Commonwealth v. Robinson

• Decision Date: 27 June 2022
• Docket Number: 1127 EDA 2021
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Troy Anthony ROBINSON
• Court: Pennsylvania Superior Court

278 A.3d 336

COMMONWEALTH of Pennsylvania, Appellant

v.Troy Anthony ROBINSON

No. 1127 EDA 2021

Superior Court of Pennsylvania.

Submitted March 7, 2022

Filed June 27, 2022

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Valerie J. Palazzo, Philadelphia, appellee.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY KUNSELMAN, J.:

The Commonwealth appeals from the grant of appellee Troy Anthony Robinson's first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 – 9546. The PCRA court awarded Robinson a new trial based on his trial counsel's ineffectiveness for failing to call an expert witness in the field of eyewitness identification. We affirm.

I. Procedural and Factual History

Robinson was initially charged with attempted murder, aggravated assault, and related offenses based upon a report that he shot at Philadelphia Police Officer Timothy Fitzgibbon on Thanksgiving, November 24, 2011. The charge of attempted murder was nolle prossed after police determined that the gun recovered at the scene had not been fired. The case proceeded to a bifurcated waiver trial on the remaining counts in October of 2014.

At trial, Officer Fitzgibbon testified that the weather was sunny and clear on November 24, 2011. Around 12:30 p.m., he received a radio call reporting a robbery in progress on Greeby Street in Oxford Circle. The radio call reported four black males. Officer Fitzgibbon activated his patrol vehicle's lights and sirens and drove north on Cranford Street toward the area.

While Officer Fitzgibbon was driving north, he saw a man¹ walking south, away from the location of the reported robbery. The man was "wearing a blue jacket with dark jeans" and talking on a cell phone.² When Officer Fitzgibbon first saw him, the man was about ten feet away. There were two Hispanic males standing less than five feet from the man, talking to each other. There were no other pedestrians in the area. Officer Fitzgibbon turned right on Passmore Street and "bladed" his vehicle—turned it at an angle and waited to hear if the robbery report was founded. Officer Fitzgibbon observed the man for 20 to 30 seconds; the man had stopped walking and twice said, "it's going down" on his cell phone.

Officer Fitzgibbon told the man, "Come here. Let me talk to you for a second." According to Officer Fitzgibbon, the man walked toward him, pulled a black handgun from his pocket, and pointed it at him. When he did so, the man was about 19 feet from Officer Fitzgibbon. Officer Fitzgibbon, scared that the man was going to shoot at him, leaned to the right in his vehicle and drove forward about three to four car lengths. In his rearview mirror, Officer Fitzgibbon saw the man standing in the center of the street, still pointing the gun at him. Officer Fitzgibbon heard what he thought was a gunshot. He sped to the end of the block, describing the man on police radio and to the patrol wagon at the end of the block.

Sergeant James Hawe testified that he had reported to Passmore Street within 30 seconds of Officer Fitzgibbon's flash information. When Sergeant Hawe arrived, he saw Robinson pacing by a chain link fence talking on his cell phone. According to Sergeant Hawe, Robinson matched the description that Officer Fitzgibbon had provided—"Blue hoodie, blue jeans, black boots, and a plaid shirt, pretty much." (Trial counsel elicited on cross-examination that Sergeant Hawe had not told detectives that Officer Fitzgibbon mentioned a plaid shirt.) Sergeant Hawe did not see anyone else present; anyone leaving the area would have to pass by police officers. Sergeant Hawe approached Robinson, patted him down, and asked what was going on.

About a minute and a half after his encounter with the man, Officer Fitzgibbon looped back around to Passmore Street. He immediately identified Robinson as the man who had shot at him. Police arrested Robinson, who was wearing a jacket, black boots, black socks, a white t-shirt, a light blue plaid buttoned-down shirt, and blue jeans. Police searched the area and found a silver-and-black semiautomatic handgun under a car next to where Robinson was standing. However, they did not find any bullets, shell casings, or strike marks, and there was no round in the chamber of the gun.

The jury and trial court convicted Robinson of the respective charges before them. After imposing sentence, on February 19, 2015, the court granted Robinson's motion for reconsideration and resentenced him to an aggregate term of nine years and nine months to nineteen years and six months of incarceration. We affirmed Robinson's judgment of sentence on direct appeal. Commonwealth v. Robinson , No. 807 EDA 2015, 2016 WL 6820530 (Pa. Super. Nov. 18, 2016) (unpublished memorandum).³ Robinson did not petition the Pennsylvania Supreme Court for review.

Robinson filed a pro se PCRA petition on November 8, 2017 and an amended petition through counsel on July 8, 2020. The PCRA court held a virtual evidentiary hearing on April 19, 2021, where Robinson presented the testimony of his trial counsel and of Dr. Suzanne Mannes. The court qualified Dr. Mannes as an expert in eyewitness identification. On May 17, 2021, the court granted Robinson's PCRA petition and awarded him a new trial. The Commonwealth timely appealed. The PCRA court and the Commonwealth complied with Pennsylvania Rule of Appellate Procedure 1925.

The Commonwealth presents the following issue for our review:

Did the PCRA court err by ordering a new trial, where [Robinson] failed to prove that trial counsel was ineffective for failing to call an identification expert to testify regarding the alleged unreliability of the victim's identification and where (1) trial counsel's defense strategy was reasonable, (2) the presentation of an identification expert would have been unsuited to counsel's defense strategy, and (3) the failure to call such an expert did not prejudice [Robinson]?

Commonwealth's Brief at 4.

II. Ineffective Assistance of Trial Counsel

Our scope and standard of review on appeal from the grant of PCRA relief are well-settled. Our scope of review "is limited to the PCRA court's findings and evidence of record," viewed here in the light most favorable to Robinson as the party who prevailed before the PCRA court. Commonwealth v. Small , ––– Pa. ––––, 238 A.3d 1267, 1280 (2020) (citing Commonwealth v. Hanible , 612 Pa. 183, 30 A.3d 426, 438 (2011) ). "[O]ur standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error." Commonwealth v. Wharton , ––– Pa. ––––, 263 A.3d 561, 567 (2021) (quoting Commonwealth v. Washington , 592 Pa. 698, 927 A.2d 586, 593 (2007) ).

Here, the issue is whether Robinson's trial counsel was ineffective. For PCRA relief based on a claim that trial counsel was ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Johnson , 600 Pa. 329, 966 A.2d 523, 532 (2009) ; 42 Pa.C.S.A. § 9543(a)(2)(ii). "Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only be deemed ineffective upon a sufficient showing by the petitioner." Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (3) the petitioner was prejudiced by counsel's act or omission. Id. at 533. A finding of "prejudice" requires the petitioner to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.

The PCRA court found that Robinson's trial counsel was ineffective based on Commonwealth v. Walker , 625 Pa. 450, 92 A.3d 766 (2014), which was decided about five months before trial. Walker reversed Pennsylvania's evidentiary prohibition of expert testimony about eyewitness identification and held that such testimony is admissible at the trial court's discretion. Id. at 793. In so holding, our Supreme Court considered scientific evidence about five factors affecting eyewitness identification:

(1) the phenomenon of "weapons focus"; (2) the reduced reliability of identification in cross-racial identification cases; (3) the significantly decreased accuracy in eyewitness identifications in high-stress/traumatic criminal events; (4) increased risk of mistaken identification when police investigators do not warn a witness, prior to viewing a photo array or line up, that the perpetrator may or may not be in the display; and (5) the lack of a strong correlation between witness statements of confidence and witness accuracy.

Id. at 773 (citation omitted). The court concluded that expert testimony about identification does not invade the province of the jury as the determiners of credibility; rather, it educates jurors and helps them understand counterintuitive factors. Id. at 784.

Notably, Walker reasoned that reliance on cross-examination and closing argument does not justify a per se bar against expert identification testimony:

While cross-examination and advocacy in closing argument may be common methods to unearth falsehoods and challenge the veracity of a witness, it is less effective in educating the jury with respect to the fallibility of eyewitness identification. See [Connecticut v. ] Guilbert , , 49 A.3d [705,] 725 [(2012)] ("cross-examination is far better at exposing lies than at countering sincere but mistaken beliefs"). This is especially true when cross-examining a neutral, credible, and confident witness before a jury, which may overestimate the veracity and reliability of eyewitness identification. Indeed, such information would not be within the permissible scope of cross-examination. If permitting expert testimony on relevant factors

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