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

v.

JULIAN EDWARD LARKINS

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1241 WDA 2017 Appeal from the PCRA Order April 20, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP

- 02

- CR

- 0015679

- 2009, CP

- 02

- CR

- 0017394

- 2009

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY MURRAY, J.: FILED MAY 08, 2018 Julian Edward Larkins (Appellant) appeals from the order dismissing , after a hearing, his first petition filed pursuant to the Post Conviction Relief
Act 1 (PCRA ) . We affirm. In the early m orning hours of October 15, 2009, the victims , Herm a n Moore and Stefan Whitfield , were outside the Mac

- Can

- Do Bar in the Homewood section of Pittsburgh. Gunshots were fired and both men ran. Moore was shot in the arm and survived . Whitfield was shot in the head and died

. Meanwhile, j ust prior to the gunshots, Donald Wilson was driving nearby. Wilson was a retired police officer and then

- owner of a security firm

_________________ __________ ______ ____ _______ 1 42 Pa.C.S.A. §§ 9541

- 9546.J

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that was providing security services at a housing community three blocks from the Mac

- Can

- Do Bar. Wilson ’ s employee, Derek Vasser, was driving another vehicle in front of Wilson . Wilson heard gunshots behind his vehicle , looked in his rearview mirror , and saw gun flashes. Wilson put his vehicle in reverse and saw the shooter, Appellant, run acr oss a vacant lot. Vasser , whose car was equipped with a spotlight, began to follow Appellant and saw him attempt to hide under a white SUV. Vasser exited his vehicle, drew his weapon, and attempted to handcuff Appellant. Wilson , now on foot, assisted un til the police arrived shortly thereafter. Both Wilson and Vasser testified at trial that the person they saw running was wearing a gray hooded sweatshirt. N.T. Trial Vol. I, 1/10/12, at 267, 274, 367. 2 Pittsburgh Police Officer Daniel Zeltner arrived at the intersection where Appellant was being detained by Wilson and Vasser. Officer Zeltner observed that Appellant was wearing a gray hooded sweatshirt. N.T. Trial Vol. II, 1/12/12, at 75. Pittsburgh Police Det ective Charles Hanlon took into evidence Ap pellant ’ s gray hooded sweatshirt ; the sweatshirt said “ Illinois Wesleyan ” on the front and “ Titans ” on the left sleeve. N.T., 1/10/12, at 277 ; N.T., 1/12/12,
at 113

- 14. The police recovered a gun under the white SUV, which was shown

_________________ __________ ______ ____ _______ 2 The cover of Trial Volume I is dated January 10 to January 11, 2012. For ease of reference, our citations to this volume will simply refer to the date

“ 1/1 0 /12. ” Similarly, the cover of Trial Volume II is dated January 12 to January 17, 2012, and we cit e it simply as “ 1/12/12. ”J

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to match 20 spent cartridge cases found near Whitfield. A DNA sample retrieved from the gun was comparable to Appellant ’ s DNA, such that he could not be excluded as a possible source of the DNA on the gun. With respect to the shooting death of Whitfield, Appellant was charged at docket CP

- 02

- CR

- 0015679

- 2009 with criminal homicide and discharging a firearm into an occupied structure. At docket CP

- 02

- CR

- 0017394

- 2009, Appellant was charged with attempte d murder and aggravated assault in relation to Moore

. Ap pellant proceeded to a jury trial on January 10, 2012. Pertinently, the Commonwealth sought to play , during examination of its witness Pittsburgh Police Detective Robert Renk, 19 phone conversations recorded in an unrelated wiretap investigation. Appella nt was a participant in these conversations , two of which occurred in May 2009 and the remaining 17 over a 63

- minute period on August 23, 2009 ( approximately 11⁄2 months before the shooting ) . N.T. Trial Vol. II, 1/ 12/12, at 8. T he Commonwealth ’ s offer of proof was that the recordings would show that Appellant had planned to kill
Herman Moore at the Mac

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- Do Bar on August 23, 2009. Outside of the jury ’ s presence, Appellant ’ s attorney 3 ( Trial Counsel ) objected to the recordings on the grounds t hat the conversations were too remote in time ;

_________________ __________ ______ ____ _______ 3 The trial transcripts indicate that Appellant was represented by Robert Stewart, Esq., and Sarah Holt, Esq. In this memorandum, “ Trial Counsel ” refers to Attorney Stewart.J

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the conversations referred to “ Fat Herm, ” but Moore had denied at trial that he goes by that nickname; the conversations referred to unrelated criminal

cases ; and the prejudicial effect of the record ing s far o utweighed their probative value

. Id. at 5

- 6. Appellant also objected to any testimony by Detective Renk interpreting the phone conversations, including references to locations and gang lingo used by the speakers

. Id. at 9. The court allowed the recordings but advised Trial Counsel that he could object to particular testimony by Detective Renk as it arose and could cross

- examine him. Id. at 14. Trial Counsel made a general objection just before the Commonwealth play ed the recordings , but did not raise any particular objection thereafter. See i d. at 23

- 43

. Wilson , Vasser, Officer Zeltner, Detective Hanlon, and Pittsburgh Police Detective Timothy Nutter

— who also responded to the scene that evening

— testified that Ap pellant was wearing a gray hooded sweatshirt while and after he was detained by Wilson and Vasser. N.T. , 1/10/12, at 267, 274 , 367 ; N.T., 1/12/12, at 113. Detective Hanlon testified that he collected Appellant ’ s sweatshirt as evidence , and Detective Nutt er stated he was present when Detective Hanlon did so. N.T., 1/10/12, at 121

- 22; N.T., 1/12/12, at 1 14

. The Commonwealth introduced into evidence both the sweatshirt and a photograph of the sweatshirt. Trial Counsel did not object to either. Wilson and Detective Hanlon both identified the actual sweatshirt presented at trial

as match ing the one Appellant was wearing on the night of the incident

. N.T.J

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Trial I at 277; N.T. Trial II at 144

. Vasser and Detective Nutter stated that the sweatshirt in the Commonwealth ’ s photograph matched the sweatshirt worn by Appellant. N.T. Trial I at 114, 277. Appellant did not present any evidence or testify. The jury found Appellant guilty of first

- degree murder and all remaining charges

. On April 10, 2012, the trial court imposed a mandatory life imprisonment term for first

- degree murder, a concurrent term of 31⁄2 to 7 years for dischar g ing a firearm into an o c cupi e d structure, and a consecutive term of 81⁄2 to 20 years for attempted murder

. Appellant took a di rect appeal, raising several challenges to the admission of the wiretap phone recordings. Pertinently, this Court found that Appellant waived his claim that Detective Renk provided speculative interpretations of the phone conversations, observing that the re was no objection to any particular testimony by the detective. T his Court affirmed the judgment of sentence on January 22, 2014, and o ur Supreme Court denied allowance of appeal on August 21, 2014. 4 On May 1, 2015, Appellant filed a pro se timely PCRA petition. Present counsel was appointed to represent him, and she filed an amended petition,

_________________ __________ ______ ____ _______ 4 Commonwealth v. Larkins , 210 WAL 2014 (Pa. Aug. 21, 2014) ; Commonwealth v. Larkins , 800 WDA 2012 (unpublished memo randum) (Pa. Super. Jan. 22, 2014).J

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arguing that Trial Counsel was ineffective for not objecting to the introduction of the phone recordings, the hooded sweatshirt, and the photograph of the ho oded sweatshirt, as well as not investigating what Appellant was wearing on the night of the shooting. The PCRA court 5 conducted an evidentiary hearing on March 6, 2017

. Appellant testified that before and during trial, he told Trial Counsel that he did not wear the “ Illinois Wesleyan ” sweatshirt, as alleged by the Commonwealth, and that the police never took his sweatshirt from him . Appellant also played television news footage , which showed him walking out of police headquarters on the night of the sho oting wearing a different gray , zip

- up hooded sweatshirt that had no writing on it. 6 Appellant further testified that he had asked Trial Counsel to investigate the news video, but Trial Counsel did not do so. The PCRA court determined that Appellant ’ s issues were meritless , and dismissed hi s petition on April 20, 2017

. Appellant timely appealed and complied with the court ’ s order to file a Pa.R.A.P . 1925(b) statement of errors. Appellant presents the following issues for our review: I. Whether Appellant ’ s prior counsel was ineffective which in the circumstances of the particular case, so undermined the truth

- determining process that no reliable adjudication of guilt or innocence could have been taken. Specifically: a. Trial C ounsel was ineffe ctive for failing to raise [a] specific objection to the wiretapped phone calls introduced by the

_________________ __________ ______ ____ _______ 5 The same judge presided over both the trial and PCRA proceedings.

6 Appellant was taken from police headquarters to jail.J

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- Commonwealth at trial[.] b. Trial C ounsel was ineffective for failing to investigate the C ommonwealth ’ s evidence relating the hoodie allegedly worn by A ppell ant at the scene of the crime. c. Trial C ounsel was ineffective for failing to object to the introduction of the picture of the physical hoodie allegedly worn by Appellant at the scene of the crime. II. There was a violation of the C onstitution of this C ommonwealth or the constitution of the U nited S tates which, in the circumstances of the particular case, so u ndermined the truth

determining process that no reliable adjudication of guilt or innocence could have taken place. III. The trial court erred in denying the PCRA petition after the hearing. Appellant ’ s Brief at 5. Appellant first avers that Trial Counsel was ineffective for “ failing to raise specific objections to the wiretapped phone calls introduced by the Commonwealth at trial. ” Id. at 15. Ap pellant points out that the trial court advised Trial Counsel that he could raise specific object ion s to Detective Renk ’ s testimony , but Trial Counsel fail ed to do so , and this failure resulted in waiver of a ny challenge to the recordings on direct appeal. Appellant concludes: [His] underlying claim has arguable merit. Trial [C]ounsel ’ s failure to raise timely objections to prejudicial and speculative testimony in these telephone conversations was certainly not in . . . Appellant ’ s best interest. Further, [Trial Counsel ’ s] unreasonable performance severely prejudiced Appellant as Appellant would have been able to have these claims decided by this . . . Court on appeal. . . . Therefore, Appellant should have been granted relief under the Amended PC RA Petition.J

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Id. at 17. We note the relevant standard of review: In reviewing the denial of PCRA relief, we examine whether the PCRA court ’ s determinations are supported by the record and are free of legal error. The PCRA court ’ s credibility determinatio ns, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court ’ s legal conclusions. We review a PCRA court ’ s denial of an appellant ’ s request for discovery for abuse of discretion. Commonweal th v. Roney , 79 A.3d 595 , 603 (Pa. 2013) (citation omitted)

. Counsel is presumed effective, and the petitioner bears the burden of proving otherwise. To prevail on an ineffectiveness claim, the petitioner must plead and prove, by a prepo nderance of the ev idence, the following three elements: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his or her action or inaction; and (3) the petitioner suffered prejudice as a result of counsel ’ s action or inaction. Id. at 604 (ci tations omitted). The PCRA court found that, where Trial Counsel had objected generally to the phone recordings, Appellant ’ s PCRA petition failed to explain “ what other ‘ specific ’ objections should have been made

. ” PCRA Court Opinion, 12/14/17, at 2. On appeal, Appellant does not address n or refute this analysis

— indeed , his entire discussion is a near

- verbatim reproduction of the argument in his amended PCRA petition. 7 W hile Appellant characterizes Detective Renk ’ s testimony as “ prejudicial and spec ulative, ” Appellant does

_________________ __________ ______ ____ _______ 7 The only variations were the manner in which he referred to the courts, e . g . “ the Court ” in the amended PCRA petition was replaced with “ the lower court ” in his appellate brief.J

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not provide any further explanation to support this assertion . Additionally,

a side from his final sentence , which claims that he should have been granted PCRA relief , Appellant does not frame his issue with respect to an y error by the PCRA court, but instead would have this Court review his claim de novo

. In the absence of any developed claim of error by the PCRA court, no relief is due. See Roney , 79 A.3d at 603. We address Appellant ’ s next two claims together. First, he avers Trial Counsel was ineffective for not investigating the Commonwealth ’ s allegation that on the night of the shooting, he was wearing the “ Illinois Wesleyan ” sweatshirt

. Appellant maintains the Commonwealth used the sweatshirt to identify him as the shooter , and that he had denied wearing that sweatshirt to Trial Counsel . Appellant contends that had Trial Counsel investigated his claim, the sweatshirt could have been excluded. 8 Next, Appellant alleges Trial Counsel was ineffective for failing to object to the introduction of the sweatshirt and the photograph of the sweatshirt at trial. The PCRA court found that the reason for Appellant ’ s wearing a different sweatshirt than the one introduced at trial was simply that investigat ors had seized his sweatshirt a t the time of his arrest (as testified to at trial by Detectives Hanlon and Nutter) and thereafter provided him with a different one to wear. The PCRA court also emphasized that five trial witnesses

_________________ __________ ______ ____ _______ 8 This argument is also a near

- verbatim reproduction of the pertinent discus sion in his amended PCRA petition.J

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described Appellant ’ s sweatshirt on the night of the sho oting. Additionally, i n assert ing that the Commonwealth had relied on the sweatshirt to identify him as the shooter, Appellant ignores the substantial evidence against him at trial: both Wilson and Vasser saw him running immediately after the gunshots wer e fired , they observed him attempt to hide under a n SUV, a gun found under the SUV matched spent gun casings found next to the victim Whitfield, and recorded phone conversations showed that Appellant had attempted to kill Moore 11⁄2 months earlier. Thus, Ap pellant has failed to establish that his underlying claims have merit. See Roney , 79 A.3d at 604. Furthermore, in finding that the detectives took Appellant ’ s sweatshirt into evidence, the PCRA court discredited Appellant ’ s PCRA hearing testimony that his sweatshirt was never taken from him and he was wearing a plain gray sweatshirt. This credibility determination is binding on this Court, and we may not supplant it with our own. See id. at 603. The PCRA court properly d enied relief. As Appellant has not demonstrated that he is entitled to relief, we affirm the order dismissing his PCRA petition

. Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/8/2018