii); see also Satiro v. Maninno, 237
A.3d 1145, 1150 (Pa. Super. 2020) (“Even if the trial court correctly guesses
the issues [a]ppellant raises on appeal and writes an opinion pursuant to that
supposition the issues are still waived.”) (citation and brackets omitted).10
In his final issue, Appellant argues the PCRA court erred in dismissing
his petition where PCRA counsel rendered ineffective assistance, and violated
the requirements of Turner/Finley, supra, based on her failure to address
in her “no-merit” letter two issues which Appellant raised in his pro se PCRA
petition (i.e., claims of prosecutorial misconduct for misstating facts during
closing argument and improperly referencing unrelated “infamous cases”).
____________________________________________
9Appellant also argues PCRA counsel was ineffective for failing to assert direct
appeal counsel’s ineffectiveness in relation to these claims. See Appellant’s
Brief at 61, 65, 68.
10In the absence of waiver, these claims lack merit such that no relief would
be due. See Johnson, supra; PCRA Court Opinion, 4/30/21, at 24-29.
- 15 -
J-S37027-21
See Appellant’s Brief at 77-79; see also id. at 78 (asserting PCRA counsel
“failed to conduct a thorough review of the case prior to making a
determination that all issues raised by [Appellant] had been addressed prior
to” filing the no-merit letter).11
The Commonwealth responds:
In her no-merit letter, PCRA counsel addressed two of Appellant’s
three prosecutorial misconduct claims; specifically, that the
prosecutor stated Appellant was caught in a lie and that the
prosecutor allegedly misstated facts in his closing argument.
Appellant appears to be correct that PCRA counsel did not address
his third prosecutorial misconduct claim, related to the
prosecutor’s reference to other infamous cases, in her no-merit
letter. However, . . . there is no prejudice to Appellant based on
this omission by counsel[, i.e., in light of the PCRA court’s above-
mentioned rejection of this meritless claim (which Appellant raised
in issue number 6)].
Commonwealth Brief at 35-36 (citations omitted).
We agree that this ineffectiveness claim fails. See Johnson, supra
(counsel cannot be deemed ineffective for failing to raise a meritless claim);
Treiber, supra (to prevail on an ineffectiveness claim, a petitioner must
prove, inter alia, prejudice); see also PCRA Court Opinion, 4/30/21, at 30
(“even if Appellant’s PCRA counsel had litigated [the ineffectiveness claims
related to prosecutorial misconduct,] the claims appurtenant to them would
____________________________________________
11 Appellant repeats several claims of ineffectiveness of direct appeal counsel
and trial counsel that he raised in his prior issues. See Appellant’s Brief at
73-76. Since we have already rejected these claims, we do not address them
further.
- 16 -
J-S37027-21
have been dismissed because they lack merit.” (footnote and some
capitalization omitted)).
Finally, we address Appellant’s three pro se motions filed with this Court.
On December 2, 2021, Appellant filed a “Motion for Extension of Time to File
Response to Appellee Brief” (motion for extension). The next day, he filed a
“Motion to Compel Original Response Brief Transcripts by the Commonwealth
and Original Concise Statements of the Matter by Appellant” (motion to
compel). In sum, Appellant claimed the Commonwealth prejudiced him and
caused undue delay by intentionally and improperly mailing the
Commonwealth’s Appellee Brief to the Pennsylvania Department of
Corrections’ (DOC) central mail processing center in Florida, instead of
sending it to the state prison where Appellant is incarcerated. Also, on
December 10, 2021, Appellant filed a “Motion for Stay on Petition for Review
Pending Reply to Appellee’s Brief” (motion for stay), in which he again raised
the same claim of Commonwealth impropriety.
The Commonwealth has responded,
Pursuant to DC-ADM 803(1)(A)(4), the only mail permitted to be
sent directly to a state correctional institution is “privileged
incoming correspondence.” “Privileged incoming correspondence”
is defined as “mail from an inmate’s attorney,” “mail from a court,”
or mail from an elected official that “involves matters related to a
confidential investigation process or similar concerns.” All other
mail must be sent to the [DOC’s] central mail processing center
at Smart Communications/PA DOC, P.O. Box 33028, St.
Petersburg, Florida 33733. Pursuant to DC-ADM 803(1)(B)(1),
“non-privileged correspondence that is sent to a prison instead of
the [DOC’s] contracted central mail processing center” will be
refused. Any document that the Commonwealth sends to
- 17 -
J-S37027-21
Appellant, including its Appellee’s Brief, is non-privileged inmate
correspondence because there is no attorney-client relationship
between the District Attorney’s Office and Appellant. As such, the
Commonwealth cannot send mail directly to the prison where
Appellant is housed because it is not a privileged correspondence,
as confirmed by an email from an attorney for the [DOC].
Response in Opposition, 12/9/21, at 2-3 (paragraph numbering and citations
to attached exhibits omitted). The Commonwealth is correct. Therefore, we
deny Appellant’s motions.
For the reasons discussed above, Appellant is not entitled to post-
conviction relief. We therefore affirm the PCRA court’s dismissal of Appellant’s
petition, relying in part on the PCRA court’s well-reasoned analysis.
Accordingly, the parties shall attach a copy of the April 30, 2021 opinion
authored by Judge Sletvold, sitting as the PCRA court, in the event of future
proceeds relevant to this matter.
Order affirmed. Motion for extension denied. Motion to compel denied.
Motion for stay denied. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/10/2022
- 18 -
Circulated 12/30/2021 09:52 AM
IN THE COURT OF CO:MMONPLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA.
CRIMINAL :DIVISION
COMMONWEALTH OF PENNSYLVANIA
No. 497 EDA 2021
V..
Trial Court NU.: CR-1347-2p15
OMAR .ROBINSON
Defendant.
MEMORANDUM OPINION
I.. Factual and Procedural History
This Mexnoranduxn OpInion:is filed in accordance.with Rule 1925(x) of the Pennsylvania Rules
of Appellate Procedure...Following an.eight=day jury trial before the undersigned judge,.the Appellant,
.Oinar Robiiksaii {hereinafter, "Appellant"}, was found guilty of criminal homicide as. 3riurder of the
first degree, in. violationof 1.8.Pa.C.S.A. §2501.; and criminal conspiracy to comfnit murder ofthe'first
degree ; in violation. of 1S Pa,C.S.A., §903 A1. These crimes .arose out of Appellarit's role in.-the
shooting. death of Ervin Holton (hereinafter, "Holton") on November 23, 2012 in. the. City of Easton,
Pennsylvania.
For purposes. 'o.f trial,. Appellant's -criminal information was joined with the criminal.
information of Patrick Hughes. (hereinafter "Hughes'%. who.was charged. with. Criminal Homicide, :in
violation of 1.8 Pa.C..S.A_ §25.01' and Criminal Conspiracy to. Commit Criminal Hoiicide, inviolation
of 18 Pa.C.S..A. §00.3 A1. Both: Appellant and Hughes were "convicted as charged:.
This Court senteheed Appellant. on February.'2$;.2017 as follows-1) for the charge of ihurder
in the: first degree, to serve a-term of-.life imprisonment. without .the passibility of parole in 'a
Hughes was charged with.Criininal Homicide for soliciting Appellant to commit the criminat homicide :and/or
aiding, agreeing,. or attempting to aid Appellant in planning or committing same.
1
Pennsylvania state correctional institution- and 2) for the charge of criminal conspiracy to commit
criminal homicide as murder in the: first. degree, to.a concurient.period of incarceration of twenty (2.0.)
-to forty (40) years in. aPennsylvania state: correctional institution.
At trial,.AP pellant was.represented by Attorney Liam.:Riley,'who was privately retained as:
counsel.. Post-trial, and subsequentto the timely filing of apost-trial .motion on behalf of Appellant;2
Attorney Riley filed apetition to withdraw as counsel and requested this Court to appoint.new counsel
for Appellant. Following aconference that took place on May 5,,2017,.-this. Court entered an Order
allowing Attorney Ri ley to withdraw as counsel. By Order.of Court dated May 18, 2017, we appointed
James F. Brose,*Esquire to repiesent.Appellant on appeal.
We denied Appellant's post-trial motion..on August 4, 2017. Appellant filed acounseled direct
appeal. This Court authored an Opinion in. accordance with Rile -1925(a) of the Pennsylvania Rules
of Appellate Procedure, which was filed on October l6, *20.17. Ultimately,, on Apri1:2, 2019,. the
PenrisylVania Superior Court.:affirmed the Judgment of Sentence. Appellant filed. a petition for'
allowance of appeal with the Pennsylvania Supreme Court, which. was. denied.
For background. purposes, the relevant facts of the ease.
,as stated by the Penrnylvaiiia Superior ,
Court in.-the O.pinion.affifining sentence,:are'as follows:
On Nov.emb*er..23, 2012 ;the narcotics division of the Easton Police.Department was
involved in an ongoing. investigation. targeting*the home.of Corey Reay.is. That day,
officers conducted. a. :controlled..purchase of heroin from Patrick-Hughes using a
confidential informant. Police.officers observed Hughes leave Reavis's home; walk
to the infortnarit, engage in abrief hand -to-hand transaction, and return to Reavis's
home. When Hughes returned to Reav s's home,. police observed Hughes interact
With *individuals on the:.front porch, inc.luding,Appellant. Police took photographs
of Appellant ;Hughes, and the transaction. Police. also observed.Appellant's minivan
parked outside the residence.
Later that day, Appellant and Hughes shot and killed. Ervin Holton C.Victim") in
Easton. A witness who was driving near the scene called.911. to reportthe shooting.
She stated. that ;after hearing the gunshots; she. saw two individuals in.dark clothing
2On March:%*2017,-Appellant.fled apost-sentence.rnofion,.entitled."Motion fora New Trial." Within this Motion,
l.bases for.hi.s request for anew trial_•
Appellant raised severa.
2
running toward anearby``minivan. The Victim died from multiple gunshot wounds;.
ballistics evidence confirmed that. there were two shooters.
During the* subsequent investigation, detectiVes.from the.Easton Police Department
obtained consistent surveillance video that showed two individuals exit aminivan
one block from the .crime: sce. no,* walk towards the location of the -shooting; and
shortly thereafter, run back towards the noinivan and drive away. Police officers also
learned that. :Appellant's. girlfriend ;Lisa Doorley, owned the minivan.
When police officers located the minivan at-Appellant's home, which he shared
with.Doorley, Appellant confirmed that only he and. Doorley drive the.rninivan,.and
that he did noYallow anyone else to .drive the minivan. Upon confirming that he. ha d
been driving tho minivan* on the'night of the murder, Appellant.started crying. Police:
searched the .minivan with Doorley's consent and found gunshot. residue on. the.
steering wheel and. the. driver'.s side interior door handle:
Homicide .detectives also learned that Appellant and Hughes had spent much of the.
day together. before the murder..Reavis confirmed that he. had been hanging out with.
Appellant and Hughes that day. Reavis. admitted that he had driven and dropped off
the Victim at.a store near *the scene of.the murder shortly before Appellant: and
Hughes murdered him.
Also,. cell phone records from Appellant and Hughes confirmed their Whereabouts
in south Easton, where the shooting. occurred, and their closes proximity to the area
and each other when they placed the calls.. The eyewitness called .911.at 5;39 P.M.,
and the cell phone records showed that Appellant and Hughes made numerous calls
to Rea before-and after the murder. All calls .
stopped at the precise time of the
shooting, consistent with•the surveillance video.
During the investigation, Hughes provided several different, inconsistent,. and.
unsubstantiated alibis to police, investigators. After his arrest, Hughes made several
incriminating stateinents.:to.:fellow inrnates.(1) regarding his motive. for the murder,.
and (2) ciauning:that he and his. men were responsible for the murder..
Thereafter, the Commonwealths charged Appellant .With Criminal Homicide and
Criminal Conspiracy. In October 2015, thp trial. court granted the CommonWealth':s.
Motion* to try Appellant and Hughes jointly.
In January 2017, Appellant and Hughes proceeded to an eight-day jury trial....
The Commonwealth presented testimony from numerous witnesses ; including
Reavis ; Greene, the Northampton County coroner, and numerous detectives and
police officers. Appellant and Hughes did not testify and presented no: evidence,
On *January 20,. 2017., the: jury convicted Appellant.of First-Degree Murder and.
Criminal Conspiracy.
3
On February 28, 2017, .the trial coust.sentenced Appellant:ta Life imprisonment
without'parole.
Co1YlPi ovnVeaIth v. Robinson, J-SS :1008-18, (Pa. Super. Apr. 2, 201.9) (footnotes omitted).
On April 30, 2020, Appellant filed atimely pi-o se Motion* for Post-Conviction Collateral
Relief. On June. 8, *2020, this Court appointed.Attorney Robert Eyer to represent Appellant. Air issue
framing conference was. held on July 17, 2020, Attorney Eyer asked for leave. to file an .Amended *
PCRA Petition on behalf.of Appellant. Iti the interim, Attorney Eyer announced his retirement as
Conflicts Counsel,. and this Court appointed. counsel, Talia..R. Mazza, Esq, .(hereinafter "PCRA
Counsel"), to represent Appellant. On August 20,.2020, we granted Appellant's Motion to Extend
Time to File an A.meiided PCRA Petition.
On October 26, 2020, PCRA Counsel submitted an Amended.Petition for:Post-Conviction
Relief, raising five claims for relief, all which dealt with ineffective assistance. of counsel. The first
claim, which was against Attorney Liam Riley, was aclaim that. Attorney Riley, was ineffective fair
failing to file a supplemental brief regarding Appellant's pre=trial Motion for Severance. This
supplemental brief was requested due to an alleged Bruton'violation.in that Appellant'
sco-defendant, .
Hughes, may have made.an incriminating siatementagainst Appellant. The other four claims raised
in Appellant's Atnended Petition for Post- Conviction Relief were against Appellant's court-appointed
appellate.- counsel, :Attorney James Brose. These --claims as stated in Appellant's Amended PCRA
Petition were as. follows: 1) that Attorney* Brose failed to advance on appeal asufficiency of the
evidence 7claim, 2) tltat Attorney Brose failed to advance on appeal this Court's denial of. Appellant's
Motion for Severance, 3) that-Attorney Brose .failed to advance on appeal aprosecutorial misconduct
claim due to the Assistant.D strict Attor'ney's closing aigumentin which the. -
Assistant District Attorne}+
:stated that. Appellant was. "caught in alie" to.a:detective regarding his location during the murder; and
3Bruton v:.United Stcaes,'•391 .U.S. 123 (1968), field that a.defendant's. confrontation clause rights are violated.when
anon-testifying codefendant°s.confession nari>;ng the*.defendant as. .a participant in the crime. is intiroduced at their
joint trial ;.
even if the. jury is. instructed.to consider the. confession only against the defendant.
4
'4) that Attorney -B•rose failed to. advanc e on appeal a-
claim relative to our ruling tfrat a 911 .call,,
identifying :a Honda *Odyssey as being present at the c.rime scene,.was.admissible evidence.
On. November 23,.2020, this Court held an evidentiary hearingon' the. issues that Appellant
raised in -his Amended PCRA Petition. Following .this hearing, PCRA Counsel submitted a
Turner/Fihley no-merit letter in lieu of a.brief in support of the PCRA Petition; as. well as aMotion.to
Withdraw as Counsel. By Order dated January 27, 2021., having already held an evidentiary hearing,
we dismissed Appellant's PCRA, stating that upoii consideration of the. no-rrierit'letter., as well:as upon
6& independent review of the record in this :tiiatter following the. hearing on the PCRA Petition, we
'were satisfied that there were no genuine issues concerning ahy material fact and that .Appellant was.
not:entitled to post-conviction collateral relief We also permitted PCRA Counsel. to. withdraw.
We note that on February 25, 2021, Appel larit fled pro se documents, entitled "Defendant's
Objection to.*PCRA Court's Notice Pursuant to Pa.R.Crim.P. 907 of intention to Dismiss.Defendant's
Motion for Past-Conviction Collateral.Relief" and "Objections. to PCRA Attorney's ``No-Merit' Brief'
Letter Dated January 25., 2M... However; we denied these "Objections" as moot and procedurally
improper. 4
On March 1, 2021, Appellant filed a Notice..of Appeal of our January 27, 2021 Order
.dismissing his Amended PCRA Petition. On:March 29,-202:
1I
.pursuant.to this: Court's 1925(b) Order,
Appellant filed apro .se Concise. Statement of Matters Complaine d 'of on. Appeal.
11. Matters Complained of on .
Appeal
In his Concise Statement of Matters Cornplained of on Appeal, Appellant asserts the
following ten issues:
d We did . not'issue anotice of intentto dismiss the Amended PCRA Petition without a- hearing because. ahearing*on
Appellant's Amended PCRA Petition was held on November 23, 2020. In our Order of January 27. ;2021 dismissing.
Appellant's Amended PCRA Petition, which constituted afinal order €or: purposes of appeal, we advised, Appellant.
of his right to. appeal to this Court within thirty days of the date of the Order.. See Pa.R.Crim.P. 910; Pa.R.A.P.
903(a).
5'
1. The .evidence was' insutfident.to support aconviction of criminal homicide., where the
Commonwealth failed to present ``suffic'ient``evidence to identify the Appel[ant. as the
perpetrator of this Homicide. beyond a. reasonable. doubt.
2. The evidence was insufficient to ..support abonvictian of criMirial conspiracy to.. commit
homicide, where the Commonwealth failed to establish beyond areasonable doubt, the.
existence. of aconspiratorial agreement.
3. The redaction of the non testifying co-defendant's stateirient,and confession; along with
statements'by the prosecutor in closing arguments was irisufficient to prectude the.jury's
inference that the Appellant was the ..co=conspirator in violation of Bruton V.. United
States, 391 .U.S. 123, .88 S.Ct 1620 LEd. 2d 476 (1968) [sic] and its progeny.
4. Trial *.*counsel was ineffective for failure to argue and file asupplement [sic] brief in
support of the Se.yerance Motion.
5. The.Appel[ant's sixth amendment. -confrontatian clause rights:were violated by not:
allowing the Appellant to cross-examine Me. Sandt as to his identification of what he
beiieved to* be a. Honda Odyssey.
6. The .Tria1 Court erred in failing to grant amistrial on prosecutorial misconduct when
prosecutor express [sic] his personal belief when he stated that the Appellant "Gets
caught'.in alie" 1/1911.7 at p. 83..
.7. The Trial Court erred. in failing. to .grant amistrial on prosecutorial inisconduct.when the.
prosecutor repeatedly made misstatements of the fact of the'record when he stated that
the Appeallant [sic] said that"I really was not their [sic] "arid he "fesses.up" tsic] 1119117
at p., 83 and .1/19/17 at p:95, "we haven't pushed the. issue of.Mr. Holton dealing drugs"
1/19/17 at 67, 77..
6
S. The Trial. Court erred in failing to grant anustrial..on.prosecutorial misconduct when..
prosecutor reference to unrelated infamous crimes, 61 Simpson and ,the Boston bomber
case. 1119117 at p. 71 -and 1/19/1:7 at 73.
9. .
PCRA Court and PCRA Counsel failed to comply with the requirements of Turner/Finley
prior to Counsel's "Wo-merit' brief letter['] and Motion to Withdraw- and .PCRA Court's
order to dismiss when PCRA Counsel failed to -add. claims S, 8. in original PCRA Petition
x-/30/2(520 at p. 55-57; and 58-60.
10: Counsel £ailed to object during trial .and preserve for. appeal an introduction of hearsay
testimony that was used to describe his client as ashooter.
We.address below Appellant's statemerits-of matters complained of on appeal.
.III. Discussion
".[A]n appellate couit.reviews the PCRA. court'.s.findings of.faet*to. determine Whether they
are supported by the record; and. reviews its conclusions of law to determine whether they are free
front legal error: The. scope of review is limited to the findings of the PCRA-court and the. evidence.
of record, viewed in the light Fnost favorable to the*prevailing party at the trial level."'
Commonwealth v. Freeland, 106.A.3d 768, 775 (Pa. Super. 2014) (quoting Cothmonweallh v. Spotz, .
84. A.M 294 ;311 (Pa.,2014)) (.citations and. internal quotation marks omitted)..
To*be entitled to PCRA relief,'on appellant must .establish..byia preponderance of the
evidmce,-that his conviction or sentence resulted £torn one or more of the enurnerated. errors in 42
Pa:C:S..§ 9543{a)(2), his claims have not been previously litigated. or waived:,. and "the failure to
litigate the issue prior to or during. trial ... or on direct.: appeal could not have .been the result of any
rational, strategic or tactical decision by counsel:" Id.; 42 Pa.C..S. §9543(4)(2), (a)(3), (a).(4): An
issue is previously litigated if"thehighest appellate court in which [appellantj could have had review
as amatter of right has ruled .on the merits:of the issue." 42 Pa.C.S. §.9544(a)(2), An issue is waived
.7
if appellant "could h..ave .raised it but failed to do so before trial, at trial, .... on appeal or in aprior
state postconviction:.proceeding." 42 Pa.C.S. §9544(b), see also,. Commonwealth v. Re.* bini on,- 82
A.3d 998,, 1005. (Pa. 20.13).
1.. "The evidence was insuf.Ircient to support a.'conviction of.erimina*1homicide, where the
Commonwealth failed.to present sufficient evidence to"identifythe Appellantms the
perpetrator of this homicide.beyond areasonable doubt."
2. "The .evidence was insufficient to support aconviction of criminal conspiracy to cotrimit
homicide, where. the Commi onweialth failed to establish beyond areasanab.doubt,
le. the
existence of a*conspi ratorial agreement:"
On his direct app ea l
;.- Appellant raised ;albeit untimely, the :issue:. of sufficiency of the
evidence with respect to. the offenses .of which he was convicted -criminal homicide and crim inal.
conspiracy to commit homicide. In our Mernorandum Opinion that was fled in accordance. with
Rule: 1:925 of the Pennsylvania Rules. of Appellate Procedure,. we addressed all of the issues
contained iri•Appel1ant's. untimely Rule 1925(15). Statement, including the issues regarding sufficiency
of the*evidence: In.the.Pennsylvania Superior Court's Opinion affinning the Judgment of Sentence ;
the Superion.Court.noted-the late filing.of Appellant's Rule 1925(b) Statement. In this Opinion, the
Superior Court addressed the merits of only Appellant's briefed issues, which did not' include the
untimely raised sufficiency of the evidence claims:s
Sccause these claims involve the sufficiency of the evidence; they necessarily implicate the
"truth- determining process" and raise.a question whether an "innocent. individual" has been
convicted. Cotnmonwealth v. Perlman, 572. A.2d 2, 4-5 (Pa. Super. 1990). Therefore, sufficiency of
the evidence claims are cognizable under the PCRA,*arid awaiver of the claim on direct appeal may
'The two 4rsefed issues Thar the Superior Court addressed were whether this Court erred by permitting evidence-that
'Appellant was present a..t adrug transaction earlier in the day of the subject homicide and: whether. we erred by. not
declaring amistrial after the• prosecutor's opening. remarks Wentif ed Appellant as adrug dealer.
8
be excusable.. See id, 572 A.2d at 46 Although we believe that:Appellant's claims involving
suffciency of the *evidence maybe waived at this point, we address.the rn* erits of same below.
.As indicated supra ;.
We. provided adetailed analysis regarding.why Appel lanfs``sufficiency'of
the evidence claims are without merit in our Memorandum Opinionthat was filed in .accordance with
Mule 1925.(x) of the Pe.nnsylvan.ia Rules ofAppeIlate Procedure. on October 16, 217. *Our argument
with respect to this issue, asset forth in our 1925(x) Memorandum Opinionjn pertinent part, was.as
follows:
The standard to apply in determining. the sufficiency of the. evidence. is whether,
"viewing 'the.: evidence in the light' most 'favorable. to the: Commonwealth and
drawing allproper inferences .favorable to the. Comf.
honwealth, the '
triee of fact could
reasonably have* determined 'that all of :elements. of the crime to have been
established beyorid areasonable doubt." Corte. v. Kelilit s, 500 Pa, 321, 45.6 A.2d
1.49 (1983'). Further, our Superior Couit has stated:
Evidence will be deemed sufficient to support the verdict when it'
establishes each mater-ial element of the crime charged and the
commission thereof by the accused,. beyond a reasonable doubt."
Commonwealth Y. Brener, 876 A.2d 1029, 1032 (Pa. Super. 2005).
Nevertheless; "the. Commonwealth need not establish guilt to a
mathematical. certainty " Id..; see also CormriorrwimIth v. Elguado, 760
A.2d 1181, 1185.(Pa. Super. 2000) (...``[T]he.. facts and circumstances
established.by the Commonwealth need not be absolutely incompatible
with th e de.fendant's innocence" ). Any doubt about thc.defendant's guilt
is to be resolved by the. fact finder unless. the evidence is so we and
inconclusive that, as amatter of law; no probability offact.can he drawn
from tl,e combined circumstances. See Commonweollh v. •DiStefano,
782 A:2d 5.74, 582 (Pa. Super. 2001).
The Commonwealth may sustain. its burden *by means of wholly
circumstantial evidence. See :
Brewer, 87.6 .A:2d at 1.032. Accordingly,
"[t]lie fact that the evidence establishing. adefendants participation in
a crime is circumstantial does not preclude a conviction where .the
evidence coupled: with. the reasonable inferences drawn therefrom
overcomes the presumption of innocence." Id.. (quoting.
Comrnlonwealth v. 'Murphy, 795 A. 2d 1025 ,. 1038-39 (Pa. Supe r.
2002)).:Significantly, .(the .appellate court) may not substitute ...
judgment - far that of the fact finder; thus ; so '.long as the evidence
adduced, accepted. in the lightniost favorable to the Commonwealth,
Notably, these claims, as.presented.in Appellant's instant.Concise Statement of Matters, are. solely claims
-6
challenging the suff ciency of the: 0iden•e'and. not claims of ineffective.assistance ..of counsel by,. for example;
failing to timely raise.s.u.ch claims .on appeal,
9
demonstrates the. re* spective. elements of adefendant's crimes beyond a
reasonable doubt, .the appellant's convictions will .be upheld. See
Brewer, 876. A.2d at. 1032.
Corn. V* Rahnian, 75 A.3d 497; 500-01 (Pa. Super. 20.13).(citing Corn.. V. -
Pettyjohn >.
64.A.3d*1072*(Pa. Super. 2013) (citations omitted)).
In the. instant case,. the Commonwealth. presented sufficient evidence. in order'.to
su..stain*convictions against Appellant for both Criminal Homicide for iritentionallyi
knowingly,: recklessly or negligently causing the..shooting: death.. of Holton on
November 23, 2012;. and Criminal :Conspiracy to Comtriit Criminal Homicide for
conspiring with Hughes to cause the. death *of.Holton. As. further discussed below,
all evidence presented at trial, -including the testimony of- multiple witnesses
presented at trial, establish that Appellant caused the shooting death of Holton on
November 23, 2012:
A person commits the crime of criminal homicide and violates IS Pa. C. S. §2561
(a) "if he intentionally; knowingly, recklessly or: negligently causes the death of
-another. human being." To 'sustain a criminal conspiracy conviction, the.
Commonweaith must establish that_ a defendant entered into an agreement to
commit or aid* in an unlawful act with another person or .persons,. With a-shared
criminal intent, and -an overt act was done: in the conspiracy's furtherance, lg.
Pa.C.S. §903; 7 Coma. v. Rios;546 Pa. .271, 684 A.2d 1025 ;1030 (1996). The overt:
act need not accomplish the crime -it need only be in furtherance thereof In fact,
no crime at ail need be accomplished for the conspiracy to be committed. Coma. v..
WeiMerl 602 Pa. 33; 38--39,.
977 A.2d.1163, 11646 (2009).
The evidence presented at trial,. including the extensive testimony of. multiple
witnesses; was sufficient to enable the jury to find that all of the elements' of the
charged offenses were established beyond..a reasonable doubt. Detectives from the
Easton Police Department;reported to .a residence. :on the south side of Easton in
response to a911 call that was made at approximately.5:45 p.m, on 1Vovernber 23,
20.12: Notes of Testimony (N_T:), 1/12/17, at p.``73; N.T.,.1117/17 at pp. 42, 45, The
911 call revealed that witness,. Christine Sandt, heard gunshots fired when she was
drivirig in* the City of Easton across the :street from the Sole Mio Restaurant and
observed two individuals: in dark clothing running toward: aminivan. N:T.,..1/12/17,
at pp.. 73-75; N. 1117!17, at pp. 42-43, 4.6=47;'See. also Corn. Exhibit 12.
At the scene; the detectives identified Holton as the •otim.
i N.T., 1
/10117, at:p.... 102 .
*
The coroner determined tihat the cause of death.was ahomicide by multiple gpnshot.
7 Section 903 provides, in relevant part:
(a) Definition of conspiracy; =A person is gttilty of conspiracy with another person or persons. to commit a
crime if with .
the intent of.promoting or facilitating its winna
ission he:
(1) agrees.with such other person .or 'persons that they or one or more of them Will engage in conduct which
constitutes such crime or an attempt or'solicitation to commit such crime ...
-10
wounds. Id. at P. 156. An expert in.forensic pathology, Dr. Zhongxue :Hua, M.D.,
testified that an autopsy of Ho. ltoi':s body revealed .that there .were. six wounds
caused by five shots fired at. Holton. N.T.., 1112/17 ;.
at pp. 1:28-:129: Dr. Rua testified
that abuilet*that entered Holton from 'the left side armpit area cross midline into
the left lung.. into :the midlihe major blood vessel into the right upper and lower
portion, subsequently exit in the. right side of the Back" was the fatal gunshot wound.
Id. at p.. 124.
Furth6r;*Detect'Ives Darren Snyder, -Christopher Miller and Matthew Rush; who. are
employed with the City of Easton Police Department, testified regarding. video
surveillance on the evening of the shooting.. The video depicted two individuals
exit adark-colored minivan about ablock away from the crime scene., walk. in the
direction of the.scene,*then. run back toward the minivan in the area of the Sole Mio
Restaurant and drive -away minutes.later. N.T., 1112/17; :at pp. .181, 212; N.T.,.
I/l``3117,. at *pp. 10; 12; N.T. ; 1117117 at pp. 143 -145.. The Commonwealth also
.presented evidence that Appellant and I-Iughes were. the individuals seen in.the
video surveillance. Appellant's girlfriend, Ms. Doorley; was. the owner of adark-
colored minivan. N.T., 111 2/17., at pp. 189192. When Detectives Millerand Rush
went to Appellant's ;home to. search the jriinivan at-the home of Appellant and Ms.
Doorley, Appellant indicated that he was lhe operator of the minivan on the date of
the homicide; and he became emotional when he was questioned. further about the*
incident. 7d. at pp. 1:94-195, 196-197, 2.19-220. A search of the. minivan revealed:
gunshdt.residue on the steering wheel and, the driver's side interior door handle.
11.11117 at p. 125.
Testimony from an .individual. natned Corey Reavis (hereinafter, "Reavis")
established.:that Appellant and Hughes were together during the afternoon on the
date of the homicide. Reavis testified that ; subsequent to ``"hanging out" with
Appellant and Hughes at his house. on that day, just before the shooting occurred ;
-
he drove Holton to a. location near* the residence where Holton. was. shot.. N.T.,
111311?, at p. 190, 19.2-193, :196.
Celt phone. records confirmed. that Appellant and Hughes had been making .several
.phone :calls between themselves and.Reavis shortly before the time of the homicide,
but at'approximately 5:39. p.m. -just before the``tiine that the 911 call was made-
all. calls between their ceased, only to resume again.. minutes following. reports: of
the shooting. N.T., 1/12117, at pp. 15-16, 19-20, 22-25. The cell phone records .:also
evidenced that Appellant'and Co-Defendant Hughes were,in close proximity to one.
another when the calls were made because the calls were being transmitted from .the
cell tower locatedonJhe.south side of Easton, Id. at pp. 15-1.6.
Other testimony confirmed. that Appellant and Hughes were together during the-
afternoon on the date of the homicide. Specifically, the vice unit of the Easton
Police Department was investigating Hughes on that day. As a.'result of this vice.
investigation, photographs were taken .showitlg that Hughes. made ahand-to-hand
drug transa .tion*and:then went to ahouse located several minutes from the murder
scene. Detective Arrendondo testified that he.observed a.Honda Odyssey, parked
outside of this house. N.T., 1/12/17, at pp.'140-145:
'11.
The police 'investigation. further disclosed that Hughes had provided. several
different and inconsisteri alibis as to where lie was: on .the day of the homicide, none
of which the detectives could substantiate. N..T.,.1/18/17., at p.'7.. Detective. Darrell
Snyder conducted an interview of Hughes. Detective Snyder testified as follows:
When 1. first .asked hire where were :you on this date ; it's* a* significant -
date we're talking. about, Black Friday, the day after Thanksgiving..
This is less than two weeks afterwards. When 1. first spoke to him, his
first indication was he was at his girlftiend's the entire day. Then the
photographs and'make the purchase or the sa le .by the vice . detectives,
then he changed. his story. [sic] 1was at. my girlfriend's house from 3
pm. until 8:3.0 p.tii_ -when Iwent to my other girlfriend's 11OUSe. During :
the course of speaking with him, again it continued to evolve to ;Iwas
selling drugs to aguy name [sic] Mike; in this case he did. However,
that'was earlier: in the morning not at-the time his homicide occurred.
Then he'changed his story a gain-that he sold t.o awhite guy named .Dan
and he provided me a.description,. at Center and Berwick Street, -which
is near where. it happened but still a significant distance away.
Speaking to hhn further,-he.admits to driving by the victim's house
shorily -before. the homicide. occurs. He also says that he. sees Sabree, s
the person who drove up to — the victim up to the scene. He also
indicates .that. he would have. been driving: .By his. own words, he
admits that he was probably driving by the. scene around the time the
homicide occurs. This. evolution of where it's at to me. it struck me as
it k
ept changing. .Any'.time 1threw -something. else at him, it-would
change to. adapt to whatever I. was saying. That was, tome, asignifica»t
event in there..
Id. at pp. 7-9..
Timothy Graves (hereinafter, "Graves t% ari -inmate. incarcerated. in a state
cori fictional facility who -shared a prison transport with Hughes, testified that
Hughes boasted to him about the .fact that. he had prepared an alibi. for.the time. of
the homicide. N.T., 1/17/17, at pp. 88, 92. Hughes indicated to Graves that the
reason for the instant homicide was because Hughes felt disrespected by the actions
of a:girl he was*seeing while he was incarcerated. Id.. at pp..90-92. Graves testified
that Hughes stated to him that "his mans haiadied that." When :Hughes made this
statement to Graves, Graves testified that Hughes used ahand gesture to give the
impression'that Hughes' "mans" shot the .new boyfriend. of Hughes' ex-girlfriend.
Id. at p. 92:
Multiple letters that Hughes wrote to the girl referred. to in Graves' testimony,
Nicole Greene, were submitted. at trial. 1n these. letters ;Hughes professed his love
to Ms. Greene: See Com.. Exhibit 47 B; see also MT: 1/18/17 at *pp. 27-61.
Hughes' cel lirlate, .Tarries Martin, -testif ed at. trial regarding what Hughes told him
about this:case. The testimony was as. follows:
a: SaUree in Corey Re t
tyis' nickname. N.'F.,...1./1313 7, at p: ]
98:
12
i
4:
Attorney Pepper: Did he:tell you; anything: about it. after reading
that 'newspaper article about: the murder-in this
case?
Martin: Not at first. It was like: acouple days late.r,:and.l
don't .know how -the conversation'- started but it.
came up, the homicide, you know, with the boy.
It .was abig thing :about. Larry Holmes. about.
putting up for the. boy and stuff iike that and Ilet
it go. He said, yeah, that's. my work.
Attorney.Pepper: Ae .said in referring to the article about the
killing, the murder; he said, that's my work?
Martin: Yeah. He'was like, that's my work. My mans
did .it.
Attorney.Pepper: He. said, that's .my work, my man did it?
Martin: Yeah.
NT. ;1/13'11.7, at pp...90=91.
Finally,. Detectiv e
.Snyder testified that his investigation revealed that there were at
least*two shooters. Scientific analysis of the shell casings that were found an ,the
porch of the scene and the Iive round.: that was next, to it came from one weapon.
N.T., 1/11/17,.at pli: 5;39: *The analysis further revealed that the bulk of the shell
:casings at the scene,. which were found. near the body. of Holton, came from a
separate firearm. Id. Detective Snyder explained as follows:
All the shell casings under the tent came back tp the same weapon. The
live round that was found on -:thee scene was compared to the shell
casings that was. [sic] found on the porch next to .it. They came back to
asecond weapon. The: way they determine this is every. time a..firing
pin hits the back, it snakes acertain impression. They ekainine this
under amicroscope.. They can compare striations to each other and do
that rnatch. That's how they're able to. deten- nind that..All the shell
casings that were under that tent area,, one firearm. Live round and
shell casing on.the porch was from asecond firearm even though same
caliber and snake and model of a.M* .munition,Ahey were deterinined to
be. two separate weapons.
Id. at p. 39. Detective Snyder opined that.there were not only two.separate firearms
used, but that there were also two separate shooters. He reached this conclusion
based on.the significant distance between the location of where the bulk of the shell
casings were founds and the location of where. the other casings and live roun& were ,
found*.. Id. at p. 40..
.13
The:- evidence presented at trial shows that Hughes was the member. of the
conspiracy who .devised 'the murderous. plot. and ordered Appellant,. his co=
conspirator, to carry out the plot. ln.accordance with these orders; Appellant went.
to the*home of Janine Edwards, where the murder occurred ;which waa where they
expected the victim to beat that time, and murdered the: victim by shooting him at*
least. five*times.:See N.T., 111211.7, at pp. 1.28-129. This evidence was sufficient to
establish beyond. a reasonable: doubt that Appellant, in a conspiratorial fashion,.
acted with malice aforethought and with aspecific intent to kill. See Corn. V.. Boyle,
.470 Pa. '343,. 368 A.2d 66.1 (1.977) (evidence that :defendant was, member of
conspiracy to kill :three persons was sufficient ``to support guilty verdict against.
defendant in prosecution of three counts of first degree murder).
-
Trial Court.Opinion,. 10/16117, at pp..4-10.
.For the reasons. stated on pages.4-10 of our Merriordhduiri Opinion, set forth above, Appellant
is not entitled to relief based on his sufficiency of the. evidence claims 9
3. "The redaction . of the non-testifying co-defendant '
sstatement . and confession;along with
statements by the prosecutor in' closing arguments was insufficient to preclude the jury's
inference that the Appellant was the co-conspirator - in. :Violation.of Bruton v. United
States, 3.91. U.S.123, 88 S:Ct'1620 LEd..2d 476 (1968) .[siej *and its progeny."
Upon review of this, alleged statement. of error, we submit that it is.unclear as to.what.
Appellant is objecting. Appellant'does not specify any statement of his co-defendant, nor does he
specify what comments of the prosecutor to which he is referring.
Appellant's co-defendant, Hughes, did not take the witness stand at the time :of trial.
However, if AppellantIs referring to the testimony of Hughes' cellmate, James Martin, in which Mr.
Martin stated that Hughes told him that it was "work" and that his "mans did it" Appellant's issue
has no merit.
Prior to: Mr. Martin's testimony; counsel for the. Commonwealth. stated the following for the.
record, but out of the presence``ofthe fury:
For the record -Mr. Martinis here. Imet, with him for approxilmitelyten minutes.
And I. advised Me. Martin that due to. certaiA legal, requirements in his testimony, he
cannot say .... that defendant Hughes told Mr. Martin my boy, quote, "O",.end quote,
9We:note:that appellate counsel for. Appellant's. co-defendant,. Mr. Hughes, bad argued asufficiency of the evidence
claim to the Superior Court. €n an Opinion dated April 3, 2019, the Superior Court: struck down this claim.
Caindionwealth v. Hughes., J-S51009-18 (Pa. Super.. Apr.• 3,. 2019).
1.4
Aid it. Iinstructed. Mr. Martin that he is permitted to say,.quote, Mr-.Hughes as;
saying my boy did it, but he. carn►ot use the word "O."
NX,1/1.312017, pp. 85 -86.
This Court instructed Mr. Martin as follows: "..:..kneed to issue*.an order, an instruction.. to you10
follow what Mr: Pepper said. Ineed you: to not mention that .Mr. .Hughes made any reference to
anyone named "O." It-is.permissible for:yau to mention, if it's truthful,.that Mr. Hughes mentioned
the.phrase my boy...." Id. at p. 86: Following.these comments on the record, Appellant's trial
counsel stated that he was satisfied with.the colloquy. Id..at p. 88:
The testpmouy of Jarnes Martin, relevant to this issue, was'the following-
Attorney Pepper Did he tell ..you anything. about -it. after reading
that newspaper article about the murder in this
case?
Makin: N.ot at first. It Was -like. acouple days later, and I
don't know how the..conversation started but it.
carne up, the.homicide; you know, with the.boy.
It was abig thing. about Larry Holmes about
putting up for the boy and stuff like* that and Ilet
it go:- He said, yeah, that's .my work.
AttornOyTepper .....He .said in referring to the article about the
killing, the murder, he. said, *that's my work?
Martin: Yeah. He was .like, that's my work. My maps
did it.
Attorney Pepper: He said, that's: my work; my man did it?
Martin:. Yeah:
N.T., 1113/17, at pp. 90-91. During his testimony; Mr. .Martin*never made any direct reference.to
Appellant or to anyone named "O", and no objection was made by trial counsel. Because .this* issue
was not objected to during trial and because this issue was not. raised in Appellant's .PCRA Petition,
we believe this issue to be. waived. However ;should it not .be considered as waived,, it is nevertheless
meritless.
15
In'Brulon, the United_States Supreme Court .held that, if anon-.testifying co-defendants
confession directly and, powerful ly implicates the defendant.in the crime, then an instruction* to the.
jury to .consider the evidence only against the. co-defendant is insufficient, essentially as amatter of
law, to protect the defendant's. confrontation rights. *See Cons. V. BO-ujn ;.592 Pa. 376, 39.4., 925 A.2d
147,.157 (2401) (summarizing holding of Bruton*).- Therefore, Bruton applies when there is a
powerful]y incriininating confession made by anon-testifying defendant during.a joint trial.. Isere,
we do not believe that there was any testimony that would directly and powerfully implicate
Appellant: The Pennsylvania Supreme Court has held that ``substituting the. neutral phrase. "the guy"
:or "the other:. guy." for the defendant's name. is an appropriate redaction. ..See Commonwiedlth*v.
Travers, 564 Pa.. 362 ;372, 768'A.2d 845, 851 {2001). The redaction employed in this case,."the.
boy" .and "my mans did not implicate &ufori concerns in the same way as astatement that
incriminates the defendant on .its face, either by. actually naming him or by an obvious method .of
deletion—Id.
With regard to any statement made by the.. prosecutor during. closing arguments that would
have been in violation of Bruton, again, it is unclear as to what Appellant is referring. Nevertheless,
we submit that nothing in the prosecutor's closing remarks disclosed to the jury that Mr. Hughes's
statement as relayed in Mr. Martin's testimony had beenledacted and/or unequivocally identifies
Appellant as the individual whose name was removed. See Commonwealth v. Cannon, 6.14 Pa. 494,
.22 A.3d 21 d, 219 (201 1.). Even if the did reference evidence: other than the redacted
statement;. linking Appellant to the crime with other properly admitted evidence is not aviolation of
the.Brut6h rule. See id.
4. ``Trial counsel was ineffective for failure to argue and file .
asupplement [sic] brief in
support ofth:e Severance Motion"
-To establish.trial .counsel's ineffectiveness, apetitioner must demonstrate: (1) the underlying :
claim has arguable merit; (2),couilsel had no reasonable basis Tor the course of action. or inaction
.16
chosen; and (3) cou rise i's -action or inaction prejudiced. the petitioner.. See Strickland v.-Washington,
466 U.S..668 ; 104..5. Ct. 2052,-80 L. Ed..2d.674 (1984), Coinmonivealth v. Pierce, 515'Pa. 153, 527
A.2d 973 (1987).
A PCRA petitioner will be:granted relief. only when he proves; by .dpreponderance of.the.
evidence ;that his convidiion -or sentence resulted from the ineffective assistance. of counsel which,. in
the circumstances of the particular case ;so underini-ned the truth- determining process that no reliable
adjudication of guilt or innocence could have .taken place. 42 Pa.C.S: §9543(a)(2)(ii). Counsel is
presumed effective ;and. to rebut that presumption, the PCRA petitioner must demonstrate that
counsel's performance Was deficient and that such deficiencyprejudiced him. Freeland,- I06.A.3d at
775. Counsel's assistance is deemed constitutionally effective .once it is determined that the
petitioner has not established anyone of the prongs of the ineffectiveness test. 6nmomvealth v.
Rohn, 964.A.2d 398, 406 (Pa. Super. 2008).
:Here ;AAppellant's Motion for Severance was filed by Attorney Matthew Deschler, who
trial. We. denied the. Motion for Severance: and, permitted Appellant's case
represented.Appellanf pre -
to.be joined.with.thd case of his. co-defendant,-Patrick Hughes. Attorney Deschler subsequently
withdrew as counsel for. Appel lant,.and.Appellant privately retained. Attorney Liam Riley as his
counsel. On March 7, 20.18,..Attorney Riley appeared for ahearing, andthe Following discussion
took place on'the record between Atiorney.Riley, Assistant. District Attorney Blake, and the Court
with respect to Appellant's Motion:for Severance:
THE COURT: All right. Mr. Riley I.kno.w you didn't file :a motion
far [Appellant], .prior counsel did,. but :let: me just go
through with you what -1believe is. in his' motion.
There was amotion for: severance. Iheard that. I
did hear that. at the time I:decided to join'the cases;
Did .you, need to be heard on that again today?
ATTORNEY RILEY; Idid read his motion and his brief. And. Your
Honor, the only thing lwas unclear of:is whether or
not the issue .of the co=defendant's statements was
addressed during that argument. I believe the
17
Commonwealth intends' to introduce- a statement
through an informant that Mr. Hughes. iaade some
admissions.
*THE COURT: 1don't think we did. Did we?
ATTORNEY.BLAKE: There was some discussion about. that. But we
didn't have ahearing.
THE COURT: .If you: need to be. heard on that today,-you may. You
want. me to rule on your motion.-for severance as. a
result of that?
ATTORNEY RILEY: Yes, Your Honor, unless Your Honor would like.
additional case law on that subject.
THE COURT: if you want to submit it, you can.
Notes of Testimony (N.T.) 3/7/2Q18, at pp. 1617. Subsequently, during this same hearing, the
following exchange took place on the record:
ATTORNEY RILL,Y:: 1``s it still the intention of the Commonwealth to
introduce statements of Mr. Hughes. that .implicate.
[Appellant]; is that correct?
ATTORNEY BLAKE: ..,..There may be a. statement, and-1 understand
under Bruton that statement would have. to be kept.
out.or else. it would have. to be. redacted in some way
to get it in: I'm aware ofthat.
ATTORNEY RILE Y; That -is my only issue with the..consolidation
whether or nat.the details of h.ow that would be
admitted are. going to be. 'So I.guess maybe before
we go forward Ican clarify with counsel —it doesn't
have to. be today exactly — what he wants to
introduce and Imay have asupplemental motion.
Id. at p. 170. At the conclusion of the .hearing, when this Court attempted to clarify that Attorney
Riley was briefing the argument regarding Appellant's Motion.to Suppress arid/or the.Severance
Motion, Attorney Riley responded, "Yes, Your I-ionon. The severance only pending my
conversations with counsel." Id. at::p. 172.
18
.Attorney Riley never did file asupplemental brief:- In: our Opinion disposing of Appellant's
omnibus pretrial motions, we stated "[t]his. Court never received further argument.froni Robinson,
and as such, we iiifer``that Robinson does not take issue with the cases being: consolidated due to any
statements that may be .offered by the Commonwealth. Trial Court .
,Cpinion, 8/15/16, tit p. 2.1.
At the PCRA hearing in this matter,. Attorney Riley testified as .follows. with respect to this
issue:
.PCRA .COUNSEL: So at the stage where you were [Appellant's]
attorney, was : there any argument that Judge
Slet•old had asked of counsel regarding severance?
ATT.QRNEY RILI{✓Y: 1don't believe, there was. argument ... [T]he issue
that* .t saw to be the most significant was. the Bruton
issue with Mr. Hughes' staterrient. So. Iraised that
issue, not. in aformal.rnotion, but with*Mr. Blake ....
Based on our conversation, we agreed that the
statement of Mr. Hughes would be redacted such as
the Bruton issue. would. be corrected, and Idid not
see any*other issue to raise with. respect to that issue,.
with respectto severance issues.
So I. believe Istated at one court. appearance ....
that Fwould have :no further argument on that issue
unless we.*could not come up with an agreed upon
redaction.
N.T..1 1/23/2020,..at pp. 4-5: •
06' cross=examination of,Attorney Riley, the fallowing. took
place:
ADA PEPPER: Mr.: Riley;.ifI understand your testimony
correctly, you were not. directed by the Court to fle
a supplemental brief, you were , offered the
opportunity; is that correct?
ATTORNEY RILEY: Yes,..I think that's:right.
ADA PEPPER:. And you felt it was- not necessary to file a
supplemental brief at that time since those. issues
have previously been briefed and argued by prior
counsel?
19
ATTORNEY RILEY: Y.es,.that's correct. ibelieve there were.a few
motions. that. were. outstanding -at that point,
including suppression. And) did argue that issue,
but not with respect to severance s J did. not. You
are correct..
Id. at pp. 8-9.
In the no-merit .letter, with respect to the issue.ofwhether Attorney Riley rendered ineffective
assistance iri failing to provide further argument regarding Appellant's Motion for Severance, PCRA
Counsel provided the following :informed analysis of the circumstances of this case as they apply to
the relevant law:
A review of the .jecord as well As -testimony .elicited from Attorney Riley
demonstrate that he, after discussion with the Commonwealth, decided. that no
supplemental brief was warranted. He W* as able to come to•an agreement with the:
prosecution that the* statement. from [Appellant's] co-defendant was suffciently
redacted so. ,as to .not implicate Bruton. Attorney Riley had a.reasonable basis not
to file this brief as the issue, that said brief was to encompass was already addressed.
Therefore, under Strickland,. Attorney .Riley's representation of the Defendant was
not ineffective and as such [Appellant]: is not: entitled to relief. 1
1d..
No-Merit Letter, 1./2S121,.p:.4*(emphas'is in original). 10 We. agree and adopt .tllis assessment herein
as the reason for which this issue on appeal lacks merit. As.made.clear by the testimony; Attorney
Riley ``triade*tlie informed decision. not to file. asupplemental brief with respect to the severance
motion. Further, to the extent that the contested Bruton issue concerned the redacted statement of
Mr. Hughes as..testified to by James Martin, which is. discussed above;" this underlying issue has no
10 we note that while this analysis is.found on the fourth page of PCRA Counsel's no-merit letter ;the pages of the
no-rueritletter are unnumbered.
At:a hearing .held on October 9, .201S,.counsel.for the Commonwealth stated the. following:
To my.ltnowledge;there is but one possible statement from.anybody [ that]implicates the
two defendants together.. In other words;, Mr. Robinson does not give a statement that
implicates Mr. . Hughes. Mr. Hughes does not give astatement that implicates Mr. Robinson.
There is awitness, and he's mentioned in the affidavit'ofprobable cause, that says words to the
effect, Mr: Hughes admitted that this was .his work and he.had.his boy"0" do it. He says
He never said Omar Robinson. Normally, under Bruton, I recall, that being redacted or
changed to my boy X did It, which would be the. standard redaction- for that type of
statement. That's the only one I'm aware;ofA don't think that'one statement, which we would
be willing to alter in some, redacted. form, is enough to prevent. these two from being joined.
N.T., 14/912015, pp. N-25 (emphasis. added):
'20
merit. Attorney Riley's. decision io forego argument on ameritless issues cannot properly serve as-
basis of;a claim of ineffective assistance of counsel. Therefore, AppeIlant,is entitled to no relief
the .
on this alleged statement of error) 2
5: "The Appellant's sixth amendment .confrontation clause rights were violated by not
allowing. the Appellant'to cross= examine Mr. Sandt as to his identifcation of what. he
Believed to be aHonda Odyssey."
Similar to..Appellant's alleged .errors above regarding .sufficiency of the evidence, Appellant
uhtitmly raised this alleged error regarding aviolation of his sixth amendment *rights on direct
appeal. The merits of Appellant's untimely- raised sixth amendment claim were. not addressed on
appeal., however, we* nevertheless addressed the merits of same in our Memorandum Opinion.'in.
accordance with RUle 1.925.(a) ofthe Pennsylvania Rules of Appellate Procedure,. filed on .'October
15, 2017. We note that in Appellant's Amended PCRA Petition,. Appellant raised a.claim.of
ineffective assistance.. of counsel .against his appellate counsel,-Attorney Srose ;.
for failing to advance
on appeal the ruling of admissible hearsay regarding the 911 call. However,-Appellant's issue as
presented in the instant appeal is. :not an ineffective assistance *
of counsel'claim, but appears to solely
allege an error on. behalf of the. Court, Therefore we believe this issue to be waived..
Even if this issue is not deemed 'to be waived,. it is without merit for the reasons stated on.
pages 19-22 of Our Rule 1925.(a) Opinion referenced above.. Our argument with respect to this issue,
asset forth*in our 1925,(a) Memorandum Opinion, is the following:
In this Statement of Error, Appellant objects to *the playing of one 911. tape to the
jury .in which Christine Saridt reported her observations with regard to the
November 23, 2014 shooting. this-91 l.t ape :
. reflects abrief conversation between
Ms. Sandt :and the 911 operator in which 1vls:.Sandt reports that there were shots
fired, that she -Observed then running off toward:a.dark colored van that was'located
!2 we note:that appellate oounsel.for Appellant's co- defendant, Mr'_.Hughes, had argued to. the Superior Court.,that
we erred in deriving his motion to sever his case. from Appellant's case. In an . Opinion dated .
April. 1, 20T9., the
Superior Court found. this claim. to be meritless: Comrriosrwealtlr v. Hughes, J=SS10fl4-18:(Pa..Super. Apr. 3, 2019 ):.
21
•} L
by the Salo Mio Restaurantl3, and that the police could catch them if they could :get
there .quickly. N:T., 1/12/17, at pp. 73-75.;.see also. Com..Exhibit..12. Additionally,
Ms. Sandt's.husband (hereinafter; "Mr. Sande"}``is. heard in the bacicgraund of the
911. tape indicating to Ms. Sandt that. the minivan toward whic.h.tlie suspects were
running was aHonda Odyssey. See Com. Exhibit 12 .Ms. Sandt :then .relayed this.
information to the: 911 operator.. Id. Appel lant. argues that the .introduction of this
911 tape. violated Appellant's right to confront. Mr.. Sandt because he was
unavailable to testify as. to his knowledge regarding the make and.. model of the
minivan and because Ms. Sandt was not able to personally identify the minivan as
aHonda Odyssey at the time she:placed the 911. call.
Initially, we point out that, via the .discovery process, defense counsel had proper
notice of this. 911 *tape and its contents well before the start of trial. Further,- Mr.
Sandt was not named on the Commonwealth's list of witnesses .it intended to call at
Irial, which list was pro vided :to defense counsel prior to trial. N..T., 1/12/17; at pp:
92=93, 979$ ;..1 Q3.. Rather thanp.resenting.this Court with an appropriate.Mation in
Limine on this .issue of .Mr. Sandt's availability as atrial witness, counsel for
Appellant waited until right ``before W. Saiidt was about to testify during the ,trial to
present this issue to the Court:
Nevertheless, it was not error for the jury to hear the contents of the 911 tape because:
the statement' therein were. noritestimanial. With respect to the .Confrontation
C.l:ause, the-Sixth Amendtitent of the. United States Constitution provides:. " [i]n all.
.
criininal-.proceedings the. accused shall.enjoy the right ... to .be confronted with the
witnesses against him." The United States Supreme.Court found that this Clause is
applicable whemthe statement elicited is "testimonial:" In Crawford v'Washington,_
the Supreme Court field thattestimonial statements.by declarants'who do not'appear
at: trial may not be .admitted unless the declarant is unavailable and the defendant:
had aprior opportunity :to;cross-examine the declarant. Cranford v. Washington ,
541 U.S. 36, 51, 124 S. Ct. 1354., 13.64, 158 L. Ed. 2d 177 (2004). Here, however,
the Confrontation Clause is not implicated because the statements-at issue in twe
911 tape are nontestimonial..
-In.Davis v: Washington, where the statetiments at:issue were from avictim describing
an ongoing. domestic disturbance to a91.1 operator, the Supreme Court defined what
constitutes "testimonial" and "nontestimonial°' statements as follows:
[S]tatements are -non.testimonial when trade in the course-of police
interrogation under 126 S. Ct. 2266, 2268-69, 165 L. Ed.
2d 224 (2006). The Court further stated, "A 911 call ......and at least the initial
interrogation*-conducted in connection with a. 911 call; is ordinarily not designed
primarily to establish or-prove some past fact ;but to describe current. circumstances
requiring. police assistance." Id. at :827 (internal citations and. punctuation: omitted),
Further, in.Michigan v.:Bryant, the Supreme Court found that astatement.made to
law enforcement for the primary purpose of'responding to an.ongoing emergency is
nontestimon'ial grid not within.the.scope of the Confrontation Clause: Michigan v:
Bryani,562 U.S. 344, 370, 131 S: Ct: 1143, 1162, 170 L. Ed. 2d 93 (20,11). The
Btyant Court stated, *."Tic existence and duration of-an emergency depend on the.
type and scope of.danger posed to the victim, the police,.and .the public." Id;. at370
71.
Instantly, because the 911 call at issue was .made for the .primary purpose of
responding. to an ongoing emergency, it consists of nontestimonial evidence:which
falls outside of the.Confrontati.on Clause and need only satisfy the Evidence Rules
for admissibility. See Com. v. Williams, 103 A.3d 354 (Pa. Super.. 2014). In
Commonwealth v..Hood; 872 A.-2d 175 '(Pa. Super. 2005), 'the Pennsylvania
Superior Court found that astatement in:a 9.11 call can be either an excited utterance
or present sense impression if the surrounding circumstances .indicate that the caller
actually witnessed what they described.in the call. Id. at 1.84.
In the;instant matter, Ms. Sandt's -statements consisted of excited utterances as'she
described ; in ahurried manner.., .that she had. just: heard shots fired in the. City of
Easton. This call was made to the :9 11 dispatcher as Mr. arid. Ms..Sandt. were.
observing the event,transpire at around 5:45 p:in...on the evening in question. .Ms..
Sandt.indicated in .the call that she observed two men run off toward aminivan and
asked for the dispatcher to quicldy send police :so that -the suspects could .be
apprehended. Therefore, -it is clear that all of the descriptive statements made in this
call; including. the description of the minivan as a Honda Odyssey, were made
during an ongoing erriergency.and to prevent any further.danger"to the public.
Evidence. adduced at Appellant's. trial contained sufficient "other corroborating
evidence" to justify the admission of the 9I.1.tape at-is sue.. Hood at 184'. This
other evidence that corroborates* Ms: Sandt's .statement_ that .the .minivan she
observed Was adark colored Honda Odyssey includes the video. recovered from the
Sole Mo. Restaurant that depicts two males running toward adark colored minivan,
as well as other witnesses who testified that they observed suspects running from
``the scene toward: the Sole Mio Restaurant,
As such,. the testimony of neither Ms..Sandt nor Mr. Sandt was:requiced with respect
to this call as the, statements made. in the 911. call are nontestimonial statements. not
subject to the Confrontation Clause and do not constitute inadri'tissible hearsay.
'
14 Pursuant to.the: Rules of Evidence, statements.'made in 911 calls are adruissible hearsay:as either excited
utterances or present sense:irnpressions, as long as there is'corrobgrating.evidence presented.to: indicate*that the.
person who called actually witnessed what they *describe in the:call. Id:
23
Further, tey were corroborated by..other .evidence adduced .at. trial. Therefore,-this
'not commit. an error when :it allowed the introduction of the statements
Court.-did I
o
made in. the. 911 call.
Trial Court Opinion; 10/ 16/17, at pp. 19-22.(internal.footnote ornitted). 15
G. "The. Trial Court erred. in failitig to grant it. mistrial on ``prosecutorial. misconduct when
prosecutor express [sic] his personal belief when he:stated'that the.Appellant ``G.ets.caught
in alie.' 1119117 at p. 83."
This issue* was raised at the time of trial, and it .was raised'in the context d.an ineffective
assistance of cQdnse.l claim: in Appellant's. counseled Amended Petition for Post-Conviction Relief: 16
Appellant argues -that Assistant District-Attorney.Pepper cotnniitted .prosecutorial misconduct'duririg
leis. closing when lie. misstated evidence thaf Appellant "gets caught in alie" when he tells officers:
wherehe was at. the time of the*inciddt% See'N.T.; 111912017 ;p, 83. This issue.lack.s any arguable
merit because the: objected -to comment was supported by ihe. evidence in this case and because the
remarks were not unfairly prejudicial.
it is welkemablished that. a. prosecutor. may vigorously argue. his case to the jury. as long as his
coitiments are ,supported by the evidence or constitute reasonable inferences therefrom.
Commonwealth v. Washington, -549 Pa. 1.2,127, 70:0 A.2d 400, 407 .
(1997)..Sp long as'the
prosecutor's comments did not farm in the jury'sminds afixed bias and hostility towards. a
defendant such that. the jury could not weigh.the evidence'and render atrue verdict, the prosecutor's
's We note that appellate counsel for Appellant's co-defendant, Mr. Hugbes, had argued to. the Superior Court that
the admission of Mr. 8andt's hearsay statements violated his.zonfrontation right because Mt..Saridt did not testify at
trial. In an Opinion dated Apri13, 2019,'the Superior Court found no merit to this claim. Corrrmantvealtli v. Hughes,
iss1009-18 (Pa. Super. Apr.. 3, 20.19).
'
6 The claim in Appel lant's_Amended PCRA Petition was set forth as follows:
Defendant's .fourth claim for relief "is against.: Attorney Brost for failing: to advance a
prosecutorial '.misconduct claim on appeal, In .ADA Pepper's closing, he instructs the jury that
Defendant was. "caught in :a lie" to adetective regarding his location during the alleged murder
Defense counsel, Attomey'Riley, objects, °arguing to. the Court -Attomey Pepper blatantly
misstated evidence. This objectioii was ovetTuled ... Attorney Sro failed to advance said claim
on appeal: Defendant avers this was i neffeetive assistance of counsel.-
.
24
}
1``
comments generally do not. constitute reversible error. Commonwealth v_ Hawkins ;549 Pa. 3.52,. 373,
701 A.2d 492, 503 (1997).
Nothing indicates. that the jury was unable to render atrue verdict in the instant case. See
Commonwealth v. Koehler, 558 Pa 334, 737 A.2d 225 (1999} (holding no relief warranted where
allegedly improper remark did not have the effect of rendering the jury unable to weigh the'evidence
.objectively). Assistant District Attorney Pepper did 'state that Appellant got "caught in alie but this
comment was made in abroader'context in which he.ref6tenced additional relevant evidence froze
the testimony attrial, telling the jury as follows:
Incidentally, [Appellant] gets caught in alie with the officers when he fist says I
was over. aNorthampton Crossings on 248. Completely utterly out``of the. area when
this occurred. When the officer said, you .know,. there.are videos over there,
surveillance over there,. And then he fesses up ;all right. 1wasn't really there.
N.T. 1/i9/20:17,.pp. $3-84: The.. prosecutor's corn ment was not an untenable opinian,:but rather a
comment supported by reasonable inferences to: be drawn from tyre evidence.. See Commonwealth V.
,Tomes; 546 Pa: 161, 200, 683 AJd. 1L81, 1200.(1.996) (holding aprosecutor's justifiable comment
that the jury should:find evidence. of defendant's guilt overwkieltr ing was. "clearly permissible'.
Commonwealth v. b Amato, 5.1.4 Pa. 471, 489 ;.526 A.2d 300, 309.(1987} (noting aprosecutor is
always allowed to argue that evidence: establishes. the defendant's guilt).
Further, the Court must review prosecutors' comments to ascertain their prejudicial nature to
the jury:. The determination whether the prosecutor's remarks were unfairly prejudicial rests within
the sound discretian.bf the trial. court and wiJi. not lie overturned absent an abuse of discretion.
Commonwealth v. Jubilee, 589*A.2d 1.l 12, l114 (Pa: Super. 1991}'(citations omitted). Here,.pot only
has Appellant failed-to show 'this claim is of arguable merit. because. the P* rosecutor's comments were
not objectionable, but Appellant has failed to show the existence of prejudice because any.possible
prejudice engendered '
by the prosecutor's comments was cured by this. Court'.:s jury instructions.
25
We instructed the jury that,they must rely upon their own recollection, not that of the
prosecution,land we also instructed the jury that.speeches of counsel are not part of the evidence.
These instructions were.as follows:
As members of the jury, you are the sole. judges. of the facts of the case. You are
the sole judges of any inferences. which: honestly arise froin those facts. And you,
as. jurors, are the sole judges of the credibility of the witnesses. By credibility, I
mean the believability of-the witnesses. You find the facts from the testimony of
the. witnesses'and from every reasonable. inference.which naturally.arises from that
testimony, as well as from physical. exhibits which may have been received into.
evidence. They are. part of the.evidence. in the case and should be considered along
with all of the testimony and any reasonable. inference of.fact which arises from. the
testimony.
The Commonwealth has.introduced evidence of statements that it claims were made
by the defendants. Before you may consider.the statements as evidence against the
defendants, you must .find that acrime was,. in fact,. committed; that the defendants,
in fact, made the statements; and that the statements were voluntary. Otherwise,
you must .disregard the statements.
Each..juror should ultimately decide these questions for himself or .herself and
thereby individually accept or reject the defendants' statements as evidence. You
must not al IoW fact that. Iadmitted the statement into evidence to influence you
in any way during your deliberations.
N.T., 1/1.912017; pp. 106-107.
We further instructed:
Concerning argument of counsel, the speeches.. of -counsel are not: part. of the:
evidence. And ,you should not consider them as such. However ; in deciding the.
case; you should carefully consider and weigh the evidence in light of the various
reasons and arguments that each lawyer presented.
It is the right and duty of each lawyer to discuss the. evidence in amanner that is
most favorable to .the side he represents. You:should be guided by each. lawyer's
arguments to the extent that they are supported by the evidence and so.far as they
aidyou in applying your own reason and common sense.
However, you are not required to accept the arguments of the lawyers. It is for you
and you alone to decide the case based on the evidence as it presented from the
witness stand and.in accordance with the. instructions that.I am now giving. you..
Id. at. p. 121.
26
For1he foregoing reasons, Appellant's claim for prosecutorial m'isconduct'as aresult of: the
prosecutor's comment that .Appellant got "caught'.in a.1ie" lacks merit..
7. "The Trial Court erred in .failing to grant .a mistrial on prosecutorial: misconduct when
the prose made iris- statements. of the fact of the record when he stated
that the Appeitllant .[siel said .that "I really was not their [Mel "anti he "fesses .up" [sic]
111:9117 at p..83 and 1.11911:7 at p.'85, "we haven't pushed the issue of Mr: Holton``dealing
drugs:" 1/19/17 at 67,.77:'
With respect .to the alleged misstatements of fact during the prosecutor's closing when* the
prosecutor alluded to the fact that Appellant "fesses up", this statement was. directly related to the
portion of.the proseeutor's:closing.when Assistant District Attorney Pepper stated. that Appellant
"gets caught in afie." Therefore, for the: reasons addressed above with respect to Appellant's issue
number 6, this issue lacks merit;
With respect -to the alleged misstateinents of fact regarding "Mr: Holton dealing drugs", this
issue also'has no merit. Assistant District. Attorney Pepper told: the jury during closing arguments:
We haven't.pushed the issue of Mr. Holton dealing drugs: The defense.has suggested that to you,
particularly Mt. Riley. It*.may very well. have been. Also about. rival :drug dealers: Ican't suggest that
to you. Let the evidence take you where it.will." N.T., 1119/17; p.. 67. Later during the prosecutor's..
closing ;he stated with respect to this issue: ."Again, we didn't put the drug rivalry :out there. The
Defense .did: It's entirely possible. W6*don't know." Id. at. p. 77,
Given.these statements of the .prosecutor, it is clear that the prosecutor was telling the jury
that any potential "drug rivalry" was something tizat.the jury needed. to determine based on. the
evidence of record. This reference to a. drug rivalry was also reasonably'inferred from the evidence
17 As stated above, the statements made during Assistant District Attorney. Pepper'.s..closing to which Appellant:
-refers is, in relevant part, the. following:
Incidentally, Robinson gets edught in -
*a lie with the officers .when he first. stay sIwas'over at'
Northampton. Crossings on 248.' Completely utterly out of the area when this .occu'rred. When
the officer said,.you know; there are videos. over there, surveillance over there. .-And then he.
fesses .up; all right. Iwasn't really tliere.
N.T. 1/19/17 of pp. 83-84 (emphasis added).
27
presented at trial. By virtue of our Opinion and, Order dated November 14, 2016, we permitted the
introductiQn.of evidence relating to adrug deal that occurred on the date of the homicide, including
any photographs and .testimony related to the drug deal. We also found, pre-trial; that the evidence. of
record indicated that. because the transaction was. drug-related, it .was directly probative .as' it goes to
the inotive.of the homicide. As aresult, this evidence was presented to the' jury throughout the trial.
Further, we read acautionaryinstr6ction to the jury, which, although it:was an instruction
following opening statements and given at the outset of trial, goes directly to statements made during
the prosecutor's closing concerning drug activity. The cautionary instruction given to'the jury was as
fol lows:
In opening statements,. you heard .reference. to the defendants being drug dealers:
The Commonwealth may present evidence to: suggest that the defendants were
together. on the .day of the homicide participating in a drug transaction. This
evidence may be considered as.*possible motive. However, the defendants. are not
0111641 for being drug dealer& You may not convict the'defendants merely because.
you may find that they:inayhave, been*involved with drug activity. Rather, you may
only convict the defendants if you find 'beyond a reasonable doubt that they
committed ahomicide of the victim and /or were engaged in aconspiracy to commit
ahomicide as I'll further instruct you at. the end .of the case.
N.T., i/10/17, at.pp, 87-88; see also id. at. pp 7b=77.
Moreover, as set.forth above, .we instructed the jury that speeches ofcounse1..are. not part of
the evidence and tliey should not be considered as such. Therefore ;the .prosecutor's torments,
referring .to.the victim as:a "drug.dealer" and.mentioning a"drug rivalry",*which comments were
substantiated by .evidence at trial and accoinpanied by acautionary instruction, did not prejudice
Appellant such that the jury .could not fairly reach averdict.
8. "The Trial Court erred in failing to grant amistrial on prosecutorial misconduct when.
prosecutor reference to unrelated infamous crimes; OJ Simpson.and.the Bastori barn' ber
case. 1/19(1..7 at p. 71 and 1/19117 at U."
The: prosecutor's remarks about the OJ Simpson case as. referenced in.this :
alleged statement
are. the followings
•
28.
You heard about a. glove that Vas .picked up. .W Simpson ,if the glove doesn't fit
and on and. on, That's not. this case. The detective* said, Ipicked it up. It Looked
like it had been there for quite some time. Yeah, we sent.it:out. We got:an .unknown
DNA. So what? If we*can: tmatch it to somebody, we can't match it to somebody:
We.told.you that. We did 'n't hide. it. It has nbthing>to do with this case.
N.T. 1/1.912017, p. 7l. .The .prosecutor's.remarks about the "Boston bomber-case as.referenced in
this alleged.statement are the following.
They have. thrown -up in your faces -the Boston bomber: -Please. When you're
desperate in *a case you throw up nonsense like that. If.you recall in. the Boston
bomber case, there was also video. There were: phone records. There were
confessions.. There were all sorts aFthings: This'is not. the Boston.b.otnber,:case.....
Id at p. 73.
.' s
A review ofthese remarks in cogjunction'with the other testimony of record reveals that the
prosecutor simply noted prior. references to these."infalnotW' cases that were already of record. The
prosecutor related these.references to. other'relevantevidence in the case and -highlighted how the QJ
Simpson and Boston Bomber cases -
were actually dissimilar to Appellant'
scase.In light of the legal
precedent provided satpra, these comments during the prosecutor's closing argument in no way
would have formed in the jury afixed bias' or hostility toward Appellant such that the jury could riot
weigh the evidence and render atrue *veidict, especially considering the prior references made to
these. cases during trial. Further, these comments were followed by*this Court's instructions to the
jury, which cured aiiy potential. prejudice.
18We note that this. comment was made in response 'to the closing argument presented by.trial co unsel for Patrick
Hughes who stated:.":.. [T]he representative,Mr. Sierra,told you that in the SDstdn Ma..rathon .
bornber case,.that's
•watthey did, acell dump. ;and.
were able .
to catch the folks that were involved there." Id.. at p. 23.
V- efurther note that Joseph Sierra, the custodian of records for'T-Mobile U.S., testified during *tria1.
about checking
cell phone calls through "tower dumps." • As :part of this testimony he stated, "``You know,most people that do tower
dumps donq know what number they ' re looking for:The Boston bombi ng,-that was done through .tower dumps near
where the bomb:went off, that's how they found them. and found out•they were T-Mobile customers" N.T.,
/
11/2017, pp. •.188- l89.
29
9. "PCRA Court and PCRA Co unsel failed to comply with the. requirements ``of
Turner/Philey prior to .Counsel's "No=merit'brief letter["J an.d Moti©n.to WithdrAW .and
PCRA Court's Order to dismiss when PCRA Counsel failed to add claims 5, $in original
PCRA:Petition 4/30/2.024 at. p..5.5757,. and 58-6U:".
As discussed herein., even if Appellant's PCRA. Counsel had litigated statements five and.
eight,' 9 the claims appurtenant to them would have been dismissed because they lacic:merit..See
discussron:supra, pp. 21-24 and.28-29. "The threshold inquiry im.ineffectiveness claims is whether
the issuelargum6ntltwic which counsel. has foregone.. and which forms the basis for the assertion of
ineffectiveness is of arguable merit" Commonwealth v: Kelley, 1:36 A.3d 101x7, 1012 (Pa.. Super.
2016) (internal citation.and punctuation omitted). Counsel, thus, will not be deemed to be ineffective
:for failing. to. assert ameritless claim. Id:
Because Appellant. aannot*establish that these underlying claims have .arguable merit,, -
PCRA
Counsel's decision to* forego these meritless issues cannot properly serve as the. basis of aclaim of
ineffective assistance of counsel. Therefore, Appellant is entitled to no relief on this alleged
statement of error.
10. "Counsel failed to..oblect. during -trial and preserve for appeal an introduction of
hearsay testimony that was used to describe his client as *a shooter."
It appears that. by raising. this issue Appellant. is attempting to assert an ineffective assistance
of counsel claim as against liisIrial counsel. However', Appellant raises this issue for the first.time. in
this appeal. Appellant plainly states herein that trial counsel did not*raise this claim during trial.
Further, this. claim was.not raised and.preserved in apost -trial motion, either directly or in the context-
of an ineffectiveness claim. This issue was.not raised and preserved. in the original PCRA Petition or
eon appeal. See
in the Amended PCRA Petition, and theneforejccannot.be raised for the first.tim .
19We believe Appellant is referring to: issues numbered Sand 8raised herein, which are that his sixth amendment
confrontation clause rights were violated because this Court failed to allow cross examination of Mr. Sandt.and that
this-Court failed to grant.a mistrial due to remarks: made during the prosecutor's-closing statement-regarding certain
"infamous crimes.."
30
Cammonivealth:.v. Fora, 44 .A.3d 1190, 120.1 .(Pa. Super. 2Q.12) (holding that claims ofPCRA
counsel irieffecfiveness cannot be raised for the first time after a.notice of appeal. has been taken from
the underlying PCRA matter). Because this :issue was not raised previously, it is waived.2o
Even if this claim were not deemed waived for failure to raise it previously, it is waived
because Appellant does not develop; this issue it! his 1925(b) Statement.such that. we are.
appropriately able to: address same:.Pa.R.A.P. 1925 (b)( 4)(ii )provides. that an appellant's. statement of.
matters coritplained of on appeal must "concisely identify each error that the.:appellant intends to
assert*with sufficient detail to identify the.:issue to*be raised for the judge; Pa:R.A.1': 1925(b)(4)(vii)
provides that, alI issues not raised in accordance with subsection (b) ofthi§ rule are waived. Here, the
trial testimony was voluminous ;and Appel.lant's Concise Statement of Matters simply references
testimony describing him as a"shooter." We* *are unclear as to what testimony Appellant is referring;
and because Appellant failed to develop this contention in anymore detail, thisIssue: is waived.
IV. Conclusion
Based on the foregoing analysis, .Appellant's appeal should be denied, and the final Order
dated.January27, 2021, dismissing Appellant's PCRA Petition should be affirmed.
BY THE COURT,
JENNIFER R.. SLET VOLD:, JUD GE .
DATE:•3i••' l
'
2DW.e also note. that to. the extent Appellate .'t.s asserting ineffectiveness agairist.h.is appellate counsel. regarding this
issue, we submit that appellate counsel cannot be deenied .ineffecti•e for failing to raise claims that were defaulted.
..below. Sac Cuallmimvealth V. Fletchar, .604. Pa. 493, 555; 986 A;2d 759,797 (2009)..
31