Com. v. Robinson, M. ( 2018 )

J-A05006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MONIQUE ROBINSON, :
:
Appellant : No. 642 EDA 2017
Appeal from the PCRA Order January 9, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0000157-2012
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 28, 2018
Appellant, Monique Robinson, appeals from the Order entered in the
Chester County Court of Common Pleas dismissing her first Petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
After careful review, we affirm.
The PCRA court set forth the underlying facts and we need not repeat
them in detail. See PCRA Court Opinion, filed 6/27/17, at 1-3. Briefly, on
April 4, 2013, a jury convicted Appellant of, inter alia, Second-Degree
Murder1 in connection with the September 14, 2011 shooting of Selvin Lopez
in Phoenixville during a robbery. Appellant was 18 years, 3 months’ old
when the crime was committed. On July 11, 2013, the trial court sentenced
____________________________________________
1 18 Pa.C.S. § 2502(b).
____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant to the mandatory term of life imprisonment without parole. 18
Pa.C.S. § 1102(b).
Appellant filed a timely direct appeal, and this Court affirmed
Appellant’s Judgment of Sentence. Commonwealth v. Robinson, No.
2174 EDA 2013 (Pa. Super. filed March 6, 2014) (unpublished
memorandum). On July 15, 2014, our Supreme Court denied allowance of
appeal. Commonwealth v. Robinson, No. 170 MAL 2014 (Pa. filed July
15, 2014).
On April 20, 2015, Appellant filed a counseled PCRA Petition, her first,
which Appellant’s counsel amended twice. Appellant claimed, inter alia, that
(1) her trial counsel was ineffective for (a) failing to object to prosecutorial
misconduct, (b) failing to impeach Commonwealth witnessesAppellant’s
accomplicesadequately about their plea agreements, and (c) failing to call
available character witnesses; and (2) her sentence was illegal pursuant to
the reasoning in Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016).2
The PCRA court conducted an evidentiary hearing on May 6, 2016, at
which Appellant’s trial counsel, Appellant’s sister, and Appellant’s two
____________________________________________
2 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole
upon a homicide defendant for a murder committed while the defendant was
a juvenile. The United States Supreme Court held in Montgomery that its
decision in Miller applies retroactively.
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character witnesses testified. The Commonwealth called two rebuttal
witnesses, Chester County Detective Harold Dutter and Phoenixville Police
Officer Brad Droby.
On January 10, 2017, the PCRA court dismissed Appellant’s PCRA
Petition.
Appellant filed a timely Notice of Appeal. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did trial counsel provide ineffective assistance of counsel
where he [(a)] failed to challenge prosecutorial misconduct,
[(b)] failed to properly impeach the Commonwealth’s accomplice
witnesses for bias[,] and [(c)] failed to present character
witnesses?
* * *
2. Was the Appellant’s sentence illegal as it violated the
principles expressed by the United States Supreme Court
regarding sentencing of a youth to life in prison without
possibility of parole, thereby denying this Appellant her federal
and state constitutional rights to due process of law, equal
protection of the law and the right to be free from cruel and
unusual punishment?
Appellant’s Brief at 3-4.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). This Court grants great deference to the findings of the PCRA court if
they are supported by the record. Commonwealth v. Boyd, 923 A.2d 513,
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515 (Pa. Super. 2007). We give no such deference, however, to the court’s
legal conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.
Super. 2012).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). The
burden of demonstrating ineffectiveness rests on Appellant. Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have some
reasonable basis designed to effectuate his interests; and, (3) but for
counsel’s ineffectiveness, there is a reasonable probability that the outcome
of the challenged proceeding would have been different.” Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
Failure to satisfy any prong of the test will result in rejection of the
appellant’s ineffective assistance of counsel claim. Commonwealth v.
Jones, 811 A.2d 994, 1002 (Pa. 2002). “If a petitioner cannot prove that
trial counsel was ineffective, then petitioner’s derivative claim of appellate
counsel ineffectiveness must also fail[.]” Commonwealth v. Hutchinson,
25 A.3d 277, 286 (Pa. 2011).
We will address seriatim the merits of the three issues on which
Appellant bases her ineffective assistance of counsel claims.
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Failure to Object to Prosecutorial Misconduct
Appellant first contends that her trial counsel was ineffective for failing
to object to prosecutorial misconduct during the closing argument.
Specifically, she asserts that: (1) the prosecutor’s claims that certain
testimony was “uncontradicted” was an impermissible comment on
Appellant’s silence since she was the only person who could contradict the
evidence and she did not testify; (2) the prosecutor’s comment that a
certain witness could not look him in the eye was an improper comment on
demeanor; and (3) the prosecutor’s statements about Appellant’s crying only
during certain parts of the trial but not others was also an improper
comment on Appellant’s demeanor. Appellant’s Brief at 12-22. Appellant
also claimed the prosecutor improperly vouched for the credibility of certain
witnesses. See Appellant’s Brief at 22-38.
“[N]ot every inappropriate remark by a prosecutor constitutes
reversible error.” Commonwealth v. Noel, 53 A.3d 848, 858 (Pa. Super.
2012) (citation omitted). “It is [] well established that a trial court may
grant a mistrial only where the incident upon which the motion is based is of
such a nature that its unavoidable effect is to deprive the defendant of a fair
trial by preventing the jury from weighing and rendering a true verdict.”
Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013) (quotation marks
and citation omitted).
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“While it is improper for a prosecutor to offer any personal opinion as
to the guilt of the defendant or the credibility of the witnesses, it is entirely
proper for the prosecutor to summarize the evidence presented, to offer
reasonable deductions and inferences from the evidence, and to argue that
the evidence establishes the defendant’s guilt[.]” Commonwealth v.
Burno, 94 A.3d 956, 974 (Pa. 2014) (citation omitted).
Moreover, “[i]n determining whether the prosecutor engaged in
misconduct, we must keep in mind that comments made by a prosecutor
must be examined within the context of defense counsel’s conduct. It is well
settled that the prosecutor may fairly respond to points made in the defense
closing.” Commonwealth v. Hogentogler, 53 A.3d 866, 878 (Pa. Super.
2012) (citation omitted); see also Commonwealth v. Carson, 913 A.2d
220, 236 (Pa. 2006) (stating that a prosecutor is entitled to fairly respond to
arguments made by defense counsel in closing argument). In fact, “[e]ven
an otherwise improper comment may be appropriate if it is in fair response
to defense counsel’s remarks.” Burno, supra at 974 (citation omitted).
The Honorable James P. MacElree II, sitting as the PCRA court, has
authored a comprehensive, thorough, and well-reasoned Opinion, citing the
record and relevant case law in addressing this ineffectiveness claim. The
record supports the PCRA court’s findings and the Order is otherwise free of
legal error. We, thus, affirm on the basis of the PCRA court’s June 27, 2017
Opinion. See PCRA Court Opinion, filed 6/27/17, at 3-5 (concluding that (1)
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Appellant’s claims lacked arguable merit because the prosecutor’s comments
during closing argument were within the permissible range of zealous
advocacy and did not unavoidably prejudice the jury; (2) Appellant’s counsel
had a reasonable strategic basis for refusing to object to these portions of
the prosecutor’s closing argument; and (3) the outcome would not have
been different had counsel raised these objections in the lower court).
Failure to Properly Impeach Witnesses
Appellant next claims that her trial counsel was ineffective for failing to
cross-examine two witnessesAppellant’s two accomplices who had each
entered guilty pleas to Third-Degree Murder to avoid life
imprisonmentregarding the details of their plea agreements with the
Commonwealth. Appellant’s Brief at 22-38.
Where the petitioner alleges counsel failed to cross-examine a witness
regarding impeachment evidence that would have been merely cumulative of
other evidence or topics explored during counsel’s cross-examination, the
petitioner is not entitled to relief because she has failed to demonstrate
prejudice. Commonwealth v. Tharp, 101 A.3d 736, 760 (Pa. 2014).
After careful review, we conclude that the PCRA court ably addressed
this second ineffectiveness claim. Accordingly, we affirm on the basis of the
PCRA court’s Opinion. See PCRA Court Opinion, 6/27/17, at 5-6 (concluding
that: (1) counsel’s cross-examination of these two witnesses was “vigorous
and diligent[;]” (2) counsel explored the nature of the plea agreements,
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which the witnesses entered in exchange for their cooperation to avoid a life
sentence; and (3) counsel had a reasonable strategic basis for the extent of
his cross-examination; moreover, any additional questions regarding the
plea agreements would have been cumulative, so Appellant is unable to
demonstrate prejudice).
Failure to Present Character Witnesses
Appellant claims that counsel was ineffective for failing to call
witnesses to testify about her good character, i.e., that she was peaceful and
law abiding. Appellant’s Brief at 38-44.
To obtain relief on a claim that counsel was ineffective for failing to call
a potential witness, the PCRA petitioner must establish that:
(1) the witness existed;
(2) the witness was available to testify for the defense;
(3) counsel knew of, or should have known of, the existence of
the witness;
(4) the witness was willing to testify for the defense; and
(5) the absence of the testimony of the witness was so
prejudicial as to have denied the defendant a fair trial.
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007).
We affirm on the basis of the PCRA court’s Opinion. See PCRA Court
Opinion, 6/27/17, at 6 (concluding that: (1) Appellant failed to show that
counsel was informed of the existence of the witnesses or should otherwise
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have known about them; and (2) the absence of their testimony did not
prejudice Appellant).3
Legality of Sentence
In her final claim, Appellant, who acknowledges that she was 18 years
and 3 months old at the time of the murder and “not technically a juvenile,”
contends that she is serving an illegal sentence of life imprisonment and
entitled to relief in light of Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Appellant’s Brief at 44-
49. Appellant contends that “under equal protection, it is arbitrary to deny
relief to [Appellant] while granting it to another who was age 17 years and
364 days at the time of the crime.” Appellant’s Brief at 48. Appellant
argues that she “was not capable of conforming her conduct as an adult
would and was not an ‘adult’ across a broad range of developmental and
cognitive areas.” Appellant’s Brief at 45.4
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3 Moreover, we note that counsel had a reasonable strategic basis for
refusing to call these witnesses: had counsel sought to present such good
character evidence, the Commonwealth would have been entitled to present,
and would have presented, additional damaging evidence that was otherwise
inadmissible, including: (1) negative character/reputation evidence from a
police officer that Appellant was not law abiding; and (2) evidence of
Appellant’s prior adjudication for Criminal Trespass.
4 We note that on April 4, 2018, Appellant filed a Post-Submission
Communication pursuant to Pa.R.A.P. 2501(b) to bring to this Court’s
attention the slip opinion in Cruz v. United States, No. 11-CV-787 (JCH),
2018 WL 1541898 (D. Conn. Mar. 29, 2018) (granting habeas relief to
(Footnote Continued Next Page)
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This Court has previously ruled that Miller does not apply to
individuals who were 18 or older at the time they committed murder. See
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding
that petitioners who were eighteen or older at the time they committed
murder are not within the ambit of the Miller decision), abrogated in part by
Montgomery, supra; see also Commonwealth v. Furgess, 149 A.3d 90
(Pa. Super. 2016) (holding that Miller did not apply to a 19–year–old
appellant convicted of homicide, even though that appellant claimed he was
a “technical juvenile” and relied on neuroscientific theories regarding
immature brain development to support his claim; acknowledging that
Cintora’s additional holding, that Miller had not been applied retroactively,
was “no longer good law” after Montgomery).
Appellant was 18 years old, not younger than 18 years old, when she
and her accomplices robbed and murdered Selvin Lopez on September 14,
2011. Thus, Miller and Montgomery are inapplicable to Appellant at this
time.5 Accordingly, we are constrained to find that the PCRA court properly
(Footnote Continued) _______________________
defendant 18 years and 20 weeks old at the time of crime, concluding that
Miller applies to 18-year-olds).
5 This “panel is not empowered to overrule another panel of the Superior
Court.” Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013). We
note that this Court recently certified Commonwealth v. Lee, No. 1891
WDA 2016 for en banc review regarding similar issues involving the
application of the reasoning in Miller and Montgomery to young adults.
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concluded that Appellant was not entitled to relief. See PCRA Court Opinion
at 6-7.
The record supports the PCRA court’s findings and its Order is
otherwise free of legal error. Accordingly, we affirm.
The parties are instructed to attach a copy of the PCRA court’s June
27, 2017 Opinion to all future filings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/18
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Circulated 05/29/2018 03:54 PM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: CHESTER COUNTY, PENNSYLVANIA
V.
: CRIMINAL ACTION
MONIQUE ROBINSON : NO. 157-2012
Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney
Burton A. Rose, Esquire, Attorney for Appellant
OPINION PURSUANT TO Pa.R.A.P. 1925(a)
Monique Robinson has filed an appeal to the Superior Court f Pennsylvania from our
order of January 9, 2017, which dismissed her petition for post-conviciion collateral relief. We
write now pursuant to the mandate of Pa.R.A.P. 1925(a).
Factual and Procedural History
At approximately midnight on the morning of September 14, 2011, twenty -one -year -old
Selvin Lopez stood talking to his uncle on Prospect Street in Phoenixville, Pennsylvania. Mr.
Lopez had worked the late shift at Wendy's Restaurant and was on his way home. He was
carrying his backpack, which contained his paycheck, some cash, and his fast-food dinner.
Saleem Williams, Stephan Reidler, and Appellant Monique Robinson were out on a
"mission" to rob someone. Appellant was carrying a gun. They noticed Mr. Lopez, approached
him, beat him, and robbed him of his backpack. When Mr. Lopez attempted to fight back,
Appellant handed Saleem Williams the gun and said "shoot him." Saleem Williams then shot
Mr. Lopez. The three robbers fled the scene and returned to a friend's apartment. At the
apartment they went through the backpack, retrieved the cash, and ate Mr. Lopez's dinner. Mr.
Lopez, left in the street, died from his injuries.
Police subsequently arrested Saleem Williams, Stephan Reidler and Appellant and
charged them with Mr. Lopez's murder. Saleem Williams and Stephen Reidler both entered into
negotiated guilty pleas to third-degree murder. Appellant herein refused a plea offer and insisted
on going t trial against her experienced counsel's advice.
On April 4, 2013, a jury found Appellant guilty f murder of the second degree,
aggravated assault, robbery, criminal conspiracy and related offenses. On July 11, 2013, we
sentenced her to a mandatory sentence f life in prison. Appellant appealed, and on March 6,
2014, the Superior Court affirmed her judgment of sentence. The Pennsylvania Supreme Court
denied her petition for allowance of appeal on July 15, 2014.
On April 20, 2015, Appellant filed a timely petition under the Post Conviction Relief Act.
On October 22, 2015, Appellant was granted permission to file an amended Post Conviction
Relief Act petition, and on April 28, 2016, she was granted leave to file a second amended Post
Conviction Relief Act petition. In her petitions Appellant claimed that her trial counsel was
ineffective for failing to effectively challenge several instances f prosecutorial misconduct, for
failing to adequately cross-examine two Commonwealth witnesses, and for failing to call
character witnesses. Appellant also asserted that we should apply the principles set forth by
United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455 (2012), to her case even
though she was not a juvenile at the time of the killing.
We held a hearing on Appellant's petition on May 6, 2016, at which time Appellant
presented evidence in support of her claims. Defense counsel and the Commonwealth were then
2
allowed time to review the notes of testimony of the PCRA hearing prior to filing their post -
hearing briefs. Appellant also filed a response to the Commonwealth's post -hearing brief. After
reviewing the file, the record, the testimony offered at the PCRA hearing, and the briefs of
counsel, we found no issue that entitled Appellant to post -conviction relief. Accordingly, we
dismissed her petition on January 9, 2017. This appeal followed.
Legal Analysis
In her statement of matters complained of on appeal, Appellant first claims that trial
counsel was ineffective when he failed to challenge several instances of misconduct during the
prosecutor's closing argument. Specifically, Appellant claims that the prosecutor repeatedly
characterized the testimony of the victim's uncle as "uncontradicted," in violation of Appellant's
right to remain silent; improperly commented on the demeanor of witness Caitlyn Schierenbeck
when she "couldn't look [him] in the eye;" and improperly commented on Appellant's demeanor
and her "dry-eyed"I appearance during testimony about the murder of Selvin Lopez. See: N.T.
4/4/13, pp. 48, 55, 62-63, 70, 76. Appellant claims that the prosecutor's comments about the
demeanor of Ms. Schierenbeck and of Appellant improperly invaded the province of the jury to
determine those factors.
Recognizing that a prosecutor is free to present his or her arguments with "logical force
and vigor," Commonwealth v. Hutchinson, 25 A.3d 277, 306 (Pa. 2011), we reviewed the
Appellant previously raised this specific "dry-eyed" claim on direct appeal. Both this Court and the
Superior Court found it without merit. See: Comm. v. Robinson, No 2174 EDA 2013 (Pa.Super. 3/6/14).
3
prosecutor's entire closing argument with particular emphasis on the challenged comments. We
found that the prosecutor, while vigorously arguing his case, nevertheless did so within the law.
Even had we not so found, even improper comments by a prosecutor require relief "only where
their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility
toward the defendant such that they could not weigh the evidence objectively and render a fair
verdict." M at 307 (citation omitted).
In addition, Appellant presented her assertions of prosecutorial misconduct in the context
of an ineffectiveness claim. Since counsel is presumed effective, to obtain relief Appellant
would have had to establish that her counsel's performance was deficient and that this deficiency
prejudiced her. Commonwealth v Charleston, 94 A.3d 1012, 1019 (Pa.Super. 2014) (citation
omitted). Specifically, as a PCRA petitioner, she would have had to plead and prove "(1) that
the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her
action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable
probability that the outcome of the proceedings would have been different." Commonwealth v.
Kimball, 724 A.2d 326, 333 (Pa. 1999).
First, because we found that the prosecutor's statements were not improper, Appellant
could not establish factor (1) of the above -stated test. Second, at the PCRA hearing, trial counsel
reasonably explained the strategic decisions that he made during the prosecutor's closing
argument, negating factor (2). See: N.T. 5/6/16, pp. 14-16, 19-20, 21-24, 46, 49. Finally, even
were we to accept that these claims were of arguable merit, and counsel had no reasonable basis
4
for his action (which we did not), we did not find that there was any reasonable probability that
the outcome of this case would have been different had trial counsel objected and pursued these
claims. Thus, factor (3) could not have been met, and these claims entitled Appellant to no
relief.
Next, Appellant claims that counsel was ineffective when he failed to adequately cross-
examine and impeach Commonwealth witnesses Stephen Reidler and Saleem Williams regarding
specific details f their plea bargains with the Commonwealth. Appellant also claims that the
prosecutor improperly vouched for the credibility of these witnesses during his closing argument
to the jury.
We start with the second claim. We previously reviewed the entirely of the prosecutor's
closing argument and found no misconduct. The prosecutor presented his arguments with force
and vigor, but did so within permissible limits. Thus, there was no prosecutorial misconduct on
which to base an ineffectiveness claim and Appellant could not rely on this claim for any relief.
Nor did we find that trial counsel was ineffective in his cross-examination of witnesses
Reidler and Williams. Our review of the notes of testimony f Appellant's trial revealed that
trial counsel's cross-examination of these witnesses was vigorous and diligent. Counsel also
explored with the witnesses the fact that they were allowed to plead guilty to third degree murder
in return for their cooperation. See: N.T. 4/2/13, pp. 117-189, 195-97; 250-284. Trial counsel's
testimony at the PCRA hearing revealed the reasonable and strategic decisions he made
concerning the extent t which he cross-examined these witnesses. N.T. 5/6/16, pp. 24-35, 49-
5
62. Counsel was not ineffective in his cross-examination of these witnesses, and Appellant was
entitled to no relief on this claim.
Appellant also claims that her counsel was ineffective for failing to present character
witnesses to testify regarding her good reputation as a peaceful and law abiding citizen.
At Appellant's PCRA hearing potential character witnesses Kenneth Wilson and Karen
Murphy testified. After hearing their testimony, and trial counsel's testimony regarding this
issue, we found that counsel had not been ineffective when he failed to call any character
witnesses on Appellant's behalf.
To establish ineffectiveness for failure to call a witness, an appellant must establish that:
(1) the witness existed; (2) the witness was available; (3) counsel was
informed of the existence of the witness or should otherwise have known of
him/her; (4) the witness was prepared to cooperate and testify for appellant at
trial; and, (5) the absence of the testimony prejudiced appellant so as to deny
him [or her] a fair trial.
Commonwealth v. Gonzalez, 608 A.2d 528, 532 (Pa.Super. 1992). Our rereading of the notes of
testimony f Appellant's PCRA hearing confirms our finding that Appellant was unable to
establish these elements, specifically elements three and five, and that she was entitled to no
relief on these claims. See: N.T. 5/6/16, pp. 35-41, 122, 126.
In her final claim, Appellant asserts that her sentence of life in prison without parole was
illegal, as applied to her, and should be reassessed in light of the United States Supreme Court
decisions in Miller v. Alabama, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S. Ct.
718 (2016).
6
In Miller, the Supreme Court held that mandatory life sentences without parole for those
defendants under the age of eighteen at the time of their crimes violated the Eighth
Amendment's prohibition on cruel and unusual punishments. Miller, at 2460. In Montgomery,
the Supreme Court ruled that Miller was entitled to retroactive application to cases on collateral
review. However, Appellant herein was eighteen years and three months old at the time of her
crime, the holding in Miller simply has no application to her case, and she cannot rely on Miller
for any post-conviction relief.
For the reasons stated above we dismissed Appellant's petition under the Post Conviction
Relief Act.
BY THE COURT:
04.
DATE: 1-7 2-011
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