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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 C ounty, denying his petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Subsequent to filing hi s appellate brief, Appellant filed a petition for remand contending an evidentiary hearing is warranted in light of after-discovered evidence con sisting 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 pe tition.J-S13019-16

- 2 -

2010, a jury convicted Appellant of the May 2009 mu rders of sisters Rachel

and Daneen Robinson at their home in the Hazelwood section of Pittsburgh. On September 20, 2010, the trial court sentenced Ap pellant to two life sentences plus twenty to forty years’ imprisonment for additional convictions of burglary, violations of the firearms act, unlawf ul 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 t here 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 addr ess his petition for remand. As noted, Appellant asks this Court to rem and to the PCRA court for an evidentiary hearing based on an unsworn Febr uary 23, 2016 affidavit obtained from Commonwealth trial witness, D’Andre F reeman (“Freeman”).J-S13019-16

- 3 -

In the affidavit, Freeman states that despite his p reliminary hearing and trial testimony identifying Appellant as one of two gunme n involved in the Robinson murders, he actually did not recognize eit her 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 t han 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 tria l testimony was the truth.

Id. The first time he told anyone he identified “the wr ong person” was on February 11, 2016, when he met with Appellant’s PCR A counsel. Id. at ¶ 8. In his affidavit, Freeman states he “do[es] not bel ieve” 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 test imony, the petitioner must establish that: (1) the evidence ha s been discovered after trial and it could not have been o btained at or prior to trial through reasonable diligence; (2) th e evidence is not cumulative; (3) it is not being used solely to impeach credibility; and (4) it would likely compel a diffe rent 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 a ver that he “could notJ-S13019-16

- 4 -

have obtained [the witness’s] recantation or the ci rcumstances of her incourt identification at, or prior to, the conclusio n 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 stateme nt was fully explored on cross-examination). Further, as our Supreme Court explained in Wilson : [W]e are mindful that there is no less reliable for m of proof than recantation, especially when it involves an admissi on of perjury. Here, [the witness’s] post-trial statement directly contradicts his sworn testimony at trial which amounts to an admiss ion of perjury. All the other evidence presented at trial by the Commonwealth, together with [the witness’s] admissi on of perjury, would most likely result in a verdict of f irst 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 ave r that he could not have obtained Freeman’s recantation at or prior to the conclusion of trial through reasonable diligence. Further, we note tha t 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 no t identify Appellant at trial, a detective testified as to Thornton’s pre-t rial identification of Appellant. Despite counsel’s apt characterization of Thornton’s testimony asJ-S13019-16

- 5 -

“problematic,” see Petition for Remand at ¶ 9, Appellant challenged th e sufficiency of the evidence on direct appeal, inclu ding Thornton’s pre-trial identification of Appellant and Freeman’s trial tes timony. This Court determined, inter alia , there was no error in admitting the detective’s testimony concerning Thornton’s pre-trial identific ation 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 consequent ly has not demonstrated, that Freeman’s recantation could not have been obtained prior to trial through reasonable diligence and bec ause he has not shown that it would compel a different result, we deny Ap pellant’s petition for

remand. Turning to Appellant’s claim on appeal that the PC RA court erred in denying his PCRA petition, w e 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 peti tion is limited to examining whether the evidence of record support s the court's determination and whether its decision is f ree of legal error. This Court grants great deference to the fi ndings of the PCRA court if the record contains any support for t hose 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 revi ewing court on appeal must examine each of the issues raised in the PCRA petition in light of the record in order to determi ne whether the PCRA court erred in concluding that there were no g enuineJ-S13019-16

- 6 -

issues of material fact and in denying relief witho ut an evidentiary hearing. Commonwealth v. Smith, Q. , 121 A.3d 1049, 1052 (Pa. Super. 2015) (internal quotations, citations and brackets omitte d). As our Supreme Court has explained: It is well-established that counsel is presumed eff ective, and to rebut that presumption, the PCRA petitioner must de monstrate that counsel's performance was deficient and that s uch deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1 984). 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, Appell ant must demonstrate that: (1) the underlying legal issue ha s arguable merit; (2) counsel's actions lacked an objective re asonable 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 reas serted 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 Ap pellant’s brief (A. i.-v. and B. i-ii.), along with the PCRA court’s correspo nding responses from the

Notice of Intention to Dismiss. The PCRA court res ponses are italicized for

ease of review.

A. [Appellant’s] trial counsel was ineffective for fai ling to prevent information about [Appellant’s] prior criminal hist ory from being presented to the jury.J-S13019-16

- 7 - i. Trial counsel was ineffective for failing to mov e 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 per son not to possess a firearm was a drug conviction, and [Appel lant] has failed to show that the jury was incapable of separ ating this evidence or that the jury convicted him of two coun ts of first degree murder based on any potential propensity to commit drug offenses. ii. Trial counsel was ineffective for failing to o bject to

improper statements made by the Commonwealth at trial eluding [sic] to prior contacts the police ha d 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 wi th 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 faile d 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 thu s did not imply further criminal activity. iii. Trial counsel was ineffective for failing to m ove to

exclude items seized from [Appellant’s] mother’s home. [Appellant’s] third claim that counsel was ineffect ive for failing to object to the admission of items seized from his mother’s house fails because the underlying claim l acks 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 th at [Appellant] had easy access to the type of firearm that was used in the murders. iv. Trial counsel was ineffective for failing to ex clude or

to offer an explanation for a statement made byJ-S13019-16

- 8 - [Appellant] to detectives during collection of a DN A sample. [Appellant’s] fourth claim that trial counsel was i neffective for failing to exclude or offer an explanation as to [A ppellant’s] statement regarding his DNA fails because [Appellan t] has not adequately developed this claim. [Appellant’s] Ame nded PCRA Petition fails to develop under what circumsta nces counsel should have attempted to exclude the eviden ce or what specific explanation should have been offered. [Appellant] has not set forth sufficient facts to p rove 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 f or nonviolent offenses and at the time of his arrest h e was on parole. Appellant’s fifth claim similarly is dismissed due to [Appellant’s] failure to develop this claim in a me aningful fashion. Assuming, as the Commonwealth suggests, t hat [Appellant] claims counsel should have used this in formation in his closing argument, [Appellant’s] claim still fails. [Appellant’s] counsel had a clear strategy in defen ding [Appellant] and counsel was not ineffective for fai ling to reintroduce [Appellant’s] prior drug conviction dur ing closing arguments. Further, [Appellant] has not establishe d that he was prejudiced by this alleged ineffectiveness.

B. Trial counsel’s failure to challenge the credibilit y of the testimony of commonwealth witnesses was unreasonabl e and resulted in prejudice to [Appellant].

i. Trial counsel was ineffective for failing to proper ly object to the Commonwealth’s use of witness Freeman’s prior consistent statement during his dir ect examination. [Appellant’s] seventh claim that trial counsel fail ed to properly object to the Commonwealth’s use of Freeman’s prior consistent statement fails because the underlying c laim lacks merit. [Appellant] has failed to allege under what grounds counsel should have objected to these admissible ta pes.J-S13019-16

- 9 - Further, [Appellant] has failed to establish that h e was prejudiced by the Commonwealth playing the tapes on direct examination as opposed to redirect examination.

ii. Trial counsel was ineffective for failing to introd uce witness Thornton’s audio-recorded interview in whic h he said he was unable to identify either gunman. [Appellant’s] ninth claim that counsel was ineffect ive for failing to introduce Thornton’s audiotaped statemen t fails because the taped statement would have been cumulat ive evidence and thus the underlying claim lacks merit. Appellant’s Brief at i-ii; Notice of Intention to D ismiss Pursuant to Pa.R.Crim.P. 907, 3/31/15, at 1-3. Again, as stated in his question presented, Appell ant argues that the PCRA court erred by “denying [his] PCRA petition wi thout 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. Havi ng reviewed the issues raised in Appellant’s PCRA petition, and in particu lar those preserved on appeal, and having viewed the evidence of record in a light most favorable to the Commonwealth as the prevailing party, we fin d 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 heari ng. Appellant has failed to demonstrate that his counse l’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 re lief affirmed.J-S13019-16

- 10 -

Judge Lazarus joins this memorandum. Justice Fitzgerald files a dissenting statement. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/10/2016