J-S12027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : COREY GAYNOR : : Appellant : No. 1726 EDA 2021
Appeal from the PCRA Order Entered August 4, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005932-2014
BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED JULY 15, 2022
Corey Gaynor appeals from the denial of his Post-Conviction Relief Act
(“PCRA”) petition. We affirm.
On April 14, 2014, at approximately 10:30 p.m., Timothy Cary
(“Victim”) and his paramour Laticia Samuels (“Samuels”) went to the
Copabanana, a restaurant and bar located at 40th and Spruce Streets in
Philadelphia. During the evening, Samuels and Timothy McElveen
(“McElveen”), witnessed Victim involved in a verbal altercation with Appellant.
See N.T. Jury Trial, 2/25/16, at 34-36; N.T. Jury Trial, 2/23/16, at 40.
Immediately following his argument with Victim, Appellant left the bar
and surrounding area. Victim also stepped outside. Samuels joined Victim
outside the bar after a few minutes. Also on the street were McElveen and
Kareema Burton (“Burton”), who were talking to each other near where Victim
was standing. See N.T. Jury Trial, 2/23/16, at 37-42, 99-102; N.T. Jury Trial, J-S12027-22
2/24/16, at 11-18, 54, 62-64; N.T. Jury Trial 2/25/16, at 11, 31-36. Appellant
returned to the immediate area of the bar and approached Victim. They
engaged in a brief conversation before Victim looked at Appellant and said,
“So what do you want to do?” N.T. Jury Trial, 2/25/16, at 37. Appellant did
not reply. Instead, he took a step back, drew a handgun from his waistband,
and shot Victim twelve times. Victim was transported to the hospital, where
he was pronounced deceased at 1:42 a.m.
Following the shooting, Samuels, Burton, and McElveen watched
Appellant walk southbound on 40th Street towards Pine Street. Samuels
stayed with Victim and was present when officers of the Philadelphia Police
Department responded to the scene. She provided the officers with a
description of the shooter as a black male, light complexion, five feet eight
inches tall, with shoulder length dreadlocks, wearing a gray jacket and dark
pants. The description was broadcast over police radio along with information
regarding the direction of Appellant’s flight. Samuels then followed the vehicle
transporting Victim to the hospital, where she met with different police officers
and repeated her earlier description. See N.T. Jury Trial, 2/25/16, at 105,
107-08. Within minutes, Appellant was spotted on Pine Street, a short
distance from the crime scene and in a location consistent with Samuels’s
description of the suspect’s flight.
Meanwhile, McElveen took a picture of Appellant walking away from the
shooting, ran to his own vehicle, and attempted to pursue Appellant. While
officers were in the process of arresting Appellant, McElveen arrived on the
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scene, jumped out of his vehicle, and spontaneously identified Appellant as
the shooter by yelling: “That’s the motherfucker that shot [Victim]. He needs
to go to jail.” See N.T. Jury Trial, 2/24/16, at 121. Officers at the hospital
transported Samuels to the scene of Appellant’s detention. As soon as
Appellant was visible, Samuels screamed, “[T]hat’s who did it, that’s who shot
my boyfriend.” N.T. Jury Trial, 2/25/16, at 107. Burton was also able to
“immediately” identify Appellant as “the shooter.” See N.T. Jury Trial,
2/26/16, at 27.
After he made the spontaneous identification of Appellant, officers
transported McElveen to the homicide unit to be interviewed. McElveen was
hesitant to give a statement, explaining that he was concerned that a formal
interview would be turned over to Appellant. N.T. Jury Trial, 2/26/16, at 37.
However, he did turn over two photographs of the shooter to police. N.T. Jury
Trial, 2/23/16, at 62; see also N.T. Jury Trial, 2/26/16, at 37, 39. The first
was the one McElveen had taken as the shooter walked away. See N.T. Jury
Trial, 2/26/16, at 39. Depicted in the photograph was the back of a person
wearing a gray top and black pants with beyond shoulder length hair. Id. at
48. The second picture was recovered from McElveen after his interview had
concluded and he was seated in the lobby. Id. at 50. McElveen approached
the officers to show them a photograph that he procured from Instagram,
which was posted by one of his friends approximately forty-five minutes prior
to the shooting. See N.T. Jury Trial, 2/23/16, at 93-95. McElveen told police
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that he recognized the man in the photo as the person who shot Victim. Id.
at 67, 93.
After Appellant was arrested, police recovered a semi-automatic .45
caliber Glock firearm from a nearby walkway on Appellant’s flight path from
the crime scene. See N.T. Jury Trial, 2/24/16, at 129, 133-34. Forensic
testing confirmed that the firearm was the murder weapon, since all the fired
cartridge casings found at the scene were fired by that gun. Id. at 158, 169-
71. The projectiles recovered from Victim’s body also had markings consistent
with having been fired by the firearm. Id. at 160-169. Gunshot residue was
recovered from the sleeves of Appellant’s gray sweatshirt. See N.T. Jury Trial
2/25/16, at 133-35. Appellant did not have a license to carry and the serial
number on the firearm had been obliterated. Id. at 147-48, 158-60.
Police also recovered University of Pennsylvania video surveillance of a
man fitting Appellant’s description running northbound on 40 th Street
approximately fifteen minutes prior to the shooting. See N.T. Jury Trial,
2/24/16, at 13-14. The man entered a parked car on 41st Street, moved ten
spaces, and re-parked the vehicle. Id. The man then exited the vehicle and
walked eastbound on Spruce Street towards the Copabanana. Id. When the
shooting happened minutes later, officers of the University of Pennsylvania
Police Department determined that the vehicle was registered to Appellant
and alerted Philadelphia police. Id. at 21, 53. Upon approaching the vehicle
officers noticed that the center console was open, which was consistent with
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the eyewitnesses’ stories about Appellant briefly leaving the Copabanana,
before returning with a firearm. Id. at 54-55.
One week before trial, McElveen met with a Philadelphia police officer
and the prosecutor. See N.T. Jury Trial, 2/26/16, at 28-29. During the
meeting, McElveen stated that “word was out on streets that he is a snitch”
and expressed fear of people that would be attending Appellant’s trial. Id. at
29. McElveen informed the Commonwealth representatives that he would not
voluntarily testify at Appellant’s trial. Id. After the meeting, the
Commonwealth secured a bench warrant to compel McElveen’s attendance
and participation. N.T. Jury Trial, 2/23/16, at 45.
On February 23, 2016, Appellant proceeded to a jury trial. Therein,
Samuels reaffirmed her earlier identification of Appellant. See N.T. Jury Trial,
2/25/16, at 37-39, 42, 44, 69. However, Burton declined to explicitly identify
Appellant as the shooter. Instead, she stated that Appellant was standing
right next to her before the shooting and that the shooting happened right
next to her, but asserted that she did not witness it. See N.T. Jury Trial
2/23/16, at 103, 115, 117-21. McElveen also initially failed to make an in-
court identification of Appellant, testifying that Appellant looked like the
shooter but that he was too intoxicated during the shooting to make a valid
identification. Id. at 39, 45. However, on redirect examination he conceded
that he “knew what he was doing” when he unequivocally identified Appellant
as the shooter but was afraid of testifying and “being labeled a snitch.” Id.
at 46, 50. At the conclusion of the trial, Appellant was convicted of first-
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degree murder, carrying a firearm without a license, and possession of an
instrument of crime.
The trial court sentenced Appellant to serve life in prison without the
possibility of parole for his first-degree murder conviction. No further penalty
was imposed on the remaining counts. Appellant filed a post-sentence motion
that was denied by operation of law. On direct appeal, Appellant raised a due
process challenge to the trial court’s first-degree murder jury instruction.
However, since trial counsel failed to lodge a specific objection to the charge
when it was read to the jury, we found the issue was waived and affirmed
Appellant’s judgment of sentence. See Commonwealth v. Gaynor, 179
A.3d 574 (Pa.Super. 2017) (unpublished memorandum at *2). Alternatively,
we held that, if the claim had been properly preserved it still would have failed
because it was meritless. Id. at *2 n. 5. Appellant submitted a petition for
allowance of appeal to our Supreme Court, which was denied.1 See
Commonwealth v. Gaynor, 654 Pa. 141 (Pa. 2019).
On October 4, 2019, Appellant filed the timely PCRA petition that is the
subject of this appeal. Appointed counsel submitted an amended petition,
alleging multiple claims of trial counsel ineffectiveness. After issuing
Pa.R.Crim.P. 907 notice, the PCRA court dismissed the petition without a
hearing. This timely appeal followed.
Appellant raises the following issues for our review: ____________________________________________
1Appellant filed his petition for allowance of appeal nunc pro tunc following a PCRA proceeding wherein his appellate rights were reinstated.
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I. Was Appellant denied his rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, [§] 9 of the Pennsylvania Constitution when trial counsel ineffectively failed to timely object and/or renew his objection to an unconstitutional jury instruction thereby waiving it and precluding appellate review?
II. Was Appellant denied his rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1, [§] 9 of the Pennsylvania Constitution when trial counsel ineffectively failed to file a pre-trial motion to suppress the initial identification of Appellant by McElveen and Burton, did not object to the in-court identification by McElveen and then failed to request that the jury be given a [charge pursuant to Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954)]?
III. Was Appellant denied his rights under Article 1 § 9 [of] the Constitution of the Commonwealth of Pennsylvania and the Sixth and Fourteenth Amendments to the Constitution of the United States of America to effective assistance of counsel in that trial counsel failed to object to the prosecutor’s questioning of McElveen and comments during closing argument that McElveen feared testifying when there was no evidence of record of any nexus between those fears and the Appellant?
IV. Was Appellant denied his rights under Article 1 § 9 [of] the Constitution of the Commonwealth of Pennsylvania and the Sixth and Fourteenth Amendments to the Constitution of the United States of America to effective assistance of counsel in that trial counsel failed to move to suppress and/or object to introduction of a photograph taken by an unidentified person who was not called to testify at the trial, violating Appellant’s rights under the Confrontation Clause?
Appellant’s brief at 3-4.
We begin with a discussion of the pertinent legal principles. Our “review
is limited to the findings of the PCRA court and the evidence of record,” and
we do not “disturb a PCRA court’s ruling if it is supported by evidence of record
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and is free of legal error.” Commonwealth v. Diggs, 220 A.3d 1112, 1116
(Pa.Super. 2019). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Id. “It is
an appellant’s burden to persuade us that the PCRA court erred and that relief
is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019)
(citing Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012)).
All of Appellant’s arguments raise allegations of trial counsel
ineffectiveness. Counsel is presumed to be effective, and a PCRA petitioner
bears the burden of proving otherwise. See Commonwealth v. Becker, 192
A.3d 106, 112 (Pa.Super. 2018). To do so, a petitioner must plead and prove
that: (1) the legal claim underlying his ineffectiveness claim has arguable
merit; (2) counsel’s decision to act (or not) lacked a reasonable basis designed
to effectuate the petitioner’s interests; and (3) prejudice resulted. Id. The
failure to establish any of the three prongs is fatal to the claim. Id. at 113.
I. First Degree Murder Jury Instruction
In his first claim Appellant argues that trial counsel was ineffective when
he failed to object to an unconstitutional jury instruction. See Appellant’s
brief at 12. To assess the merits of the underlying claim, we review the trial
court’s jury instruction as follows:
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[T]he reviewing court must consider the charge as a whole to determine if the charge was inadequate, erroneous, or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. A new trial is required on account of an erroneous jury instruction only if the instruction under review contained fundamental error, misled, or confused the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 762 (Pa. 2009) (citations and
quotations omitted).
At issue in the case sub judice is the following jury instruction:
If you find that the defendant used a firearm in committing the acts that are charged in this case, which is murder, and that the defendant did not have a license to carry that firearm as required by law, you may regard that as one of the items of circumstantial evidence on the issue of whether the defendant intended to commit the crime of murder as is charged in this case. It is for you to determine what weight, if any, you will give to that item of circumstantial evidence. Evidence of non-licensure alone is not sufficient to prove that the defendant intended to commit the offense of murder.
N.T. Jury Trial, 2/26/16, at 87 (emphases added). This instruction was drawn
directly from a standard jury instruction based on 18 Pa.C.S. § 6104, which
provides as follows:
In the trial of a person for committing or attempting to commit a crime enumerated in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms), the fact that that person was armed with a firearm, used or attempted to be used, and had no license to carry the same, shall be evidence of that person’s intention to commit the offense.
See also Pa. SSJI (Crim) 15.6104. Murder is one of the crimes enumerated
in § 6105. See 18 Pa.C.S. § 6105(b).
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Appellant alleges that the jury instruction violated his due process
rights. Our Supreme Court has held that an instruction based on § 6104
violates due process “when it form[s], by itself, the mandatory basis of a
mandatory presumption of intent.” Commonwealth v. Kelly, 724 A.2d 909,
913 (Pa. 1999) (emphasis in original). However, instructions that create a
permissive inference of intent have been upheld. See Commonwealth v.
Hall, 830 A.2d 537, 549-50 (Pa. 2003). This is because a permissive
inference leaves the fact-finder free to accept or reject the inference. Id. at
547-48. Accordingly, due process is only implicated in those permissive
inference circumstances where, “under the facts of the case, there is no
rational way the trier [of fact] could make the connection permitted by the
inference.” Id. at 546.
Here, the PCRA court properly found that the relevant instruction was
permissive. See PCRA Court Opinion, 10/22/21, at 5-6. The trial court did
not instruct the jury that it was required to view the use of an unlicensed
firearm as evidence of Appellant’s intent to commit homicide. Rather, the trial
court advised the jury that, if they found Appellant used a firearm in the
commission of the murder, then they could regard that fact as an item of
circumstantial evidence supporting an inference that Appellant intended to
commit the crime. See N.T. Jury Trial, 2/26/16, at 87. The trial court also
cautioned the jury that evidence of Appellant’s non-licensure, alone, would be
insufficient to prove such intent. Id. Accordingly, we agree that the trial court
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issued a permissive instruction and, therefore, Appellant’s due process claim
turns upon whether, “under the facts of the case, there [was] no rational way
the trier [of fact] could make the connection permitted by the inference.”
Hall, supra at 546.
Appellant contends that the permissive inference was unconstitutional
because there was “absolutely no evidence linking [him] to the gun.”
Appellant’s brief at 16. In support of his position, Appellant points out that
the gun was not recovered upon his person and that no fingerprints or DNA
linked the weapon to him. Id. at 16-17. In contrast, the Commonwealth and
PCRA court found ample circumstantial support for the inference that
Appellant possessed the unlicensed firearm and did so with the specific intent
to kill the victim. See Commonwealth’s brief at 13. We agree with the
Commonwealth and PCRA court that Appellant has failed to establish that the
facts of this case did not support such an inference.
Here, as in Hall, Appellant “was not simply detected in possession of an
unlicensed firearm; he was caught in the act of firing it at another man.” Hall,
supra at 549. Prior to the crime, the video evidence showed Appellant
running to, entering, and hurriedly re-parking his vehicle before returning to
the scene of the murder within minutes of the shooting. See N.T. Jury Trial,
2/24/16, at 13-14, 20-21. This suspicious movement, along with the fact that
he left the center console open, was consistent with the Commonwealth’s
theory that Appellant hid an unlicensed firearm in his car which he then
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retrieved to kill Victim. Id. at 54-55. After the shooting, multiple
eyewitnesses identified Appellant as the perpetrator who fired multiple shots
that struck Victim’s vital organs, including his heart. N.T. Jury Trial, 2/23/16,
at 44-45, 48-49, 52, 102-04, 121; see also N.T. Jury Trial, 2/25/16, at 37,
41-42. Furthermore, after Victim fell to the ground, eyewitnesses observed
Appellant step over him and continue firing directly into Victim’s body. See
N.T. Jury Trial, 2/25/16, at 37. While the firearm was not located on
Appellant’s person, it was discovered along Appellant’s flight path and
forensically linked to the recovered casings and bullet fragments. See N.T.
Jury Trial, 2/23/16, at 129, 140, 152; see also N.T. Jury Trial, 2/24/16, at
129-30, 158, 160-71. Forensic testing also revealed gunpowder residue on
Appellant’s sleeves. See also N.T. Jury Trial, 2/25/16, at 133-35.
Based upon this evidence, the jury could reasonably infer that Appellant
possessed a firearm and shot it at Victim with the intent to kill him. Since the
trial court gave a permissive inference instruction that was rationally
connected to the evidence, Appellant’s argument is meritless. Accordingly,
trial counsel was not ineffective for failing to assert a meritless objection and
no relief is due on Appellant’s first claim.
II. Eyewitness Identification
In his second issue, Appellant alleges that trial counsel was ineffective
when he failed to seek pretrial suppression of the out-of-court identifications
of Appellant by McElveen and Burton as unduly suggestive. See Appellant’s
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brief at 21. Further, Appellant contends that trial counsel was also ineffective
for failing to object to McElveen’s in-court identification of Appellant. Id. at
23. Alternatively, Appellant suggests that counsel was ineffective for failing
to request a Kloiber instruction regarding the poor lighting conditions.2 Id.
In evaluating whether an out-of-court identification should be
suppressed, the suggestiveness of the underlying identification procedure is
but one factor to be considered. Overall, “the central inquiry is whether, under
the totality of the circumstances, the identification was reliable.”
Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super. 2003). As this
Court has explained, the following factors are to be considered in determining
the propriety of admitting identification evidence: “(1) the opportunity of the
witness to view the perpetrator at the time of the crime; (2) the witness’[s]
degree of attention; (3) the accuracy of his prior description of the perpetrator
at the confrontation; (4) the level of certainty demonstrated at the
confrontation; and (5) the time between the crime and confrontation.”
Commonwealth v. Milburn, 191 A.3d 891, 899-900 (Pa.Super. 2018)
(citing Moye, supra). The corrupting effect of the suggestive identification,
if any, must be weighed against these factors. Commonwealth v. Wade,
33 A.3d 108, 114 (Pa.Super. 2011).
____________________________________________
2 A Kloiber instruction advises the jury that witnesses sometimes make mistakes in identification, and that, if certain factors are present, the accuracy of the identification is so doubtful that a jury must receive it with caution. See Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa. 1954).
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Absent some special element of unfairness, a prompt “one[-]on[-]one”
identification is not so suggestive as to give rise to an irreparable likelihood of
misidentification. Id. Indeed, “we have regularly held that a prompt one-on-
one identification enhances the reliability of the identification.”
Commonwealth v. Hale, 85 A.3d 570, 574 (Pa.Super. 2014) (affirming
denial of suppression where the defendant was handcuffed and police asked
the victim to identify defendant as the perpetrator, because the victim had a
sufficient opportunity to view the defendant and the period between the crime
and her identification was brief); see also Commonwealth v. Armstrong,
74 A.3d 228, 239 (Pa.Super. 2013) (affirming conviction where the police
asked the victim to make a one-on-one identification of a handcuffed
defendant less than ten minutes post-attempted break-in, after police picked
up the defendant “running” through victim’s apartment complex).
Accordingly, an out-of-court identification should only be suppressed where
“the facts demonstrate that the identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Commonwealth v. Kendricks, 30 A.3d 499, 504
(Pa.Super. 2011).
Appellant alleges that Burton’s identification procedure was unduly
suggestive because it was one-on-one: Appellant was handcuffed and officers
asked Burton to identify him. Also, Burton later recanted portions of her initial
statement, testifying at trial that she did not see a gun or the shooting. See
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Appellant’s brief at 23-24. The PCRA court declined to find counsel was
ineffective concluding that the out-of-court identification was admissible. See
PCRA Court Opinion, 10/22/21 at 7. We agree with the PCRA court that the
substantive claim lacks merit.
Considering the totality of the circumstances surrounding Burton’s
identification, we conclude that any corrupting effect of the handcuffs and
officer suggestion were outweighed by the other indicia of reliability. Prior to
the shooting, Burton had sufficient time to view Appellant outside the bar since
she was standing right next to him and the area was well-illuminated from the
bar lights. See N.T. Jury Trial, 2/23/16, at 119-20, 130. Minutes after the
shooting, Burton “immediately” identified Appellant as the shooter to the
police, exclaiming “we was standing right there and we could’ve been killed.”
N.T. Jury Trial, 2/26/16, at 15-16, 27. Accordingly, Burton’s identification was
similar to those this Court upheld in Hale and Armstrong, rendering this
aspect of Appellant’s second ineffectiveness claim devoid of arguable merit.
Therefore, trial counsel was not ineffective for failing to file a pretrial motion
to suppress Burton’s identification of Appellant.
We also agree with the PCRA court that Appellant’s challenge concerning
McElveen’s out-of-court identification is meritless. Prior to the shooting,
McElveen had ample time to observe Appellant inside and outside the bar.
See N.T. Jury Trial, 2/23/16, at 39-40. Afterwards, McElveen took a picture
of Appellant and pursued him as he fled. Id. at 61-62. McElveen eventually
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caught up with Appellant while he was being detained by the police,
volunteering to the arresting officers that Appellant was indeed the
perpetrator they sought. Id. at 62-63. McElveen’s confident identification
was not prompted by the police. Id. at 63. Accordingly, a suppression motion
challenging this identification would also have been unsuccessful.
Appellant also relies on certain inconsistencies between McElveen’s
initial on-scene statements and his trial testimony to allege that the
identification should have been suppressed. See Appellant’s brief at 25-26.
However, trial counsel would have had no reason to anticipate that McElveen
would revise his pre-trial version of events at trial and there is no guarantee
he would have done so at a pre-trial suppression hearing. Thus, trial counsel
was not ineffective for failing to challenge the admissibility of McElveen’s
identification of Appellant and no relief is due.3
In his final sub-claim, Appellant argues that trial counsel was ineffective
for failing to request a Kloiber charge with respect to these identifications.
See Appellant’s brief at 31. It is well-established that a Kloiber charge is
only appropriate when the accuracy of the testimony of an eyewitness’s
3 Since we find that the out-of-court identification was not unduly suggestive, it is not necessary to determine whether McElveen’s subsequent in-court identification had an independent basis to support admissibility. See Commonwealth v. DeJesus, 860 A.2d 102, 113 (Pa. 2004) (explaining that where an appellant fails to establish that an out-of-court identification was impermissibly tainted, it is not necessary for the reviewing court to address the derivative assertion that an in-court identification should have been suppressed).
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identification is “so doubtful that the Court should warn the jury that the
testimony as to identity must be received with caution.” Kloiber, supra at
826-27; see also Commonwealth v. Rios, 920 A.2d 790, 804 (Pa. 2007).
Specifically, a trial judge must provide the instruction “where the eyewitness:
(1) did not have an opportunity to clearly view the defendant; (2) equivocated
on the identification of the defendant; or (3) had a problem making an
identification in the past.” Commonwealth v. Ali, 10 A.3d 282, 303 (Pa.
2010). A Kloiber charge is not appropriate where an eyewitness had
“protracted and unobstructed views” of the defendant and consistently
identified the defendant “throughout the investigation and at trial.” Id.; see
also Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa.Super. 2000).
First, Appellant alleges that the Kloiber instruction was required
because McElveen was intoxicated. See Appellant’s brief at 30-31. The PCRA
court held that the claim was meritless because other evidence corroborated
McElveen’s identification. See PCRA Court Opinion, 10/22/21, at 10.
Meanwhile, the Commonwealth contends that there was no basis for counsel
to request a Kloiber charge as to McElveen, since intoxication does not
warrant a Kloiber instruction. See Commonwealth’s Brief at 18-19. We
agree with the Commonwealth. See Commonwealth v. Dozier, 208 A.3d
1101, 1103 (Pa.Super. 2019) (“[W]e may affirm a PCRA court’s decision on
any grounds if the record supports it.”).
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It is well-established that an eyewitness’s level of intoxication relates to
the credibility of their testimony, not their actual physical ability to observe
the perpetrator from their respective position. See, e.g., Commonwealth
v. Reid, 99 A.3d 427, 449 (Pa. 2014) (“[T]he need for a Kloiber charge
focuses on the ability of a witness to identify the defendant.” (emphasis in
original)). Accordingly, McElveen’s testimony about his level of intoxication
did not warrant a Kloiber charge and trial counsel was not ineffective for
failing to request one on that basis. See Commonwealth v. Paolello, 665
A.2d 439, 455 (Pa. 1995) (finding counsel was not ineffective for failing to
request a Kloiber charge where the eyewitnesses were intoxicated).
Appellant also avers that trial counsel should have requested a Kloiber
charge because Burton testified that she did not see the shooting and did not
identify Appellant as the shooter at trial. See Appellant’s brief at 30-33. Since
this testimony contradicted her initial statement to police in which she did
positively identify Appellant as the shooter, Appellant argues that a Kloiber
instruction was warranted. Id. We disagree.
Since Burton did not actually identify Appellant as the shooter in court,
a Kloiber instruction was unnecessary. See Commonwealth v. Sanders,
42 A.3d 325, 335 (Pa.Super. 2012). The facts in Sanders are similar to the
facts herein. In Sanders, a shooting victim identified the defendant as the
shooter twice, in a photo array and a written statement. However, at trial the
victim did not identify the defendant and stated that he could not recall making
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a prior identification. The defendant requested a Kloiber instruction, but his
request was denied. On appeal, we agreed with the trial court, finding that
“[u]nlike the typical Kloiber situation, where there is a damaging in-court
identification of the accused, the same type of concerns [were] not present
where a witness decline[d] to identify the defendant in court.” Id. Thus, as
in Sanders, Appellant’s claim that trial counsel was ineffective due to his
failure to request a Kloiber instruction pertaining to Burton had no merit,
because the circumstances that warrant a Kloiber charge were not present.
III. Direct Examination of McElveen and Closing Argument
In his third PCRA claim, Appellant argues that trial counsel was
ineffective when he failed to object to the prosecutor improperly questioning
McElveen and making inflammatory remarks in her closing argument. See
Appellant’s brief at 36. We consider each argument in turn.
Appellant’s first sub-claim of this issue refers to the portion of
McElveen’s direct examination in which the jury learned that the
Commonwealth obtained a warrant to secure McElveen’s presence at trial.
The warrant was necessitated after McElveen told the prosecutor that he would
not voluntarily appear at Appellant’s trial because people had approached him
in the neighborhood and he was afraid of being branded a “snitch.” See N.T.
Jury Trial, 2/23/16, at 45-46, 67-68. The PCRA court held that this claim was
meritless because Appellant “failed to prove that any of these questions asked
by the prosecution were based on lies or any untrue information.” See PCRA
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Court Opinion, 10/22/21, at 11. The Commonwealth contends that this line
of questioning was permissible to explain inconsistencies between McElveen’s
trial testimony and prior statements. See Commonwealth’s brief at 21. We
agree with the Commonwealth. See Dozier, supra at 1103 (reiterating the
principle that we may affirm a PCRA court’s decision on any grounds if the
record supports it). Our Supreme Court has held that a prosecutor’s
questioning of a witness concerning his fear of testifying is permissible to
explain a witness’s motive to testify untruthfully. See Commonwealth v.
Collins, 702 A.2d 540, 544 (Pa. 1997) (recognizing well-established
precedent in Pennsylvania that third-party threats are admissible to explain a
witness’s prior inconsistent statement). Accordingly, Appellant’s first sub-
claim lacks merit and the PCRA court properly denied it.
Next, Appellant argues that trial counsel was ineffective when he failed
to object to prosecutorial misconduct in closing argument. See Appellant’s
brief at 40. The legal standard for an ineffectiveness claim arising out of an
allegation of prosecutorial misconduct is as follows:
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. . . .
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
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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. Hairston, 249 A.3d 1046, 1067 (Pa. 2021) (quoting
Commonwealth v. Chmiel, 30 A.3d 1111, 1181-82 (Pa. 2011)) (internal
citations omitted).
Appellant contends that the prosecutor’s comments regarding
McElveen’s fear of testifying should have been inadmissible because they were
not supported by the evidence. See Appellant’s brief at 41. However, the
PCRA court found that the Commonwealth’s closing remarks constituted a fair
response to trial counsel’s closing argument. See PCRA Court Opinion,
10/22/21, at 13. We agree.
The record reflects that trial counsel attacked the credibility of McElveen
in his closing remarks, including his fear of testifying as follows:
What did McElveen tell you? Let’s get to this right away about being afraid. Did this guy look afraid to you[? H]e didn’t look like it to me. Again, you’re the fact-finders. You could tell by his manner of testifying he ain’t afraid of nobody. He wasn’t afraid of anything.
N.T. Jury Trial, 2/26/16, at 12. In response, the prosecutor argued:
Now, Counsel says we know what kind of guy Tim McElveen is. He’s rough. He uses bad language. You know, Tim McElveen – I don’t know what – he’s under pressure – he’s under pressure. He lives in the neighborhood. He says to you quite honestly it’s not good to be seen as a snitch. He told [Detective John Harkins] that he was fearful about the safety of his mother; safety of his
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family and himself.[4] He knows that he’s a snitch, but he lives in that neighborhood and that’s where he has to stay; that’s where he likes it.
So, he tells you that he has reservations. That even when he spoke to the police he said, “I thought I was doing what I had to do when I pointed him out and I would be done.”
You can say what you want about Tim McElveen. Counsel can s[n]e[e]r at the way he addresses you or the way he speaks, but Tim McElveen would in another era had [sic] been a hero.
He would have been a hero the night [Victim] was murdered, and you can’t take that away from him. No matter what happens to him, if he succumbs to pressures now; that he doesn’t want to testify consistently to what he saw because he’s scared.
....
Now, unfortunately the pressures of life in the last two years have gotten to a point where he’s scared. He’s scared to come here. He looks, you know, Counsel is looking at him, and it doesn’t look like he’s afraid of anything, and he doesn’t. He says, “How does he know who’s going to be in the courtroom? Why would he be afraid to come to the 8th floor?”
Well, he’s not stupid. He knows there are people that are going to be in the courtroom. He knows that there are relatives of people. He knows that people are all going to be here and they’re going to know people – they’re going to know that he, Tim McElveen, appeared in a homicide case and gave evidence for the Commonwealth, and he’s afraid what that’s going to mean when he goes back home. What it’s going to be for people he knew,
4 At trial, Detective Harkins testified that he interviewed McElveen at 3:35 a.m. on April 15, 2014. See N.T. Jury Trial, 2/26/16, at 35. At the beginning of the interview, McElveen indicated that he did not understand why he needed to be involved further since he had already made an identification and told the police what happened on scene. Id. at 37. McElveen also expressed concern about giving a formal statement because it would be turned over to Appellant. Id. at 37.
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they know, or related to them; whether their safety is going to be challenged.
N.T. Jury Trial, 2/26/16, at 17-22.
Since the at-issue remarks were made in fair response to trial counsel’s
argument, no misconduct occurred, and Appellant’s underlying claim of
prosecutorial misconduct is baseless. Furthermore, Appellant was not
prejudiced since the trial court instructed the jury that the arguments of
counsel were not evidence, and the jury is presumed to have followed the
court’s instruction. See N.T. Jury Trial, 2/26/16, at 92; see also
Commonwealth v. Tedford, 960 A.2d 1, 37 (Pa. 2008). Since the
underlying claim lacks merit, the PCRA court did not err in dismissing the
derivative ineffective assistance of counsel claim.
IV. Admission of Photograph
Finally, Appellant attacks trial counsel’s effectiveness for failing to object
when the Commonwealth sought to introduce a photograph that was taken
and posted to Instagram by a person who did not testify. See Appellant’s
brief at 45. Appellant alleges that absent testimony from the photographer,
Kareema,5 this admission violated his Sixth Amendment right to confront
5 Kareema’s last name was not revealed at trial. However, McElveen did specify that this was a different Kareema than Kareema Burton, who testified at trial and was present for the shooting. See N.T. Jury Trial, 2/23/16, at 94- 95.
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adverse witnesses because it implied that an absent witness had important
information about the shooting. Id. at 46.
The PCRA court found the claim was meritless since McElveen did not
testify that Kareema told him anything that could be considered a testimonial
statement, Appellant’s allegation that Kareema had information about
Appellant’s involvement in the crime was “mere speculation,” and the “court
was unable to locate any legal authority that has held that a photograph, in
and of itself, [was] testimonial in nature.” See PCRA court opinion, 10/22/21,
at 17. Furthermore, the PCRA court found that Appellant suffered no prejudice
from the absence of Kareema’s testimony, since she was not the one who
provided the police with the photo or described the man depicted as the
shooter. Id. at 18. We agree with the PCRA court.
Whether a defendant has been denied his right to confront a witness is
a question of law for which our standard of review is de novo and our scope
of review is plenary. See Commonwealth v. Brown, 185 A.3d 316, 409
(Pa. 2018) (plurality). The Confrontation Clause of the Sixth Amendment
prohibits out-of-court testimonial statements by a witness, unless the witness
is unavailable and the defendant had a prior opportunity to cross-examine the
witness. See Crawford v. Washington, 541 U.S. 36 (2004). Thus, the
threshold question is whether the at-issue evidence constituted a testimonial
statement.
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In analyzing whether a statement is testimonial, and, therefore, subject
to the protections of the Confrontation Clause under Crawford, a court must
determine whether the primary purpose of the evidence was to establish or
prove past events relevant to a later criminal prosecution. See
Commonwealth v. Allhouse, 36 A.3d 163, 175 (Pa. 2012). Our courts have
described the class of testimonial evidence covered by the Confrontation
Clause as:
ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
Commonwealth v. Dyarman, 73 A.3d 565, 568 (Pa. 2013) (quoting
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10 (2009)).
Accordingly, our courts have generally construed testimonial evidence as a
written or oral statement. Id. Appellant has not provided a case where a
photograph was considered a testimonial statement and we have not been
able to locate one. See, e.g. Brown, supra at 331 (upholding testimony by
medical examiner who did not conduct the autopsy because the doctor’s
opinion relied on autopsy photographs, which were non-testimonial).
Based on our review of the record, we find that the photograph was non-
testimonial since the evidence did not reveal that the image was captured in
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anticipation of trial or for the purpose of proving Appellant committed the
shooting. Instead, trial testimony revealed that Kareema posted the
photograph to Instagram forty-five minutes prior to the shooting. See N.T.
Jury Trial, 2/26/16, at 50. The image depicted a man and a woman standing
side-by-side and was captioned “look who grew up.” See Commonwealth
Exhibit 49. While trial testimony did not reveal any information regarding the
circumstances surrounding where or when the image was captured, McElveen
testified that he did not see Kareema at the Copabanana or outside the bar
on the night of the shooting. See N.T. Jury Trial, 2/23/16, at 93-95. McElveen
testified that, although his friend Kareema sent him the posting through
Instagram, McElveen was the one who provided it to the police and identified
the man depicted as the person who shot Victim. See N.T. Jury Trial, 2/23/16,
at 93-95. Accordingly, the testimonial statement was made by McElveen, not
Kareema.
To the extent that the fact that Kareema sent McElveen the photograph
could be considered a testimonial statement, no relief would be due. As the
PCRA court aptly pointed out, the photograph was merely cumulative evidence
that corroborated the earlier on-scene identifications of Appellant by
McElveen, Burton, and Samuels. See PCRA Court Opinion, 10/22/21, at 18.
Accordingly, Appellant was not prejudiced by the admission of the photograph
and the PCRA court did not err when it denied relief on Appellant’s final issue.
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V. Conclusion
For the foregoing reasons, Appellant has failed to convince us that the
PCRA court erred in denying his PCRA petition and that relief is due.
Consequently, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/15/2022
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