J-S09022-22
2022 PA Super 113
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TROY ANTHONY ROBINSON : No. 1127 EDA 2021
Appeal from the PCRA Order Entered May 17, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005169-2012.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY KUNSELMAN, J.: FILED JUNE 27, 2022
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.
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* Former Justice specially assigned to the Superior Court.
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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
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1 At trial, Officer Fitzgibbon always referred to the man as “the defendant.”
2 At the preliminary hearing, Officer Fitzgibbon had said the man was wearing
“a blue jacket, like a hooded jacket,” with “a white shirt on underneath it, dark
pants, and black boots.” N.T., 10/23/14 (testimony), at 68.
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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
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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
____________________________________________
3 Robinson’s issues on direct appeal were whether his pointing a firearm was
sufficient to show intent to place Officer Fitzgibbon in fear of serious bodily
injury (it was) and whether his sentence was excessive (it was not).
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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, 238 A.3d 1267, 1280 (Pa. 2020) (citing Commonwealth v.
Hanible,
30 A.3d 426, 438 (Pa. 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,
263 A.3d 561,
567 (Pa. 2021) (quoting Commonwealth v. Washington,
927 A.2d 685,
583 (Pa. 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, 966 A.2d 523, 532 (Pa. 2009); 42 Pa.C.S.A. § 9543(a)(2)(ii).
“Generally, counsel’s performance is presumed to be constitutionally
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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, 92 A.3d 766 (Pa. 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
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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 [(Conn. 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 impacting
eyewitness identification does not go to credibility, but to
educating the jury, and if such factors are possibly not known or
understood, or even misunderstood, by jurors, then the more
effective way of educating the jury is not through the eyewitness
him or herself, but through the presentation of such testimony by
an expert when appropriate.
…
Thus, we reject reliance upon cross-examination and closing
arguments as sufficient to convey to the jury the possible factors
impacting eyewitness identification and as justification for an
absolute bar of such expert testimony, and recognize the potential
advantages of expert testimony as a means to assist the jury
where mistaken identity is a possibility. See [State v.] Clopten,
223 P.3d [1103,] 1110 [(Utah 2009)] (“Even if cross-examination
reveals flaws in the identification, expert testimony may still be
needed to assist the jury”).
Walker, 92 A.3d at 786 (citation omitted).
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In short, the Walker court changed a longstanding rule and held that
identification expert testimony would be admissible at the discretion of the
trial judge when it is relevant; “generally speaking, it would be where the
Commonwealth’s case is solely or primarily dependent upon eyewitness
testimony.” Id. at 787.
The Walker court further noted that expert identification testimony
must also satisfy the requirements of Pennsylvania Rule of Evidence 702 and
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Id. at 788–90 (finding
that testimony about the five listed factors (1) addresses matters beyond the
average layperson’s knowledge and (2) helps the trier of fact understand the
evidence or determine a fact in issue; remanding for a hearing to determine
(3) “if the methodology that underlies the evidence has general acceptance in
the relevant scientific community”). Finally, a trial court could exclude such
testimony “if its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Id. at 791 (citing Pa.R.E. 403).
The court explained:
Of course, the question of the admission of expert testimony turns
not only on the state of the science proffered and its relevance in
a particular case, but on whether the testimony will assist the jury.
Trial courts will exercise their traditional role in using their
discretion to weigh the admissibility of such expert testimony on
a case-by-case basis. It will be up to the trial court to determine
when such expert testimony is appropriate. If the trial court finds
that the testimony satisfies Frye, the inquiry does not end. The
admission must be properly tailored to whether the testimony will
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focus on particular characteristics of the identification at issue and
explain how those characteristics call into question the reliability
of the identification. We find the defendant must make an on-therecord detailed proffer to the court, including an explanation of
precisely how the expert’s testimony is relevant to the eyewitness
identifications under consideration and how it will assist the jury
in its evaluation. The proof should establish the presence of
factors (e.g., stress or differences in race, as between the
eyewitness and the defendant) which may be shown to impair the
accuracy of eyewitness identification in aspects which are (or to a
degree which is) beyond the common understanding of
laypersons.
Id. at 792.
Following Walker, we reviewed a post-trial ruling on admissibility of
expert identification testimony in Commonwealth v. Selenski, 158 A.3d 102
(Pa. Super. 2017), appeal denied,
170 A.3d 1056 (Pa. 2017), denial of post-
conviction relief affirmed,
228 A.3d 8 (Pa. Super. 2020). We held that while
identification expert testimony is relevant “where the Commonwealth’s case
is solely or primarily dependent upon eyewitness testimony” it can also be
relevant in other cases, leaving admissibility to the trial courts’ discretion.
Id.
at 111–13 (interpreting Walker,
92 A.3d at 787); see Commonwealth v.
Brown,
200 A.3d 986, 990–91 (Pa. Super. 2018) (affirming the denial of such
testimony where the eyewitness identification was corroborated). However,
we rejected a rule that such testimony is necessarily admissible when non-
identification evidence alone is insufficient to prove guilt beyond a reasonable
doubt. Selenski,
158 A.3d at 111, 116; Cf. Commonwealth v. Thomas,
215 A.3d 36, 48–50 (Pa. 2019) (finding “no need” for Dr. Mannes’ testimony
where non-identification evidence established guilt and identity).
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In reviewing Robinson’s claim that trial counsel was ineffective for failing
to call an identification expert in light of Walker, we now turn to the three
prongs of ineffectiveness: arguable merit, lack of a reasonable basis, and
prejudice. Johnson, supra.
A. Arguable Merit
To prove arguable merit based on trial counsel’s failure to call a witness,
a PCRA petitioner must “show that the witness existed and was available;
counsel was aware of, or had a duty to know of the witness; the witness was
willing and able to appear; and the proposed testimony was necessary in order
to avoid prejudice[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa.
2011) (quoting Commonwealth v. Wayne,
720 A.2d 456, 470 (Pa. 1998)).
In this context, prejudice means that “the uncalled witnesses’ testimony would
have been beneficial under the circumstances of the case.” Commonwealth
v. Williams,
141 A.3d 440, 460 (Pa. 2016) (quoting Commonwealth v.
Sneed,
45 A.3d 1096, 1109 (Pa. 2012)). Thus, if the proposed testimony
“would have been helpful to the defense,” then there is arguable merit.
Id.
The record supports the PCRA court’s conclusion that Robinson’s claim
has arguable merit. Dr. Mannes existed and was available at the time of
Robinson’s trial. Additionally, she would have been willing and able to appear.
Further, Robinson’s trial counsel had a duty to know that he could have
presented an expert identification witness in this case. Walker was decided
about five months prior to trial. “Trial counsel’s performance is evaluated
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under the standards in effect at the time of trial.” Commonwealth v.
Baumhammers, 92 A.3d 708, 729 (Pa. 2014) (citations omitted); cf.
Commonwealth v. Daniels,
104 A.3d 267, 312–14 (Pa. 2014) (rejecting an
argument that a defendant lacked notice about an instruction based on a case
decided six months before trial); Commonwealth v. Smith,
17 A.3d 873,
894 (Pa. 2011) (considering ineffectiveness based on a case decided one week
before the final supplemental post-trial motion); Commonwealth v. Rivera,
154 A.3d 370, 379 (Pa. Super. 2017) (en banc) (finding ineffectiveness for
failing to advise about a case decided seven months before plea); see also
Commonwealth v. Lippert,
85 A.3d 1095, 1101 (Pa. Super. 2014)
(permitting an ineffectiveness claim for not advising about legislation that was
enacted but not yet effective at the time of plea); Holland v. Horn,
150 F.
Supp. 2d 706, 748 n.37 (E.D. Pa. 2001), aff’d based on lack of prejudice,
519
F.3d 107 (3d Cir. 2008) (noting that being unaware of a decision four months
before trial would violate counsel’s duty of adequate representation).
We thus conclude that counsel had a duty to know of the effect of a
“watershed decision” five months before trial. Selenski, 158 A.3d at 107.
Our high court held that expert identification testimony is relevant in cases
that are “solely or primarily dependent upon eyewitness testimony.” Walker,
92 A.3d at 787. Here, because the Commonwealth’s case “solely or primarily”
depended on eyewitness testimony, trial counsel should have known that
relevant expert identification testimony would have been admissible under
Walker.
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Within the arguable merit analysis, the record supports the PCRA court’s
conclusion that the presentation of identification expert testimony could have
helped the jury. In her PCRA hearing testimony and expert report, Dr. Mannes
described a scientific model for how humans create memory, which is different
than how a lay person might conceive that process. She surveyed the five
factors listed in Walker, explaining how they might have affected Officer
Fitzgibbon’s identification of Robinson.4
____________________________________________
4 With respect to weapon focus, Dr. Mannes explained:
When presented with a weapon, the eyewitness’ tendency is to
focus on that immediate threat rather than to focus on the
perpetrator. This switch in attention results in poorer ability to
accurately recall details that would help distinguish one person
from another. . . .
In this case, Police Officer Fitzgibbon is clearly threatened by the
gun and switches his focus from the perpetrator’s face enabling
him to describe the gun as being pulled from the perpetrator’s left
pocket. He is later able to recognize it suggesting that a fair
amount of his attention was focused on it.
Amended Petition, 7/8/20, Exh. A (Mannes Report), at 12 (unnumbered)
(citation and italics omitted). She explained at the PCRA hearing how police
weapons training can reduce weapon focus, but even absent weapon focus,
Officer Fitzgibbon could still have misidentified Robinson.
Regarding “cross-racial identification,” Dr. Mannes explained that
accuracy “also has to do with what we call in-group and out-group
identifications[;] we label people differently if we feel like they’re in our
group.” Here, “Officer Fitzgibbon and the perpetrator are of different races.”
Id. at 13. (There is no other record evidence of Officer Fitzgibbon’s race;
however, the Commonwealth does not dispute this aspect.)
With respect to stress and fear, Dr. Mannes explained how “very high
levels of stress and arousal are associated with poorer identification accuracy,”
(Footnote Continued Next Page)
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Beyond the five Walker factors, Dr. Mannes also described other
variables that can affect identification. Additional “estimator variables”
include the length of time Officer Fitzgerald had to view the perpetrator, the
physical distance between them, the lighting, and the delay between the
incident and identification. Mannes Report, at 11–14 (noting a study that even
“identification performance on an immediate test was only about 75%”). Dr.
Mannes also described “unconscious transference,” where a witness identifies
a person based only on having seen that person in another context; however,
Officer Fitzgibbon had not been acquainted with Robinson before Thanksgiving
of 2011. Id. at 17. Dr. Mannes concluded, to a reasonable degree of certainty
based on her field of expertise, that the circumstances of this case “raise[]
questions regarding the validity of the identification.” Id. at 18.
This testimony could have provided the jury an additional framework to
assess whether Officer Fitzgibbon’s identification was accurate. Therefore, the
____________________________________________
reasoning that Officer Fitzgibbon was “clearly frightened” because he drove
away for his safety. Id.
Dr. Mannes described issues that can arise in an in-person lineup
procedure as “system variables.” Id. at 14. She indicated several problematic
aspects of Officer Fitzgibbon’s identification of Robinson, including that there
was no line-up or instruction to Officer Fitzgibbon, there was only an
“extremely vague” description that did not mention the man’s face, there was
no “evidence-based suspicion” that Robinson was the perpetrator, and
Sergeant Hawe knew that Robinson was his suspect. Id. at 14–17.
Regarding confidence, Dr. Mannes explained that there is “little to no
relationship” between confidence and accuracy, but only “38% of jurors
believe that confidence is not a good predictor of accuracy.” Id. at 17 (citation
omitted). She observed that although Officer Fitzgibbon was confident in his
identification, he had been mistaken that the perpetrator had shot at him. Id.
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relevant testimony by Dr. Mannes “would have been beneficial under the
circumstances of the case.” Williams, 141 A.3d at 460; see Walker,
92 A.3d
at 791 (concluding that “expert testimony regarding eyewitness identification
in these circumstances could be probative and beneficial to the jury”).
Because trial counsel had a duty to know that he could present an eyewitness
identification expert, and because Dr. Mannes was available and willing to
provide testimony that was helpful to the defense, the record supports the
PCRA court’s conclusion that Robinson’s claim of ineffective assistance of
counsel has arguable merit.
B. Reasonable Basis
To show that trial counsel had no reasonable basis for his or her chosen
trial strategy, a PCRA petitioner must prove that his alternative strategy
“offered a potential for success substantially greater than the course actually
pursued.” Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)
(quoting Commonwealth v. Spotz,
18 A.3d 244, 260 (Pa. 2011).
When assessing whether counsel had a reasonable basis for
his act or omission, the question is not whether there were other
courses of action that counsel could have taken, but whether
counsel’s decision had any basis reasonably designed to effectuate
his client’s interest. . . . [T]his cannot be a hindsight evaluation of
counsel’s performance, but requires an examination of whether
counsel made an informed choice, which at the time the decision
was made reasonably could have been considered to advance and
protect the defendant’s interests. Our evaluation of counsel’s
performance is highly deferential.
[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
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complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a
duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.
Strickland [v. Washington], 466 U.S. [668,] 690–91 [(1984)].
Williams, 141 A.3d at 463 (quotations, brackets, and citations omitted).
Counsel is expected to know and follow applicable law. Commonwealth v.
Pou,
201 A.3d 735, 741–42 (Pa. Super. 2018) (finding no reasonable strategy
where failure to raise an issue was due to ignorance of the law);
Commonwealth v. McClellan,
887 A.2d 291, 300–01 (Pa. Super. 2005)
(finding counsel’s strategy to be unreasonable based on counsel’s
unawareness of procedural rules). However, “the failure to call an expert
witness does not necessarily render counsel’s performance deficient,” as when
counsel “is able effectively to cross-examine prosecution witnesses and elicit
helpful testimony.” Williams,
141 A.3d at 464 (quoting Chmiel,
30 A.3d at
1143).
Here, the record supports the PCRA court’s conclusion that trial counsel
had no reasonable basis for failing to present expert identification testimony.
At the PCRA hearing, trial counsel testified that his trial strategy was to argue
that Robinson was present at the scene but did not have a gun, and that
Officer Fitzgibbon mistook Robinson’s cell phone for a gun. N.T., 4/19/21, at
29. He denied even considering a challenge to Officer Fitzgibbon’s
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identification of Robinson. Id. at 17, 27–28, 34 (explaining why he did not
feel it was a viable defense). Significantly, trial counsel was unsure if he read
Walker before or after trial. Id. at 18 (“I can’t recall when I read it, but I
think we had some training on it or some experience with it at some point,
but before or after, I’m not certain.”). Regardless, he testified that
considering the facts, he did not think that the defense needed expert
testimony on identification. Id. at 19.
The Commonwealth argues that trial counsel’s asserted strategy of
arguing that Officer Fitzgibbon mistook Robinson’s cell phone for a gun was
reasonable. Commonwealth’s Brief at 16. It claims that a misidentification
defense would have been inconsistent with this strategy. Id. at 17–20.
However, review of the record shows that trial counsel did present a
misidentification defense, both in cross-examining the police witnesses and in
arguing to the jury. Trial counsel questioned the witnesses about Officer
Fitzgibbon’s description of the alleged shooter and how his client differed from
that description. He pointed out discrepancies like Robinson’s plaid shirt,
beard, and prayer mark. N.T., 10/23/14 (testimony), at 65–70, 103–10. He
emphasized two other ways that Officer Fitzgibbon was mistaken—whether
the gun was fired and what color it was. He argued that these mistakes
showed that Officer Fitzgibbon was also mistaken about Robinson being the
man he saw. Trial counsel further argued in closing that Robinson was not
the only person on the street. N.T., 10/24/14 (closing arguments), at 13–16
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(“We know there’s people on the street. Are you actually going to buy this,
that you didn’t see anybody?”). He continued:
And then we’re going to be asked to believe that after --
after pointing a gun at a police officer, running up to him, pointing
a gun at a police officer, my client is just going to be talking on a
cell phone around the corner. Excuse me? Does that sound
reasonable to you? Maybe he was the only black guy in a
windbreaker and talking on a cell phone that Sergeant Hawe saw.
And maybe, a minute and a half later, after Officer
Fitzgibbon's -- I think, ran for his life and really thought that
somebody was going to shoot him -- he comes around and who
does the sergeant have? This is the only guy his sergeant have,
is a guy in a windbreaker -- blue windbreaker and blue jeans.
That’s the guy.
Because that’s what it comes down to. You have to
determine whether or not, given the mistakes that were made,
clear, innocent mistake, that one that was caused by stress, that
was caused by a misperception, the one that we know that wasn’t
true, given that mistake that was made by Officer
Fitzgibbon, can you rely on his identification?
Given the fact that there was never any description given
by Officer Fitzgibbon about a beard, about this mark right here on
the forehead -- didn’t you hear [the prosecutor] during his direct
examination, where he kept asking him, was there something
unusual about the guy that you saw? Did you notice anything
unusual that made you identify him?
Did you hear Fitzgibbon say, yeah, when I was looking at
him, when he was real close, when he was running up to me, when
I was looking at his face, I saw that beard. And I saw he had this
mark right in the middle of his forehead. You can see it from
where you are, on a bright sunny day. He never mentioned that.
Did Officer Fitzgibbon really see the face of the person
that was standing there doing whatever he was doing? Did
that person really have a gun? Did that person really fire a gun?
That’s what you have to decide beyond a reasonable doubt, ladies
and gentlemen.
…
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What you have to decide is whether beyond any reasonable
doubt, you can conclude, and under all the circumstances, my
client, who didn’t match the description except that he was a black
male, who wasn’t running or acting out of breath, who didn’t
visibly have anything that might be a weapon, would have pointed
something at Officer Fitzgibbon, whether he was even that guy
that was on that street.
Id. at 17–20 (emphasis added). Conversely, counsel for the Commonwealth
argued that Officer Fitzgibbon’s identification was correct. Id. at 41–46.
Because trial counsel did present a misidentification defense, the
question before the PCRA court was whether Robinson demonstrated that it
was unreasonable for his counsel not to call an identification expert in support
of this defense. That is, the PCRA court had to determine whether this
alternative strategy of calling such an expert “offered a potential for success
substantially greater than the course actually pursued.” Brown, supra.
The PCRA court found that Robinson’s trial counsel had no reasonable
basis for failing to present expert testimony about eyewitness identification in
light of Walker and the facts of this case. “[The Commonwealth’s] arguments
that the trial counsel’s strategy was reasonable and that the presentation of
an identification expert would have been unsuited to counsel’s defense
strategy fall[] flat when considering the Walker Court’s decision and the
crucial effects of eyewitness identification.” PCRA Court Opinion, 7/22/21, at
7.
The law and the record support the PCRA court’s conclusion. Our
Supreme Court recognized that cross-examination and argument alone may
be insufficient to convey the factors affecting eyewitness identification to the
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jury. Walker, 92 A.3d at 786 (citation omitted). Rather, there is a potential
advantage of expert testimony to assist the jury.
Id. The Commonwealth
has not suggested any reason for trial counsel, in arguing misidentification in
this case, to omit expert identification testimony.5 Likewise, Robinson
reiterates, “there is no reasonable explanation for [trial counsel’s] failure to
call an expert; and no such explanation was ever given at the PCRA
evidentiary hearing because trial counsel outright denied that misidentification
was ever part of his strategy.” Robinson’s Brief at 15. We will not attempt to
rationalize trial counsel’s failure to present expert identification testimony
consistent with his defense, where neither the Commonwealth nor trial
counsel provided any explanation. Based on our standard of review, we find
sufficient grounds to support the PCRA court’s conclusion that trial counsel
had no reasonable basis to omit expert evidence in this case.
In summary, trial counsel did not know if he read Walker before trial,
yet he maintained that he did not think this evidence was needed for his
defense, which conceded Robinson’s presence. Contrary to trial counsel’s
recollection, the record reflects that he raised a misidentification defense at
trial, both in questioning witnesses and in arguing to the jury. Robinson
showed that presenting expert identification testimony would have assisted
the jury in weighing this defense. The Commonwealth has not suggested any
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5 The Commonwealth’s arguments that an identification expert would have
been inconsistent with the defense strategy lack merit. As illustrated above,
expert identification testimony would have been consistent with the tactics
that trial counsel actually employed.
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reason to omit this evidence based on the misidentification defense raised at
trial. Therefore, the record supports the PCRA court’s conclusion that trial
counsel had no reasonable basis not to present expert identification testimony,
and we discern no reason to overturn it.6
C. Prejudice
Finally, the record supports the PCRA court’s conclusion that Robinson
demonstrated prejudice, meaning “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Johnson, 966 A.2d at, 533.
The Commonwealth argues that the lack of Dr. Mannes’ testimony at
trial did not prejudice Robinson. Commonwealth’s Brief at 20–25. The
Commonwealth tries to distinguish the facts from those in Walker: Officer
Fitzgibbon had time to observe the man on the street in a stress-free situation
with good visibility, he described the man he saw, and he returned to identify
Robinson in a short time. Further, it emphasizes how Sergeant Hawe did not
see anyone else in the area, and anyone leaving would have passed by police
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6 Our high court did not decide if counsel must always present expert
identification testimony. Walker, 92 A.3d at 787. But see
id. at 805 (Eakin,
J., dissenting) (“While such issues are recognized by the majority, they are
not discussed, yet in every case of identification it will of course be
ineffectiveness for defense counsel to fail to call such a witness now—what
reasonable strategy is advanced by failing to do so?”). Neither do we hold
that Walker requires trial counsel to present expert identification testimony
every time identification is at issue. A rule of per se ineffectiveness appears
inconsistent with the range of strategies available to the defense. However,
where no reason is given to omit this evidence, then the record supports the
conclusion that there is no reasonable basis to do so.
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officers. The Commonwealth characterizes Dr. Mannes’ report as general,
speculative information, which would have been of limited use applied to the
facts. Therefore, it submits that the PCRA court erred in finding prejudice.
We first reject the Commonwealth’s characterization of the utility of the
proposed expert testimony. In accordance with Walker, Dr. Mannes
described numerous scientific aspects of eyewitness identification that are
beyond the knowledge of most jurors. See Walker, 92 A.3d at 788–89. For
each factor, she described its application to Robinson’s case in a way that
would have helped the jury. See id. at 789. Dr. Mannes admitted that police
weapons training can reduce the “weapon focus” effect, explaining that one’s
status as a police officer would not mitigate the other factors’ adverse effects
on identification. She cited numerous studies in her field. She concluded that
that the factors “raise[] questions regarding the validity of the identification”
at issue. Mannes Report, at 18. This supports the PCRA court’s conclusion
that Dr. Mannes would have testified favorably to Robinson.
Moreover, the questions from the jury demonstrate that identity was a
key issue in this case. The questions uniquely illuminate how expert testimony
would have helped the jury evaluate the accuracy of Officer Fitzgibbon’s
identification. The jury submitted several questions consistent with inquiring
into whether Robinson was the man whom Officer Fitzgibbon saw.7 E.g., N.T.,
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7 We recognize the limited utility of analyzing questions from the jury during
its deliberative process. Here, we consider these questions only to illustrate
(Footnote Continued Next Page)
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10/24/14 (trial), at 38–39 (“Who is the weapon registered to? Is the
defendant left or right-handed? Was the prayer mark present at the time of
the defendant’s arrest? Can we hear the original police, quote, officer arrest,
unquote, flash?”); N.T., 10/27/14, at 10 (“Can we be told again what
reasonable doubt is?”), 11 (“[C]an we see the first reports that were made by
Officer Fitzgibbon and Sergeant Hawe, the reports that were mentioned in the
trial[?]”), 21 (“What is the first description of the suspect in Officer Fitzgibbon
and also Sergeant Hawe’s first report following the incident?”).8
Here, Dr. Mannes would have testified to the Walker factors in a way
that would have helped the jury determine whether Officer Fitzgibbon’s
identification was accurate, in a case that depended on identity. Specifically,
she would have informed the jurors of factors implicated in this case,
commonly misunderstood by lay persons, that would cast the accuracy of the
identification into doubt. If the jury was not satisfied beyond a reasonable
doubt that Robinson was the perpetrator, then it would not have found him
____________________________________________
the relevance of identification at trial. See Commonwealth v. Smith, 675
A.2d 1221, 1233–34 & n.13 (Pa. 1996) (plurality) (noting a jury question to
find that counsel was ineffective in not presenting evidence on that subject);
see also Commonwealth v. Tilley,
595 A.2d 575, 581 (Pa. 1991)
(considering a jury question to determine if the trial court should have granted
a mistrial); Commonwealth v. Jasper,
587 A.2d 705, 711–12 (Pa. 1991)
(finding prejudice to a defendant based on the answer to a jury question).
8 The jury also submitted a question that was inconsistent with an inquiry
into mistaken identity. N.T., 10/27/14, at 11–12 (“[C]an we have a definition
of aggravated assault[?]”).
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guilty. We thus find that the record supports the PCRA court’s conclusion that
Robinson was prejudiced by counsel’s ineffectiveness.9
III. Conclusion
The PCRA court’s conclusion that Robinson’s trial counsel was ineffective
is supported by the record and free of legal error. First, the record supports
that Robinson’s claim has arguable merit. The Commonwealth’s case against
Robinson depended “solely or primarily” on identification. Trial counsel argued
that Officer Fitzgibbon’s identification was wrong. Thus, under Walker, he
could have presented an expert witness to help the jury assess factors that
could cast the accuracy of that identification into doubt. Trial counsel should
have known that Walker, decided five months before trial, applied. An expert
witness existed and was available to testify to help the defense. Therefore,
we agree with the PCRA court that there is arguable merit to Robinson’s claim
that trial counsel was ineffective for failing to present this evidence.
Likewise, the record supports the PCRA court’s finding that there was no
reasonable basis for trial counsel to raise a misidentification defense without
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9 The dissent disputes the PCRA court’s finding of prejudice, reasoning that
other evidence corroborated Officer Fitzgibbon’s unequivocal identification
such that there is no reasonable probability that Dr. Mannes’ testimony would
have changed the verdict. Sergeant Hawe’s response, the gun’s proximity to
Robinson, and other officers’ presence around the area support Robinson’s
identity as the perpetrator. But despite hearing this evidence, the jury
submitted numerous identity-related questions over a long deliberation. As
clear as the evidence appeared, it could appear less clear to a jury properly
informed of the Walker factors. Respectfully, the record supports the PCRA
court’s finding as to the prejudice element of ineffective assistance of counsel.
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presenting expert witness testimony about eyewitness identification. The case
facts implicated all five Walker factors. Trial counsel, who was not even sure
if he had read Walker before trial, did not provide any basis for not presenting
an identification expert. Nor does the Commonwealth suggest any reasonable
basis to explain why trial counsel’s failure to present expert testimony
consistent with a raised defense was nonetheless reasonable. Accordingly,
the PCRA court did not commit error in finding that Robinson demonstrated
that trial counsel had no reasonable basis not to present this evidence.
Finally, the record supports the PCRA court’s finding that trial counsel’s
error prejudiced Robinson. Trial counsel raised a misidentification defense at
trial. The jury’s questions illuminate the substantial questions surrounding
identification of the perpetrator. If the jury had the benefit of this additional
evidence about matters commonly misunderstood by lay people, there is a
reasonable probability that the result of trial would have been different. Based
on our review, we find no error in the PCRA court’s conclusion that trial counsel
was ineffective for failing to present expert testimony about eyewitness
identification.
We emphasize the limited nature of our holding. Walker permitted
expert testimony in the field of eyewitness identification but did not require it.
As such, we do not hold that trial counsel will always be ineffective for failing
to present such an expert when raising a misidentification defense. Indeed,
it is easy to conceive compelling reasons why counsel, after investigating the
relevant facts and law, might elect not to present such evidence.
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Here, however, trial counsel denied that he raised a misidentification
defense at trial—an assertion that the record contradicts. As such, he did not
provide any strategic reason for failing to provide expert testimony to help the
jury consistent with his chosen defense in light of Walker. Nor does the
Commonwealth provide any reasons that could support such a choice.
Furthermore, there is scant support to find that trial counsel had even read
Walker in the five months leading up to trial. As such, the Commonwealth
has not demonstrated how the PCRA court erred in finding that Robinson met
his burden to prove that his trial counsel was ineffective.
Order affirmed.
Judge Lazarus joins the Opinion.
President Judge Emeritus Stevens files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2022
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