Com. v. Parker, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIO COURTLIN PARKER
Appellant No. 821 WDA 2015
Appeal from the PCRA Order entered April 22, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0007624-2009
BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 10, 2016
Appellant, Mario Courtlin Parker, appeals from the April 22, 2015 order
entered in the Court of Common Pleas of Allegheny County, denying his
petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9541-9546. Subsequent to filing his appellate brief,
Appellant filed a petition for remand contending an evidentiary hearing is
warranted in light of after-discovered evidence consisting of a witness’s
affidavit recanting trial testimony.1 For the reasons that follow, we deny
Appellant’s petition and affirm the April 22, 2015 order denying PCRA relief.
Following a trial that began on June 29, 2010 and concluded on July 2,
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
The Commonwealth did not file a response to the petition.
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2010, a jury convicted Appellant of the May 2009 murders of sisters Rachel
and Daneen Robinson at their home in the Hazelwood section of Pittsburgh.
On September 20, 2010, the trial court sentenced Appellant to two life
sentences plus twenty to forty years’ imprisonment for additional convictions
of burglary, violations of the firearms act, unlawful restraint, and criminal
conspiracy. On March 5, 2013, this Court affirmed his judgment of
sentence. Appellant filed a petition for allowance of appeal to our Supreme
Court, which denied the petition on July 31, 2013. Commonwealth v.
Parker, 2013 WL 11273762 (Pa. Super. March 5, 2013), appeal denied, 72
A.3d 602 (Pa. 2013).
Appellant filed a timely pro se PCRA petition on March 17, 2014.
Following substitution of counsel and the filing of an amended petition, the
PCRA court dismissed the petition without a hearing on April 22, 2015. This
timely appeal followed.
Appellant presents one issue for our consideration:
Whether the lower court erred in denying [Appellant’s] PCRA
petition without granting a hearing, finding that there were no
genuine issues of material fact and that the issues raised were
without merit.
Appellant’s Brief at 3.
Before addressing Appellant’s issue, we shall address his petition for
remand. As noted, Appellant asks this Court to remand to the PCRA court
for an evidentiary hearing based on an unsworn February 23, 2016 affidavit
obtained from Commonwealth trial witness, D’Andre Freeman (“Freeman”).
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In the affidavit, Freeman states that despite his preliminary hearing and trial
testimony identifying Appellant as one of two gunmen involved in the
Robinson murders, he actually did not recognize either gunman. He claims
that Appellant’s trial counsel never contacted him prior to trial and that his
first discussion about the case with anyone other than the police took place
in April of 2015 when an investigator for Appellant contacted him. Affidavit,
2/23/16, at ¶ 7. Freeman contends he was not ready to talk with anyone at
that time so he told the investigator that his trial testimony was the truth.
Id. The first time he told anyone he identified “the wrong person” was on
February 11, 2016, when he met with Appellant’s PCRA counsel. Id. at ¶ 8.
In his affidavit, Freeman states he “do[es] not believe” Appellant was one of
the gunmen responsible for the Robinson murders and he is willing to testify
to that effect under oath. Id. at ¶ 9.
In Commonwealth v. Smith, J.M., 17 A.3d 873 (Pa. 2011), our
Supreme Court reiterated that:
[W]hen a petitioner is seeking a new trial based on alleged after-
discovered evidence in the form of recantation testimony, the
petitioner must establish that: (1) the evidence has been
discovered after trial and it could not have been obtained at or
prior to trial through reasonable diligence; (2) the evidence is
not cumulative; (3) it is not being used solely to impeach
credibility; and (4) it would likely compel a different verdict.
Id. at 887 (citations omitted). In Smith, our Supreme Court agreed with
the PCRA court that the witness’s statement did not constitute after-
discovered evidence because the appellant did not aver that he “could not
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have obtained [the witness’s] recantation or the circumstances of her in-
court identification at, or prior to, the conclusion of trial through reasonable
diligence.” Id. (citation omitted). See also Commonwealth v. Wilson,
649 A.2d 435, 448-49 (Pa. 1994) (rejecting an after-discovered evidence
claim based on a witness’s recantation because the appellant did not
demonstrate that the content of the statement could not have been obtained
at or prior to trial and the subject of the statement was fully explored on
cross-examination). Further, as our Supreme Court explained in Wilson:
[W]e are mindful that there is no less reliable form of proof than
recantation, especially when it involves an admission of perjury.
Here, [the witness’s] post-trial statement directly contradicts his
sworn testimony at trial which amounts to an admission of
perjury. All the other evidence presented at trial by the
Commonwealth, together with [the witness’s] admission of
perjury, would most likely result in a verdict of first degree
murder. Accordingly, [a]ppellant’s request for an evidentiary
hearing based on after-discovered evidence must be denied.
Id. at 449 (internal quotations, citations and brackets omitted).
Here, Appellant’s petition for remand does not aver that he could not
have obtained Freeman’s recantation at or prior to the conclusion of trial
through reasonable diligence. Further, we note that Freeman was not the
only witness to identify Appellant. Prior to trial, Commonwealth witness
Laron Thornton (“Thornton”) identified Appellant as one of the gunmen
based on a photo array. Although Thornton could not identify Appellant at
trial, a detective testified as to Thornton’s pre-trial identification of
Appellant. Despite counsel’s apt characterization of Thornton’s testimony as
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“problematic,” see Petition for Remand at ¶ 9, Appellant challenged the
sufficiency of the evidence on direct appeal, including Thornton’s pre-trial
identification of Appellant and Freeman’s trial testimony. This Court
determined, inter alia, there was no error in admitting the detective’s
testimony concerning Thornton’s pre-trial identification and that the
evidence was sufficient to sustain the verdict. See Commonwealth v.
Parker, 2013 WL 11273762 (Pa. Super. March 5, 2013).
Because Appellant has not asserted, and consequently has not
demonstrated, that Freeman’s recantation could not have been obtained
prior to trial through reasonable diligence and because he has not shown
that it would compel a different result, we deny Appellant’s petition for
remand.
Turning to Appellant’s claim on appeal that the PCRA court erred in
denying his PCRA petition, we begin by setting forth the scope and standard
of our review. As this Court has recognized:
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. This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
A petitioner is not entitled to a PCRA hearing as a matter of
right; the PCRA court can decline to hold a hearing if there is no
genuine issue concerning any material fact and the petitioner is
not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings. A reviewing court
on appeal must examine each of the issues raised in the PCRA
petition in light of the record in order to determine whether the
PCRA court erred in concluding that there were no genuine
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issues of material fact and in denying relief without an
evidentiary hearing.
Commonwealth v. Smith, Q., 121 A.3d 1049, 1052 (Pa. Super. 2015)
(internal quotations, citations and brackets omitted).
As our Supreme Court has explained:
It is well-established that counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him. Strickland v. Washington, 466
U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This
Court has characterized the Strickland standard as tripartite, by
dividing the performance element into two distinct parts.
Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
(1987). Thus, to prove counsel ineffective, Appellant must
demonstrate that: (1) the underlying legal issue has arguable
merit; (2) counsel's actions lacked an objective reasonable
basis; and (3) Appellant was prejudiced by counsel's act or
omission. Id. at 975.
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012).
In his amended PCRA petition, Appellant raised ten claims of trial
counsel ineffectiveness. The PCRA court addressed each contention in its
Notice of Intention to Dismiss. Appellant has reasserted seven of these
claims as sub-issues of the sole issue presented in his brief. Those sub-
issues are listed below, numbered as they are in Appellant’s brief (A. i.-v.
and B. i-ii.), along with the PCRA court’s corresponding responses from the
Notice of Intention to Dismiss. The PCRA court responses are italicized for
ease of review.
A. [Appellant’s] trial counsel was ineffective for failing to prevent
information about [Appellant’s] prior criminal history from
being presented to the jury.
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i. Trial counsel was ineffective for failing to move to
sever Count 4, Persons not to Possess a Firearm.
[Appellant’s] first claim fails because he has not established
that he was prejudiced by counsel’s failure to file a motion to
sever. [Appellant’s] underlying conviction for person not to
possess a firearm was a drug conviction, and [Appellant] has
failed to show that the jury was incapable of separating this
evidence or that the jury convicted him of two counts of first
degree murder based on any potential propensity to commit
drug offenses.
ii. Trial counsel was ineffective for failing to object to
improper statements made by the Commonwealth at
trial eluding [sic] to prior contacts the police had
with [Appellant].
[Appellant’s] second claim that counsel should have objected
to statements indicating prior contact with police fails because
the underlying claim lacks merit. Prior contact with police
does not necessarily indicate that [Appellant] was engaged in
criminal activity. Even if the jury did imply [sic] criminal
activity from the photograph, [Appellant] has failed to
establish prejudice given that the jury, by virtue of
[Appellant’s] prior drug conviction, had a context for why the
police might have [Appellant’s] photograph, and thus did not
imply further criminal activity.
iii. Trial counsel was ineffective for failing to move to
exclude items seized from [Appellant’s] mother’s
home.
[Appellant’s] third claim that counsel was ineffective for
failing to object to the admission of items seized from his
mother’s house fails because the underlying claim lacks merit.
The murder weapons were not recovered in this case, and
thus the firearms evidence seized from [Appellant’s] mother’s
house was relevant and admissible to demonstrate that
[Appellant] had easy access to the type of firearm that was
used in the murders.
iv. Trial counsel was ineffective for failing to exclude or
to offer an explanation for a statement made by
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[Appellant] to detectives during collection of a DNA
sample.
[Appellant’s] fourth claim that trial counsel was ineffective for
failing to exclude or offer an explanation as to [Appellant’s]
statement regarding his DNA fails because [Appellant] has not
adequately developed this claim. [Appellant’s] Amended
PCRA Petition fails to develop under what circumstances
counsel should have attempted to exclude the evidence or
what specific explanation should have been offered.
[Appellant] has not set forth sufficient facts to prove at an
evidentiary hearing.
v. Trial counsel was ineffective for failing to use
previously admitted information about [Appellant’s]
history to his benefit: his only convictions were for
nonviolent offenses and at the time of his arrest he
was on parole.
Appellant’s fifth claim similarly is dismissed due to
[Appellant’s] failure to develop this claim in a meaningful
fashion. Assuming, as the Commonwealth suggests, that
[Appellant] claims counsel should have used this information
in his closing argument, [Appellant’s] claim still fails.
[Appellant’s] counsel had a clear strategy in defending
[Appellant] and counsel was not ineffective for failing to
reintroduce [Appellant’s] prior drug conviction during closing
arguments. Further, [Appellant] has not established that he
was prejudiced by this alleged ineffectiveness.
B. Trial counsel’s failure to challenge the credibility of the
testimony of commonwealth witnesses was unreasonable and
resulted in prejudice to [Appellant].
i. Trial counsel was ineffective for failing to properly
object to the Commonwealth’s use of witness
Freeman’s prior consistent statement during his direct
examination.
[Appellant’s] seventh claim that trial counsel failed to properly
object to the Commonwealth’s use of Freeman’s prior
consistent statement fails because the underlying claim lacks
merit. [Appellant] has failed to allege under what grounds
counsel should have objected to these admissible tapes.
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Further, [Appellant] has failed to establish that he was
prejudiced by the Commonwealth playing the tapes on direct
examination as opposed to redirect examination.
ii. Trial counsel was ineffective for failing to introduce
witness Thornton’s audio-recorded interview in which
he said he was unable to identify either gunman.
[Appellant’s] ninth claim that counsel was ineffective for
failing to introduce Thornton’s audiotaped statement fails
because the taped statement would have been cumulative
evidence and thus the underlying claim lacks merit.
Appellant’s Brief at i-ii; Notice of Intention to Dismiss Pursuant to
Pa.R.Crim.P. 907, 3/31/15, at 1-3.
Again, as stated in his question presented, Appellant argues that the
PCRA court erred by “denying [his] PCRA petition without a hearing, finding
that there were no genuine issues of material fact and that the issues raised
were without merit.” Appellant’s Brief at 3. Having reviewed the issues
raised in Appellant’s PCRA petition, and in particular those preserved on
appeal, and having viewed the evidence of record in a light most favorable
to the Commonwealth as the prevailing party, we find no error on the part of
the PCRA court for concluding there were no genuine issues of material fact
and for denying relief without an evidentiary hearing.
Appellant has failed to demonstrate that his counsel’s performance
was deficient or that he was prejudiced by any such deficiency. Absent a
showing of prejudice, Appellant cannot satisfy the Strickland requirements
and is, therefore, not entitled to relief.
Petition for Remand denied. Order denying PCRA relief affirmed.
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Judge Lazarus joins this memorandum.
Justice Fitzgerald files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2016
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