J-S13019-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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