J-S21018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JULIAN EDWARD LARKINS

Appellant

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 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 

Act1 (PCRA). We affirm.

In the early morning hours of October 15, 2009, the victims, Herman

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, just prior to the gunshots, Donald Wilson was driving 

nearby. Wilson was a retired police officer and then-owner of a security firm

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1 42 Pa.C.S.A. §§ 9541-9546.
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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 across 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 until 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 Detective Charles Hanlon took into evidence

Appellant’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 

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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 

“1/10/12.” Similarly, the cover of Trial Volume II is dated January 12 to 

January 17, 2012, and we cite it simply as “1/12/12.”
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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 attempted murder and aggravated assault in 

relation to Moore.

Appellant 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. Appellant 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. The Commonwealth’s offer of 

proof was that the recordings would show that Appellant had planned to kill 

Herman Moore at the Mac-Can-Do Bar on August 23, 2009. Outside of the 

jury’s presence, Appellant’s attorney3 (Trial Counsel) objected to the

recordings on the grounds that the conversations were too remote in time; 

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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.
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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 recordings far outweighed 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 

played the recordings, but did not raise any particular objection thereafter. 

See id. 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 Appellant 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 Nutter stated he was present when 

Detective Hanlon did so. N.T., 1/10/12, at 121-22; N.T., 1/12/12, at 114. 

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 matching the one Appellant was wearing on the night of the incident. N.T. 
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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 discharging a firearm into an occupied structure, and a consecutive 

term of 81⁄2 to 20 years for attempted murder.

Appellant took a direct 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 there was no 

objection to any particular testimony by the detective. This Court affirmed 

the judgment of sentence on January 22, 2014, and our 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, 

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4 Commonwealth v. Larkins, 210 WAL 2014 (Pa. Aug. 21, 2014); 

Commonwealth v. Larkins, 800 WDA 2012 (unpublished memorandum) 

(Pa. Super. Jan. 22, 2014).
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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 

hooded sweatshirt, as well as not investigating what Appellant was wearing 

on the night of the shooting. The PCRA court5 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 shooting 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 his 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 Counsel was ineffective for failing to raise [a] specific 

objection to the wiretapped phone calls introduced by the 

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5 The same judge presided over both the trial and PCRA proceedings.

6 Appellant was taken from police headquarters to jail.
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Commonwealth at trial[.]

b. Trial Counsel was ineffective for failing to investigate the 

Commonwealth’s evidence relating the hoodie allegedly worn 

by Appellant at the scene of the crime.

c. Trial Counsel 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 Constitution of this Commonwealth 

or the constitution of the United States which, in the 

circumstances of the particular case, so undermined the truthdetermining 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. Appellant points out that the trial court 

advised Trial Counsel that he could raise specific objections to Detective 

Renk’s testimony, but Trial Counsel failed to do so, and this failure resulted in 

waiver of any 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 PCRA Petition.
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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 determinations, 

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.

Commonwealth 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 preponderance of the 

evidence, 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 (citations 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 nor refute this 

analysis — indeed, his entire discussion is a near-verbatim reproduction of the 

argument in his amended PCRA petition.7 While Appellant characterizes 

Detective Renk’s testimony as “prejudicial and speculative,” Appellant does 

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

aside from his final sentence, which claims that he should have been granted 

PCRA relief, Appellant does not frame his issue with respect to any 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 investigators had 

seized his sweatshirt at 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 

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8 This argument is also a near-verbatim reproduction of the pertinent 

discussion in his amended PCRA petition.
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described Appellant’s sweatshirt on the night of the shooting. Additionally, in 

asserting 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 were 

fired, they observed him attempt to hide under an 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, Appellant 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 denied relief.

As Appellant has not demonstrated that he is entitled to relief, we affirm 

the order dismissing his PCRA petition.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/8/2018