Com. v. Collins, M.

J-S12006-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALIK D. COLLINS :
:
Appellant : No. 2385 EDA 2019
Appeal from the PCRA Order Entered August 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004480-2010
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MALIK D. COLLINS :
:
Appellant : No. 2386 EDA 2019
Appeal from the PCRA Order Entered August 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004481-2010
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: Filed: May 6 ,2021
Malik D. Collins appeals from the order,1 entered in the Court of
Common Pleas of Philadelphia County, dismissing his petition filed pursuant
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1 Collins has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), which requires the filing of “separate appeals from an
order that resolves issues arising on more than one docket.” Id. at 977. See
also Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en
(Footnote Continued Next Page)
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to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon
review, we affirm.
The Honorable M. Theresa Sarmina summarized the facts of this case as
follows:
On May 18, 2006, just before 11 p.m., Johnny Harmon (victim
Harmon) and Latoya Bostic (victim Bostic) were shot multiple
times while sitting inside of victim Harmon’s truck on the 1200
block of Dover Street in Philadelphia. During the time period of
2006, victim Harmon and his best friend[,] whom he had known
for 20 years, Nathaniel Dowling, were selling PCP together on the
1200 block of Dover Street. Neither of them was affiliated with
anyone else that was dealing drugs either on that block or on
neighboring blocks. It was during this time period that Dowling
and victim Harmon were having problems with neighboring drug
dealers on “Thompson and Hollywood[,]” which is a “block over”
from where Dowling and victim Harmon sold their drugs. [Collins]
and his co-defendant and cousin, Anthony Collins (Anthony), were
part of the group of individuals who were known to be present on
the Hollywood Street corner and were known to sell drugs there.
One week prior to the shooting, while Dowling was wrapping up
his drug dealing for the night, two [men] had come over to him
and told him to get on the ground and shot at Dowling as he,
instead, ran away. Dowling observed these two individuals run
towards Hollywood Street.
Dowling recalled that, on the day of the murders, he had stopped
his car in front of a bar at 30th and Stiles Streets and saw Antoine
Collins, [co-defendant] Anthony’s brother, standing outside. As
Dowling drove off[,] he saw Antoine make a phone call and, a
short time later, victim Harmon was shot. After leaving the bar,
Dowling drove to the 1200 block of Dover Street to meet up with
victim Harmon. The two friends were planning on going out to a
club that night. Dowling parked his vehicle on the corner of
Thompson and Dover Streets and walked back to the 1200 block
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banc) (revisiting Walker holding) and Commonwealth v. Larkin, 235 A.3d
350 (Pa. Super. 2020) (en banc) (same). We have consolidated Collins’
appeals sua sponte. See Pa.R.A.P. 513 (where there is more than one appeal
from same order, Court may order them to be argued together).
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of Dover Street, where he encountered victim Harmon and victim
Bostic, both of whom were sitting in victim Harmon’s truck. Victim
Harmon and Dowling spoke for about five minutes, after which
victim Harmon indicated that he was going to finish speaking with
victim Bostic and then go to the club with Dowling. Dowling left
victim Harmon and walked over to 1250 Dover Street[,] where
Harmon’s niece, Deborah Stackhouse, lived.
Moments after Dowling walked into the 1250 Dover Street
residence, he heard numerous gunshots. Dowling got down on
the floor and, when the gunshots stopped, he got up, looked out
the window, and saw somebody run in front of the window, stop,
and backtrack. Dowling identified the person at the window as
[Collins]—a person whom he had known all his life. Dowling ran
out the front door and saw that [Collins] had a gun in his hand
and was running with a second person, whom he recognized as
[co-defendant] Anthony. Dowling ran to his truck to get his gun
and ran towards Stiles Street, towards which he had seen [Collins]
and Anthony running.
After the gunshots, Ms. Stackhouse had run up to the second floor
of her residence and looked out the window; she saw victim
Harmon’s truck but did not see him moving. She also saw Dowling
run to his truck and retrieve a gun. Unable to find [Collins] and
Anthony, Dowling ran to victim Harmon’s truck and saw that his
friend had a gunshot wound to the head. As a police car came up
Stiles Street, Dowling ran back to 1250 Dover Street to put his
gun inside the residence.
Shortly before the shooting, Elise Hinton, second cousin of the two
defendants, saw [Collins] and Anthony walking around 29th and
Thompson Streets and saw [Collins] carrying a gun in his hand.
They were headed in the direction of Dover Street. Moments after
they had walked by her, Ms. Hinton heard gunshots, but did not
see anyone do the shooting.
Nine 9mm fired cartridge casings (FCCs) and three 40 caliber FCCs
were recovered from the scene of the shooting. The three 40
caliber FCCs were determined to have been fired from the same
firearm[,] although the firearm was never recovered. The 9mm
firearm did turn up more than three months later when a search
warrant was executed, in an unrelated case, on August 25, 2006,
at the location of 1209 Windrim Street in Philadelphia. Through a
cross-check, the ballistics expert was able to determine that the
9mm FCCs [from this case] were all fired from the weapon seized
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during the execution of that search warrant. The individual inside
the 1209 Windrim Street residence at the time the search warrant
was executed was identified as Emery Hicks. He was also known
as [“]Gutterman[”]. A photograph of Gutterman was identified at
trial by defense witness Antoine Collins . . . as someone he knew.
On August 24, 2011, following a jury trial in which he was tried
with his co-conspirator, co-defendant, and cousin, Anthony [],
[Collins,] was found guilty of two counts of murder of the first
degree (H-1), criminal conspiracy (F-1), and possessing
instruments of crime (PIC) (M-1). On August 30, 2011, [the]
court sentenced [Collins] to consecutive life sentences for each
murder conviction, a concurrent 20[-]to[-]40 year sentence for
the conspiracy conviction, and a concurrent 2½[-]to[-]5 year
sentence for the PIC conviction. On September 6, 2011, [Collins]
appealed. [Collins’ judgment of] sentence was affirmed on July
22, 2013, and our Supreme Court denied [allowance of appeal] on
February 6, 2014.
Pa.R.Crim.P. 907 Notice, 7/12/19, at 1-4 (citations to record and unnecessary
capitalization omitted).
Collins filed the instant, timely, pro se PCRA petition on February 28,
2014. On April 24, 2018, the petition was assigned to the PCRA court, which
immediately appointed PCRA counsel.2 After counsel failed to file an amended
petition or Turner/Finley3 “no-merit” letter by the court’s deadline, the court
removed him and appointed new counsel, George Yacoubian, Esquire, on
December 3, 2018. On February 5, 2019, Attorney Yacoubian filed a
Turner/Finley “no merit” letter. On February 8, 2019, the PCRA court
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2 The PCRA court indicated that Collins’ petition had “fall[en] through the
cracks” between the date it was filed and the date it was assigned to the court
for review. See Pa.R.Crim.P. 907 Notice, 7/12/19, at 4.
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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continued the matter until May 24, 2019 for “court evaluation.” Id. at 5. After
Collins contacted the court to complain that Attorney Yacoubian had failed to
address certain of his claims in the Turner/Finley letter, the court brought
the matters to counsel’s attention and granted counsel a 60-day extension to
“further investigate and develop” one of those claims. Id. Counsel submitted
a supplemental Turner/Finley letter on July 5, 2019 and, after conducting an
independent review of the record, concluded that Collins was entitled to no
relief. Accordingly, the PCRA court issued its Rule 907 notice of intent to
dismiss on July 21, 2019. On August 7, 2019, Collins filed a response to the
court’s Rule 907 notice. The court dismissed his petition on August 9, 2019,
and this timely appeal follows.4 Collins raises one issue for our review:
Did the PCRA court err in dismissing [Collins’] PCRA petition
without a hearing when prior counsel were ineffective for failing
to preserve and argue a weight of the evidence issue and [Collins]
suffered prejudice as a result?
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4 This Court has previously held that, where PCRA counsel has been permitted
to withdraw pursuant to Turner/Finley, appointment of collateral appellate
counsel is unnecessary and improper. See Commonwealth v. Maple, 559
A.2d 953 (Pa. Super. 1989). Although PCRA counsel was permitted to
withdraw in the court below, Judge Sarmina—for reasons not evident from the
record—ordered that new counsel be appointed to represent Collins following
PCRA counsel’s withdrawal. Matthew F. Sullivan, Esquire, was appointed to
represent Collins, but subsequently filed an application with this Court to
withdraw, on the basis that Collins was not entitled to counsel following PCRA
counsel’s withdrawal pursuant to Turner/Finley. This Court granted Attorney
Sullivan’s application by order dated January 27, 2020. Thereafter, on August
17, 2020, a letter of appointment from the Court of Common Pleas of
Philadelphia County was entered on this Court’s docket, appointing Stephen
T. O’Hanlon, Esquire, as counsel for Collins. Attorney O’Hanlon has submitted
a brief on Collins’ behalf.
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Brief of Appellant, at 4 (unnecessary capitalization omitted).
Our standard of review is well-settled. In reviewing the denial of PCRA
relief, “this Court is limited to ascertaining whether the evidence supports the
determination of the PCRA court and whether the ruling is free of legal error.”
Commonwealth v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017). In
rendering our decision, we are bound by the credibility determinations of the
PCRA court that are supported by the record. Commonwealth v. Keaton,
82 A.3d 419, 425 (Pa. 2013). We must view the record in the light most
favorable to the Commonwealth as prevailing party. Commonwealth v.
Henkel, 90 A.3d 16, 20 (Pa. Super. 2014).
Collins’ claim asserts the ineffectiveness of his trial and PCRA5 counsel.
Where ineffective assistance of counsel is pled, counsel is presumed effective
and the petitioner bears the burden of proving ineffectiveness.
Commonwealth v. Cooper, 941 A.2d 655 (Pa. 2007). In order to obtain
relief, a petitioner must prove that counsel’s representation was deficient, and
that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668(1984). Specifically, a petitioner must plead and prove, by a preponderance
of the evidence, that
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5 Collins asserts that trial counsel was ineffective for failing to file a post-
sentence motion and that subsequent counsel was ineffective for failing to
assert trial counsel’s ineffectiveness for failing to do so. Collins preserved this
claim by stating at sentencing that he wished for counsel to file a post-
sentence motion, including the claim in his pro se PCRA petition, and raising
it in his response to the PCRA court’s Rule 907 notice. See Pa.R.A.P. 302.
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(1) the underlying claim has arguable merit; (2) counsel’s actions
lacked any reasonable basis, and (3) counsel’s actions prejudiced
the petitioner. Counsel’s actions will not be found to have lacked
a reasonable basis unless the petitioner establishes that an
alternative not chosen by counsel offered a potential for success
substantially greater than the course actually pursued. Prejudice
means that, absent counsel’s conduct, there is a reasonable
probability the outcome of the proceedings would have been
different.
Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citation
omitted).
Here, Collins argues that all prior counsel were ineffective for not
preserving and/or arguing a claim that the verdict was against the weight of
the evidence. Collins argues that “[t]here was no physical evidence tying
[him] to the killings[,] and identifications placing [him] at the scene of the
killings were dubious and based upon various duplicitous motives.” Brief of
Appellant, at 16. Because Collins cannot establish that there is a reasonable
probability that the outcome of the proceedings would have been different, he
is entitled to no relief. See id.We apply the following standard of review to a challenge that a verdict
is against the weight of the evidence:
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that
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the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias[,] or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations
omitted).
Here, the PCRA court reviewed Collins’ weight claim and concluded that
“the Commonwealth presented a compelling case that [Collins] and his co-
defendant . . . shot and murdered the two victims in this case” and that,
accordingly, his claim that prior counsel were ineffective for failing to preserve
or raise the claim fails. In addition, this Court reviewed Collins’ co-defendant’s
weight-of-the-evidence claim on direct appeal and concluded that it was
without merit. See Commonwealth v. Anthony Collins, 70 A.3d 1245,
1251 (Pa. Super. 2013). In doing so, we noted the following:
Our Supreme Court has commented that “[g]iven the primary role
of the jury in determining questions of credibility and evidentiary
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weight, this . . . extraordinary power vested in trial judges to upset
a jury verdict on grounds of evidentiary weight is very narrowly
circumscribed.” Criswell v. King, [] 834 A.2d 505, 513 ([Pa.]
2003). In the instant case, we see no grounds to upset the
determinations of the jury. While the Commonwealth’s evidence
was circumstantial, it supported guilty verdicts on each crime
charged. [Anthony] Collins vigorously challenged the credibility
of the Commonwealth’s witnesses, but he did not present
independent exculpatory evidence that would contradict the
verdict[,] nor did he so undermine the Commonwealth’s evidence
as to render it completely unbelievable. Therefore, the trial court
did not abuse its discretion in determining that the verdicts were
not so contrary to the evidence as to shock the conscience, and
this claim also fails on all three convictions. [Commonwealth v.]
Champney, 832 A.2d [403,] 408 [(Pa. 2003)].
Id.As the Commonwealth aptly points out in its brief, the evidence
presented against Collins was the same as that presented against his co-
defendant and,
[i]f anything, the evidence of [Collins’] guilt was stronger than
that of the co-defendant[’s]. Elise Hinton actually saw a gun in
[Collins’] hand just before the shooting occurred; with respect to
the co-defendant, she did not see him in possession of a gun, but
merely stated that he had his hand at his waist as though he was
carrying one. Nathaniel Dowling, the other eyewitness, had a
better view of [Collins] than he did of the co-defendant, because
he was able to see [Collins’] face when he, unlike the co-
defendant, briefly stopped in front of the window Dowling was
looking out of. Additionally, like the co-defendant[,] as this Court
observed in its published opinion in that appeal, [Collins] did not
present any exculpatory evidence at trial or undermine the
Commonwealth’s evidence of his guilt such that it was
unreasonable for the jurors to rely on it in reaching their verdict.
Brief of Appellee, at 15-16.
We agree with both the PCRA court and the Commonwealth. It was the
sole province of the jury to assess the credibility of the witnesses’ testimony,
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and we can discern no abuse of discretion in the PCRA court’s conclusion that
the verdict was not against the weight of the evidence. As Collins’ underlying
weight claim lacks merit, his counsel cannot be deemed ineffective for failing
to properly preserve it or raise it on direct appeal or in PCRA proceedings.
See Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (failure to prove
any prong of ineffectiveness test defeats claim). Accordingly, the PCRA court
did not err in denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/21
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