Com. v. Jones, M.

Opinion

J-S21020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL JONES

Appellant No. 1879 EDA 2014

Appeal from the PCRA Order May 29, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007421-2009

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 21, 2015

Appellant Michael Jones appeals from the order of the Philadelphia

County Court of Common Pleas dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts of this case. Opinion, 9/24/2014, 2-4, 14-16. Therefore, we have no

reason to restate them.

On April 7, 2010, a jury convicted Appellant of burglary.1 On June 23,

2010, the trial court sentenced Appellant to seven to fourteen years’

incarceration. N.T., 6/23/2010, at 23-24. Appellant filed a post-sentence

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S § 3502. J-S21020-15

motion, which the trial court denied on July 23, 2010. On July 26, 2010,

Appellant filed a timely notice of appeal. On December 13, 2010, this Court

dismissed the appeal for failure to file a brief.

On January 3, 2011, Appellant filed a timely pro se PCRA petition

requesting reinstatement of his appeal rights. On February 23, 2011,

Appellant’s counsel filed an amended petition, seeking reinstatement of

Appellant’s direct appeal rights nunc pro tunc. On June 17, 2011, the trial

court granted the PCRA petition and reinstated Appellant’s direct appeal

rights nunc pro tunc. On July 13, 2011, Appellant filed a timely notice of

appeal. On April 27, 2012, this Court affirmed the judgment of sentence.

On May 10, 2012, Appellant filed a pro se PCRA petition. On June 8,

2012 and January 4, 2013, he filed two amended petitions. The trial court

appointed counsel. On December 12, 2013, counsel filed a Turner/Finley2

letter and a motion to withdraw. Counsel filed supplemental Turner/Finley

letters on February 20, 2014 and March 12, 2014. On March 14, 2014, the

trial court issued notice of its intent to dismiss Appellant’s PCRA petition

without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907.

On March 24, 2014, Appellant filed a response. On May 29, 2014, the trial

2 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).

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court dismissed the petition.3 Appellant retained new counsel who filed a

timely notice of appeal on June 30, 2014.4 Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant raises the following issues for our review:

I. Did the [PCRA court] err and deny Appellant his rights under Article 1 sec. 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution by finding that pre-trial counsel was not ineffective for failing to request a line up with Ms. Sheerer which resulted in an unduly suggestive in[-]court identification of the Appellant[?]

II. Did the [PCRA court] err and deny Appellant his rights under Article 1 sec. 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution by finding that counsel was not ineffective for failing to request a Kloiber[5] charge[?]

3 The trial court opinion references a third supplemental Turner/Finley letter filed on May 28, 2014. Opinion, 9/24/2014, at 2. The certified record does not contain this document and it is not reflected on the docket. 4 Thirty days from the date of the May 29, 2014 order was Saturday, June 28, 2014. Because the thirtieth day was a Saturday, Appellant had until Monday, June 30, 2014, to file his notice of appeal. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.”). 5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa.1954). A Kloiber jury charge “instructs the jury that an eyewitness’[s] identification should be viewed with caution 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. Jones, 954 A.2d 1194, 1198 (Pa.Super.2008) (quoting Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa.Super.2000)).

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III. Did the [PCRA court] err and deny Appellant his rights under Article 1 sec. 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution by finding that counsel was not ineffective for failing to timely object to the Commonwealth’s failure to disclosure prior to the suppression hearing their ‘surprise’ witness, Jennifer Malloy[?]

IV. Did the [PCRA court] err and deny Appellant his rights under Article 1 sec. 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution by finding that counsel was not ineffective for failing to challenge the inherently suggestive ‘show up’ identification made by Jennifer Malloy while in the presence of her boyfriend, Christopher Sheerer[?]

V. Did the P.C.R.A. Court err and deny Appellant his rights under Article 1 sec. 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution by finding that counsel was not ineffective for making an improper closing argument which prompted the [c]ourt to prejudicially correct counsel in front of the jury[?]

VI. Did the P.C.R.A. Court err and deny Appellant his rights under Article 1 sec. 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments of the U.S. Constitution by finding that counsel was not ineffective for failing to submit written argument to the trial court related to cross racial identification[?]

[VII]. Did P.C.R.A. Counsel, David Rudenstein[,] violate Appellant’s Sixth and Fourteenth Amendment rights by ineffectively failing to preserve and argue a claim that sentencing counsel, Jeffrey Azzarano, was constitutionally ineffective for failing to object to the use of an inaccurate offense gravity score to sentence the Appellant[?]

Appellant’s Brief at 3-4.

Our standard of review from the denial of post-conviction relief “is

limited to examining whether the court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

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

Morales, 701 A.2d 516, 520 (Pa.1997)).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Glenn B.

Bronson, we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, dated September 24, 2014, at 4-18)

(finding: (1) counsel not ineffective for failing to challenge Alberta Sheerer’s

in-court identification of Appellant where identification flowed from

independent observations Ms. Sheerer made five days prior to preliminary

hearing, where she had clear view of Appellant’s face when he used force to

enter her neighbor’s house, where Ms. Sheerer positively identified Appellant

and was confident in identification, and where there was no reasonable

probability outcome of trial would have been different if counsel had

requested lineup because Officer Berry and Ms. Malloy also identified

Appellant; (2) counsel not ineffective for failing to request Kloiber

instructions where: Ms. Sheerer had unobstructed view of Appellant in her

neighbor’s yard for two to three minutes from approximately 100 feet away

while sun was out, she had opportunity to view Appellant before he entered

house and while he fled, including two times when she was able to view his

face, she identified Appellant at preliminary hearing, and was “a hundred

percent sure” of her identification; Ms. Malloy had ample opportunity to view

Appellant as he moved around and exited her neighbor’s house, and she

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identified him shortly after incident, at preliminary hearing, and at trial; and

Officer Berry saw Appellant attempting to open sliding glass door, while he

was approximately five feet away with unobstructed view, recognized

Appellant shortly after he fled as he watched Appellant attempt to hide

under car, and identified Appellant at preliminary hearing and trial; (3)

Appellant not prejudiced by counsel’s failure to object to Ms. Malloy’s

testimony where counsel fully tested legality of Ms. Malloy’s identification,

evidence established identification was lawful, Appellant had ample

opportunity to investigate because trial was several days after hearing,

counsel had significant opportunity to question Ms. Malloy at motions

hearing, and two other witnesses identified Appellant; (4) counsel not

ineffective for failing to challenge “show up” identification by Ms. Malloy

because counsel did, in fact, challenge it by supplementing omnibus pretrial

motion; (5) counsel not ineffective due to closing argument statements

because, although counsel made objectionable statements during closing

arguments, court properly sustained objections and provided appropriate

directions, court did not demean counsel or Appellant, and objectionable

arguments did not prejudice Appellant; (6) counsel not ineffective for failing

to submit argument related to cross-racial identification because, at time of

trial, expert testimony on eyewitness identification was inadmissible; (7)

claim of counsel ineffectiveness for failure to object to offense gravity score

waived because Appellant did not raise it before trial court and is frivolous

because the court found Appellant’s offense gravity score was 7, not 9, as

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claimed in statement of errors complained of on appeal6).7 Accordingly, we

affirm on the basis of the trial court’s opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/21/2015

6 Appellant maintains that, based on the sentence imposed, the trial court must have used an offense gravity score of 9, which has a standard range of 60 to 72 months’ incarceration, not an offense gravity score of 7, which has a standard range of 35 to 45 months’ incarceration. Appellant’s Brief at 35- 37. At the sentencing hearing, the court noted the offense gravity score was 7 and noted the sentencing guidelines range was 35 to 45 months plus or minus 6 months. N.T., 6/23/2010, at 4. The court then reviewed the aggravating and mitigating factors and departed from the guidelines range when it imposed a sentence of 7 to 14 years’ incarceration. Id. at 20-24. Because the trial court noted the correct guidelines, departed from those guidelines, and provided reasons for its departure, trial counsel is not ineffective for failing to object to the offense gravity score. 7 In his 1925(b) statement, Appellant also claims PCRA counsel was ineffective for “abandoning, without any analysis or discussion in his Finley letter, three of the above meritorious issues which were raised in Appellant’s pro se PCRA petition.” Appellant’s Concise Statement of Matters Complained of on Appeal, dated July 28, 2014, at ¶ VII. Appellant waived this claim because he did not include it in his statement of questions presented or argument sections of his appellate brief. Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”).

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IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

COMMONWEALTH OF CP-5 l-CR-0007 421-2009 PENNSYLVANIA

CP-51-CR-0007421-2009~omm. v. Jon~s. Michael v. Oprmon

MICHAEL JONES I III I IIlllll/ 111111111 Ill 7202914491

OPINION

BRONSON,J. September 24, 2014

On April 7, 2010, following a jury trial before this Court, defendant Michael Jones was

convicted of first-degree burglary (18 Pa.C.S. § 3502). On June 23, 2010, the Court imposed·

a sentence of seven to fourteen years incarceration in state prison. The Court denied

defendant's post-sentence motions on July 23, 2010. On July 26, 2010, defendant filed a

timely notice of appeal. On December 13, 2010, defendant's appeal was dismissed for failure

to file a brief.

On January 3, 2011, defendant filed a prose petition under the Post-Conviction Relief

Act ("PCRA"), requesting reinstatement of his appellate rights. Defendant subsequently

retained counsel, who filed an amended PCRA petition on February 23, 2011. On June 17,

2011, defendant's PCRA petition was granted, and his appellate rights were reinstated nunc

pro tune. Defendant filed a timely Notice of Appeal on July 13, 2011. The Pennsylvania

Superior Court affirmed defendant's sentence on April 27, 2012.

Defendant subsequently filed a second; pro se PCRA petition on May 10, 2012, as well

as two amended petitions. Counsel for defendant, David S. Rudenstein, was appointed on

May 13, 2013. On December 12, 2013, pursuant to Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988), Mr. Rudenstein filed a letter stating there was no merit to defendant's Circulated 03/26/2015 11:42 AM

claims for collateral relief. Mr. Rudenstein subsequently filed supplemental Finley letters on

February 21, 2014, and March 13, 2014. On March 14, 2014, the Court issued notice pursuant

to Pa.R.Crim.P. 907 ("907 Notice") of its intent to dismiss defendant's claims without an

evidentiary hearing. Defendant filed a response to the 907 Notice on April 25, 2014. Mr.

Rudenstein filed a final supplemental Finley letter on May 28, 2014. The Court dismissed

defendant's second PCRA petition on May 29, 2014.

Defendant has now appealed from the Court's dismissal of his second PCRA petition

on the grounds that: 1) pre-trial counsel was ineffective for failing to request a line up for

witness Alberta Sheerer; 2) trial counsel was ineffective for failing to request a Kloiber

charge; 3) trial counsel was ineffective for failing to timely object to the Commonwealth's

failure to disclose Jennifer Malloy as a witness prior to the suppression hearing; 4) trial

counsel was ineffective for failing to challenge defendant's "show up" identification made by

Jennifer Malloy; 5) trial counsel was ineffective for making an improper closing argument,

prompting the Court to prejudicially correct counsel in front of the jury; 6) trial counsel was

ineffective for failing to submit a written argument citing case law relating to cross racial

identification; 7) PCRA counsel, David Rudenstein, was ineffective for failing to address

three of the above claims raised in defendant's prose PCRA petition; and 8) PCRA counsel

was ineffective for failing to preserve and argue a claim that sentencing counsel, Jeffrey

Azarano, was ineffective for failing to object to the use of an inaccurate offense gravity score.

See Statement of Errors Complained of on Appeal ("Statement of Errors") at 11 I-VIII. For

the reasons set forth below, defendant's claims are without merit.

I. FACTUAL BACKGROUND

At trial, the Commonwealth presented the testimony of Philadelphia Police Officer

Anthony Berry, Michael McGeehan, Alberta Scheerer, Jennifer Malloy, Detective Andrew

2 Circulated 03/26/2015 11:42 AM

Danks, and James Ryan. Defendant presented the testimony of Takisha Miller and Timothy

Hoppes. Viewed in the light most favorable to the Commonwealth as the verdict winner, their

testimony established the following.

On May 29, 2009, Alberta Scheerer was at her home, located directly behind 4413

McMenamy Street in Philadelphia. N.T. 4/6/2010 at 48, 71. At approximately 10 a.m., Ms.

Scheerer looked out of her upstairs bedroom window and noticed defendant, whom she did

not recognize, standing in the backyard of her neighbor, Michael McGeehan. N.T. 4/6/2010 at

29, 49-50. Ms. Scheerer continued to watch defendant through the window, and a couple of

minutes later, defendant went to the side of 4413 McMenamy Street, forced open one of the

windows, and climbed inside the house. N.T. 4/6/2010 at 32, 51-52.

Ms. Scheerer then ran down the stairs inside her home and alerted her son, Christopher

Scheerer, and her son's fiancee, Jennifer Malloy, to what she had witnessed. N.T. 4/6/2010 at

53-54. Ms. Malloy went upstairs with Ms. Scheerer, while Mr. Scheerer ran outside to see if

he could flag down a police officer. N.T. 4/6/2010 at 54. Ms. Malloy and Ms. Scheerer

watched through the window as defendant walked around the interior of their neighbor's

home. N.T. 4/6/2010 at 54-55. Outside, Mr. Scheerer located a police officer and brought

him to 4413 McMenamy Street. N.T. 4/5/2010 at 41-42. As Philadelphia Police Officer

Anthony Berry approached, he saw defendant trying to break a sliding glass door to get out of

the home. N.T. 4/5/2010 at 44; 4/6/2010 at 73.

Defendant ran out the back door of the home, jumped over the fence, and ran in the

opposite direction from the Scheerer home. N.T. 4/6/2010 at 55-56. Officer Berry returned to

his patrol car and circled the block, locating defendant approximately ten seconds later

walking northbound up McMenamy Street. N.T. 4/5/2010 at 48, 81. Officer Berry pulled his

patrol car over and asked defendant ifhe could talk to him. N.T. 4/5/2010 at 48-49.

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Defendant ran, with Officer Berry pursuing him first in his patrol car and then on foot. N.T.

4/5/2010 at 49. Officer Berry chased defendant through an apartment complex andover a

fence before defendant finally hid underneath an abandoned car. N.T. 4/5/2010 at 49-51.

Officer Berry drew his weapon, at which point defendant surrendered. N.T. 4/5/2010 at 51.

Another police officer transported Ms. Malloy, accompanied by Mr. Scheerer, to

identify defendant. From the backseat of the officer's patrol car, while defendant stood in the

street, Ms.: Malloy positively identified defendant as the man she saw burglarizing her

neighbor's home. 4/5/2010 at 61-62. Based on Officer Berry and Ms. Malloy's

identifications, defendant was arrested. N.T. 4/5/2010 at 87-88.

Mr. McGeehan arrived home shortly after being notified of the burglary. N.T.

4/6/2010 at 31. He told police that a duffel bag typically filled with gym equipment and kept

in his bedroom had been moved next to the back door. N.T. 4/6/2010 at 32-34, 91. Inside the

duffel bag was a five-gallon water jug in which Mr. McGeehan kept between twelve hundred

to fifteen hundred dollars' worth ofloose change. N.T. 4/6/2010 at 33-37.

II. DISCUSSION

If court-appointed counsel for a PCRA petitioner determines that the issues the

petitioner raises for collateral review are meritless, and the PCRA court concurs, counsel may

withdraw and the petitioner may proceed pro se, by privately retained counsel, or not at all.

Finley, 550 A.2d at 218. To be permitted to withdraw, petitioner's counsel must file a no-

merit letter, or "Finley letter," detailing the nature and extent of counsel's review and listing

each issue the petitioner wished to raise, with counsel's explanation as to why the issues are

meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009) (quoting Finley, 550 A.2d at

215). After reviewing a Finley letter, the PCRA court is required to independently review the

record to evaluate the petitioner's claims. Id A PCRA petition may be dismissed without a

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hearing if the Court determines that there are no claims of arguable merit an:d no purpose

would be served by further proceedings. Commonwealth v. Lignons, 971 A.2d 1125, 1143

(Pa. 2009); see Pa.R.Crim.P. 907(1).

In his pro se PCRA petition, defendant claimed that he was entitled to collateral relief

on the following grounds: 1) pre-trial counsel was ineffective for failing to request a line up

for witness Alberta Sheerer; 2) trial counsel was ineffective for failing to request a Kloiber

charge; 3) trial counsel was ineffective for failing to timely object to the Commonwealth's

failure to disclose Jennifer Malloy as a witness prior to the suppression hearing; 4) trial

counsel was ineffective for failing to challenge defendant's show up identification made by

Jennifer Malloy; 5) trial counsel was ineffective for making an improper closing argument,

prompting the Court to prejudicially correct counsel in front of the jury; and 6) trial counsel

was ineffective for failing to submit a written argument citing case law relating to cross racial

identification. PCRA Petition at pp. 3-5. Defendant raised additional claims in a pro se

amended PCRA petition filed on June 8, 2012, claiming that he was entitled to collateral relief

on the following grounds: 7) pre-trial counsel was ineffective for failing to request a hearing

to "ascertain whether or not the Prosecutor's misstatement were [sic] in fact intentional;" 8)

trial counsel was ineffective for failing to inform defendant that defendant's motion in limine

to exclude defendant' s prior burglary conviction had been granted and that defendant would

have testified had he known; and 9) trial counsel was ineffective for failing to request this

Court recuse itself. See Amended Petition to P.C.R.A. Claims at 2. Defendant then raised an

additional three claims on January 1, 2013, wherein defendant claimed that he was entitled to

collateral relief on the following grounds: 10) trial counsel was ineffective for failing to

follow up and ascertain whether "prosecutor's misstatement of procedure were in fact

intentional as to this Sight Arrest;" 11) trial counsel was ineffective for failing to

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communicate with defendant regarding trial strategy; and 12) trial counsel was ineffective for

not disputing the contradictory stories between the Commonwealth trial witnesses. See

Amended Petition Additional Issues at 2-3. Finally, defendant raised one additional issue in

his 907 Response, alleging that 13) defendant was actually innocent and that trial counsel was

ineffective for failing to preserve a claim of actual innocence on appeal. See Defendant's

Notice of Objection to Intent to Dismiss Post Conviction Relief Act Petition at 2.

In his Finley Letter, and in his three Supplemental Finley Letters, Mr. Rudenstein

stated his opinion that defendant's claims had no arguable merit. After an independent review

of the record, the Court agreed with Mr. Rudenstein.

All of defendant's appellate claims are premised upon his contention that he received

ineffective assistance of counsel. Under Pennsylvania law, counsel is presumed to be

effective and the burden to prove otherwise lies with the petitioner. Commonwealth v.

Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing Commonwealth v. Copenhefer, 719

A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective assistance of

counsel, a petitioner must show that counsel's representation fell below accepted standards of

advocacy and that as a result thereof, the petitioner was prejudiced. Strickland v. Washington,

466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as requiring

proof that: (1) the claim underlying the ineffectiveness claim had arguable merit; (2)counsel's

actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the

petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth

v. Pierce, 527 A.2d 973 (Pa. 1987). To satisfy the third prong ofthe test, the petitioner must

prove that, but for counsel's error, there is a reasonable probability that the outcome of the

proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa.

2006) (citing Strickland, 466 U.S. at 694). If the PCRA court determines that any one of the

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three prongs cannot be met, then the court need not hold an evidentiary hearing as such a

hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008), appeal denied, 956 A.2d 433 (Pa. 2008).

A. Failure to Request Lineup Identification

Defendant first claims that pre-trial counsel was ineffective for failing to request a

lineup identification by witness Alberta Sheerer. Statement of Errors at 1 I. This claim is

without merit.

First, the absence of a pre-trial lineup did not render Ms. Sheerer's identifications of

defendant at the preliminary hearing and trial to be unlawful. A criminal defendant does not

have a constitutional right to a lineup. Commonwealth v. Lark, 462 A.2d 1329, 1335 (Pa.

Super. 1983). The circumstances of a one-to-one identification made at a preliminary hearing

are obviously suggestive. Nevertheless, where, as here, a witness first makes an identification

of a defendant at a preliminary hearing, proof at trial of the identification made at the

preliminary hearing, as well as an in-court identification at trial by that witness, will not

necessarily violate defendant's due process rights. Commonwealth v. Steffy, 399 A.2d 690,

693 (Pa. Super. 1979) (sustaining admission of an identification made at a preliminary hearing

and a subsequent in-court identification at trial where the first confrontation was at the

preliminary hearing). The test is "whether under the 'totality of the circumstances' the

identification was reliable even though the confrontation procedure was suggestive." Steffy,

399 A.2d at 693, quoting Neil v. Biggers, 409 U.S. 188, 199 (1972). "The fact that the

confrontation was on a one-to-one basis in a courtroom setting is not in itself sufficient to

reason to exclude the evidence." Steffy, 399 A.2d at 693; accord, Commonwealth v. Davis,

439 A.2d 195, 198 (Pa. Super. 1981).

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A court must examine the totality of the circumstances to determine if the in-court .

identification "flows independently from the witness' observations at the time of the crime

and not from the unduly suggestive pre-trial confrontation." Steffy, 399 A.2d at 694. These

circumstances include "the opportunity of the witness to view the criminal at the time of the

crime, the witness' [s] degree of attention, the accuracy of the witness' [s] prior description of

the criminal, the level of certainty demonstrated by the witness at the confrontation, and the

length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. at 199-

200. "Of these factors, the opportunity of the witness to observe the defendant at the time of

the incident is considered to be the most important." Davis, 43 9 A.2d at 19 8.

Here, the totality of the circumstances clearly demonstrates that Ms. Sheerer's in court

identification of defendant flowed from the independent observations which she made only

five days prior to the preliminary hearing. At the preliminary hearing, Ms. Scheerer testified

that on the morning of May 29, 2009, she witnessed defendant stand in her neighbor's yard,

then force his way into her neighbor's home. N.T. 6/4/09 at 19. Ms. Scheerer positively

identified defendant as the individual who broke into her neighbor's home only five days

earlier. N.T. 6/4/09 at 20. As defendant stood in the yard, Ms. Scheerer had a clear look at

defendant's face. N.T. 6/4/09 at 23, 26, 28. Ms. Scheerer, therefore, had a clear view of

defendant as he committed the crime, was recalling it shortly afterwards, and was confident in

her identification. Accordingly, the record establishes that Ms. Scheerer's identification of

defendant was reliable, and therefore; her identification testimony did not violate defendant's

due process rights.

Moreover, the record establishes that even if counsel had requested a lineup, and had

that request been granted, there is not a reasonable probability that the outcome of the trial

would have been different. Because Ms. Scheerer's identification was highly reliable, it is

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unlikely that she would have failed to make an identification at a lineup. Moreover, in

addition to Ms. Sheerer' s identification, defendant was also identified as the perpetrator at trial

by Officer Berry, who arrested defendant only moments after viewing defendant inside

McGeehan's home. N.T. 4/5/10 at 45-52. Finally, defendant was identified by Malloy via an

in person show up identification moments after defendant was apprehended as well as at trial.

N.T. 4/6/10 at 73, 77. Accordingly, the record establishes that counsel's failure to request a

line up did not deprive defendant of effective assistance of counsel as defendant cannot show

that he was prejudiced by the lack of a line up identification by Ms. Sheerer.

B. Failure to Request Kloiber Charge

Defendant next claims that trial counsel was ineffective for not requesting that the

Court give the jury a Kloiber charge. Statement of Errors at ,r II. This claim is without merit.

A Kloiber charge instructs the jury to receive a witness's identification of a perpetrator ·

with caution where the eyewitness: 1) did not have an opportunity to clearly view the

perpetrator; 2) equivocated on the identification of the perpetrator; or 3) had a problem

making an identification in the past. Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa.

1954), cert. denied, 348 U.S. 875 (1954); see Commonwealth v. Rios, 920 A.2d 790, 804 (Pa.

2007)~ A Kloiber charge is not appropriate where an eyewitness's identification of the

defendant was always positive and the opportunity for the witness to observe the defendant

was good. Kloiber, 106 A.2d at 826; Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa. Super.

2000). Here, a Kloiber charge was clearly not warranted. While defendant did not specify for

which witness trial counsel should have requested a Kloiber charge, all witnesses clearly

viewed defendant, were unequivocal in their identification, and never had past issues in their

identification.

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Alberta Sheerer was the first individual to see defendant standing in the backyard of

McGeehan's home at approximately 10:00 in the morning. N.T. 4/6/10 at 49. Ms. Sheerer

watched defendant for approximately two or three minutes from approximately 100 feet away

while the sun was out and nothing was obstructing her view. N.T. 4/1/10 at 22; 4/6/10 at 50.

Throughout the incident, Ms. Sheerer had an opportunity to view defendant before he entered

the house, while he was in the house, and as he fled the house, including two times where

defendant was facing her and she was able to view his face. N.T. 4/6/10 at 51, 54-56. Ms.

Sheerer further identified defendant at the preliminary hearing on June 4, 2009, at a motions

hearing on April 1, 2010, and again at trial, where she stated that she was "a hundred percent

sure" defendant was the individual she saw entering McGeehan's home. N.T. 6/4/09 at 20;

4/1/10 at 16, 23; 4/6/10 at 57-58. As Ms. Sheerer clearly viewed defendant, unequivocally

indentified him, and did not have past issues in her identification, trial counsel could not err

by failing to request a Kloiber challenge.

Similar to Ms. Sheerer, Malloy had ample opportunity to view defendant as he moved

around the house and eventually exited. N.T. 4/6/10 at 73-75. Shortly following defendant's

apprehension by police, Malloy was transported to the location where defendant was being

detained and identified defendant as the individual she had seen inside McGeehan's home.

N.T. 4/6/10 at 77. Like Ms. Sheerer, Malloy positively identified defendant at the April 1

motions hearing and again at trial. N.T. 4/1/10 at 35; 4/6/10 at 73. As Malloy clearly viewed

defendant, unequivocally indentified him, and did not have past issues in her identification,

trial counsel could not err by failing to request a Kloiber charge.

Officer Anthony Berry, similarly, had sufficient time to view defendant and

subsequently identify him. When Berry first approached McGeehan's home, he viewed

defendant attempting to open a sliding glass door. N.T. 4/5/10 at 44. At the time Berry made

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these observations, he was approximately five feet away from defendant with nothing

obscuring his view. N.T. 4/5/10 at 45. While Berry lost sight of defendant after he fled the

house through the back door, Berry testified that he saw defendant approximately ten-seconds

later as defendant walked down McMenamy Street. N.T. 4/5/10 at 48 .. Berry then chased

defendant as he attempted to flee and watched as defendant attempted to hide under an

abandoned car. N.T. 4/5/10 at 49,-50. Upon apprehending defendant, Berry recognized him as

the individual he had seen in McGeehan's home. N.T. 4/5/10 at 52. Officer Berry again

identified defendant at the April 1, 2010 motions hearing and finally at trial. N.T. 4/1/10 at

60; 4/5/10 at 44. As Berry clearly viewed defendant, unequivocally indentified him, and did

not have past issues in his identification, trial counsel could not err by failing to request a

Kloiber challenge. Accordingly, there was no basis for trial counsel to request a Kloiber instruction

regarding the witnesses' identifications of the defendant. Counsel's failure to do so, therefore,

did not deprive defendant of effective assistance of counsel.

C. Failure to Object to Witness Jennifer Malloy

Defendant "ii.ext cl:nms-that trial couiiserwasirieffective for fallingto-object fo tlie -·

Commonwealth's failure to disclose Jennifer Malloy as a witness prior to the suppression

hearing held on April 1, 2010. Statement of Errors at 1 III. This claim is without merit. While

the failure to disclose an eyewitness may be a discovery violation, see Pa.R.Crim.P.

573(B)(2)(a) (specifying names and addresses of eyewitnesses as disclosure discretionary with

the Court), defendant cannot demonstrate that he was prejudiced by trial counsel's failure to

specifically object to the Commonwealth's failure to disclose.

At the motions hearing on April 1, 2010, defendant moved to suppress the

identification testimony of all three eye witnesses, including Malloy. The Commonwealth

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presented the testimony of Sheerer, Malloy, and Berry. At this hearing, Malloy testified

regarding her observations of defendant as he moved inside McGeehan's home and eventually

fled. N.T. 4/1/10 at 35-36. Malloy further testified of the process in which she was

transported to the scene of defendant's apprehension for a prompt, on-scene show up

identification where at she identified defendant as the individual whom she saw inside the

home. N.T. 4/1/10 at 36. For an unknown reason, Malloy's name and information were never

taken by police, or otherwise recorded in any of the discovery information that would be

provided to defendant prior to his trial. N.T. 4/1/10 at 38, 74-75. Following Malloy's direct

testimony, trial counsel conducted a lengthy and comprehensive cross-examination. At the

conclusion of the hearing, the Court denied defendant's motion to suppress. N.T. 4/1/10 at

112.

The record demonstrates that the outcome of the trial could not have been different if

counsel had objected to Malloy as a surprise witness at the suppression hearing. The record of

the suppression hearing shows that counsel fully tested the legality of the identification made

by Malloy, just as he did with the other witnesses. The evidence at that hearing unequivocally

established that the identifications were lawful. Defendant had ample opportunity to

investigate further before the trial commenced several days after the hearing. This is not a case

where the Commonwealth surprised defendant at trial with a new witness who identified him

at the scene of the crime. Counsel had significant opportunity to question Malloy at the

motions hearing prior to trial and again at trial. In addition, two other witnesses identified

defendant as the individual who was present in McGeehan's home and who fled the scene.

Counsel, therefore, was not ineffective for failing to object to the testimony of Malloy based

on surpnse.

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D. Failure to Challenge Suggestive Identification of Witness Jennifer Malloy

Defendant next claims that trial counsel was ineffective for failing to challenge the

show up identification made by Jennifer Malloy as inherently suggestive. Statement of Errors

at 1 IV. This claim is frivolous, since the record shows that trial counsel actually did

challenge the show up identifications made by Malloy. Upon learning of Malloy, trial counsel

supplemented his original Omnibus Pretrial Motion ("Omnibus Motion") of February 1, 2010,

which challenged, among other items, an alleged suggestive show up identification made by

witness Alberta Sheerer. N.T: 3/26/10 at 17; Omnibus Motion at 1, 21, 24-39. Trial counsel

stated that his grounds for objecting to Malloy were for the "same reasons that [he J moved to

exclude Ms. Sheerer's identification." N.T. 3/26/10 at 17. At the suppression hearing, trial

counsel again relied upon the Omnibus Motion, seeking the suppression of all identifying

testimony. N.T. 4/1/10 at 4-5. Trial counsel further clarified that he was seeking to suppress

Malloy's identification on the grounds that defendant was stopped without probable cause,

that the show up identification was fruit of this unlawful stop, and that the procedure for the

show up identification was unnecessarily suggestive. N.T. 4/1/10 at 12. While Malloy's

name was not used in either the Omnibus Motion or while trial counsel stated his grounds at

the beginning of the suppression hearing, it was clear that the only show up identification

1 made was by Malloy. The Court specifically denied trial counsel's motion to suppress the

alleged suggestive show up identification. N.T. 4/1/10 at 111-112. Moreover, the trial court's

finding that Malloy's identifications were lawful was upheld by the Superior Court on direct

appeal. See Superior Court Opinion, filed April 27, 2012, at pp. 6-8.

1 Although the Omnibus Motion purported to challenge a show up identification by Ms. Sheerer, the record is clear that Ms. Sheerer never made a show up identification, and that it was Malloy's show up identification that was at issue.

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E. Presenting Improper Closing Argument

Defendant next submits that trial counsel was ineffective for making improper closing

arguments which prompted the Court to prejudicially correct counsel before the jury.

Statement of Errors at, V. This claim is without merit.

It is true that trial counsel made some objectionable statements during his closing

arguments, as happens in most trials. After the Commonwealth objected to these arguments,

the Court properly sustained the objections and gave appropriate directions to counsel. At no

time did the Court demean counsel or the defendant. Accordingly, there is absolutely no

reason to believe that defense counsel's objectionable arguments in any way prejudiced the

defendant.

The Commonwealth first objected to trial counsel's statements regarding defendant's

negative feelings about home invasions, although defendant had not testified and that was not

part of the evidence in the case:

Mr. Connelly: No one should feel their home was invaded and violated, their safety put at issue. Mr. Jones agrees with the Commonwealth on that point.

Mr; Hepburn:Objection

The Court:Sustained.

Mr. Connelly: Can I ask for a basis?

The Court:Basis is you are referring to what Mr. Jones does or does not agree with. Okay?

Mr. Connelly: Okay.

The Court:This is argument, not to state what Mr. Jones would or would not say. He didn't testify.

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N.T. 4/7/10 at 10.2

The Court next interjected when trial counsel improperly stated his personal belief

regarding the credibility of witnesses:

Mr. Connelly: Plus, her story that this person was wearing a black leather coat and a black leather cap was verified by Ms. Malloy, who also testified, and I saw no reason not to believe Ms. Malloy.

The Court:Sir, refrain from saying which witnesses you believe. That's improper argument. You may say what the evidence shows, and refrain from saying what witnesses you personally believe.

You can continue your argument.

I'm sure you know that's not proper argument ina criminal jury trial.

You may continue, without stating your personal belief in the credibility of the witnesses.

Mr. Connelly: Thank you. Thank you. I will rephrase that.

N.T. 4/7/10 at 12:

The Court next sustained an objection when defense counsel incorrectly advised the

jury that they could ask for a tape measure that counsel had used during the trial, but that was

not in evidence:

Mr. Connelly: If you ask for this tape measure, the judge, I think, will give it to you.

Mr. Hepburn:Objection.

The Court:Sustained. Is that in evidence?

Mr. Connelly: No.

The Court:All right. Don't tell the jury that I will give them something that's not in evidence. All right? Thank you.

N.T. 4/7/10 at 21.

2 Importantly, the Court clearly instructed the jury that defendant had an absolute right not to testify and that the jury was prohibited from drawing any inference adverse to the defendant from his decision not to testify in this case. N.T. 4/7/10 at 61.

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Finally, the Court sustained an objection when counsel made reference to individual

juror's backgrounds that he had learned during the jury selection process:

Mr. Connelly: But the judge is going to talk to you about reasonable doubt, and I know we have a couple lawyers, at least one lawyer on the panel, and Ithink it's a good thing, because lawyers are used to dealing with what we call the burden of proof-.

Mr; Hepburn: Objection.

The Court: Do not make comments to specific people on the jury or their background. You may continue your argument.

N.T. 4/7/10 at 23.

Certainly, trial counsel could have been more eloquent and avoided the mistakes he

made in his closing arguments. However, the objections made above, and the corrections

made by the Court, could not have, in any manner, affected the outcome of the trial. This is

particularly true given the overwhelming evidence of defendant's guilt presented at trial and

described in detail above.

As defendant cannot demonstrate that he was prejudiced by trial counsel's errors in

closing argument, defendant's ineffective assistance of counsel claims premised upon those

arguments should be rejected.

F. Failure to Submit Written Argument Relating to Cross Racial Identification

Defendant next submits that trial counsel was ineffective for failing to submit written

argument to the Court relating to cross-racial identification. Statement of Errors at , VI. This

claim is without merit.

Historically, Pennsylvania maintained a strict bar against the admission of expert

testimony relating to eyewitness identification. See, e.g., Commonwealth v. Spence, 627 A.2d

1176 (Pa. 1993). The Pennsylvania Supreme Court only recently overturned this per se

exclusionary rule in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). However, at the time

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of defendant's trial, the per se ban against expert testimony relating to eyewitness

identification remained in place. Thus, at the time of defendant's trial, such testimony was

· prohibited and counsel could not be ineffective for failing to submit written argument relating

to cross-racial identification.

G. PCRA Counsel's Ineffectivenessfor Failure to Address Issues

Defendant next claims that PCRA counsel, David Rudenstein, was ineffective for

failing to address "three of the above meritorious issues" in counsel's Finley letter. Statement

of Errors at , VII.

Because defendant does not state which of the three claims raised in his Statement of

Errors Rudenstein failed to review, this claim is waived. see, e.g., Commonwealth v. Bond,

630 A.2d 1281, 1282 (Pa. Super. 1993) (where a PCRA petitioner makes a vague and

generalized argument of ineffectiveness that leaves the PCRA court to guess at his claims,

those claims are deemed to have been waived).3

H PCRA Counsel's Ineffectiveness for Failure to Preserve Sentencing Counsel's Ineffectiveness

Defendant's final claim is that PCRA counsel was ineffective for failing to raise a

claim of sentencing counsel's ineffectiveness for failure to object to an incorrect offense

gravity score for the burglary charge. Statement of Errors at , VIII. Defendant is raising this

alleged ineffectiveness of sentencing counsel for the first time on appeal. His claim is

therefore waived. See Pa.R.A.P. 302(a); Commonwealth v. Stevenson, 894 A.2d 759, 766 (Pa.

Super. 2006), appeal denied, 917 A.2d 946 (Pa. 2007) ("any issue not raised in the lower court

is waived and cannot be raised for the first time on appeal.").

3 The Court notes, however, that each of the claims raised by defendant in his Statement of Errors, with the exception of the claims pertaining to Mr. Rudenstein's ineffectiveness, were addressed in Mr. Rudenstein's initial Finley letter filed on December 12; 2013.

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In any event, this claim is frivolous. At sentencing, the Court determined defendant's

offense gravity score as seven, contrary to defendant's claim in his Statement of Errors. N.T.

6/23/10 at 4. Of course, sentencing counsel could not be ineffective for failing to object to a

correct offense gravity score determination and PCRA counsel could not be ineffective for not

raising a frivolous claim.

III. CONCLUSION

For all of the foregoing reasons, the Court's order dismissing Defendant's

PCRA petition should be affirmed.

BY THE COURT:

GLENN B. BRONSON, J.

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Commonwealth v. Michael Jones CP-51-CR-0007 421-2009 Type of Order: 1925(a) Opinion

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:

Defense Counsel/Party: Teri Himebaugh 2201 Pennsylvania Ave. #513 Philadelphia, PA 1913 0

Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify:

District Attorney(s): Hugh J. Burns, Jr., Esquire Chief, Appeals Unit Philadelphia District Attorney's Office Three South Penn Square Philadelphia, PA 19107

Type of Service () Personal (X) First Class Mail ( ) Other, please specify:

Additional Counsel/Party: Joseph D. Seletyn, Esquire Prothonotary Office of the Prothonotary - Superior Court 530 Walnut Street, Suite 315 Philadelphia, PA 19106

Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify:

Dated: September 24, 2014

onathon M. Frisby Law Clerk to Hon. Glenn B.