Com. v. Hickman, R.

J-S28016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ROBIN HICKMAN
Appellant No. 1043 WDA 2016
Appeal from the PCRA Order June 28, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010825-2011
BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 27, 2017
Robin Hickman appeals from the June 28, 2016 order entered in the
Allegheny County Court of Common Pleas denying his petition filed pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.
We set forth the factual history of this case in our memorandum
affirming Hickman’s judgment of sentence:
This matter arises out of the shooting death of David
Spahr [(“Victim”)] on November 15, 2010. The
Commonwealth established that [V]ictim was found shot to
death while seated in the driver’s seat of his vehicle on Bortz
[W]ay in Swissvale, Pennsylvania. [V]ictim had been shot
at close range. One bullet had entered the left side of his
face and lodged in his right mandible. A second bullet
entered the left [side of his] chest and passed through
various organs, including the aorta, and was recovered from
the muscles of the right side of his body. Ballistic analysis
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* Retired Senior Judge assigned to the Superior Court.
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later established that the bullet taken out of [Victim]’s right
mandible at autopsy had been fired by a .357 Taurus
revolver. The Taurus revolver had been recovered by police
during an investigation into a subsequent unrelated
homicide of Charles Wooding[,] which occurred in March of
2011, also in Swissvale. During that investigation,
[Hickman] was questioned by police and he ultimately led
police to the Taurus revolver[,] which was found where it
had been thrown into some weeds along a set of steps near
the location of the Wooding shooting. Allegheny County
ballistic experts matched the bullet taken from [Victim]’s
body with the gun that had been used in the Wooding
shooting. In addition, the Commonwealth established that a
fingerprint found on the exterior passenger’s side door of
[Victim]’s vehicle matched the right little finger print of
[Hickman].
The Commonwealth also offered at trial [Hickman]’s
confession[,] which he made at the time of his arrest on July
28, 2011. [Hickman] was given his Miranda[ v. Arizona,
384 U.S. 436 (1966)] rights at police headquarters. In his
confession, [Hickman] stated that on the day of the shooting
he returned from work to his apartment and met with
another individual Hashim Rashad [(“Co-defendant”)]. [Co-
defendant] told [Hickman] that he was having problems
with [Victim] over money. [Co-defendant] then asked
[Hickman] to go with him to a meeting with [Victim] at
which time [Co-defendant] wanted [Hickman] to shoot
[Victim]. [Co-defendant] explained that he wanted
[Hickman] to shoot [Victim] because [Victim] knew where
[Co-defendant]’s mother worked and his family lived. [Co-
defendant] then told [Hickman] to bring his gun, which
[Hickman] then got from his apartment. [Co-defendant]
and [Hickman] then proceeded to meet [Victim]. [Co-
defendant] told [Hickman] that they were going to get into
the . . . [Victim]’s vehicle truck [sic] and then [Hickman]
was to shoot him. [Hickman] then recounted they met the
. . . [Victim] and got into his vehicle, with [Hickman] sitting
in the middle of the bench seat and [Co-defendant] on the
far right near the passenger side door. However, they drove
a short distance and ended up in an alleyway, where
[Hickman] and [Co-defendant] exited the vehicle. At that
time [Co-defendant] yelled at [Hickman] for not shooting
the victim when they first got in the truck. [Hickman] and
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[Co-defendant] then return[ed] to the vehicle at which point
[Hickman] walked up to the vehicle and fired one shot and
then turned and ran. [Hickman] testified that as he was
running he heard additional shots being fired and he
continued running to his apartment where he hid the gun.
At trial, [Hickman] testified in his defense and recanted
the confession, alleging that he was coerced into making it.
[Hickman] testified that he was introduced to [Victim] in
November 2010 by another drug user known to him as
Queenie. Queenie told [Hickman] that [Victim] was looking
for drugs and then, accompanied by Queenie, [Hickman]
met [Victim] on a nearby street where [Victim] arrived in
his vehicle. [Hickman] testified that [Victim]:
“. . . pulled up, [Queenie] hopped in the car with
him to do the transaction, and I’m standing on
the passenger’s side. We exchanged numbers,
and he tells me to call him again anytime I have
something good, he will spend some more
money.”
[Hickman] testified that several days later, he texted
[Victim] again about meeting to buy drugs and ultimately
met [Victim] in McKeesport, a day or two before the [sic]
[Victim] was murdered. [Hickman] testified that after the
meeting in McKeesport, he never saw [Victim] again but that
he did attempt to text him on November 15 and 16, but
never got a response.
While [Hickman] denied shooting [Victim], [Hickman]
admitted that he later came into possession of the Taurus
revolver used in the [Victim] killing, but not until four
months after [Victim] was killed. [Hickman] testified that
on March 15, 2011 he met Charles Wooding who told
[Hickman] that he had a gun for sale at a low price.
[Hickman] and Wooding exchanged phone numbers and
planned on meeting later that day for [Hickman] to buy the
gun. Wooding and [Hickman] met later in the day on
Westmoreland Avenue in Swissvale in front of an apartment
building. Wooding then asked [Hickman] to go inside to
exchange the money for the gun. [Hickman] testified:
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“. . . once we go inside, we are on the second
landing. I give him the money for the gun. He
gives me the gun. When he’s talking to me, he
steps down from the landing with his back
turned. When he turns around, pulls out a
handgun. He tells me give it up, meaning give
me everything I got. When he did this, I was in
shock. I couldn’t believe it. I stepped back and
he cocks the gun back, meaning putting a bullet
in the chamber, asks me do I think he’s playing.
I panic, I believe if I didn’t pull the trigger to the
revolver, I would have died that day.”
[Hickman] testified that after he shot Wooding he ran out of
the building through an alleyway and left by a set of steps
where he threw the gun. [Hickman] admitted that he was
later questioned by detectives about two weeks later
concerning the incident. [Hickman] testified that he told the
detectives that he had shot Wooding in self-defense and
later took detectives to find the Taurus revolver. [Hickman]
denied any involvement in the killing of [Victim].
Regarding his confession, [Hickman] testified that when
he was taken into custody on July 28, 2011 he denied being
involved in [Victim]’s murder and asked the arresting
detectives to call his mother so he could get a lawyer.
[Hickman] testified that the detectives left the room and
later returned saying that they didn’t have to call his
mother. One of the detectives then allegedly grabbed the
back of his neck and told him if he ever wanted to get out
again he needed to sign the waiver of rights form presented
to him. [Hickman] testified that he signed the form because
he didn’t believe he had a choice. [Hickman] testified that
despite repeatedly telling the police he was not involved in
the killing, “they got frustrated and on their way out -- they
want to leave the interrogation, and on the way out the
detectives pushed me onto the floor.” [Hickman] testified
that he was scared and “I would’ve said anything to get out
of that room.”
[Hickman] also presented the testimony of his father.
Robin Hickman, Sr. who testified concerning his attempts to
speak to his son when he had arrived at the police station
on the day [Hickman] was arrested. Mr. Hickman[, Sr.]
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testified that he questioned the officers and they told him
they would be right back to talk to him about his son but
then saw them leaving and he was never given the
opportunity to speak to his son.
After being appropriately charged and during its
deliberations, the jury requested that the taped confession
be replayed. In addition, the jury requested additional
instructions on first degree and third degree murder and
conspiracy. The jury was reinstructed and the tape of the
confession was played. After additional deliberations,
[Hickman] was then found guilty . . . .
Commonwealth v. Hickman, No. 448 WDA 2013, unpublished mem. at 1-5
(Pa.Super. filed Oct. 29, 2014) (internal citations omitted).
On November 15, 2012, a jury convicted Hickman of third-degree
murder, conspiracy – criminal homicide, and firearms not to be carried without
a license.1 On February 11, 2013, the trial court sentenced Hickman to an
aggregate of 22 to 44 years’ incarceration. 2 The next day, counsel sought to
withdraw from representation. The trial court granted counsel’s request on
February 13, 2013 and appointed new counsel. No post-sentence motion was
filed. Hickman filed a timely notice of appeal and, on October 29, 2014, this
Court affirmed. Hickman petitioned for allowance of appeal and, on March 3,
2015, the Pennsylvania Supreme Court denied his petition.
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1 18 Pa.C.S. §§ 2502(c), 903(c), and 6106(a)(1), respectively.
2The trial court sentenced Hickman to 20 to 40 years’ incarceration for
third degree murder, a concurrent 20 to 40 years’ incarceration for conspiracy
– criminal homicide, and a consecutive 2 to 4 years’ incarceration for firearms
not to be carried without a license.
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On February 29, 2016, Hickman filed a timely counseled PCRA petition.
On June 28, 2016, following a hearing, the PCRA court denied Hickman’s
petition. On July 20, 2016, Hickman filed a timely notice of appeal. PCRA
counsel filed an application for leave to withdraw as counsel. On May 30,
2017, private counsel entered his appearance on Hickman’s behalf. 3
On appeal, Hickman raises two issues: (1) he “was denied effective
assistance of counsel at sentencing” and (2) he “was denied effective
assistance of counsel during the post-sentence stage of his case.” Hickman’s
Br. at 1.
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of record
and is free of legal error.” Commonwealth v. Melendez–Negron, 123 A.3d
1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s factual
findings “unless there is no support for [those] findings in the certified
record.” Id.____________________________________________
On appeal, PCRA counsel, Charles R. Pass, III, Esquire, filed a brief
3
pursuant to Anders v. California, 386 U.S. 738 (1967), and a petition to
withdraw as counsel. While counsel should have filed a no-merit letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc), “an
Anders brief provides greater protection to a defendant[. Therefore,] this
Court may accept an Anders brief in lieu of a Turner/Finley letter.”
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).
Hickman subsequently retained private counsel, who filed a brief.
Accordingly, we grant Attorney Pass’ petition to withdraw and we will consider
only the brief filed by private counsel.
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To prevail on an ineffective assistance of counsel claim, the petitioner
must establish: “(1) his underlying claim is of arguable merit; (2) counsel had
no reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa. 2014). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Commonwealth v.
Ousley, 21 A.3d 1238, 1244 (Pa.Super. 2011) (quoting Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)). “The failure to prove any one
of the three [ineffectiveness] prongs results in the failure of petitioner’s
claim.” Id. “In determining whether counsel’s action was reasonable, we do
not question whether there were other more logical courses of action which
counsel could have pursued; rather, we must examine whether counsel’s
decisions had any reasonable basis.” Commonwealth v. Washington, 927
A.2d 586, 594 (Pa. 2007).
I. Ineffectiveness during sentencing phase
Hickman first claims that he was denied effective assistance of counsel
during sentencing. He claims that trial counsel: (1) presented no mitigation
factors pursuant to Miller v. Alabama, 567 U.S. 460 (2012); (2) failed to
introduce exculpatory evidence – Co-defendant’s statement that it was Co-
defendant who killed Victim; (3) caused Hickman to receive a disproportionate
sentence compared to Co-defendant; and (4) failed to object to improper
comments and arguments by the Commonwealth.
1. Mitigation factors
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Hickman claims that because he was a juvenile at the time of the
offense, Miller mandated the application of certain sentencing factors.
Hickman contends that trial counsel was ineffective for failing to present a
mitigation expert or any evidence regarding these factors.
In Miller, the United States Supreme Court held that a sentence of life
imprisonment without the possibility of parole is unconstitutional when
imposed upon defendants who were “under the age of 18 at the time of their
crimes.” 567 U.S. at 465. The Court held that while it did not foreclose a trial
court’s ability to impose a sentence of life imprisonment without a possibility
of parole, it did “require [the trial court] to take into account how children are
different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Id. at 480.
Hickman, however, was not subject to a mandatory sentence of life
without parole; rather, the trial court sentenced Hickman according to
subsection 2502(c) of the Crimes Code, which carries a statutory maximum
of 40 years’ incarceration. See 18 Pa.C.S. § 1102(d). Therefore, Miller is
inapplicable to Hickman and the PCRA court did not err in finding that trial
counsel was not ineffective for failing to address factors discussed in Miller.
2. Exculpatory evidence
Hickman next argues that trial counsel failed to introduce exculpatory
evidence during sentencing. He claims that Co-defendant provided a
statement to the police wherein he confessed to murdering Victim. Hickman
contends that although the evidence was inadmissible at trial, trial counsel
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was ineffective for failing to introduce it at sentencing. Hickman asserts that
because the evidence was exculpatory, it was admissible at sentencing
pursuant to Green v. Georgia, 442 U.S. 95 (1979).
The PCRA court stated:
[Hickman argues] that counsel was ineffective for failing
to present at the sentencing hearing the statement of [Co-
defendant] of November 16, 2010 related to the killing of
[V]ictim. [Co-defendant] was convicted by a jury on June
6, 2013 of voluntary manslaughter and tampering or
fabricating of physical evidence related to the death of
[Victim]. [Hickman] attached to his Memorandum in
Support of PCRA Relief a copy of a statement given to police
by [Co-defendant] on November 16, 2010, the day following
the shooting. In his statement [Co-defendant] initially
denied any involvement in [V]ictim’s death, but later
changed his story and stated that he was involved in an
encounter with [V]ictim where [V]ictim pulled a gun on him
and after a struggle for control of the gun, [Co-defendant]
was able to point the gun at [V]ictim and fire a shot. He
then exited the vehicle and fired twice more at [V]ictim. In
the statement [Co-defendant] makes no reference to
[Hickman].
[Hickman] argues that counsel was ineffective for failing
to present the statement at the sentencing hearing even
though it had been ruled inadmissible during the trial.
[Hickman] contends that the statement shows that it was
[Co-defendant] who was the “actual killer.” However, this
argument is completely without merit because it simply
ignores the fact that [Hickman] also confessed to being
involved in the killing. Contrary to his assertion that he had
absolutely no involvement in the killing, there was, in
addition to his confession, physical evidence that connected
[Hickman] to the shooting. This evidence included one of
the guns used to shoot [V]ictim, as well as [Hickman]’s
fingerprint found on [V]ictim’s vehicle. The fact that [Co-
defendant] did not refer to [Hickman] in the statement does
not exonerate [Hickman]. In fact, the statement reflects
that [Co-defendant] at first denied any involvement in the
murder and then claimed it occurred after [V]ictim allegedly
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attacked him. In addition, it should be noted that at the
time of [Hickman]’s sentencing, [Co-defendant] had not
even been tried yet and, therefore, there is no indication
that [Co-defendant] may not have recanted his confession,
just as [Hickman] attempted to do. [Hickman] assumes
that the statement would be viewed as an exoneration of
[Hickman] and it would result in a lesser sentence.
However, the statement directly contradicts the findings by
the jury in [Hickman]’s case and would not have affected
the sentence imposed.
Trial Ct. Opinion, 1/19/17, at 7-8 (“1925(a) Op.”).
Further, Hickman’s reliance on Green is misplaced. Green involved
unique circumstances where: (1) in an out-of-court statement, a man who
had been convicted for the killing for which Green was being tried, claimed
that he, and not Green, was solely responsible; (2) the statement had indicia
of reliability, including that it was spontaneously made to a close friend; and
(3) the statement’s admissibility was sought in a death penalty sentence
phase before a jury. Green, 442 U.S. at 96-97. The United States Supreme
Court held that “[t]he excluded testimony was highly relevant to a critical
issue in the punishment phase of the trial . . . and substantial reasons existed
to assume its reliability.” Id. at 97. Under such unique circumstances, the
Court held that “the hearsay rule may not be applied mechanistically to defeat
the ends of justice.” Id. (quoting Chambers v. Mississippi, 410 U.S. 284,
302 (1973)).
Such “unique circumstances” were not present in Hickman’s case.
Further, regardless of the admissibility of Co-defendant’s statement, as the
PCRA court explained, the statement was not exculpatory and, in any event,
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would not have affected Hickman’s sentence.4 Therefore, the PCRA court did
not err in finding that trial counsel was not ineffective for failing to move into
evidence this statement.
3. Disproportionate sentence
Next, Hickman claims that counsel was ineffective in failing to challenge
his sentence, which was “disproportionate to the sentence received by the
actual killer, [Co-defendant].” Hickman’s Br. at 9.
The PCRA court found that:
[Co-defendant] did not even proceed to trial until June 6,
2013, almost four months after [Hickman] was sentenced.
[Co-defendant] was not sentenced until August 22, 2013,
more than six months after [Hickman] was sentenced. [Co-
defendant] was convicted of voluntary manslaughter.
Clearly counsel could not be ineffective for failing to make
an argument regarding a sentence for a different defendant
who was convicted of a different offense, which was not
even imposed at the time that [Hickman] was sentenced.
1925(a) Op. at 9. We agree. Accordingly, we conclude the PCRA court did
not err in finding that trial counsel was not ineffective for failing to raise an
argument that not only did not exist at the time of sentencing but also would
have been unavailing in any event.
4. Commonwealth’s statements
Hickman also claims that trial counsel was ineffective in failing to object
to the Commonwealth’s “false, improper, and inflammatory comments” during
sentencing. Hickman’s Br. at 10. Hickman argues that the Commonwealth
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We note that the PCRA court also presided at Hickman’s trial and
4
sentencing.
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“insinuated” that he had murdered another person even though he had not
been convicted of that crime. Id.The PCRA court found:
[I]t was [Hickman] himself who raised the issue during the
trial that the gun, which ballistic evidence connected to the
death of [V]ictim, was used by [Hickman] in another
shooting.[5] [Hickman] testified at trial that he used the
handgun to shoot Mr. Wooding. The prosecutor’s statement
merely reiterated [Hickman]’s own testimony when he
admitted his role in the shooting death of Charles Wooding.
Counsel was pointing out not only [Hickman]’s lack of
remorse, but his admitted history of gun violence and, the
fact that the gun used in Wooding’s killing was also used in
the instant case. Counsel was not ineffective for failing to
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5During the trial, counsel questioned Hickman regarding what happened
on March 15, 2011 and how he came into possession of the gun, and Hickman
stated:
Earlier in the day I met Charles Wooding through
someone else I was hanging with at the time. He said he
had a gun for sale for a low price. We exchanged numbers
right there, called each other so he will know who [I] was
and I will know who he was. We planned on meeting later
on in the day. Later on he called me to meet up with him.
I met him on Westmoreland Avenue, . . . . I'm thinking we
are going to do the transaction in front of an apartment
building, but he tells me to come inside. Once we go inside,
we are on the second landing. I give him the money for the
gun. He gives me the gun. When he’s talking to me, he steps
down from the landing with his back turned. When he turns
around, he pulls out a handgun. He tells me give it up,
meaning give me everything I got. When he did this, I was
in shock. I couldn’t believe it. I stepped back and he cocks
the gun back, meaning putting a bullet in the chamber, asks
me do I think he’s playing. I panicked. I believed if I didn’t
pull the trigger to the revolver, I would have died that day.
N.T., 11/15/12, at 194-96.
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object to this statement and the statement was not
considered in the sentencing . . . .
1925(a) Op. at 9-10. We agree and conclude the PCRA court did not abuse
its discretion in finding that trial counsel was not ineffective for failing to object
to the Commonwealth’s statement.
Further, Hickman claims that trial counsel was ineffective in failing to
object to the Commonwealth’s arguments that: (1) Hickman showed no
remorse with regards to Victim’s death because the Commonwealth knew of
Co-defendant’s statement confessing to the police, and (2) Hickman “needs
to pay for what he has seen and deserves the statutory maximum for murder
in the third degree,” because Hickman should be sentenced according to what
he did as opposed to what he has seen. Hickman’s Br. at 10 (emphasis in
original).
The PCRA court found:
[T]he Assistant District Attorney was clearly permitted to
argue for a legal sentence, and [Hickman’s] claim is
meritless for the reasons set forth above regarding [Co-
defendant]’s statement. The Assistant District Attorney was
entitled to argue for a sentence consistent with the jury’s
verdict and within the appropriate guidelines.
1925(a) Op. at 10. We agree. Further, a review of the sentencing transcript
reveals that the Commonwealth stated “[Hickman] needs to pay for what he
has done and deserves the statutory maximum for murder in the third
degree.” N.T., 2/11/13, at 16 (emphasis added). Accordingly, we conclude
Hickman’s claims are meritless and the PCRA court did not abuse its discretion
in finding that trial counsel was not ineffective.
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II. Ineffectiveness during post-trial phase
Next, Hickman claims counsel was ineffective in failing to file a post-
sentence motion after Hickman requested that he do so. Hickman claims that
there was “exculpatory evidence and mitigation arguments that, if presented,
would have provided a reasonable probability for a lesser sentence than the
maximum third degree murder.” Hickman’s Br. at 11-12.
Our Supreme Court has held that a claim raising trial counsel’s alleged
ineffectiveness for failure to file a post-sentence motion “does not fall within
the limited ambit of situations where a defendant alleging ineffective
assistance of counsel need not prove prejudice to obtain
relief.” Commonwealth v. Liston, 977 A.2d 1089, 1092 (Pa.
2009). In Commonwealth v. Reaves, Reaves claimed that counsel was
ineffective for failing to raise at the violation of probation (“VOP”) hearing or
in a post-sentence motion that the VOP court failed to state on the record its
reasons for imposing its sentence. 923 A.2d 1119, 1122 (Pa. 2007). The
Court held that Reaves was required to show actual prejudice to prevail. Id.
at 1129-30. Similarly, Hickman must prove that he suffered actual prejudice
by trial counsel’s failure to file a post-sentence motion.
Here, the PCRA court stated:
[I]t is clear that [Hickman] has failed to establish that a
motion for reconsideration of sentence would have resulted
in a different and more favorable sentence. . . . [T]he
sentence was within the standard range, was based on a full
consideration of the presentence report, the facts of the
crime and the evidence presented at the sentencing
hearing. The various evidence proffered by [Hickman] as
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discussed herein would not have resulted in an order
modifying the sentence to a different or more favorable
sentence. Therefore, [Hickman] has failed to demonstrate
actual prejudice as a result of ineffective assistance of
counsel.
1925(a) Op. at 7. We agree and conclude that Hickman failed to establish
actual prejudice. Therefore, trial counsel was not ineffective in failing to file
a post-sentence motion.
Order affirmed. PCRA counsel’s petition to withdraw granted.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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6 We reject the Commonwealth’s argument that we should quash
Hickman’s second brief, filed by private counsel. An appellant faced with a
petition to withdraw has an immediate right to proceed pro se or with privately
retained counsel. See Commonwealth v. Muzzy, 141 A.3d 509, 512
(Pa.Super. 2016) (“[U]pon the filing of counsel’s petition to withdraw, the
petitioner-appellant has the immediate right to proceed in the appeal pro se
or through privately-retained counsel. This is not a new requirement; it is
simply clarification of long-standing procedure.”) (emphasis omitted and some
emphasis added); Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184
(Pa.Super. 2016) (stating counsel’s petition to withdraw must advise an
“[a]ppellant of his absolute right to proceed pro se or with privately retained
counsel.”) (emphasis added). Further, as stated above, we considered only
the brief filed by private counsel.
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