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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES ROBINSON                           :
                                               :
                       Appellant               :   No. 1814 EDA 2019

               Appeal from the PCRA Order Entered June 7, 2019,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0006076-2014.

BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 24, 2020

        Charles Robinson appeals from the order dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In 2013, Robinson rode his bicycle to the 5600 block of Beaumont Street

in West Philadelphia and fired three shots from a gun at two men sitting

outside, Robert Mack and Raheem Williams. The men attempted to run away;

however, Williams, who had been shot in the chest, fell to the ground and died

shortly thereafter. The next day, Mack met with Williams’ mother, Roxanne

Williams, and told her that Robinson shot her son, and that Mack would

cooperate with police in his prosecution. Later that day, Mack, who had known

Robinson since childhood, contacted police, identified Robinson as the shooter,

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   See 42 Pa.C.S.A. §§ 9541-9546.
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and provided a written statement.     A few days later, Robinson telephoned

Police Officer Bryan Turner, made incriminating statements regarding the

shooting, and agreed to turn himself in. However, Robinson did not do so,

and disappeared. After a six-month manhunt, police arrested Robinson and

charged him with Williams’ murder and related charges.

      At trial, the Commonwealth presented the testimony of Williams’

neighbor, Rashon Miller, who stated that he saw Williams and Mack running

away at the time of the shooting.       Williams’ mother, Roxanne Williams,

testified that Mack told her that Robinson killed her son and that Mack would

cooperate with police in Robinson’s prosecution.      Officer Turner testified

regarding his telephone conversation with Robinson.

      On July 7, 2015, a jury found Robinson guilty of first-degree murder.

The trial court sentenced Robinson to life in prison without the possibility of

parole. This Court affirmed the judgment of sentence, and the Pennsylvania

Supreme Court denied Robinson’s petition for allowance of appeal.         See

Commonwealth v. Robinson, 179 A.3d 567 (Pa. Super. 2017) (unpublished

memorandum), appeal denied, 181 A.3d 1082 (Pa. 2018). Robinson filed a

timely pro se PCRA petition. The PCRA court appointed PCRA counsel, who

filed an amended petition. On May 7, 2019, the PCRA court sent Robinson a

notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907.

Robinson did not file a response to the notice. On June 7, 2019, the PCRA

court dismissed Robinson’s petition based upon lack of merit. Robinson filed


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a timely notice of appeal. The PCRA court did not order Robinson to file a

Pa.R.A.P. 1925(b) statement; however, the PCRA court issued a Rule 1925(a)

opinion.

      Robinson raises the following issues for our review:

      1. Did the PCRA court err in dismissing [Robinson’s] PCRA petition
         without a hearing because trial counsel was ineffective for
         failing to object and preserve the issue of [Williams’] mother’s
         hearsay statements that were incriminating in relation to
         [Robinson]?

      2. Did the PCRA court err in dismissing [Robinson’s] PCRA petition
         without a hearing because trial counsel was ineffective for
         failing to request discovery in relation to telephone records of
         Police Officer Bryan Turner and there exists [after]-discovered
         evidence that Officer Turner is habitually dishonest?

Robinson’s Brief at 4 (unnecessary capitalization omitted).

      Our standard of review is as follows:

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. Further, we grant great deference to the
      factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Where the
      petitioner raises questions of law, our standard of review is de
      novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      When a petitioner alleges trial counsel’s ineffectiveness in a PCRA

petition, he must prove by a preponderance of the evidence that his conviction

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or sentence resulted from ineffective assistance of counsel “which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.”   42 Pa.C.S.A. § 9543(a)(2)(ii).     Additionally, the petitioner must

demonstrate:

      (1) that the underlying claim has arguable merit; (2) that no
      reasonable basis existed for counsel’s actions or failure to act; and
      (3) that the petitioner suffered prejudice as a result of counsel’s
      error.    To prove that counsel’s chosen strategy lacked a
      reasonable basis, a petitioner must prove that an alternative not
      chosen offered a potential for success substantially greater than
      the course actually pursued. Regarding the prejudice prong, a
      petitioner must demonstrate that there is a reasonable probability
      that the outcome of the proceedings would have been different
      but for counsel’s action or inaction. Counsel is presumed to be
      effective; accordingly, to succeed on a claim of ineffectiveness[,]
      the petitioner must advance sufficient evidence to overcome this
      presumption.

Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal

citations and quotation marks omitted). A failure to satisfy any prong of the

test for ineffectiveness will require rejection of the claim. Commonwealth

v. Martin, 5 A.3d 177, 183 (Pa. 2010).

      In his first issue, Robinson contends that the PCRA court erred in

dismissing his claim that counsel was ineffective for failing to object to the

testimony of Williams’ mother, who was permitted to testify that Mack told

her that Robinson killed her son, and that Mack would cooperate with

authorities and implicate Robinson.     Robinson argues that counsel had no

basis for failing to object because Ms. Williams’ testimony constituted hearsay,



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which was not admissible for the truth of the matter asserted.          Robinson

claims that Mack recanted at trial and disavowed any statement to police.

Robinson asserts that he suffered prejudice as a result of counsel’s failure to

object to the hearsay testimony of Ms. Williams because he had no opportunity

to confront Mack because Mack recanted.2

       The PCRA court considered Robinson’s first issue and determined that it

lacked merit. It reasoned as follows:

       Robinson’s claim that trial counsel failed to object is belied by the
       record. The record shows that as Roxanne Williams began
       testifying regarding Mack coming to her house and telling her
       about the shooting, defense counsel immediately objected,
       stating, “Objection, hearsay.” (N.T. 6/30/15, p. 210). This court
       then asked the jury to leave the courtroom, after which the
       Commonwealth argued that Mack’s comments to Roxanne
       Williams were prior consistent statements:

              Your honor, this is a prior consistent statement. In
              Commonwealth’s Exhibit C-2, which is Robert Mack’s
              483, Page 2 he says that he told Ms. Williams word for
              word what he was telling the detectives. He then on
              the stand denied that that was true and said that he
              had never spoken to Ms. Williams about the murder of
              her son. The evidence that’s about to be elicited is
              something different happened.

       Id. at 211. This court then overruled the objection and allowed
       Roxanne Williams’ testimony to continue. Thus, Robinson’s claim
       that counsel failed to object is completely false. No relief is due.

PCRA Court Opinion, 11/15/19, at 4-5 (unnecessary capitalization omitted).


____________________________________________


2 We note with disapproval that Robinson did not tailor his appellate brief to
include arguments directed to this Court. Rather, he merely copied his
amended PCRA petition, which included arguments directed solely to the PCRA
court.

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       The record supports the PCRA court’s determination. Robinson’s counsel

lodged a hearsay objection to Ms. Williams’ testimony regarding Mack’s

statements to her.          See N.T., 6/30/15, at 211.       Thus, Robinson’s

ineffectiveness claim based on counsel’s purported failure to object to such

testimony is meritless.3

       In his second issue, Robinson contends that the PCRA court erred in

dismissing his claim that counsel was ineffective for failing to request Officer

Turner’s telephone records in discovery. Robinson maintains that he did not

speak to Officer Turner by telephone at any time in relation to the murder,

and that he so informed counsel. He claims that it was therefore incumbent

upon counsel to seek Officer Turner’s telephone records to rebut the Officer’s

testimony that Robinson called him. Robinson points out that Officer Turner

was permitted to testify that Robinson told him that “everybody was blaming

me for something that I didn’t mean to happen.” Robinson’s Brief at 21 (citing

NT, 6/30/2015, at 221-24). Officer Turner was also permitted to testify that

“I believe he [Robinson] was telling me he did it . . . .”      Id. (citing NT,

6/30/2015, at 236). Robinson asserts that Officer Turner’s testimony was




____________________________________________


3 The PCRA court additionally determined that, even if counsel had failed to
object to Ms. Williams’ testimony, no relief would be due because the
testimony was properly admitted as a prior consistent statement after defense
counsel questioned Mack and reinforced the theory that Mack lied to police
but had told the truth on the stand. See PCRA Court Opinion, 11/15/19, at
5.

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prejudicial because it indicated Robinson’s fears associated with turning

himself into authorities as well as an admission of guilt.

    Robinson additionally argues that Officer Turner has a habit of lying, and

was charged with falsifying police arrest paperwork and overtime records.

Robinson concedes that Officer Turner was subsequently adjudicated not

guilty of these charges, but Robinson nevertheless asserts that this

information constitutes after-discovered evidence of Officer Turner’s habit of

lying which could have called his credibility into question.

      The PCRA court considered Robinson’s second ineffectiveness claim and

determined that Robinson was unable to establish that counsel was ineffective

for failing to request Officer Turner’s telephone records.      It reasoned as

follows:

             This claim is without merit as discrediting [Officer] Turner’s
      testimony would in no way exculpate [Robinson]. Indeed, in light
      of the overwhelming evidence of guilt against [Robinson], he is
      unable to demonstrate the prejudice prong of the ineffectiveness
      test. The record shows that Mack identified [Robinson] as the
      shooter and gave the police this information within one day of the
      murder.       This identification was corroborated by Mack’s
      conversation with Raheem’s mother, Roxanne.             In addition,
      Raheem’s neighbor, Rashon Miller, testified that he saw Mack run
      away with Raheem after the shooting, verifying that Mack was
      present at the murder. The jury also could infer guilt from
      evidence of [Robinson’s] flight-he evaded law enforcement for six
      months. Thus, even if the jury never heard [Officer] Turner’s
      testimony regarding [Robinson’s] phone call, there was still
      sufficient evidence to convict [Robinson] of Williams’ murder. The
      Superior Court addressed the sufficiency of the evidence in its
      memorandum opinion and found the following evidence to be
      sufficient to support [Robinson’s] conviction, making no mention
      of [Robinson’s] phone call to [Officer] Turner:


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                   It is undisputed that Raheem died as a result of
            a bullet fired into his body. With respect to the
            identification of [Robinson] as the shooter, the jury
            apparently believed Mack’s statement made to police
            investigators within one day of the shooting. That
            statement was corroborated by testimony presented
            by both Raheem’s mother and Raheem’s neighbor,
            Miller. Although Mack stated in his recantations that
            he could not remember the shooting and was not
            present at the shooting, the veracity of his statement
            to police was corroborated with credible evidence.
            Miller testified that he saw Mack and Raheem
            immediately after the shooting running away
            together, just as Mack described in his initial
            statement to the homicide investigator. Moreover,
            Raheem’s mother testified that within 24 hours of the
            shooting, Mack came to her home, told her [Robinson]
            was the shooter, and provided her with a version of
            events that matched what he told the police
            investigator later that same day.

      (Commonwealth v. Robinson, [179 A.3d 567 (Pa. Super. 2017)
      (unpublished memorandum)]. Since [Robinson] cannot show the
      outcome of trial would have been different if Turner’s testimony
      had been excluded, no relief is due.

PCRA Court Opinion, 11/15/19, at 6-7.

      The PCRA court additionally addressed Robinson’s claim that the

allegations against Officer Turner constitute after-discovered evidence. Under

the PCRA, a petitioner may be entitled to relief if he can plead and prove by a

preponderance of the evidence that the conviction or sentence resulted from,

inter alia, “[t]he unavailability at the time of trial of exculpatory evidence that

has subsequently become available and would have changed the outcome of

the trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). To obtain

relief under the PCRA on an after-discovered evidence claim, a petitioner must

demonstrate that the evidence: (1) could not have been obtained prior to the

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conclusion of the trial by the exercise of reasonable diligence; (2) is not merely

corroborative or cumulative; (3) will not be used solely to impeach the

credibility of a witness; and (4) would likely result in a different verdict if a

new trial were granted. See Commonwealth v. Small, 189 A.3d 961, 969

(Pa. 2018).

      In concluding that Robinson did not satisfy this burden, the PCRA court

reasoned as follows:

             In the case at bar, [Robinson] is unable to prevail on an
      after-discovered evidence claim regarding Officer Turner’s arrest
      and subsequent dismissal from the police force. According to
      court records, on June 4, 2019, a jury found Officer Turner not
      guilty on all charges. See CP-51- CR-0006969-2018. An article
      in the Philadelphia Inquirer indicates that he is in the process of
      seeking reinstatement of his job with the police department.
      Thus, there is no evidence of misconduct, wrongdoing, or “habit
      of lying” to support [Robinson’] claims. Information that Officer
      Turner was arrested and ultimately acquitted of a crime more than
      five years after the shooting in this matter would have no bearing
      on the outcome of [Robinson’s] case. As [Robinson] is unable to
      show that this “after-discovered evidence” would have been used
      for non-impeachment purposes and cannot show that it would
      have compelled a different verdict, no relief is due.

PCRA Court Opinion, 11/15/19, at 8-9 (footnote omitted).

      The PCRA court’s determinations are supported by the record, and we

discern no legal error in its analysis.     Therefore, Robinson’s second issue

warrants no relief.

      As Robinson is not entitled to relief on either of his issues, we affirm the

PCRA court’s order dismissing his petition.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/20




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