United States v. Anthony Robinson ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 21-1667
________________
UNITED STATES OF AMERICA
v.
ANTHONY ROBINSON
a/k/a
ANTHONY HARRISON,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:19-cr-00340-001)
District Judge: Honorable Michael M. Baylson
Submitted Pursuant to L.A.R. 34.1(a) on
May 6, 2022
________________
Before: CHAGARES, Chief Judge, GREENAWAY, JR., and PORTER, Circuit
Judges
(Opinion filed: August 25, 2022)
OPINION *
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
GREENAWAY, JR., Circuit Judge
I. Introduction
Anthony Robinson appeals his conviction for being in unlawful possession of a
firearm as a person with a felony. He alleges that the District Court violated the Federal
Rules of Evidence and his constitutional rights. For the following reasons, we disagree
and will affirm the conviction.
II. Background
At 8:22 am, on April 17, 2019, a person called Philadelphia’s 911 center
describing a group of about six men “arguing” and “pulling out guns” near the
intersection of “Brush and Price.” Audio Recording: 911 Call in United States v.
Robinson, 21-1667, at 00:00-00:31 (Apr. 17, 2019) (on file with the Court). The caller
specifically identified “one guy pulling out the gun” as wearing a “grey sweatsuit with . .
. some yellow writing on it and a yellow hat.” Id. at 00:43-00:54. The caller also alerted
911 that the person with the gun was “going into the corner store.” Id. at 01:05-01:15.
The 911 operator then conveyed this information to police dispatch. Within one
minute of the 911 call, Officers Raheem Williams and Edwin Rodriguez responded to the
dispatch. The dispatcher reported a person with a gun and four to six males involved in a
physical altercation at the intersection of Brush and Price. The dispatcher also informed
the officers that one individual, wearing a grey sweatsuit with yellow writing and a
yellow hat, was armed and last seen going into a corner store. When Officers Williams
and Rodriguez arrived, they pulled their patrol car beside a person—Robinson—holding
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a beverage and standing next to a vehicle across from a corner store. 1 Robinson, wearing
a grey sweatsuit and yellow hat, immediately began to run in the opposite direction from
whence the patrol car approached.
Officers Williams and Rodriguez exited their patrol car and began pursuing
Robinson on foot. When Robinson slipped between two parked cars, Officer Rodriguez
followed Robinson between the cars while Officer Williams cut behind another vehicle to
intercept Robinson’s path. At this point, while Robinson was between the two vehicles,
security footage caught a gun falling to the ground. Officer Rodriguez later testified that
he saw Robinson “drop an object” as Robinson ran around one of the vehicles. App. Vol.
II, 129.
Officer Williams intercepted Robinson’s path, tackled Robinson, and a physical
struggle between the two ensued. Officer Rodriguez initially remained by the gun
between the parked cars, but briefly left to assist Officer Williams before returning to
retrieve the gun when a crowd began to form. After retrieving the gun, Officer
Rodriguez returned to the physical struggle with Robinson, which eventually led to
Robinson’s arrest.
During the struggle, individuals from the public began to encroach and form a
crowd near the officers and Robinson. Officer Rodriguez testified that Officer Williams
directed the crowd to “back up” to “give [them] room to work.” App. Vol. II, 136.
1
As the trial transcript notes, Robinson apparently went by both “Anthony Robinson”
and “Anthony Harrison.” App. Vol. II, 81-85. At times he used his father’s last name,
and at other times he used his mother’s last name. Id. We use “Anthony Robinson” or
“Robinson” consistently throughout this opinion.
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However, after Officer Williams issued directions to “stay back,” Officer Rodriguez
yelled at the crowd to “back the F[uck] up” and pointed his service weapon at the
onlookers. App. Vol. II, 153–54. The Philadelphia Police Department later opened a
disciplinary investigation into Officer Rodriguez’s conduct during this incident.
Federal prosecutors subsequently charged Robinson with violating 18 U.S.C.
§ 922(g)(1) for being in unlawful possession of a firearm as a person with a felony.
Before trial, the District Court addressed several pre-trial motions from the Government
and defense counsel. In relevant part, the District Court denied defense counsel’s motion
to exclude the 911 call and granted the Government’s motion to exclude evidence about
Officer Rodriguez’s disciplinary investigation. At trial, the District Court also permitted
the Government to introduce the police dispatch recording and testimony from a detective
regarding the absence of gun fingerprint testing.
A jury convicted Robinson of violating 18 U.S.C. § 922(g)(1), and the District
Court then sentenced Robinson to 108 months’ imprisonment. Robinson now appeals
that conviction and alleges that the District Court’s pre-trial determinations and
evidentiary rulings during trial violated the Federal Rules of Evidence and his
constitutional rights.
III. Discussion
a. Jurisdiction and Standard of Review
As an offense arising under the laws of the United States, the District Court had
original and exclusive jurisdiction over the proceedings pursuant to 18 U.S.C. § 3231.
We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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We review the District Court’s evidentiary determinations for an abuse of
discretion. United States v. Tyson, 947 F.3d 139, 142 (3d Cir. 2020) (citing United States
v. Higdon, 638 F.3d 233, 238 (3d Cir. 2011)). But, where the District Court’s rulings
were based on an interpretation of the Federal Rules of Evidence, our review is plenary.
Id. If a district court admits evidence in error, we will nonetheless affirm if the error was
harmless; in other words, we will affirm if “it is highly probable that the error did not
contribute to the judgment.” United States v. Boyd, 999 F.3d 171, 184 (3d Cir. 2021)
(quoting United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc)
(emphasis omitted)).
b. Analysis
i. The District Court Either Did Not Err, or the Error Was
Harmless
1. The 911 Call Was Admissible Under the Present-Sense
Impression Exception
Robinson argues that the District Court admitted improper hearsay when it
allowed the Government to play the 911 call describing a person with a gun as wearing a
grey sweatsuit with yellow writing and a yellow hat. The Government counters that the
call was admissible under the excited utterance and present-sense impression exceptions.
We agree with the Government on the latter exception. 2
2
Because we conclude that the 911 call was admissible under the present-sense
impression exception, we will not address the Government’s other argument regarding
admissibility under the excited utterance exception. United States v. Bansal, 663 F.3d
634, 664 (3d Cir. 2011) (declining to address two additional exceptions after determining
that evidence was properly admitted under the first exception offered).
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An otherwise inadmissible statement may be admitted under the present-sense
impression exception provided for in Federal Rule of Evidence 803(1). A statement
admitted under this exception must be a statement “describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or immediately
thereafter.” United States v. Green, 556 F.3d 151, 155 (3d Cir. 2009) (internal quotation
marks omitted).
In the 911 call at issue, the caller’s statements indicate that the person perceived
an ongoing concern as it was happening. The caller described a group of about six men
“arguing” and “pulling out guns” near the intersection of “Brush and Price.” Audio
Recording: 911 Call in United States v. Robinson, 21-1667, at 00:10-00:31 (Apr. 17,
2019) (on file with the Court). The caller specifically identified “one guy pulling out the
gun” as wearing a “grey sweatsuit with . . . some yellow writing on it and a yellow hat.”
Id. at 00:43-00:54. The caller also informed 911 that the person with the gun was “going
into the corner store.” Id. at 01:05-01:15. The caller’s present-tense language and real-
time description indicates that the caller personally perceived the event and that the
recorded declaration was contemporaneous.
As these factors satisfy our requirement for application of the present-sense
impression exception, the District Court properly admitted the 911 call. United States v.
Mitchell, 145 F.3d 572, 576 (3d Cir. 1998).
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2. The Police Dispatch Recording Was Inadmissible, but the
Error Was Harmless
Robinson raises a meritorious argument that the police dispatch recording was
inadmissible. Nevertheless, this error was harmless given the admissibility of the
preceding 911 call.
Police officers may testify to “information received out-of-court for the limited
purpose of establishing background for the officers’ actions.” United States v. Sallins,
993 F.2d 344, 346 (3d Cir. 1993) (citations omitted). Yet, our Court has recognized that
such testimony is “an area of ‘widespread abuse.’” Id. (quoting 2 McCormick on
Evidence § 249, at 104 (4th ed. 1992)). In that vein, police dispatch recordings are
impermissible hearsay if they merely “serve[] the substantive purpose of corroborating
[other] testimony.” United States v. Price, 458 F.3d 202, 206 (3d Cir. 2006).
Here, the police dispatch recording was likely not simple background information.
The call from dispatch provided essentially the same information to the officers as the
caller provided to 911. Since the prosecution presented these recordings chronologically,
the jury heard the 911 call first. The prosecution’s direct examination then informed the
jury that police were dispatched to the identified intersection within one minute of the
911 call. Officer Rodriguez next testified about what he saw when he arrived,
specifically, Robinson’s clothes and flight. This testimony should have been enough
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background information to explain why the officers acted as they did. See Sallins, 993
F.2d at 346. 3
It is not unreasonable to conclude that a lay person hearing the police dispatch
recording, in conjunction with the 911 call, could interpret the dispatch recording as
“substantive corroboration” of the 911 caller’s description. Price, 458 F.3d at 206. This
corroboration is impermissible hearsay, and the police dispatch recording should not have
been admitted.
Nonetheless, the District Court properly admitted the 911 call. The 911 call
conveyed substantially the same information as the police dispatch recording; therefore,
the improper admission of the police dispatch recording was harmless error.
3
In Sallins, we likewise scrutinized the use of a police dispatch call. In determining that
the disputed call was unnecessary, we made several statements relevant to the issue now
before us:
The facts of the present case undermine the government’s position that
testimony regarding the police radio call was admissible as background to
explain why Santiago and Howard went to North Franklin Street and
arrested Sallins. First, to the extent that any background was needed to
explain why Santiago and Howard sped onto North Franklin Street, the
government simply could have elicited testimony that the officers were
responding to a radio call or information received. Second, no background
beyond what the officers testified they observed was necessary to help the
jury understand why Santiago and Howard pursued and arrested Sallins.
Santiago stated that when Sallins looked toward the marked police car, he
threw down what looked like a gun and ran. Santiago also testified that he
recovered a gun from the very location where he believed he saw Sallins
throw one. This testimony was more than sufficient to explain why
Santiago and Howard acted as they did. Additional background was
unnecessary.
Sallins, 993 F.2d at 346–47.
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3. The District Court Properly Precluded Cross-
Examination on the Disciplinary Investigation
Robinson next argues that the District Court should have permitted his counsel to
cross-examine Officer Rodriguez on the Philadelphia Police Department’s disciplinary
investigation following Robinson’s arrest. We disagree.
A fundamental tenet of the Federal Rules of Evidence is that evidence must be
relevant. Evidence is relevant if: (1) it tends to make a fact “more or less probable[,]”
and (2) “the fact is of consequence in determining the action.” Fed. R. Evid. 401.
Here, evidence that Robinson’s counsel sought to solicit during cross-examination
would have no consequence in determining the action. Robinson’s counsel attempted to
introduce information about Officer Rodriguez’s pending disciplinary investigation for
yelling at a crowd of onlookers and pointing a gun in their direction during Robinson’s
arrest. Counsel stated that information about the disciplinary investigation could show
that Rodriguez had a bias and “motive to curry favor with the
Government,” thus undermining Rodriguez’s testimony that “he saw Mr. [Robinson] in
possession of the gun.” App. Vol. II, 90. The District Court correctly concluded that one
thing does not “follow[] from the other.” App. Vol. II, 90.
While Officer Rodriguez’s actions exhibited poor judgment, the disciplinary
investigation had nothing to do with whether Robinson possessed the gun found at the
scene. Accordingly, the District Court properly precluded defense counsel from
introducing evidence related to the disciplinary investigation.
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4. The Testimony on Gun Fingerprinting Was Admissible,
or Otherwise Harmless
The District Court permitted Detective Christian Chavez to testify as a lay witness
regarding gun fingerprinting. Robinson argues that some of Detective Chavez’s
statements were improper expert testimony. We disagree.
The Federal Rules of Evidence expressly proscribe lay witnesses giving testimony
“based on scientific, technical, or other specialized knowledge within the scope of Rule
702.” Fed. R. Evid. 701. Instead, a lay witness may offer opinion testimony only if it is:
“(a) rationally based on the witness’s perception; [and] (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue.” Id. Our Court
has explained that even where lay opinion “testimony is of a specialized or technical
nature[,]” an expert is not always needed if that “lay witness has particularized
knowledge by virtue of her experience . . . because the testimony is based upon the
layperson’s [sic] personal knowledge rather than on specialized knowledge within the
scope of Rule 702.” United States v. Fulton, 837 F.3d 281, 301 (3d Cir. 2016) (quoting
Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 81 (3d Cir. 2009)). Such is the
case here.
Detective Chavez’s testimony explained why he did not submit the gun for
fingerprinting. In the disputed testimony, Detective Chavez commented, “We typically
don’t fingerprint firearms, it’s very difficult to get fingerprints from a firearm.” App.
Vol. II, 224. Detective Chavez’s explanation was likely helpful to the trier of fact in
determining why Detective Chavez did not take the investigative step to test the gun.
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Further, the testimony could fall within the bounds of Rule 701 as long as it was “based
upon [Detective Chavez’s] personal knowledge.” Fulton, 837 F. 3d at 301. At the time
of his testimony, Detective Chavez had been with the police department for eight years
and had worked “hundreds of gun cases.” App. Vol. II, 231. Therefore, the difficulty of
obtaining fingerprints from guns could fall under what is “particularized knowledge by
virtue of h[is] experience.” Fulton, 837 F. 3d at 301.
In any case, Chavez’s testimony on gun fingerprints appears to be limited to a
single statement where there was substantial evidence that was undoubtedly
admissible. Thus, even if it was inadmissible, its admission would be harmless error.
Accordingly, the contested statement was admissible.
ii. The District Court Did Not Violate Robinson’s Constitutional
Rights
1. Admitting the 911 Call Did Not Violate the Confrontation
Clause
Robinson’s first constitutional claim asserts that the District Court violated his
Sixth Amendment right under the Confrontation Clause by admitting the 911 call. We
disagree.
The Sixth Amendment provides that an accused person “shall enjoy the right . . .
to be confronted with the witnesses against him.” United States v. Berrios, 676 F.3d 118,
125 (3d Cir. 2012) (alteration in original) (quoting U.S. Const. amend. VI). The
Confrontation Clause “is concerned with ‘testimonial’ hearsay.” Id. (quoting Crawford v.
Washington, 541 U.S. 36, 51 (2004)). Yet, statements do not offend the constitutional
right when the statements are “made in the course of police interrogation under
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circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.” Davis v. Washington, 547 U.S.
813, 822 (2006).
Admitting the 911 call did not offend Robinson’s Sixth Amendment right to
confront a witness against him. The 911 caller relayed information in real time about a
group of people arguing and a person with a gun displaying a firearm. The recording
unambiguously indicates that: (1) the 911 caller sought police assistance with an ongoing
matter; (2) the caller relayed information to the police for the purpose of receiving this
assistance; and (3) the operator did not ask unnecessary questions that could be
interpreted “to establish or prove past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. at 822.
Accordingly, by admitting the 911 call, the District Court did not violate
Robinson’s Sixth Amendment right.
2. The Prosecutor’s Statement During Closing Argument
Was Permissible, or Otherwise Harmless
Robinson’s last constitutional claim asserts that the prosecution improperly shifted
the overall burden of proof to the defense. Again, we disagree.
It is well settled that prosecutors “may not improperly suggest that the defendant
has the burden to produce evidence.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.
1996), as amended (Aug. 16, 1996) (citations omitted). This prohibition, however, does
not extend to comments “attempt[ing] to focus the jury’s attention on holes in the
defense’s theory.” Id. at 441. Thus, where defense counsel puts on a case, the
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prosecution may use its closing argument to issue a “comment that points to a lack of
evidence in the record which supports a defendant’s argument.” United States v. Walker,
155 F.3d 180, 187 (3d Cir. 1998).
Here, Robinson’s trial counsel put on a case. On appeal, Robinson asserts that the
prosecutor improperly commented, “You know who else could have asked to get the
evidence tested, any time they wanted?” App. Vol. II, 283. The purported implication of
this statement, from Robinson’s point of view, being that Robinson carried the burden of
proving his innocence with evidence that he did not possess the gun.
The prosecutor made the disputed comment in response to the defense’s theory
that Robinson “never touched the gun” and that the prosecution failed to put forth DNA
evidence to support its assertion that the gun belonged to Robinson. App. Vol. II, 276.
In this context, the prosecutor’s comments responded to defense counsel’s failure to
present evidence that Robinson never touched the gun. See Balter, 91 F.3d at 441. Thus,
“[t]he rhetorical question merely point[ed] to a lack of evidence produced by [Robinson]
in support of his claim.” Walker, F.3d at 189. Therefore, the comment was not improper.
Nevertheless, even if the comment was improper, it was harmless given the other
admissible evidence in the record against Robinson.
iii. There Is No Cumulative Error Warranting Reversal
By its name, “revers[ing] a conviction for cumulative error requires more than one
error.” United States v. Bailey-Snyder, 923 F.3d 289, 296 (3d Cir. 2019) (citing United
States v. Hill, 976 F. 2d 132, 145 (3d Cir. 1992)). Even more, this “demanding standard”
permits reversal “only when the combined errors ‘so infected the jury’s deliberations that
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they had a substantial influence on the outcome of the trial.’” Id. (quoting Hill, 976 F.2d
at 145).
For all but one of Robinson’s claims, we have concluded that the District Court
either did not err, or, if there was error, the error was harmless. Consequently, we do not
hold that there was cumulative error mandating reversal.
IV. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.
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