J-S59044-19; J-S59045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
 CLINTON ROBINSON                        :
                                         :
                  Appellant              :   No. 69 EDA 2019

         Appeal from the PCRA Order Entered December 5, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0009387-2009

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
            v.                           :
                                         :
                                         :
 CLINTON ROBINSON                        :
                                         :
                  Appellant              :   No. 327 EDA 2019

          Appeal from the PCRA Order Entered January 17, 2019
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0509271-2003


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED MARCH 03, 2020

     Clinton Robinson appeals from the orders denying his petitions for relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Robinson claims that his due process rights were violated during his

sentencing hearing due to prosecutorial misconduct and the trial court’s
J-S59044-19; J-S59045-19



erroneous reliance on impermissible and inaccurate materials. He also avers

that his counsel was ineffective. We affirm.

      The lengthy factual and procedural history of this case, as gleaned from

the certified record, is as follows. In 2003, Robinson had an altercation

regarding gambling with Walter Smith, which culminated in Robinson firing

multiple gunshots at Smith. Smith sustained a non-fatal wound to his hand,

and Robinson’s gunfire also struck a bystander, Margaret Thomas, who died

from her injuries. Police initially charged Robinson with murder, and he

ultimately pled guilty to voluntary manslaughter, aggravated assault, and

related charges. As a result, in 2005, Robinson was sentenced to an aggregate

term of two and a half to five years’ imprisonment followed by five years of

probation.

      Robinson served the full five years in prison and while on probation was

arrested for possession with intent to deliver a controlled substance (“PWID”).

Robinson pleaded guilty to the PWID charge, and the Honorable Mary D. Colins

sentenced him to 51 to 120 months’ incarceration. Robinson’s PWID conviction

constituted a direct violation of his probation and therefore the Honorable Joan

A. Brown conducted a violation of probation (“VOP”) hearing and found him in

violation.

      At the VOP sentencing hearing on August 8, 2011 (“sentencing

hearing”), Robinson testified, and his counsel made representations,

regarding programs Robinson attended in prison and his close family ties in

the community. N.T., 8/8/11, at 7-11. Further, Robinson’s counsel recounted

                                     -2-
J-S59044-19; J-S59045-19



that Robinson had been in custody for much of his adult life and as well as for

an extended time as a juvenile. Id.

       The Commonwealth in response discussed a Philadelphia Inquirer

newspaper article entitled “Justice Delayed, Dismissed, and Denied.” The

article contained claims that an alleged friend of Robinson, Kareem Johnson,

had shot and killed Walter Smith on Robinson’s behalf because Smith intended

to be a witness against Robinson at the trial for his shooting of the bystander.

The Commonwealth stated:

          Mr. Smith…was ready, willing and able to testify against
          [Robinson] at the preliminary hearing. However, before that
          happened, [Robinson’s] friend, a gentleman by the name of
          Kareem Johnson went out and took it upon himself to go
          and shoot Mr. Smith, and killed Mr. Smith before he could
          testify against [Robinson].

          As a result, Kareem Johnson was tried and convicted of first
          degree murder and sentenced to death.[1]

          [Robinson] because of the primary witness in this case had
          been shot and killed, was allowed to plead. . . to a period of
          2 ½ to 5 followed by 5 years’ probation on the charges that
          we just discussed. That was done because [the
          Commonwealth] quite simply had no other options. The
          primary witness and the complaining witness had been
          taken out by [Robinson] and his friends.

Id. at 11-12.



____________________________________________


1 As both Robinson and the Commonwealth note, this Court subsequently
granted Johnson a new trial due to a discrepancy regarding DNA evidence.
Commonwealth v. Johnson, 927 EDA 2016 (Pa.Super. June 27, 2018).
Robinson is seeking to avoid retrial and the matter is currently before our
Supreme Court.

                                           -3-
J-S59044-19; J-S59045-19



      Along this line, the prosecutor also stated, in regards to some of

Robinson’s prior arrests, “I think importantly, your honor, some of the cases

[Robinson] has been arrested but not convicted on, which isn’t surprising

given what happened to the witness on his manslaughter case.” Id. at 15. The

prosecutor went on to detail other alleged instances where Robinson had been

arrested but not convicted of violent felonies. Id. Further, he explained that

Robinson had been expelled from the public school system for behavioral

problems and had been found guilty of his first violent offense at 16 years old.

He also emphasized that Robinson resumed criminal activity within mere

months after his release from prison for his manslaughter conviction. Id.

      The prosecutor once again referenced the news article he previously

raised in regards to a statement in the article, allegedly made by Robinson,

where he declined to show remorse for killing the victim in his manslaughter

case by stating “basically, I beat it.” Id. at 16. Robinson’s VOP counsel failed

to object to any of the Prosecutor’s comments or to the referenced news

article. Instead, Robinson’s VOP counsel simply urged the VOP court to decline

to rehash past events but instead focus only on the current VOP violation. Id.

at 16-17.

      Immediately thereafter, the VOP court pronounced sentence and gave

the following brief explanation: “Having heard the arguments of both counsel,

and also, considering your past criminal history, Mr. Robinson. I’m going to

revoke your sentence, and I’m going to sentence you to 10-to-20 years to run

consecutive to whatever you’re serving.” Id. at 17.

                                     -4-
J-S59044-19; J-S59045-19



      Robinson’s VOP counsel did not file any post-sentence motions or a

direct appeal. In November 2011, Robinson filed timely PCRA petitions in both

his PWID case and his manslaughter case, even though he was challenging

only the VOP sentence in the manslaughter case. Robinson filed amended

petitions in 2013 and two additional supplemental amended petitions in 2015.

Ultimately, the PCRA court held an evidentiary hearing and orally granted his

request for credit for time served. However, the court denied the remainder

of Robinson’s issues, which centered around his overarching contention that

the VOP court had considered impermissible and inaccurate information when

sentencing him on his VOP violation in 2011. The PCRA court concluded that

“the violation of probation [sentence] was based on, according to Judge

Brown’s testimony on the notices, the ample criminal history of [Robinson].

And the fact that this was a direct violation.” N.T., 6/5/18, at 101-102.

      The PCRA court denied Robinson’s petitions and Robinson timely

appealed. The PCRA court did not file a responsive Pa.R.A.P. 1925(a) opinion

because Judge Colins had retired. Robinson filed a motion to consolidate the

cases, but this Court declined and instead instructed Robinson to file a single

brief and reproduced record for both cases. Therefore, we address both cases

in our instant memorandum.

      Robinson raises the following issues on appeal:

         1. Did the Commonwealth violate[] [Robinson’s] due
         process rights by engaging in prosecutorial misconduct at
         his violation of probation hearing when it presented
         irrelevant, inadmissible, and inflammatory evidence and
         argument[?]

                                     -5-
J-S59044-19; J-S59045-19


          2. Did the sentencing court at [Robinson’s] violation of
          probation sentencing violate[] [Robinson’s] due process
          rights by considering impermissible factors and unreliable
          information when determining [Robinson’s] sentence for the
          violation of probation[?]

          3. Was prior counsel ineffective for their failure to object to
          the Commonwealth’s improper argument and news media
          evidence, failure to move for consideration, and failure to
          appeal [Robinson’s] VOP sentence ineffective assistance of
          counsel?

Robinson’s Br. at 4.

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. See Commonwealth v.

Conway, 14 A.3d 101, 108 (Pa.Super. 2011).

       In his first two issues, Robinson contends that his due process rights

were    violated   during    his   VOP    sentencing    hearing    because   the

Commonwealth’s arguments utilized impermissible and inaccurate materials

and the VOP court relied on such material in fashioning Robinson’s sentence.

Robinson asserts that the prosecutor’s comments implicating him in another

murder constituted prosecutorial misconduct and thereby violated his due

process rights.

       Robinson waived his first issue in at least two ways. First, he could have

raised it on direct appeal but failed to do so. See 42 Pa.C.S.A. § 9543(a)(3).

In addition, Robinson’s VOP counsel did not make any contemporaneous

objections to the disputed comments. See Pa.R.A.P. 302(a) (“[i]ssues not

raised in the lower court are waived and cannot be raised for the first time on


                                       -6-
J-S59044-19; J-S59045-19



appeal.”); Commonwealth v. Arrington, 86 A.3d 831, 854 (Pa. 2014)

(finding challenge to prosecutor’s argument waived due to defense counsel’s

failure to make a contemporaneous objection).

      In his second issue, Robinson avers that the trial court violated due

process by considering impermissible and inaccurate information when

sentencing him for his probation violation. Robinson waived this issue as well.

He could have raised this due process challenge on direct appeal and failed to

do so. See 42 Pa.C.S.A. § 9543(a)(3). Also, Robinson’s VOP counsel did not

object during the sentencing hearing nor did he file a post-sentence motion

challenging the discretionary aspects of his sentence. See Commonwealth

v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc) (“[I]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”) (quoting Commonwealth v. Kittrell, 19

A.3d 532, 538 (Pa.Super. 2011)).

      In his third issue, Robinson argues that his VOP counsel was ineffective

for failing to object to the prosecutor’s comments implicating him in the

murder of a witness and averring that he lacked remorse for his actions.

Robinson points to VOP counsel’s failure to object to the Philadelphia inquirer

news article as evidence of VOP counsel’s failure to object to inaccurate and

impermissible information. He maintains that had his VOP counsel objected,

“the sentencing court would certainly have imposed a shorter sentence than

                                     -7-
J-S59044-19; J-S59045-19



the consecutive statutory maximum sentence” he received. Robinson’s Br. at

22. To that end, Robinson also contends that his VOP counsel was ineffective

for failing to file a motion for reconsideration or direct appeal from the VOP

court’s statutory maximum sentence of a consecutive 10 to 20 years of

imprisonment.

      There is a presumption that counsel is effective. See Commonwealth

v. Daniels, 963 A.2d 409, 427 (Pa. 2009). To overcome this presumption, a

petitioner must establish three things: (1) the underlying claim has arguable

merit, (2) counsel had no reasonable strategic basis for his or her action or

inaction, and (3) the petitioner has sustained prejudice. See Commonwealth

v. Washington, 927 A.2d 586, 594 (Pa. 2007). Prejudice is established where

the petitioner shows that “but for the act or omission in question, the

proceeding’s outcome would have been different.” See Commonwealth v.

Small, 980 A.2d 549, 559 (Pa. 2009).

      “Sentencing is a matter vested within the discretion of the trial court

and will not    be   disturbed absent    a manifest abuse       of   discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “A

sentencing court need not undertake a lengthy discourse for its reasons for

imposing a sentence or specifically reference the statute in question, but the

record as a whole must reflect the sentencing court’s consideration of the facts

of the crime and character of the offender.” Id. at 1283.

      A sentence is not valid “if the record discloses that the sentencing court

may have relied in whole or in part upon an impermissible consideration.”

                                     -8-
J-S59044-19; J-S59045-19



Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010) (quoting

Commonwealth v. Karash, 452 A.2d 528, 528-29 (Pa.Super. 1982)).

Further, “the evidence upon which a sentencing court relies must be accurate”

and “there must be evidentiary proof of the factor, upon which the court

relied.” Id. (citation omitted). A trial court’s discretion in sentencing is not

“unfettered,” however, and “a defendant has the right to minimal safeguards

to ensure that the sentencing court does not rely on factually erroneous

information.” Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa.Super.

2009) (quoting Commonwealth v. Schwartz, 418 A.2d 637, 640-41

(Pa.Super. 1980)). Nonetheless, a court is “ordinarily presumed to be capable

of identifying and properly disregarding all but the most prejudicial and

inflammatory evidence.” Commonwealth v. Penrod, 578 A.2d 486, 491

(Pa.Super. 1990). Thus, a sentence is only invalid “if the record discloses that

the sentencing court may have relied in whole or in part upon an impermissible

consideration.” Karash, 452 A.2d 528.

      Robinson likens his case to that presented in Karash. There, the

sentencing court explicitly stated that it was considering media reports that

the defendant had attempted an escape. Id. at 529. This Court held that the

sentencing court’s reliance on the media reports constituted an abuse of

discretion and therefore vacated the defendant’s judgment of sentence. Id.

See also Commonwealth v. Schwartz, 406 A.2d 573, 574 (Pa.Super. 1979)

(vacating sentence where sentencing court noted consideration of a television

program that had aired about the defendant).

                                     -9-
J-S59044-19; J-S59045-19



      In the case sub judice, we recognize that the Commonwealth’s use of

the Philadelphia Inquirer article was improper. See Karash, 452 A.2d at 528-

29; Schwartz, 406 A.2d at 574. Thus, we conclude that the underlying claim

had merit and we perceive no reasonable strategic basis for Robinson’s VOP

counsel not to object.

      However, we do not think that counsel’s failure to object resulted in the

required prejudice. See Washington, 927 A.2d at 594; Small, 980 A.2d at

559. Unlike in Karash and Schwartz, the VOP court in this case did not

indicate that it considered any impermissible information when fashioning

Robinson’s sentence. Instead, the court only stated that it sentenced Robinson

based on the “arguments of both counsel” and “his past criminal history.” N.T.,

8/8/11, at 17. Robinson undeniably had a significant criminal history.

      Furthermore, Robinson’s argument, unsupported by citation to any legal

authority, that the length of his sentence itself established that the VOP court

considered impermissible information, is unavailing. The court sentenced

Robinson within legal limits, albeit at the statutory maximum, and Robinson

did have a substantial history of criminal convictions. Thus, without more

record evidence to the contrary, we cannot conclude that the sentencing court

considered any improper or prejudicial information when sentencing Robinson.

See Penrod, 578 A.2d at 491; Karash, 452 A.2d at 528-29.

      Accordingly, we conclude that Robinson has failed to prove that his VOP

counsel was ineffective. Therefore, Robinson’s third issue on appeal also




                                     - 10 -
J-S59044-19; J-S59045-19



warrants no relief and we affirm the PCRA court’s denial of Robinson’s PCRA

petitions.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/20




                                  - 11 -
