Com. v. Robinson, A.

J-S01041-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

AZIM ROBINSON :

:

Appellant : No. 1079 MDA 2024

Appeal from the PCRA Order Entered July 8, 2024

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP-14-CR-0001863-2016

BEFORE: NICHOLS, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: FEBRUARY 7, 2025

Appellant Azim Robinson appeals the order of the Court of Common

Pleas of Centre County denying his petition pursuant to the Post-Conviction

Relief Act (PCRA).1 Appellant argues that the PCRA court erred in resolving

several of his claims without holding an evidentiary hearing and dismissing his

multiple challenges to the effectiveness of his trial counsel. We affirm.

Appellant was charged with multiple counts of drug trafficking offenses,

criminal conspiracy, as well as a communications charge in connection with

allegations that he ran a criminal enterprise to deliver cocaine and heroin

through multiple dealers. At Appellant’s jury trial that was held in November

2017, the prosecution presented the testimony of multiple confidential

informants who indicated that they contacted Appellant on several occasions

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546.

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for the arrangement of the sale of illicit drugs. Some of the informants

testified that they bought drugs directly from Appellant while others testified

that Appellant arranged for one of his dealers to deliver drugs to them. The

prosecution also presented the testimony of State College Police Detective

Donald Paul who served in the criminal investigations division and drug

enforcement section as well as the Centre County Drug Task Force.

As a defense strategy, Appellant’s trial counsel did not dispute that the

drug sales had occurred, but instead argued that the Commonwealth failed to

show Appellant had any involvement in these deliveries or the arrangements

of any of the drug buys.

At the conclusion of the trial, the jury convicted Appellant on three

counts of possession with intent to deliver a controlled substance, fourteen

counts of delivery of a controlled substance, one count of conspiracy to deliver

a controlled substance, and one count of criminal use of a communication

facility. On November 27, 2017, the trial court sentenced Appellant to 178 to

600 months’ imprisonment. On appeal, this Court affirmed the judgment of

sentence. Commonwealth v. Robinson, No. 1862 MDA 2017, 2018 WL

5857869 (Pa.Super. Nov. 9, 2018) (unpublished memorandum). The

Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Robinson, 791 MAL 2018 (Pa. April 24, 2019).

On February 10, 2020, Appellant filed a timely pro se PCRA petition.

After PCRA court appointed Appellant counsel, Appellant filed an amended

petition on March 25, 2022, claiming inter alia, that trial counsel was

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ineffective for failing to object to Detective Paul’s testimony as impermissible

expert opinion, failing to request a particular expert witness instruction, failing

to object to a remark made by the prosecutor in closing argument, and failing

to call certain witnesses to testify on Appellant’s behalf.

In an order dated May 23, 2022, the PCRA court notified Appellant of its

intent to dismiss several of his claims without a hearing. However, the PCRA

court indicated that it would hold a limited evidentiary hearing on Appellant’s

claim that trial counsel was ineffective in failing to call certain witnesses.

Thereafter, when Appellant’s counsel was permitted to withdraw for

personal reasons, the PCRA court appointed Appellant new counsel, who

supplemented Appellant’s petition with additional claims.2 On July 20, 2023,

Appellant filed a second amended petition, claiming trial counsel was

ineffective for failing to properly seek a “corrupt and polluted source” jury

instruction and in failing to ensure that the accomplice jury instruction was

complete and accurate.

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2 The case was delayed considerably from the filing of Appellant’s original pro

se petition as two of the attorneys that were appointed to represent Appellant

sought to withdraw their representation and Appellant sought to replace the

third attorney appointed on his behalf. The trial court appointed still another

attorney, Appellant’s fourth, who filed Appellant’s second amended petition

and continues to represent him in this collateral appeal.

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On February 29, 2024, the PCRA court held an evidentiary hearing at

which trial counsel testified.3 Thereafter, on July 1, 2024, the PCRA court

dismissed Appellant’s second amended petition.

Appellant raises the following issues for review:

I. Did the [PCRA] court commit an abuse of discretion and/or

error of law in dismissing certain PCRA issues without

benefit of a hearing?

II. Did the [PCRA] court commit an abuse of discretion and/or

error of law in concluding that trial counsel was not effective

in failing to object to the jury instructions provided at trial

as it relates to:

a. Failure to give a complete and accurate accomplice

instruction[;]

b. Failure to give a corrupt and polluted source

instruction[?]

PCRA Court Opinion, 7/8/24, at 1-2 (reordered for review).

We address the propriety of the PCRA court’s denial order as follows:

[O]ur standard of review from the denial of a PCRA petition is

limited to examining whether the PCRA court's determination is

supported by the evidence of record and whether it is free of legal

error. The PCRA court's credibility determinations, when

supported by the record, are binding on this Court; however, we

apply a de novo standard of review to the PCRA court's legal

conclusions.

Commonwealth v. Miranda, 317 A.3d 1070, 1075 (Pa.Super. 2024)

(quoting Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa.Super.

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3 Appellant withdrew his argument that trial counsel was ineffective in failing

to call certain witnesses, as Appellant conceded that he could not prove this

claim at the evidentiary hearing.

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2019)). With respect to the PCRA court's decision to hold a limited evidentiary

hearing, “such a decision is within the discretion of the PCRA court and will

not be overturned absent an abuse of discretion.” Commonwealth v.

Maddrey, 205 A.3d 323, 327 (Pa.Super. 2019) (quoting Commonwealth v.

Mason, 634 Pa. 359, 130 A.3d 601, 617 (2015)).

First, Appellant argues that the PCRA court erred in denying him an

evidentiary hearing on his claim that trial counsel was ineffective in failing to

object to Detective Paul’s testimony as impermissible expert opinion and

failing to request a particular expert witness instruction. It is well settled that:

there is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that

no genuine issues of material fact exist, then a hearing is not

necessary.” Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008). “[T]o obtain reversal of a PCRA court's decision to

dismiss a petition without a hearing, an appellant must show that

he raised a genuine issue of fact which, if resolved in his favor,

would have entitled him to relief, or that the court otherwise

abused its discretion in denying a hearing.” Commonwealth v.

Hanible, 612 Pa. 183, 30 A.3d 426, 452 (2011).

Maddrey, 205 A.3d at 328.

In reviewing Appellant’s ineffectiveness challenges, we are guided by

the following principles:

It is well-established that counsel is presumed to have provided

effective representation unless the PCRA petitioner pleads and

proves all of the following: (1) the underlying legal claim is of

arguable merit; (2) counsel's action or inaction lacked any

objectively reasonable basis designed to effectuate his client's

interest; and (3) prejudice, to the effect that there was a

reasonable probability of a different outcome if not for counsel's

error. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d

973, 975–76 (1987); Strickland v. Washington, 466 U.S. 668,

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104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The PCRA court may deny

an ineffectiveness claim if “the petitioner's evidence fails to meet

a single one of these prongs.” Commonwealth v. Basemore,

560 Pa. 258, 744 A.2d 717, 738 n.23 (2000).... Because courts

must presume that counsel was effective, it is the petitioner's

burden to prove otherwise. See Pierce, supra; Commonwealth

v. Holloway, 559 Pa. 258, 739 A.2d 1039, 1044 (1999).

Commonwealth v. Johnson, 179 A.3d 1105, 1114 (Pa.Super. 2018)

(quoting Commonwealth v. Natividad, 938 A.2d 310, 321 (Pa. 2007)).

Specifically, Appellant argues that the trial counsel was ineffective in

failing to object to Detective Paul’s testimony on cell phone extraction, which

Appellant characterized as outside the scope of a layperson’s testimony.

Appellant argues that it was improper for the trial court to allow Detective

Paul to testify as an expert, when he had not been qualified as such.

Pennsylvania Rule of Evidence 701 provides the following limitations on

lay witness testimony:

Pa.R.E. 701. Opinion Testimony by Lay Witnesses.

If a witness is not testifying as an expert, testimony in the form

of an opinion is limited to one that is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness’s testimony or

determining a fact in issue; and

(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

Pa.R.E. 701.

It is important to note that “[t]echnical expertise does not ipso facto

convert a fact witness, who might explain how data was gathered, into an

expert witness, who renders an opinion based on the data[.]” Branham v.

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Rohm & Haas Co., 19 A.3d 1094, 1110 (Pa.Super. 2011). “Fact testimony

may include opinion or inferences so long as those opinions or inferences are

rationally based on the witness's perceptions and helpful to a clear

understanding of his or her testimony.” Brady by Brady v. Ballay, 704 A.2d

1076, 1082 (Pa.Super. 1997).

In Commonwealth v. T.B., 232 A.3d 915 (Pa.Super. 2020), this Court

rejected the appellant’s claim that the trial court improperly allowed a

prosecution witness to testify about her forensic interview with the child victim

when the witness was never qualified as an expert. This Court found the

witness’s testimony was admissible as she explained the interview process,

the interview form that was utilized, and the importance of documenting

sensory detail, which was helpful for the factfinder to have a clear

understanding of the interview. This Court emphasized that the prosecution

witness did not offer any opinion testimony based on the child victim’s report

of sensory detail, but merely explained how the interview was composed.

Likewise, in this case, Officer Paul did not give expert testimony when

he explained how the cell phone extractions were performed, what information

was obtained, and the limitations of the extraction process. Officer Paul’s

testimony was helpful for the jury to understand the cell phone communication

discovered between Appellant and various individuals, along with their

locations at the time of the relevant messages. Detective Paul’s testimony

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with respect to a smartphone’s ability to forward data was not specialized

knowledge outside the jury’s understanding.4

As such, we agree with the PCRA court’s finding that this issue is

meritless and did not warrant an evidentiary hearing. Commonwealth v.

Davis, 326 A.3d 988, 993 (Pa.Super. 2024) (quoting Commonwealth v.

Spotz, 587 Pa. 1, 896 A.2d 1191, 1210 (2006) (“[c]ounsel will not be deemed

ineffective for failing to raise a meritless claim”)).

Second, Appellant contends that the PCRA court erred in denying him

an evidentiary hearing on his claim that trial counsel was ineffective in failing

to object to an improper remark made by the prosecutor in closing argument.

Appellant argues that he was denied a fair trial as he alleges that the

prosecutor’s comment was not based on evidence presented at trial.

It is well settled that “our review of prosecutorial remarks and an

allegation of prosecutorial misconduct requires us to evaluate whether a

defendant received a fair trial, not a perfect trial.” Commonwealth v.

Campbell, 260 A.3d 272, 281 (Pa.Super. 2021). “In reviewing prosecutorial

remarks to determine their prejudicial quality, comments cannot be viewed in

isolation but, rather, must be considered in the context in which they were

made.” Commonwealth v. Santiago-Burgos, 314 A.3d 535, 547

(Pa.Super. 2024) (citation omitted).

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4 Further, when Officer Paul was asked to explain the meaning behind a

specific text message, defense counsel objected on the basis of improper

expert testimony and the trial court sustained the objection.

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“A prosecutor may make fair comment on the admitted evidence

and may provide fair rebuttal to defense arguments. Even an

otherwise improper comment may be appropriate if it is in fair

response to defense counsel's remarks. Any challenge to a

prosecutor's comment must be evaluated in the context in which

the comment was made.” [Commonwealth v.] Elliott, [622] Pa.

[236], 80 A.3d [425,] 443 [(Pa.Super. 2013)] (quotation

omitted).

Not every unwise, intemperate, or improper remark made

by a prosecutor mandates the grant of a new trial[.]

Reversible error occurs only when the unavoidable effect of

the challenged comments would prejudice the jurors and

form in their minds a fixed bias and hostility toward the

defendant such that the jurors could not weigh the evidence

and render a true verdict.

[Commonwealth v.] Spotz, 616 Pa. at 222, 47 A.3d at 98

(citations omitted).

Commonwealth v. Burno, 626 Pa. 30, 60–61, 94 A.3d 956, 974 (2014).

We start by reviewing the context in which the prosecutor made the

comment that Appellant finds objectionable. In Appellant’s closing argument,

defense counsel first made the following comment to the jury, in which he

questioned the credibility of the prosecution’s confidential informants by

suggesting that they would not receive promised beneficial treatment if

Appellant were acquitted of the offenses at trial.

Trial Counsel: So you hear a couple of the confidential informants

say there were no promises. I wasn’t promised anything. I just

want to do the right thing. You know darn well they are trying to

help themselves out. They are hoping there is a benefit. They

wouldn’t be doing this if there wasn’t a benefit. If Azim

Robinson is found not guilty, then maybe they don’t get the

benefit that they are hoping for. They have to be held

accountable for their crimes if he not convicted. They say

they just want to do the right thing. They are good Samaritans I

suppose but why would the Commonwealth have to subpoena

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Good Samaritans. … What are you going to base your verdict on?

Are you going to accept what these CIs said[?] Were they being

truthful now or at any time throughout the investigation? Or are

they going to say what they think the Commonwealth wanted to

hear so they can get the maximum benefit on their own charges

or their own issues they have going on so they can avoid a

consequence?

Notes of Testimony (N.T.), 11/1/17, at 126-27 (emphasis added).

In response, the prosecutor made the following comment at the

beginning of her closing argument:

I am going to use this podium this time. First of all, I think it’s

outrageous, outrageous, to suggest that their cooperation is

dependent on your verdict. It’s ludicrous. We would never – we

would never put up a witness to lie to you. They don’t know what

other people are telling us and to suggest somehow they have to

depend on what you decide for whether they are going to receive

any benefit -- it's just outrageous to suggest.

N.T., 11/1/17, at 129.

In making this comment, the prosecutor was responding directly to

defense counsel’s insinuation that the informants would only receive a benefit

if Appellant were convicted and that the prosecution was influencing the

informants to give untruthful testimony. After reviewing the prosecutor's

comment in the context in which it was made, we conclude that its effect was

not such that it rendered the jury incapable of delivering a true verdict. As

such, trial counsel cannot be found ineffective for failing to raise this meritless

claim. See Davis, supra; Spotz, supra.

Third, Appellant claims trial counsel was ineffective in failing to ensure

that the trial court gave the jury a complete and accurate accomplice

instruction. Appellant argues that the trial court deviated from the standard

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jury instruction regarding accomplices as it omitted a paragraph from the

instruction.

Trial counsel asked the trial court to give the jury the following standard

instruction on accomplices:

8.306(a)(1) Accomplice

1. There is a way that one defendant can be proved liable for the

conduct of another person or persons. That is when the defendant

is an accomplice of the person who actually commits the crime at

issue.

2. To be an accomplice, a person does not have to agree to help

someone else; the person is an accomplice if he or she, on his or

her own, acts to help the other person commit a crime.

3. More specifically, you may find the defendant is an accomplice

of another in this case if the following two elements are proved

beyond a reasonable doubt:

a. that the defendant had the intent of promoting or

facilitating the commission of the offense of [offense]; and

b. [the defendant [solicits] [commands] [encourages]

[requests] the other person to commit it] [or] [[aids]

[agrees to aid] [or] [attempts to aid] the other person in

planning or committing it].

4. Accomplice liability must be assessed separately for each crime

charged. If two or more crimes are committed, and the defendant

before you is being charged as an accomplice for each of those

crimes, he or she may not be found liable unless it is shown, as

each individual crime, that this defendant had the intent of

promoting the specific crime and then [[solicited] [commanded]

[[encouraged] [requested] the other person to commit it] [or]

[[aided] [agreed to aid] [or] [attempted to aid] the other person

in planning or committing it]. In other words, you must decide

whether the prosecution proved, beyond a reasonable doubt, that

this defendant was an accomplice to the first crime, to the second

crime, etc.

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5. It is important to understand that a person is not an accomplice

merely because he or she is present when a crime is committed,

or knows that a crime is being committed.

6. To be an accomplice, the defendant must specifically intend to

help bring about the crime by assisting another in its commission.

7. A person who is an accomplice will not be responsible for a

crime if, and only if, the person, before the other person commits

the crime, stops his or her own efforts to promote or facilitate the

commission of the crime and does one of the following three

things:

a. wholly deprives his previous efforts of effectiveness in the

commission of the crime;

b. gives timely warning to the law enforcement authorities;

or

c. otherwise makes a proper effort to prevent the

commission of the crime.

Pa. SSJI (Crim), §8.306(a)(1) (2024).

Appellant argues that the trial court’s instruction was incomplete as it

omitted paragraph 4. In similar circumstances, our Supreme Court has held:

The Suggested Standard Jury Instructions themselves are not

binding and do not alter the discretion afforded trial courts in

crafting jury instructions; rather, as their title suggests, the

instructions are guides only. See Commonwealth v. Simpson,

620 Pa. 60, 66 A.3d 253, 274–75 (2013) (citations omitted).

Furthermore, counsel is not deemed ineffective for failing to object

to a jury instruction given by the court where the instruction itself

is justifiable or not otherwise improper. See Commonwealth v.

Rainey, 593 Pa. 67, 928 A.2d 215, 243 (2007).

Commonwealth v. Eichinger, 631 Pa. 138, 178, 108 A.3d 821, 845 (2014)

(counsel not ineffective in failing to object to the trial court’s omission of

specific language from a standard jury instruction as the instruction itself was

justifiable and not otherwise improper).

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In this case, the trial court’s accomplice instruction was accurate and

consistent with the Suggested Standard Jury Instructions. Although the trial

court omitted a phrase, the instruction was justifiable and not otherwise

improper. Therefore, we conclude that this ineffectiveness claim lacks

arguable merit and decline to find counsel ineffective for failing to object to

this instruction.

Lastly, Appellant claims trial counsel was ineffective in failing to ensure

that the trial court gave the jury a corrupt source instruction. Specifically,

Appellant claims that it was essential for trial counsel to request this

instruction as the prosecution’s theory of the case was that Appellant

conducted a criminal enterprise with the assistance of accomplices,

cooperators, and co-conspirators.

Our courts have explained that:

[a] corrupt source instruction advises the jury that if it finds that

a certain witness who testified against the defendant was an

accomplice of the defendant in a crime for which he is being tried,

then the jury should deem that witness a “corrupt and polluted

source” whose testimony should be considered with caution.

Commonwealth v. (Roy) Williams, 557 Pa. 207, 732 A.2d

1167, 1181 (1999); accord Commonwealth v. Hackett, 534 Pa.

210, 627 A.2d 719, 724 (1993). The instruction is warranted only

in cases in which there is sufficient evidence to present a jury

question with respect to whether the witness is an accomplice.

(Roy) Williams, 732 A.2d at 1181; Hackett, 627 A.2d at 724.

Commonwealth v. Collins, 598 Pa. 397, 439, 957 A.2d 237, 262–63 (2008).

“The ‘corrupt source’ charge in particular is designed specifically to address

situations where one accomplice testifies against the other to obtain favorable

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treatment. It directs the jury to view the testimony of an accomplice with

disfavor and accept it only with care and caution.” Commonwealth v.

Lawrence, 165 A.3d 34, 45 (Pa.Super. 2017).

Importantly, “[o]ur courts have regularly recognized a reasonable

strategy in trial counsel's decision to forego a discretionary corrupt source

charge where the charge is inconsistent with a defendant's assertion that he

has not committed the crime in question.” Id. In Lawrence, this Court found

that trial counsel had a reasonable basis to refrain from requesting a corrupt

source charge when the appellant denied having an accomplice relationship

with the prosecution’s witness, whom the appellant accused of independently

attacking the victim. See also Commonwealth v. Johnson, 496 Pa. 546,

437 A.2d 1175 (1981) (holding decision to forego corrupt source instruction

was within realm of reasonable defense strategy when the appellant had

asserted complete innocence and accused the prosecution’s key witness, a

leader of street gang splinter group, of framing him to eliminate opposition

from gang members who opposed drug dealing); Commonwealth v.

Karabin, 493 Pa. 249, 426 A.2d 91 (1981) (deeming reasonable tactic to

forego corrupt source instruction against girlfriend witness as it would

derogate the appellant’s defense that he did not commit the shootings and

that his girlfriend’s jealousy motivated her to testify falsely).

Similarly, in this case, Appellant’s defense strategy was to concede that

the confidential informants may have engaged in drug sales, but that

Appellant was completely innocent of the charges filed as Appellant claimed

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he had no involvement in the drug deliveries or the arrangements of any of

the drug buys. If Appellant requested a corrupt source instruction, he would

be admitting that the confidential informants and other witnesses were his

accomplices in the sale and delivery of controlled substances, which would

conflict with his defense theory. Thus, trial counsel’s failure to request a

corrupt source instruction was within the realm of reasonable defense

strategy, we deny Appellant’s ineffectiveness claim on this basis.

Moreover, we agree with the PCRA court’s assessment that Appellant

failed to show he was prejudiced by trial counsel’s failure to request a corrupt

source instruction as such an instruction would have had a “de minimis impact

on the ultimate outcome of the trial.” P.C.O., 7/8/24, at 8. The trial court

aptly explained that:

There is no reasonable probability that the outcome of the

trial would have been different if Trial Counsel had requested and

obtained a corrupt and polluted source instruction, particularly in

light of the overwhelming amount of other evidence presented by

the Commonwealth during trial. At trial, the Commonwealth put

forward a number of witnesses who provided testimony of their

experiences purchasing drugs from [Appellant] and/or

[Appellant’s] co-conspirators; four of these witnesses being

individuals who were making controlled purchases of the drugs on

behalf of law enforcement. The Commonwealth also introduced

the content of text messages and phone calls which established

[Appellant’s] involvement in the drug transactions at issue. In

this Court’s view, it is a stretch of the mind that, had Trial Counsel

obtained a particular jury instruction, the jury would have

overlooked the substantial amount of evidence that tends to

incriminate [Appellant] and weigh in favor of a conviction.

Further, although the trial court did not provide a corrupt

and polluted source instruction, the trial court did thoroughly

instruct the jury about determining the credibility of witnesses.

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The trial court instructed the jury to weigh, analyze and judge the

credibility and reliability of the witnesses; to consider whether the

witnesses had a motive to lie; to consider whether bias or

prejudice entered a witness’s testimony; and to consider whether

the witnesses had an interest in the outcome of the trial that would

color the witness’s testimony. A corrupt and polluted source

instruction may have accomplished the same thing with fewer

words, but the provided instructions regarding witness credibility

were sufficient to allow the jury to make a fair assessment of the

testimony that they were provided with.

P.C.O., 7/8/24, at 8.

We also note that this Court on direct appeal made a similar finding that

the Commonwealth had “presented overwhelming evidence of Robinson's

involvement in a criminal enterprise designed to traffic narcotics … including

evidence of multiple controlled buys, eyewitness testimony from customers

and co-conspirators, as well as evidence obtained from Robinson's phone.”

Robinson, 1862 MDA 2017, 2018 WL 5857869, at *4.

In light of the overwhelming evidence of Appellant’s guilt and the trial

court’s instructions regarding witness credibility, we cannot find that Appellant

is entitled to relief on this ineffectiveness claim.

For the foregoing reasons, we affirm the PCRA court’s order denying

Appellant’s PCRA petition.

Order affirmed.

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Date: 02/07/2025

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