Com. v. Robinson, K.

• Court: Superior Court of Pennsylvania
• Decided: May 17, 2023
• Docket: 2059 EDA 2021
• Status: Unpublished

Opinion

J-S10012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KAREEM ROBINSON : : Appellant : No. 2059 EDA 2021

Appeal from the PCRA Order Entered December 12, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1200171-2005

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY PANELLA, P.J.: FILED MAY 17, 2023

Kareem Robinson appeals the Philadelphia County Court of Common

Pleas’ order dismissing his first petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546. Robinson maintains the

PCRA court erred by concluding his trial counsel was not ineffective for failing

to object to the prosecutor’s statement during closing arguments that

Robinson’s claim that he shot and killed Anthony Murray in self-defense was

“a joke.” We disagree, and therefore affirm.

Robinson’s cousin, Tarik Robinson (“Tarik”), lived in a second floor

apartment above Murray, who lived in an apartment on the first floor of the

same house. The two had a history of fighting, and Tarik and Murray got into

such an argument on September 1, 2005. Tarik called his brother, Charles

Robinson (a/k/a Deshaun Smith and referred to hereinafter as “Smith”), who J-S10012-23

arrived at Tarik’s residence with Robinson and Shaun Adams. When Tarik went

downstairs to let Robinson, Smith and Adams into the residence, Murray once

again began having words with Tarik from inside his apartment. Tarik,

Robinson, Smith and Adams were in the hallway outside of Murray’s apartment

when:

[Robinson], who had positioned himself behind [Tarik], reached over [Tarik’s] shoulder, aimed a semi-automatic handgun at [Murray], and fired five times, hitting [Murray] in the eye, shoulder, thigh, belly button, and back. [Murray] fell to the ground. [Tarik] and his girlfriend, [Shaz] Morris, stepped over [Murray’s] body and left the building. Smith and Robinson followed. Adams shot [Murray] in the back of the head with a shotgun, and then ran out of the building.

PCRA Court Opinion, 6/30/2022, at 2.

Police arrived on the scene, and found, under Murray’s shirt, a firearm

in a holster clipped to Murray’s belt. Tarik and Morris implicated Robinson and

Adams in the shooting in statements given to the police. Robinson and Adams

were eventually charged with murder, and were tried together before a jury.

At trial, the medical examiner, Dr. Edwin Lieberman, testified that

Murray had sustained a total of five separate gunshot wounds, along with one

shotgun wound to the head. See N.T., 10/5/2006, at 54. The doctor first

testified about the gunshot wound to Murray’s eye, which had traversed

Murray’s eye and brain. He opined Murray had been shot in the eye from six

inches to no more than three feet away. See id. at 56. Dr. Lieberman based

this conclusion on the fact that the wound “no longer had the presence of

soot,” but still had the presence of “stippling,” which Dr. Lieberman described

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as “the tattooing from the burning particles of gunpowder striking the skin.”

Id. According to Dr. Lieberman, the gunshot to Murray’s eye would have been

sufficient to kill Murray. See id. at 65. Likewise, Dr. Lieberman stated that the

gunshot to Murray’s back would have, by itself, been fatal to Murray. See id.

at 66.

Robinson’s defense was that he shot Murray in self-defense.

Nonetheless, the jury convicted Robinson of first-degree murder, possessing

an instrument of crime and criminal conspiracy. The court sentenced Robinson

to, inter alia, life in prison for the first-degree murder conviction.

Robinson filed a direct appeal, raising both a sufficiency and a weight

claim. This Court rejected both as meritless. Robinson also raised a claim that

the Commonwealth had committed prosecutorial misconduct by calling his

self-defense claim “a joke” during closing argument, but this Court found the

claim waived given that Robinson had not objected to the statement at trial.

See Commonwealth v. Robinson, 106 EDA 2007, at 18 (Pa Super. filed

January 8, 2008) (unpublished memorandum). This Court therefore affirmed

Robinson’s judgment of sentence, and our Supreme Court denied his petition

for allowance of appeal.

Robinson filed a timely PCRA petition, alleging counsel was ineffective

for failing to object to the prosecutor’s reference to Robinson’s self-defense

claim as “a joke”. The PCRA court denied the petition on the basis that it lacked

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merit. After Robinson’s appellate rights were reinstated nunc pro tunc, he filed

a notice of appeal from the PCRA court’s order.

Robinson complied with the PCRA court’s directive to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. In the statement,

Robinson alleged the PCRA court erred by finding counsel was not ineffective

for failing to object to the prosecutor’s statement during closing argument. In

its responsive opinion, the PCRA court found Robinson’s ineffectiveness claim

was waived for lack of development and, in any event, lacked merit as

Robinson had not established he had been prejudiced by the prosecutor’s

comment because this Court found on direct appeal that the jury’s verdict

indicated it had rejected Robinson’s self-defense claim. Robinson now

challenges the PCRA court’s determination that counsel was not ineffective for

failing to object to the prosecutor’s closing remark.

Our review of an order dismissing a PCRA petition is limited to examining

whether the PCRA court’s determinations are supported by the record and the

court’s decision is free of legal error. See Commonwealth v. Shaw, 217

A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the

factual findings of the PCRA court and will not disturb those findings unless

they have no support in the record, we apply a de novo standard of review to

the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147

A.3d 915, 919 (Pa. Super. 2016).

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As noted above, Robinson raises a singular claim of counsel’s

ineffectiveness on appeal. Counsel is presumed to have been effective. See

Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003). In order to

overcome that presumption and prevail on a claim of ineffectiveness, Robinson

must establish that: (1) the underlying claim has arguable merit; (2) counsel

had no reasonable basis for their conduct; and (3) he was prejudiced by

counsel’s ineffectiveness, i.e. there is a reasonable probability that because of

the act or omission in question, the outcome of the proceeding would have

been different. See id. As is true for all petitioners, Robinson’s “failure to

prove any one of the three prongs results in the failure of [his] claim.”

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation

omitted).

Robinson claims counsel was ineffective for failing to object to the

prosecutor’s reference to his self-defense claim as “a joke” during his closing

argument. This claim lacks arguable merit, and therefore fails.

A prosecutor’s comments constitute reversible error only “where their

unavoidable effect is to prejudice the jury, forming in their minds a fixed bias

and hostility toward the defendant such that [the jury] could not weigh the

evidence objectively and render a fair verdict.” Commonwealth v. Tedford,

960 A.2d 1, 33 (Pa. 2008) (citation omitted). A prosecutor is permitted to

respond in his closing argument to arguments made by the defense in their

closing. See id. In fact, “any allegedly improper prosecutorial comments must

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[ ] be examined within the context of the conduct of defense counsel. If a

challenged remark is made in response to the defense’s closing argument, it

will generally be deemed fair response and hence permissible comment.”

Commonwealth v. Abu-Jamal, 720 A.2d 79, 110 (Pa. 1998) (citation

The Commonwealth argues that, when placed in context, it becomes

clear that the prosecutor’s reference to Robinson’s self-defense claim as “a

joke” was merely a fair response to defense counsel’s closing argument. As

even Robinson readily acknowledges, self-defense was “central” to his defense

at trial and this was “evident” during his counsel’s closing argument.

Appellant’s Brief at 20. To be sure, defense counsel repeatedly argued during

closing that Murray was the “provocateur” and “provoked the situation.” See

N.T., 10/5/2006, at 226-227. He described Murray as “angry,” “aggressive,”

“ready for action” and “provocative.” Id. at 224, 225-228. Counsel also

asserted Robinson believed Murray was reaching for his firearm, and this

justified Robinson’s shooting of Murray, regardless of how many times Murray

was shot. See id. at 230.

In turn, the prosecutor addressed the claim of self-defense in his closing

as follows:

All right, [Murray] is in the doorway. Maybe he is mouthing off. Maybe he is acting tough. Is that enough to get shot five times and once with a shotgun? Self-defense, is that a joke? That is a joke. Did you hear the [medical examiner]? Did you hear what he said? Stippling. Do you know how close that gun had to be? Six inches to 3 feet away. Reaching, reaching for what? The gun is in

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[Murray’s] waistband. It never moved. He gets shot in the eye from 6 inches to 3 feet away.

Id. at 262.

Given this context, the Commonwealth argues, the prosecutor’s remark

that Robinson’s self-defense claim was “a joke” was a fair response to defense

counsel’s argument in his closing that Robinson had acted in self-defense. We

agree. See Commonwealth v. Thompson, 660 A.2d 68, 74 (Pa. Super.

1995) (concluding that the prosecutor’s comment that the jury should be

insulted by the defense strategy was a fair response to defense counsel’s

arguments). We therefore also agree with the Commonwealth that the remark

challenged by Robinson was not improper.

Robinson does not address the responsive nature of the prosecutor’s

comment to defense counsel’s argument regarding self-defense in his closing.

Instead, Robinson asserts the prosecutor’s statement was improper as it

expressed a “personal belief and opinion as to the truth or falsity of evidence

of [Robinson’s] guilt.” Appellant’s Brief at 19.

Even if we were to credit Robinson’s argument, and reject the

Commonwealth’s, Robinson still would not be entitled to relief. This is because

he has not demonstrated, as he must, how the prosecutor’s brief statement

that Robinson’s claim of self-defense was “a joke” had the effect of prejudicing

the jury to such an extent that they could no longer objectively weigh the

evidence and render a fair verdict. See Tedford, 960 A.2d at 33 (Pa. 2008).

We note this is especially true given that the court specifically and repeatedly

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instructed the jury that counsel’s arguments did not constitute evidence and

it was the jurors who were the ones tasked with assessing the credibility of

the evidence. See N.T., 10/4/2006, at 19, 21, 24, 29; N.T., 10/6/2006, at 5;

Thompson, 660 A.2d at 76 (stating that any prejudicial impact of the

prosecutor’s closing remarks were cured by the trial court’s instructions that

counsel’s closing arguments were not evidence, as the jury is presumed to

follow the court’s instructions). As Robinson’s only issue on appeal lacks merit,

we affirm the PCRA court’s order denying his PCRA petition.1

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/2023

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1To the extent our legal reasoning differs from that of the PCRA court, we note that we may affirm a PCRA court’s order on any legal basis. See Commonwealth v. Parker, 249 A.3d 590, 595 (Pa. Super. 2021).

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