Com. v. Rollins, S.

J. S11040/19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

SAHARRIS ROLLINS, No. 2483 EDA 2017

Appellant

Appeal from the PCRA Order, May 8, 1997,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0405851-1986

BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 08, 2019

Following reinstatement of his collateral appeal rights nunc pro tunc,
Saharris Rollins appeals from the May 8, 1997 order entered in the Court of

Common Pleas of Philadelphia County that dismissed his petition filed

pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

The PCRA court that entered the May 8, 1997 order denying appellant

PCRA relief set forth the following:

On January 22, 1986, [appellant] knocked on the door
of Jose Carrasquillo and Violeta Clintron's residence
for the purpose of obtaining [c]ocaine.
Mr. Carrasquillo was not there, but Mrs. Clintron, her
brother (Raymond Clintron), and her one year old son
were present. Recognizing [appellant] as an associate
of her boyfriend, Mrs. Clintron permitted [appellant]
to enter the home. After entering, [appellant] asked
for a "sixteen" or 1.5 grams of cocaine. When
J. S11040/19

Mrs. Clintron measured the cocaine, [appellant] asked
to trade methamphetamine for the cocaine.
Mrs. Clintron refused and demanded cash instead.
[Appellant] responded by leaving the residence and
returning a few minutes later with a forty-five
automatic pistol. Upon returning, [appellant] pointed
the weapon at Violeta and demanded the cocaine.

At this point, Raymond Clintron began wrestling with
[appellant] in an attempt to seize the weapon. After
several shots were fired, Mr. Clintron was wounded
and fell to the floor. [Appellant] then picked up the
victim and fired at least two more rounds into the
victim's body. As a consequence, Violeta surrendered
the cocaine and [appellant] left.

[Appellant] was apprehended three days later
following another unrelated shooting
incident.[Footnote 1] The police picked up [appellant]
and transported him to the hospital, where he was
identified by witnesses from the first shooting. After
the police verified a ballistics match on the spent
cartridges from the two crime scenes, [appellant] was
arrested and charged with murder.

[Footnote 1] On January 25, 1986,
[appellant] knocked on Richard
Campbell's door. Mr. Campbell's younger
brother answered the door and called a
warning that [appellant] had a gun.
Mr. Campbell, who was upstairs, grabbed
a loaded shotgun out of the closet. When
[appellant] reached the bottom of the
stairs, he pointed his forty-five automatic
pistol at Mr. Campbell and the two
exchanged gunfire. [Appellant] was
wounded and fled. A pedestrian
observing [appellant] on the sidewalk,
called police.

Following a jury trial held between February 10 and
March 6, 1987, [appellant] was found guilty of murder
in the first degree, robbery and possession of an
instrument of crime. After the penalty hearing, the

-2
J. S11040/19

jury found two aggravating circumstances, which they
concluded outweighed the one mitigating
circumstance. On the basis of its findings, the jury
sentenced [appellant] to death. On May 11, 1987, the
[t]rial [c]ourt heard and denied post trial motions.
Subsequently, [appellant] appealed asserting claims
of ineffective assistance of counsel and trial error. On
July 15, 1988, the Pennsylvania Supreme Court
granted counsel's petition to withdraw, remanded the
record to the [t]rial [c]ourt for the appointment of new
counsel and permitted new counsel to press the
claims. The Supreme Court reviewed the case and
affirmed both the conviction and sentence.
Commonwealth v. Rollins, [] 580 A.2d 744 ([Pa.]
1990).

PCRA court opinion, 9/8/97 at 1-3.

The record reflects that on November 12, 1996, appellant filed the PCRA

petition that is the root of this appeal. In that petition, appellant asserted

claims of ineffective assistance of counsel, trial court error, and prosecutorial

misconduct. On May 8, 1997, the PCRA court denied the petition without

holding a hearing. Our supreme court affirmed the order denying appellant's

PCRA petition, finding that appellant waived his claims of trial court error and

prosecutorial misconduct for failure to raise them on direct appeal and

rejecting appellant's ineffective assistance of counsel claims on the merits.

Commonwealth v. Rollins, 738 A.2d 435 (Pa. 1999).

On March 10, 2000, appellant filed a petition for writ of habeas corpus

in the United States District Court for the Eastern District of Pennsylvania

seeking relief from his death sentence on substantially the same grounds that

he raised in his PCRA petition. The district court granted habeas corpus

-3
J. S11040/19

relief with respect to appellant's death sentence after finding that two

significant errors occurred during the penalty phase of appellant's criminal

trial.' The district court directed that appellant be given a new sentencing

hearing or be sentenced to life imprisonment. Rollins v. Horn, 2005 U.S.

Dist. LEXIS 15493, 2005 WL 1806504 (E.D. Pa. 2005). On July 7, 2010, the

United States Court of Appeals for the Third Circuit affirmed. Rollins v. Horn,

386 Fed. Appx. 267 (3d Cir. 2010). On June 13, 2012, appellant was

resentenced to life without parole on the first -degree murder conviction and

concurrent terms totaling 121/2 to 25 years of incarceration on the remaining

charges.

On August 8, 2016, appellant filed a PCRA petition wherein he claimed

relief pursuant to the United States Supreme Court's decision in Williams v.

Pennsylvania, 136 S.Ct. 1899 (2016).2 In Williams, the Supreme Court of
Pennsylvania had vacated an order granting PCRA relief to a prisoner

convicted of first -degree murder and sentenced to death. Then -Chief Justice

' The district court found that (1) appellant's trial counsel was ineffective in
failing to prepare for the penalty phase of the trial until after the jury rendered
its verdict; specifically, for failing to investigate potentially mitigating evidence
concerning the psychological impact of appellant's abusive childhood; and
(2) the trial court presented ambiguous jury instructions with respect to
whether aggravating and mitigating circumstances must be found
unanimously. Rollins, 2005 U.S. Dist. LEXIS 15493; 2005 WL 1806504.

2 Although we have concerns as to whether Williams, supra, can be applied
retroactively, as well as concerns as to certain other procedural issues related
to this appeal, we will go forward in the interest of justice and judicial
economy.

-4
J. S11040/19

Ronald D. Castille had been the district attorney who had given approval to

seek the death penalty in Williams's case. Thereafter, while sitting on the

Pennsylvania Supreme Court, then -Chief Justice Castille denied Williams's

motion for recusal and participated in the court's decision to deny Williams

PCRA relief. On appeal, the United States Supreme Court determined that

then -Chief Justice Castille's denial of the recusal motion and his participation

in Williams's collateral appeal violated the Due Process Clause of the

Fourteenth Amendment. The High Court held that "[w]here a judge has had

an earlier significant, personal involvement as a prosecutor in a critical

decision in the defendant's case, the risk of actual bias in the judicial

proceeding rises to an unconstitutional level" and due process entitles that

defendant to a proceeding where he is assured that no member of the court

is predisposed to rule against him. Id. at 1910.
With respect to appellant's August 8, 2016 PCRA petition, the PCRA

court explained that appellant:

claimed due process violations and judicial
improprieties. [Appellant], along with many other
separate Philadelphia petitioners, allege []
Chief Justice [Ronald D. Castille] of the Supreme
Court of Pennsylvania, during his tenure as
Philadelphia District Attorney, was involved in the
decision to seek the death penalty against and/or had
significant personal involvement in their cases as
Philadelphia District Attorney. As such these actions
by the then District Attorney Ronald Castille against
[appellant], and [p]etitioners' due process rights were
violated when the Chief Justice failed to recuse or
disqualify himself when their case came before the
Supreme Court of Pennsylvania for appellate review.

-5
J. S11040/19

Following a hearing on April 24, 2017, this court
determined then District Attorney Ronald Castille was
significantly and personally involved in [appellant's]
case when he authorized his subordinates to seek the
death penalty against [appellant]. The court granted
the PCRA petition in part and reinstated [appellant's]
appellate rights nunc pro tunc on May 3, 2017. On
May 31, 2017, the Commonwealth of Pennsylvania
appealed this court's reinstatement of [appellant's]
appellate rights nunc pro tunc to the Superior
Court.[3] On June 1, 2017, [appellant] also filed a
notice of appeal to the Pennsylvania Supreme Court.

PCRA court opinion, 10/19/17 at 1-2.

The record reflects that on August 4, 2017, our supreme court

transferred the notice of appeal to this court. (Per curiam order, 8/4/17.)

On August 28, 2017, this court entered an order directing appellant to show

cause within ten days as to "why this appeal should not be quashed as having

been taken from a purported order that is not entered upon the appropriate

docket of the lower court." (Order, 8/28/17.) Appellant filed a timely

response. In that response, appellant explained that although the May 8,

1997 order does not appear on the electronic docket, it was "included on the

paper docket that was prepared in November 1997 in connection with the

original PCRA appeal." (Appellant's response to order to show cause, 9/7/17

3 The record reflects that on August 30, 2017, appellant filed "an unopposed
application for exercise of extraordinary jurisdiction in the Pennsylvania
Supreme Court, requesting the Supreme Court to take jurisdiction over the
Commonwealth's appeal" of the PCRA order that granted appellant relief.
(Appellant's response to order to show cause, 9/7/17 at 3, 9 and '11

attachment.) On March 5, 2018, the Commonwealth withdrew and
discontinued its appeal of the May 3, 2017 order granting appellant PCRA
relief.

-6
J. S11040/19

at 3, ¶ 11.) Appellant further stated that the May 8, 1997 order is referenced

in the Pennsylvania Supreme Court docket for the original PCRA appeal. (Id.)

Appellant also informed this court that on August 31, 2017, he filed a praecipe

in the Court of Common Pleas of Philadelphia County to include the May 8,

1997 order in the electronic record. (Id. at ¶ 12.) Also on September 7,

2017, appellant filed with this court an application for correction of record to

which he attached a copy of the paper docket sheet of the original PCRA

proceeding and a copy of his praecipe requesting that the common pleas court

correct the electronic docket. (Appellant's application for correction of record,

9/7/17 at Exhibits E and G.) On September 13, 2017, this court discharged

the rule to show cause and referred the appealability issue to the merits panel.

On September 13, 2017, appellant filed an application for leave to file a

supplement to his response to order to show cause to which he attached a

September 7, 2017 order directing the office of judicial records in the

Philadelphia Court of Common Pleas to enter the May 8, 1997 order on the

appropriate docket. (Appellant's application for leave to file supplement to

appellant's response to order to show cause, 9/15/17 at attachment order of

court, 9/7/17.) On October 12, 2017, this court directed the trial court to

certify and include in the trial court record the May 8, 1997 order. On

October 20, 2017, the trial court complied.

On February 15, 2018, the Commonwealth filed an "unopposed motion

to stay appeals" wherein it requested that this court enter an order staying

_7
J. S11040/19

appellant's appeal at this docket, as well as an appeal that the Commonwealth

filed at No. 2017 EDA 2478 that challenged the May 3, 2017 order granting

appellant PCRA relief. Because the Commonwealth withdrew its appeal at

No. 2017 EDA 2478 on March 5, 2018, this court entered an order denying as

moot the Commonwealth's motion to stay the appeal at that docket. On

January 19, 2018, our supreme court denied appellant's application for

exercise of extraordinary relief. (Per curiam order, 1/19/18.) Therefore,
this appeal is now ripe for our review.

Appellant raises the following issues:

[1.] Should [appellant] be granted a new trial
because defense counsel was ineffective in
failing to investigate and present exculpatory
evidence?

[2.] Should [appellant] be granted a new trial
because of misconduct committed by the
prosecutor in his opening statement and closing
argument?

[3.] Should [appellant] be granted a new trial
because trial counsel ineffectively failed to
properly object when the Commonwealth used
its peremptory strikes in a racially
discriminatory manner?

Appellant's brief at 2.

This Court's review from the grant or denial of
post -conviction relief is limited to examining whether
the lower court's determination is supported by the
evidence of record and whether it is free of legal error.
In order to be eligible for relief under the PCRA, an
appellant 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.]

-8
J. S11040/19

§ 9543(a)(2) and that the issues he raises have not
been previously litigated. An issue will be deemed
previously litigated when "the highest appellate court
in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue."
42 Pa. C.S.[A.] § 9544(a)(2).

Commonwealth v. Todaro, 701 A.2d 1343, 1346 (Pa. 1997) (internal case

law citations omitted).

As framed, appellant's first and third issues allege ineffective assistance

of trial counsel. Although appellant's second issue is inartfully framed, a

reading of appellant's PCRA petition and his appellate brief on this issue reveal

that appellant alleges that trial counsel was ineffective for failing to

"meaningfully or appropriately object" to the prosecutor's opening and closing

remarks and that direct appeal counsel was ineffective for failing to raise this

issue on appeal. (Appellant's PCRA petition, 11/12/96 at 41-48; see also

appellant's brief at 20.) Therefore, all of the issues that appellant raises for

our review allege ineffectiveness of counsel.

The law presumes that trial counsel was effective and
appellant bears the burden of proving otherwise. In
order to sustain a claim of ineffective assistance of
counsel, petitioner must establish (1) that the
underlying claim is of arguable merit; (2) that
counsel's performance had no reasonable basis; and
(3) that counsel's ineffectiveness worked to
petitioner's prejudice. Moreover, under the PCRA,
counsel's ineffectiveness must have so undermined
the truth determining process that no reliable
adjudication of guilt or innocence could have occurred.
42 Pa. C.S.[A.] § 9543(a)(2)(ii). Furthermore,
counsel's stewardship must be judged under the
existing law at the time of trial and counsel cannot be

-9
J. S11040/19

deemed ineffective for failing to predict future
developments or changes in the law.

Todaro, 701 A.2d at 1346 (internal case law citations omitted).

At the outset, we note that in 1987 when appellant's post -verdict

motions were filed, the law required criminal defendants to raise ineffective

assistance of counsel claims at the earliest stage where counsel whose

ineffectiveness was questioned no longer represented the defendant. See

Commonwealth v. Busanet, 54 A.3d 35, 44 n.4 (Pa. 2012) (explaining

application of Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), in

cases predating Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002),

wherein our supreme court abrogated the rule in Hubbard, holding that a

defendant "should wait to raise claims of ineffective assistance of trial counsel

until collateral review."). Here, appellant's post -verdict motions and direct

appeal predated our supreme court's decision in Grant; consequently, the

Hubbard rule governs this appeal.
The PCRA court addressed appellant's ineffective assistance of counsel

claim for failure to present a mitigation defense during the penalty phase.

(PCRA court opinion, 9/8/97 at 3-9.) With respect to the nearly 50 remaining

ineffectiveness claims presented in the PCRA petition, the PCRA court

determined, without discussion, that they lacked merit. (Id. at 13-14.) The

PCRA court further found that appellant had waived all of the ineffectiveness

claims that it did not address in its September 8, 1997 opinion for failure to

raise them on direct appeal. (Id. at 14.)

- 10 -
J. S11040/19

The Commonwealth contends that appellant waived his first and third

issues of trial counsel's ineffectiveness for failure to raise them on direct

appeal as required by Hubbard, supra. The Commonwealth further contends

that only appellant's second issue of ineffectiveness of trial counsel is

cognizable on collateral appeal because appellant couched the claim in terms

of direct appeal counsel's ineffectiveness.

In Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011), a case

where Hubbard was also prevailing law when petitioner's direct appeal was

decided, our supreme court explained that although prevailing law required

petitioner to raise claims of trial counsel's ineffectiveness on direct appeal and

the failure to do so resulted in waiver, petitioner could raise appellate counsel's

ineffectiveness under the PCRA, including claims of appellate counsel's

ineffectiveness for failure to raise trial counsel's ineffectiveness on direct

appeal. Our supreme court further explained that to do so, petitioner would

be required to present his argument as to each prong of the ineffectiveness

test for each layer of the alleged ineffective representation. Id. at 286.
Accordingly, to raise a claim of direct appeal counsel's ineffectiveness, a

petitioner would be required to demonstrate that the underlying claim is of

arguable merit; that direct appeal counsel's performance had no reasonable

basis; and that direct appeal counsel's ineffectiveness worked to petitioner's

prejudice. Id. at 285-286.
J. S11040/19

Here, a review of appellant's PCRA petition demonstrates that appellant

failed to satisfy each prong of the ineffectiveness test for each layer of the

ineffective representation. Although appellant argues in his petition that his

underlying claims have merit, he fails to satisfy the reasonable basis and

prejudice prongs with respect to trial counsel's alleged ineffectiveness. With

regard to direct appeal counsel's alleged ineffectiveness, appellant includes a

boilerplate allegation with respect to his first and third issues that states:

[t]o the extent appellate counsel failed to assert or
adequately preserve any of the claims set forth
herein, such counsel rendered ineffective assistance
of counsel in violation of [appellant's] rights under the
[Sixth, Eighth and Fourteenth Amendments to the
United States Constitution and Article I, §§ 9 and 13
of the Pennsylvania Constitution] and [appellant] was
prejudiced thereby.

Appellant's PCRA petition, 11/12/96 at 142, ¶ 379. With respect to appellant's

second claim and direct appeal counsel's alleged ineffectiveness, appellant

merely concludes that "[a]ppellate counsel was ineffective for not raising all

instances of misconduct on appeal." (Id. at 51, ¶ 179.) In addition to failing

to fully satisfy the ineffectiveness test for trial counsel's alleged

ineffectiveness, appellant entirely failed to bear his burden of proving that

appellate counsel's performance had no reasonable basis and that appellate

counsel's ineffectiveness for failing to raise the issues on direct appeal resulted

in prejudice.

Nevertheless, with regard to appellant's first issue, we note that in his

appellate brief, appellant claims that trial counsel was ineffective for failing to

- 12 -
J. S11040/19

learn appellant's blood type prior to trial; for stipulating to appellant's blood

type at trial; for failing to spend sufficient time arguing that appellant's blood

type was not found in a hat that was found near the crime scene; and that

based on appellant's blood type and his dominant hand, he could not have

been the shooter. (Appellant's brief at 8-17.) Appellant asserts that trial

counsel's ineffectiveness in this regard resulted in prejudice because "it would

have strongly suggested that appellant was not the shooter at the homicide

scene." (Id. at 15.) Notwithstanding the deficiencies in appellant's

PCRA petition and his failure to properly layer his ineffectiveness allegations,

we note that at trial, the Commonwealth presented the testimony of

Violeta Clintron who eyewitnessed the murder and identified appellant as the

shooter. (Notes of testimony, 2/25/87 at 637-676.)

In his second issue, appellant argues that trial counsel was ineffective

for failing to object to that portion of the prosecutor's closing argument that

included a hypothetical to explain to the jury why appellant's blood type was

not found in the hat that was found near the murder scene. Appellant claims

that had trial counsel objected, "the jury would have entertained reasonable

doubt." (Appellant's brief at 21.) Notwithstanding the deficiencies in

appellant's PCRA petition and his failure to properly layer his ineffectiveness

allegations, we note that trial counsel placed three objections on the record

during this portion of the prosecution's closing argument. (Notes of

testimony, 3/4/87 at 1614, 1621, and 1622.)

- 13 -
J. S11040/19

In his final issue, appellant claims that even though trial counsel placed

objections on the record as to the prosecution's use of peremptory strikes and

even though trial counsel unsuccessfully raised the issue in post -verdict

motions, trial counsel was nevertheless ineffective because he should have

placed more objections to the prosecution's use of preemptory strikes on the

record which would have documented a pattern of discrimination. (Appellant's

brief at 17-22.) In his PCRA petition, however, appellant claimed that he is

entitled to a new trial because the trial court allowed the prosecution to

exercise race -based strikes and refused to hold a hearing under Batson v.

Kentucky, 474 U.S. 942 (1985). (Appellant's PCRA petition, 11/12/96 at

92-94 § 4, III 264-269.) In a footnote, appellant noted that "[d]efense

counsel objected often enough to apparent race -based peremptories that he

should be deemed to have a continuing objection" and that "[t]o the extent

defense counsel waived any objection by failing to raise it specifically, he was

ineffective." (Id. at 93 n.31.) Notwithstanding the deficiencies in appellant's

PCRA petition and his failure to properly layer his ineffectiveness allegations,

we note that appellant did not raise the issue he now attempts to raise in his

PCRA petition, the failure of which would result in waiver. See

Pa.R.A.P. 302(a) (providing for waiver of issues on appeal that were not raised

in the lower court); Commonwealth v. Paul, 557 A.2d 357 (Pa.Super. 1989)

appeal denied, 578 A.2d 927 (Pa. 1990) (reiterating that Rule 302(a) does

- 14 -
J. S11040/19

not permit an appellate court to consider an issue raised for the first time on

appeal).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn,
Prothonotary

Date: 8/8/19

- 15 -