J-S14010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                     Appellee            :
                                         :
             v.                          :
                                         :
JAMES ROBINSON,                          :
                                         :
                     Appellant           : No. 3612 EDA 2013

           Appeal from the Judgment of Sentence December 6, 2013,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. CP-51-CR-0001552-2007

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED APRIL 14, 2015

       Appellant, James Robinson (“Robinson”), appeals from the judgment of

sentence entered on December 6, 2013 by the Court of Common Pleas of

Philadelphia County, Criminal Division, following his convictions for third-

degree murder, persons not to possess a firearm, and carrying a firearm on

public streets or public property in Philadelphia.1     For the reasons that

follow, we affirm.

       We summarize the relevant facts and procedural history of this case as

follows.   On the afternoon of June 11, 2004, Robinson, Michael Brooks

(“Brooks”), Jarrett Stiff (“Stiff”), Hassan East (“East”), and Heath Caudle

(“Caudle”) were playing a game of craps on Caudle’s porch.        During the

course of the afternoon, Robinson won a significant amount of money from



1
    18 Pa.C.S.A. §§ 2502(c), 6105(a)(1), 6108.
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the other participants. As the game continued, Brooks began arguing with

and berating Robinson, referring to him as an “ass bettor”2 and accusing him

of failing to pay back a prior gambling debt. Eyewitness testimony indicated

that in the midst of this argument, Robinson left Caudle’s porch and walked

to his pickup truck.   A couple of minutes later, as he was walking back

towards Caudle’s porch, Robinson pulled out a nine-millimeter handgun and

fired approximately three to five shots in the direction of the porch. One of

the shots struck Brooks in the neck, severing his spinal cord, several veins

and arteries, and killing him within minutes.

      Robinson’s first jury trial took place in February and March of 2012

before the Honorable Lillian H. Ransom.     Robinson’s first trial ended in a

mistrial on March 8, 2012, after the jury indicated that it was unable to

reach a verdict. Robinson’s second jury trial took place in September 2013

before the Honorable Jeffrey Minehart.      At this trial, the Commonwealth

presented the eyewitness testimony of Stiff, East, and Caudle, each of whom

identified Robinson as the individual who shot Brooks.       While Stiff and

Caudle testified at Robinson’s second trial that they did not observe the

shooting, the Commonwealth presented as substantive evidence their signed

statements to police and testimony from Robinson’s first trial that they saw

Robinson shoot Brooks. The Commonwealth also presented the testimony of



2
  In gambling parlance, an “ass bettor” is someone who bets money that he
or she does not have. See N.T., 9/19/13, at 26.


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Tallena Chesney (“Chesney”), Robinson’s girlfriend at the time of the

shooting, who testified that Robinson admitted to her that he shot Brooks.

      On September 24, 2013, the jury found Robinson guilty of third-

degree murder and carrying a firearm on public streets or public property in

Philadelphia.   A nonjury proceeding immediately followed during which the

Commonwealth presented evidence that Robinson had a prior conviction of

burglary. Therefore, the trial court found Robinson guilty of persons not to

possess a firearm, the prohibition against convicted felons carrying firearms.

On December 6, 2013, the trial court sentenced Robinson to eighteen to

thirty-six years of incarceration. On December 16, 2013, Robinson filed a

timely notice of appeal.

      On appeal, Robinson raises the following issues for our review and

determination:

            1.   Did not the trial court err in allowing the
            prosecutor to elicit testimony from [Stiff] that he and
            [Robinson] were codefendants in an unrelated
            federal case, even though the motion in limine court
            ruled that such testimony was inadmissible?

            2. Did not the trial court err in preventing defense
            counsel from fully exploring the benefits [East] could
            receive from testifying for the government,
            specifically by preventing defense counsel from
            exploring the drug possession charges against [East]
            that were withdrawn as well as the further
            reductions in sentence that he may receive?

            3. Did not the trial court deny [Robinson] his right to
            present a defense, by restricting defense counsel
            from presenting relevant admissible evidence,



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            specifically evidence concerning the statements of
            Robert Larry and Barbara Dantzler to police, that
            cast [Robinson]’s guilt into doubt?

            4. Did not the trial court err in refusing to grant a
            mistrial due to the prosecutor’s misconduct in closing
            arguments?

Robinson’s Brief at 3-4.

      The first three issues that Robinson raises on appeal each relate to

evidentiary decisions made by the trial court.       Our standard of review

regarding evidentiary issues is as follows:

            “The admissibility of evidence is at the discretion of
            the trial court and only a showing of an abuse of that
            discretion, and resulting prejudice, constitutes
            reversible error.” Commonwealth v. Sanchez, 36
            A.3d 24, 48 (Pa. 2011) (citations omitted). “An
            abuse of discretion is not merely an error of
            judgment, but is rather the overriding or
            misapplication of the law, or the exercise of
            judgment that is manifestly unreasonable, or the
            result of bias, prejudice, ill-will or partiality, as
            shown by the evidence of record.” Commonwealth
            v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007)
            (citation omitted), appeal denied, [] 956 A.2d 432
            (Pa. 2008). Furthermore, “if in reaching a conclusion
            the trial court overrides or misapplies the law,
            discretion is then abused and it is the duty of the
            appellate     court     to    correct   the    error.”
            Commonwealth v. Weakley, 972 A.2d 1182, 1188
            (Pa. Super. 2009) (citation omitted), appeal denied,
            [] 986 A.2d 150 (Pa. 2009).

Commonwealth v. Glass, 50 A.3d 720, 724-25 (Pa. Super. 2012).

      For his first issue on appeal, Robinson argues that the trial court

violated the coordinate jurisdiction rule.    Robinson’s Brief at 22-26.   The




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record reflects that at a pretrial motion in limine hearing held prior to

Robinson’s first trial, Judge Ransom ruled that while Stiff could testify

against Robinson, he could not testify that he was Robinson’s codefendant in

an unrelated federal case. N.T., 2/21/12, at 25-33. Robinson asserts that

the trial court erred by allowing Stiff to testify at Robinson’s second trial that

he was Robinson’s codefendant in the unrelated case.         Robinson’s Brief at

22-26.

      Our Court has stated the following in regards to the coordinate

jurisdiction rule:

             The coordinate jurisdiction rule, put simply, states
             that “judges of coordinate jurisdiction should not
             overrule each other’s decisions.” Zane v. Friends
             Hosp., [] 836 A.2d 25, 29 ([Pa.] 2003). The rule,
             applicable in both civil and criminal cases, “falls
             within the ambit of the ‘law of the case doctrine.’”
             Riccio v. American Republic Ins. Co., [] 683 A.2d
             1226,     1230     ([Pa.    Super.]    1996)     (citing
             Commonwealth v. Starr, [] 664 A.2d 1326, 1331
             ([Pa.] 1995)).     Our Supreme Court explained in
             Starr that the law of the case doctrine “refers to a
             family of rules which embody the concept that a
             court involved in the later phases of a litigated
             matter should not reopen questions decided by
             another judge of that same court or by a higher
             court in the earlier phases of the matter.” Id. at
             1331. “Among the related but distinct rules which
             make up the law of the case doctrine” is the rule that
             “upon transfer of a matter between trial judges of
             coordinate jurisdiction, the transferee trial court may
             not alter the resolution of a legal question previously
             decided by the transferor trial court.” Id.

Commonwealth v. King, 999 A.2d 598, 600 (Pa. Super. 2010).




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        We conclude that this issue is meritless because the coordinate

jurisdiction rule is inapplicable to this issue.      Our Supreme Court has long

held:

             When a court grants a new trial, the necessary effect
             thereof is to set aside the prior judgment and leave
             the case as though no trial had been held. … By the
             operation of an order granting a new trial, the cause,
             in contemplation of law, is precisely in the same
             condition as if no previous trial had been held.

Commonwealth v. Hart, 387 A.2d 845, 847 (Pa. 1978) (quoting

Commonwealth ex rel. Wallace v. Burke, 45 A.2d 871 (Pa. Super.

1951)).

        This case is procedurally similar to Commonwealth v. Paddy, 800

A.2d 294 (Pa. 2002). In that case, at defense counsel’s request pretrial, the

trial court excluded statements made by a homicide victim regarding threats

made to her prior to her death as being inadmissible hearsay. Id. at 301-

02. The jury ultimately was unable to reach a verdict in the case, resulting

in a mistrial. Id. at 302. At retrial, counsel did not seek to exclude these

statements, and the Commonwealth presented this testimony. Id.

        Following   his   conviction   of    first-degree   murder,   the   defendant

appealed, asserting that counsel was ineffective, inter alia, for failing to

exclude the victim’s statements, as the trial court’s exclusion of those

statements in the first trial precluded their admission in the second trial

pursuant to the law of the case doctrine. Id. at 309. Our Supreme Court




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disagreed, concluding:      “Because the grant of a new trial ‘wipes the slate

clean,’ so that a previous court’s ruling on the admissibility of evidence

generally does not bind a new court upon retrial, it is not evident that the

[law of the case] doctrine applies in the present procedural context.” Id. at

311 (internal citations omitted).

          The case at bar, like Paddy, was a retrial following a mistrial that

resulted from a hung jury. As the coordinate jurisdiction rule is inapplicable

upon retrial, this issue is meritless and does not entitle Robinson to any

relief.

          For his second issue on appeal, Robinson argues that the trial court

improperly prevented defense counsel from fully questioning East about the

benefits he was receiving for testifying on behalf of the Commonwealth.

Robinson’s Brief at 27-31.      Specifically, Robinson complains that the trial

court erred by preventing defense counsel from questioning East about drug

possession charges against him that the federal government withdrew and

the possible sentencing reductions that he could receive in an unrelated

criminal matter for testifying. Id. at 27-29.

          We conclude that this argument is meritless. The record reflects that

the trial court did sustain defense counsel’s objection to the question: “So

what happened actually is the marijuana case was withdrawn?”              N.T.,

9/18/13, at 140-41.       However, the trial court also permitted the following

two questions: “Were you arrested for having drugs in prison?” and “While



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you are a witness against [Robinson], you have committed crimes in jail that

were withdrawn, is that correct, where the charges were withdrawn against

you?” Id.

      Furthermore, during Robinson’s second trial, the jury heard extensive

testimony relating to past and potential future benefits East either received

or hoped to receive in exchange for his cooperation with the federal

government. Both East and an FBI agent testified that by cooperating with

the federal government, East had been able to avoid a life sentence on his

federal robbery charges, and instead received a lesser sentence of thirty

years of incarceration. N.T., 9/18/13, at 94-97, 115-20; N.T., 9/19/13, at

135-44. Additionally, both East and the FBI agent testified that East could

receive additional sentencing reductions based on his testimony in this case.

N.T., 9/18/13, at 116-20, 125; N.T., 9/19/13, at 144-45, 154-55. Thus, the

jury heard a significant amount of evidence that East’s testimony was

potentially motivated by benefits promised to him by the federal government

in his own criminal matters.       Accordingly, Robinson’s second issue is

meritless.

      For his third issue on appeal, Robinson argues that the trial court erred

by preventing him from presenting to the jury statements made to police by

Robert Larry (“Larry”) and Barbara Dantzler (“Dantzler”).     Robinson’s Brief

at 31-38. Robinson asserts that he should have been able to present this




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evidence to the jury because it implicates other persons in Brooks’ murder.

Id. at 31-32, 35-38.

        The record reflects that Larry informed the police in his statement that

Timothy Alfonzo (“Alfonzo”) told him that Alfonzo heard that a “young boy”

had shot and killed Brooks while they were gambling on Caudle’s porch.

Larry’s Statement, 6/12/04, at 1-2.      Dantzler told police in her statement

that she originally told her employer that her grandson, Henry Brown, may

have been responsible for shooting Brooks. Dantzler’s Statement, 6/17/04,

at 1. In that same statement, however, Dantzler also told police that she

had lied about her grandson being involved in the shooting to avoid getting

into trouble for missing work. Id. at 3. Dantzler informed police that she

had heard about the murder from people she was with the night she missed

work.      Id.    Because these statements represent multiple layers of

inadmissible hearsay, we agree with the trial court’s decision to exclude this

evidence.3

        Hearsay is an out of court statement made by the declarant that a

party offers into evidence to prove the truth of the matter asserted in the

statement. Pa.R.E. 801(c). In general, hearsay is not admissible, except as

provided by the Pennsylvania Rules of Evidence, by other rules prescribed by

the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale


3
  We note that “[w]e can affirm the [trial] court’s decision if there is any
basis to support it, even if we rely on different grounds to affirm.”
Commonwealth v. Lewis, 39 A.3d 341, 345 (Pa. Super. 2012).


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for the hearsay rule is that hearsay is too untrustworthy to be considered by

the trier of fact.”   Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa.

Super. 2006) (quotations and citation omitted).

       Additionally, “[a]n out-of-court declaration containing another out-of-

court declaration is double hearsay.” Commonwealth v. Laich, 777 A.2d

1057, 1060 (Pa. 2001) (citation omitted). “In order for double hearsay to be

admissible, the reliability and trustworthiness of each declarant must be

independently established.      This requirement is satisfied when each

statement comes within an exception to the hearsay rule.” Id. (quotations

and citations omitted).   Thus, “[d]ouble hearsay is admissible if each part

conforms to a hearsay exception.”     Commonwealth v. Hardy, 918 A.2d

766, 777 (Pa. Super. 2007) (citing Pa.R.E. 805).

       After reviewing Larry’s and Dantzler’s statements, we conclude that

the trial court did not abuse its discretion by excluding both statements.

Larry’s and Dantzler’s statements include multiple levels of hearsay. Neither

Larry nor Dantzler testified at trial. In the statements they gave to police,

Larry and Dantzler provided police with information about Brooks’ murder

that they received from other sources. See Larry’s Statement, 6/12/04, at

1; Dantzler’s Statement, 6/17/04, at 3.      In turn, those sources are either

completely unidentified or did not witness Brooks’ murder first-hand. See

id.   Larry’s statement conveyed information about Brooks’ murder that he

learned from Alfonzo, who did not witness the shooting first-hand.        See



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Larry’s Statement, 6/12/04, at 1-2.              Dantzler’s statement conveyed

information about Brooks’ murder that she learned from unidentified people

she was with the night of Brooks’ death. Dantzler’s Statement, 6/17/04, at

3. Additionally, Robinson sought to introduce both statements at Robinson’s

trial to prove the truth of the matter asserted in the statements, that

someone else was responsible for Brooks’ murder. See id. at 31-32, 35-38.

Furthermore, each of the multiple levels of hearsay present in both

statements do not conform to any hearsay exception.            Thus, we have no

basis on which to conclude that Larry’s and Dantzler’s statements were not

prohibited by the rule against hearsay. Accordingly, the trial court properly

excluded both statements.

         For his final issue on appeal, Robinson argues that the trial court erred

in refusing to grant a mistrial because of prosecutorial misconduct that

occurred during closing arguments.         Robinson’s Brief at 38-44.    Robinson

claims that the prosecutor improperly referenced his decision not to testify,

which served no other purpose than to distract the jury from its proper

focus.     Id.     Therefore, Robinson contends that the trial court erred in

denying his request for a mistrial. Id. at 44.

         Our standard of review for claims of prosecutorial misconduct is as

follows:

                 Our standard of review for a claim of prosecutorial
                 misconduct is limited to whether the trial court
                 abused its discretion. In considering this claim, our



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            attention is focused on whether the defendant was
            deprived of a fair trial, not a perfect one. Not every
            inappropriate remark by a prosecutor constitutes
            reversible error. A prosecutor’s statements to a jury
            do not occur in a vacuum, and we must view them in
            context. Even if the prosecutor’s arguments are
            improper, they generally will not form the basis for a
            new trial unless the comments unavoidably
            prejudiced the jury and prevented a true verdict.

Commonwealth v. Toritto, 67 A.3d 29, 37 (Pa. Super. 2013) (en banc),

appeal denied, 80 A.3d 777 (Pa. 2013) (quoting Commonwealth v. Lewis,

39 A.3d 341, 352 (Pa. Super. 2012)).           Therefore, “we focus not on the

culpability of the prosecutor but rather on whether his actions deprived [the

appellant] of a fair trial by prejudicially rendering the jury incapable of fairly

weighing the evidence and entering an objective verdict.” Commonwealth

v. Melvin, 103 A.3d 1, 27 (Pa. Super. 2014). Additionally, this Court has

stated that a “remark by a prosecutor, otherwise improper, may be

appropriate if it is in [fair] response to the argument and comment of

defense counsel.”    Commonwealth v. Collins, 70 A.3d 1245, 1253 (Pa.

Super. 2013) (brackets in original) (quoting Commonwealth v. Chmiel,

889 A.2d 501, 543-44 (Pa. 2005)), appeal denied, 80 A.3d 774 (Pa. 2013).

      Robinson takes issue with the following portion of the prosecutor’s

closing argument:

            [PROSECUTOR]: Folks, the evidence here is
            overwhelming and the fact of the matter is -- and
            the judge is going to [instruct] about the burden of
            proof and reasonable doubt. The defense counsel
            stood up here and told you that [Robinson] said he’s



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           not guilt[y], and the truth of the matter is … that
           when [Robinson] gets arraigned on the charges,
           that’s not testimony --

           [DEFENSE COUNSEL]: Objection, Your Honor.

           THE COURT:       Well, no, he said it’s not testimony.
           Go ahead.

           [PROSECUTOR]: Now, [Robinson] has no burden to
           testify --

           [DEFENSE COUNSEL]: Objection.

           [PROSECUTOR]: He’s not required to testify.

           THE COURT:        Overruled. We’re going to charge
           them.

           [PROSECUTOR]: You can’t hold it against him if he
           doesn’t testify. You can’t infer anything from that,
           but he doesn’t get anything special for that
           arraignment. That arraignment is not testimonial.
           It’s not subject to cross-examination. And the fact
           of the matter is that -- it doesn’t -- it’s a nonentity
           as far as the evidence in this case is concerned.

           The reality is [] if you think about it -- let’s say
           [Robinson] when we’re talking about Hassan East
           and Tallena Chesney, I mean, do you think that
           [defense counsel] as much outrage as he shows
           about witnesses cooperating, do you think that if he
           thought that his client had information that was
           [worthwhile] that he wouldn’t recommend to him
           you should tell what you know --

           [DEFENSE COUNSEL]: Objection.

           THE COURT: Objection sustained.        The jury is to
           disregard it. Let’s move on.

N.T., 9/23/13, at 178-80.




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      We conclude that the trial court did not abuse its discretion in denying

Robinson’s request for a mistrial.      First, the prosecutor made the above-

referenced remarks relating       to   Robinson pleading not guilty at          his

arraignment in fair response to arguments made by defense counsel in his

closing argument.      During his closing, defense counsel referred to the fact

that Robinson, at his arraignment, swore under oath that he was not guilty.

Id. at 112. Thus, it was a fair response for the prosecutor to argue that the

fact that Robinson pled not guilty at his arraignment does not constitute

evidence of his innocence. See id. at 178-79.

      Second,    the    prosecutor’s   remaining   remarks,    stating   that    if

defendant’s counsel thought Robinson had information that was worthwhile,

that he would recommend to him that he should tell what he knows, did not

prejudice Robinson.     Defense counsel’s objection prevented the prosecutor

from completing his statement and the trial court sustained the objection,

instructing the jury to disregard the prosecutor’s remarks. Id. at 180. “A

jury is presumed to follow a trial court’s instructions[.]” Commonwealth v.

Reid, 99 A.3d 470, 501 (Pa. 2014). Following closing arguments, the trial

court further instructed the jury as follows:

            First of all, ladies and gentlemen, and I will
            emphasize this again, [Robinson] is presumed to be
            innocent and has certain rights and one of those
            rights is not to testify. It’s a Constitutional right and
            there can be no inference of guilt or any other
            inference adverse to [Robinson] from the fact that he




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              didn’t testify, nor can any argument -- and the
              lawyer’s arguments are just that, arguments.

              Any arguments about what [Robinson] knew or
              would have said, you must disregard and I sustained
              that objection. I want you to put that out of your
              mind, because the one thing you have to keep in
              mind is [Robinson] is presumed innocent and has an
              absolute right to remain silent.

N.T., 9/23/13, at 183-84. Our Supreme Court has held that “[a] mistrial is

not necessary where cautionary instructions are adequate to overcome

prejudice.”     Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa.

2011).      Therefore, there was no abuse of discretion in the trial court’s

determination that the challenged remarks did not require the remedy of a

mistrial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/2015




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