Com. v. Robbins, J.

• Court: Superior Court of Pennsylvania
• Decided: March 21, 2016
• Docket: 920 MDA 2015
• Status: Unpublished

Opinion

J-S09004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOHN JAMES ROBBINS

Appellant No. 920 MDA 2015

Appeal from the PCRA Order April 27, 2015 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000304-2009

BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED MARCH 21, 2016

Appellant, John James Robbins, appeals pro se from the order entered

April 27, 2015, in the Court of Common Pleas of Bradford County, which

denied Robbins’s Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546,

petition. No relief is due.

A panel of this Court previously summarized the history of this case as

follows.

On August 7, 2008, Patrolman Eric Keir, Sergeant Daniel Reynolds and Patrolman Thomas Wilson of the Sayre Police Department responded to a report of sexual assault at 215 South Elmer Street, Bradford County. On arrival, the officers spoke with the victim and her fiancée, who stated that Appellant had raped the victim. An arrest warrant was issued for Appellant, who was subsequently apprehended, and on August 9, 2008, Appellant was charged with rape, involuntary deviate sexual intercourse, burglary, and simple assault. Following a trial on August 29, 2009, a jury found Appellant guilty of burglary and simple assault. The trial court conducted a sentencing hearing on J-S09004-16

October 8, 2009[,] and sentenced Appellant to seven to twenty years of imprisonment.

Commonwealth v. Robinson, 23 A.3d 1079, at *1-2 (Pa. Super., filed Jan.

11, 2011) (mem. op.). This Court affirmed Appellant’s judgment of sentence

and granted counsel’s request to withdraw. See id.

On July 20, 2011, Appellant filed a pro se PCRA petition. Counsel was

appointed but subsequently withdrew. In the years that followed, Appellant

was appointed counsel on numerous occasions, each of whom invariably

sought permission to withdraw their representation. Ultimately, Appellant

filed a motion to proceed pro se, which the PCRA court granted following a

Grazier1 hearing. On October 20, 2014, and December 10, 2014,

respectively, Appellant filed amended PCRA petitions. The PCRA court issued

notice of its intent to dismiss Appellant’s petition without a hearing pursuant

to Pa.R.Crim.P. 907. Appellant filed a response and the PCRA court then

dismissed Appellant’s petition. This timely appeal follows.

“On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,

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1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “[T]his Court applies a de novo standard of review to the PCRA

court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259

(Pa. 2011) (citation omitted).

In order to be eligible for PCRA relief, a petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2).

These issues must be neither previously litigated nor waived. See 42 Pa.C.S.

§ 9543(a)(3).

As this Court has repeatedly stated,

[t]o plead and prove ineffective assistance of counsel a petitioner must establish: (1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.

Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012)

(citation omitted), appeal denied, 64 A.3d 631 (Pa. 2013).

Appellant first argues that trial counsel was ineffective for failing to

object at trial when he was escorted to the witness stand by a uniformed

deputy sheriff.2 See Appellant’s Brief at 20. Preliminarily, we note the PCRA ____________________________________________

2 Appellant further maintains counsel was ineffective for failing to object to the fact that he wore a “shock belt” during trial. From what we can gather from the record, the shock belt was worn underneath Appellant’s clothing and thus was not visible to the jury. Additionally, Appellant does not produce (Footnote Continued Next Page)

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court incorrectly determined that this issue was previously litigated. On

direct appeal, Appellant claimed that he was prejudiced when he was

escorted to the witness stand by a uniformed deputy sheriff. See Robbins,

23 A.3d 1079, at *2. The panel in that case determined that Appellant had

waived his claim of prejudice where he did not raise an objection at trial.

See id. at *5-6. In the current appeal, Appellant argues that trial counsel

was ineffective for failing to raise an objection with the trial court to being

escorted to the witness stand. It is well settled that “an ineffective

assistance of counsel claim is a separate legal issue distinct from the

underlying substantive claim for which counsel allegedly had provided

ineffective assistance.” Commonwealth v. Derk, 913 A.2d 875, 883 n.6

(Pa. Super. 2006) (citation omitted). We thus proceed to address the merits

of Appellant’s ineffectiveness claim.

Appellant contends that the deputy sheriff’s act of escorting him to the

witness stand prejudiced the jury. “[I]t is well-settled under common law

and constitutionally as incident to a fair trial without prejudice that

defendants appear free from shackles or other physical restraints.” See

Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa. 1992). Here, however,

Appellant does not allege that he was handcuffed or shackled in the jury’s

_______________________ (Footnote Continued)

any evidence to support his assertion that the shock belt in some manner prevented him from participating meaningfully in his defense. We therefore find no reason for counsel to have lodged an objection on this basis.

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presence—only that he was escorted to the witness stand by a uniformed

deputy sheriff.

Our research has revealed no case law that would prohibit a defendant

from merely being escorted to the witness stand by a uniformed deputy

sheriff. Moreover, here, the jury was aware that Appellant was serving a

burglary conviction in New York State. The presence of security would

therefore not have been wholly unexpected, nor do we find it likely that the

mere presence of the deputy sheriff prejudiced the jury to the extent that it

deprived Appellant of a fair trial. Having failed to establish that he suffered

prejudice as a result of counsel’s failure to object to the escort, Appellant’s

claim fails.

In his second issue, Appellant contends that trial counsel was

ineffective for failing to move to strike prospective juror C.W. for cause and

in failing to use a peremptory strike against this juror. See Appellant’s Brief

at 36. When the juror indicated to the court that a woman with whom she

worked had been raped as a child, the district attorney queried whether that

relationship would impair her ability to serve fairly and impartially as a juror.

See N.T., Voir Dire, 8/24/09 at 20-21. The juror initially responded that she

was “not sure.” Id. at 21. Appellant maintains that the juror’s response was

indicative of the juror’s bias, and that trial counsel was ineffective for failing

to move to strike the juror. See Appellant’s Brief at 39.

When the entire testimony is read in context, it is evident that the

seating of the juror was not improper. When the district attorney informed

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the juror that this case did not involve a child and again questioned her

ability to remain fair and impartial, the juror answered in the affirmative.

See N.T., Voir Dire, 8/24/09 at 21. Although the juror admitted when

questioned by defense counsel that she was unsure whether she had any

preconceived notions about victims and the perpetrators based upon her

familiarity with victims of abuse, the juror did not recant her earlier

affirmation that she would remain fair and impartial. Id. Appellant’s claim of

the juror’s bias is therefore purely speculative. As such, Appellant cannot

establish that trial counsel was ineffective.

In the third issue, Appellant appears to concede that he did, in fact,

assault the victim, yet he maintains that the incident “happened at his home

in Waverly, New York ‘Tioga County’” and not at the victim’s residence in

Sayre, Pennsylvania. Appellant’s Brief at 48. Appellant contends that trial

counsel was in some manner ineffective for failing to investigate this alleged

“defense.” The section of Appellant’s brief devoted to this claim amounts to a

rambling narrative of unconnected facts that may or may not have any

relevance to the argument Appellant purports to address. In any event, our

review of the record reveals that Appellant’s underlying claim is meritless.

At trial, Appellant was afforded the opportunity to explain his version

of the circumstances surrounding the assault of the victim. Appellant

testified that on August 7, 2008, the victim came to his home in Waverly,

New York, and attempted to seduce him in bed while he slept. See N.T.,

Trial, 8/29/09 at 77-78. Appellant stated that he then physically threw the

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victim out of the bed and into a nearby dresser and then proceeded to shove

the victim out of the room. See id. at 78-79. In returning a guilty verdict to

the charge of burglary, the jury clearly credited the victim’s testimony that

the assault occurred in her home in Sayre, Pennsylvania, over the testimony

offered by the Appellant. Although Appellant may not be satisfied with the

jury’s credibility determination, the fact remains that trial counsel elicited

from the Appellant the precise information he now claims that counsel was

ineffective for failing to investigate. We therefore find that Appellant cannot

establish that trial counsel was ineffective on this basis.

In his final issue, Appellant claims government obstruction of his right

to file an appeal. In support of his claim, Appellant offers no citation to legal

authority or developed legal argument. We therefore find this issue to be

waived. See Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.

2013) (“[U]ndeveloped claims are waived and unreviewable on appeal.”

(citation omitted)).

Order affirmed. Application for relief to supplement the record is

granted. Motion for remand to supplement the original record is denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/21/2016

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