Com. v. Robinson

• Decision Date: 17 July 2001
• Citation: 781 A.2d 152
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael ROBINSON, Appellant.
• Court: Pennsylvania Superior Court

781 A.2d 152

COMMONWEALTH of Pennsylvania, Appellee v. Michael ROBINSON, Appellant.

Superior Court of Pennsylvania.

Submitted January 29, 2001.

Filed July 17, 2001.

Reargument Denied September 18, 2001.

Ramy I. Djerassi, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for the Com., appellee.

Before: JOHNSON, HUDOCK and KELLY, JJ.

HUDOCK, J.:

¶ 1 This is an appeal nunc pro tunc from the order denying Appellant's first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. sections 9541-46.¹ Pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988), counsel has filed with this Court a brief in which he asks for permission to withdraw as counsel. For the reasons that follow, we affirm the order of the PCRA court and grant counsel leave to withdraw from representation.

¶ 2 At approximately 8:00 p.m. on August 24, 1993, officers of the Philadelphia Police Department responded to a call from an automobile dealership on Essington Avenue. There they found Donrico Sutton (the victim) lying on his side on the floor of the back seat of a Cadillac with gunshot wounds to the chest and left forearm. The victim was transported to Fitzgerald Mercy Hospital where he later died. Appellant, who was at the scene, told Officer Eric Riddick that he and the victim had been standing on the corner of 84th Street and Madison Place when the occupant of a passing vehicle fired a TEC-9 type of weapon at them, hitting the victim. According to Appellant, he then retrieved the Cadillac and pulled the victim into it. He drove to the dealership, ran inside, announced that his friend had been shot, and asked for someone to call the police.

¶ 3 Officer Riddick proceeded with other officers to the 8400 block of Madison Place, and Appellant was transported to Southwest Detectives as a witness. Officers found no evidence on the corner of 84th and Madison consistent with a shooting at that location. They did, however, find blood spatters on the front door and doormat of 8420 Madison, where Appellant lived with his mother and his daughter Amira. They found other drops of blood forming a trail from 8420 Madison to the sidewalk across the street from 8404 Madison.

¶ 4 Following a conversation with six-year-old Otis Toliver, who had been playing football in the street, Officer Riddick alerted his supervisor to treat Appellant as a suspect. Otis Toliver subsequently gave a statement to Detective Dominic Mangoni in which he described Appellant chasing the victim into the street, shooting the victim, dragging the victim into an automobile, and driving off. Four days after the shooting, Detective Manuel Santiago showed Otis a photograph, which Otis correctly identified as the victim. Detective Santiago also showed Otis an array of eight photographs, which included a photograph of Appellant. Otis identified Appellant as Amira's father and the shooter. Otis testified consistently with these statements at the preliminary hearing, but he was unable to point out Appellant in the courtroom. He again testified at trial, this time recognizing Appellant in the courtroom.

¶ 5 Appellant's mother testified that the victim paid Appellant a visit at 8420 Madison on the evening of the shooting. While she was in the kitchen on the telephone at a time she could not recall, Appellant and the victim left through the front door. She then heard a gunshot.

¶ 6 A .38/.357 caliber bullet was recovered from the body of the victim. Officer Karl Rone, who was qualified as a ballistics expert, testified that the bullet would fit a .38 or .357 caliber revolver but not a TEC-9. No weapon was recovered.

¶ 7 A non-jury trial was held in this case on March 6 and March 7, 1995. The trial court found Appellant guilty of voluntary manslaughter and possessing instruments of crime.² On May 9, 1995, the trial court imposed an aggregate sentence of seven and one-half to fifteen years' imprisonment. Appellant filed a timely motion for reconsideration of sentence, and, on June 5, 1995, the trial court resentenced him to an aggregate term of seven to fourteen years' imprisonment. Appellant did not take a direct appeal from his judgment of sentence. ¶ 8 On December 3, 1996, Appellant filed a timely pro se PCRA petition on the standard form. In the body of the form, he listed the following issues:

Ineffective Assistance of counsel

Suppression of hears[a]y testimony of Commonwealth witnesses.

Suppression of the Competency hearing/Detective Santiago Violation of Brady, Lively

Suppress the Suggestive Photo array and testimony supporting it.

Suppress the Child[`]s [Otis Toliver's] entire testimony based on Competency and Trial, and the Preliminary Hearing.

Pro Se PCRA Petition, 12/3/96, at 3. In an attachment to the form, Appellant developed his claims concerning Otis Toliver and Detective Santiago in twenty-nine numbered paragraphs. The attachment concluded with the following paragraph:

30. Of all the issues counsel did preserve through object[ion]s and [duly] noting by the judges, he failed to file one or no post verdict motions that were of arguable merit: suggestive photo array, review the case, tainted competency hearing, hears[a]y testimony of Detective Santiago, the failure of the prosecution to disclose the fact that they held a competency hearing without counsel for the defense or without the benefit of the trier of fact, and failed to disclose this prior to the preliminary hearing, [Officer] Riddick[`]s inconsistent testimony or hears[a]y testimony of what he allege[d]ly heard someone say or did not say, and other matter of arguable merit, such as the preliminary hearing Judge Eric L. Lilian who got in on the competency hearing which made his decision tainted because he asked (9) questions to serve his purpose of his pre-disposed thought to qualify the child any way.

Attachment to Pro Se PCRA Petition, 12/3/96, ¶ 30.³

¶ 9 The PCRA court appointed Michael G. Floyd, Esquire, to represent Appellant. Mr. Floyd subsequently withdrew, and the court appointed David S. Thalheimer, Esquire. Mr. Thalheimer filed an amended petition in which he developed the following issues:

1. Trial Counsel failed to render effective assistance of counsel in that he failed to adequately challenge the competency of the key Commonwealth witness Otis Toliver, who was five years old at the time of the incident at issue in this case and just six years of age at the time of [Appellant's] trial, and

2. The Trial Court abused its discretion in finding Otis Toliver competent to testify at trial.

Amended PCRA Petition, 2/17/98, at 2. In addition, the prayer for relief in the amended petition incorporated the issues raised in Appellant's pro se petition. On June 29, 1998, following proper notice under Rule of Criminal Procedure 1507 (now Rule 907), the PCRA court dismissed Appellant's petition without a hearing. A timely appeal followed, and, on April 28, 1999, this Court dismissed the appeal for failure to file a brief. This Court's order specified that the dismissal was "without prejudice to Appellant's rights under the Post Conviction Relief Act." Mr. Thalheimer subsequently withdrew from the case.

¶ 10 On July 13, 1999, Appellant filed a pro se petition on the standard form used for PCRA petitions. In this petition, he again raised the competency issue, asked to have his appeal rights under the PCRA reinstated, and, for the first time, claimed that trial counsel, Gerald Stein, Esquire, was ineffective for failing to file a notice of appeal from the judgment of sentence. On August 2, 1999, the PCRA court dismissed this petition as untimely, and no appeal was taken.

¶ 11 On November 23, 1999, Appellant filed another pro se petition on the standard PCRA form. In this petition, he asserted that trial counsel was ineffective for failing to file a notice of appeal from the judgment of sentence, and that PCRA counsel was ineffective for failing to file an appellate brief. Attached to the petition was the thirty-paragraph supplement to his original pro se petition. On February 23, 2000, the PCRA court entered an order that vacated its order of August 2, 1999, granted Appellant an appeal nunc pro tunc from its order of June 29, 1998, and appointed Mr. Stein to represent Appellant. On March 14, 2000, the Administrative Judge entered an order appointing current counsel, Ramy Djerassi, Esquire, to represent Appellant. On April 20, 2000, Mr. Djerassi filed a notice of appeal nunc pro tunc from the judgment of sentence. See supra n. 1.

¶ 12 On August 1, 2000, this Court directed Appellant to show cause why this appeal should not be quashed as untimely since the appeal was filed on April 20, 2000, from the order of March 14, 2000. Appellant responded, claiming that the delay was caused by an "administrative breakdown" in counsel's office. Response, 8/11/00, at 2. Appellant describes the breakdown as follows:

On April 12, 2000, Mr. Djerassi prepared a Notice of Appeal, Proof of Service and Verified Statements for filing the next day. At the time, Mr. Djerassi was working with temporary secretarial help. A secretary scheduled for Thursday, April 13, 2000 did not arrive as scheduled and Mr. Djerassi was away from his office the entire day.

On April 14, 2000, Mr. Djerassi was able in the afternoon to prepare the documents himself and he filed them himself on Monday, April 20, 2000.

Id. at 1-2.

¶ 13 This Court considered an appeal nunc pro tunc under similar circumstances in Commonwealth v. Moore, 321 Pa.Super. 1, 467 A.2d 862 (1983). In Moore, the appellant was granted the right to request an appeal nunc pro tunc on September 8, 1980, and filed a petition on January 29, 1981. We proceeded as follows:

Although appellant filed after the expiration of the thirty day limit, see 42 Pa.C.S.A. § 5571(a) and Pa.R.A.P. 903(a), this Court allowed the appeal nunc pro tunc on April 22, 1981, per

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