The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAWN DIXON,
Appellant No. 2094 EDA 2016
Appeal from the PCRA Order June 28, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0001047-2007
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 08, 2017
Appellant, Shawn Dixon, appeals from the order denying his first
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546. We affirm.
We take the following facts from the PCRA court's October 6, 2016
opinion and our independent review of the certified record.
At trial, the Commonwealth presented the testimony of Mr.
Tarangi Lewis. Mr. Lewis stated that on July 21, 2006, at
approximately 7:30[]pm, he visited his cousin on the 2500 block
of Kingston Street. Later, while at his cousin's house, Mr. Lewis
stated that there was a commotion going on near his truck,
which was parked near the corner of Frankford and Kingston.
Mr. Lewis then walked towards his truck and as he was
inspecting it for scratches he heard girls arguing back and forth
near a car which had pulled up to the corner. It was then that
* Retired Senior Judge assigned to the Superior Court.
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Mr. Lewis heard a girl say "that is what I brought you up here
for, shoot, shoot." (N.T. Trial, 5/06/08 at 31). Mr. Lewis
testified that he heard four to five gun shots and was shot in his
leg. He also testified to seeing a young kid get shot and run into
an alley. (See id. at 33-34). Mr. Lewis then drove himself to
the hospital.
The testimony of Darnell Simmons was also presented by
the Commonwealth. Mr. Simmons, while walking back from the
Rec Center, arrived at Kingston Street and noticed girls who
looked like they were about to begin fighting. (See id. at 83-
84). He then stated that he saw a vehicle drive up and
[Appellant] got out of that vehicle. (See id. at 85-87). It was
at this time that he heard a girl say that [Appellant] had a gun.
(See id.). Mr. Simmons stated that he heard [Appellant] say[,]
"fuck that I'll shoot everyone on the corner." (Id. at 87).
[Appellant] then fired [five] to [six] shots, shooting Mr. Simmons
twice, once as he was trying to run away. (See id. at 87-88).
Mr. Simmons ran into an alley and after trying to get help, he
collapsed until police arrived.
. . Mr. Simmons was transported
.
to Temple Trauma Center.
The Commonwealth also presented the testimony of
Jasmine Merritt who testified that she was at a Chinese
restaurant near Kingston Street when she and her friend Erica
were involved in a fight. (See N.T. Trial, 05/07/08, at 13).
After walking to Kingston Street, Ms. Merritt stated that her
friend Erica called her stepfather to come down. (See id.). At
the time, Ms. Merritt believed that the stepfather's name was
Malik. (See id. at 33-34). Ms. Merritt testified that [Appellant]
pulled up in a Grand Marquis and began shooting [three] to
[five] times. (See id. at 1[5]-20). Ms. Merritt was interviewed
by the police and advised them the name of the shooter was
Malik. She was shown photographs but could not identify
anyone. (See id. at 61-62). The police later received an
anonymous phone call pointing them to [Appellant]. They then
showed Ms. Merritt a picture of [Appellant] and asked if that was
Malik, to which she affirmatively responded and said he was the
shooter. (See id. at 70-71, 102-05). Mr. Simmons was shown
a photo array after the police spoke to Ms. Merritt and he
identified [Appellant]. (See id. at 105-[06]). Mr. Simmons was
also shown a lineup and selected [Appellant]. (See id. at 127-
32). . . .
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(PCRA Court Opinion, 10/06/16, at 1-3) (some record citations omitted;
record citation formatting provided).
Before the jury began deliberations, the trial court instructed it about,
inter alia, the identification testimony offered by Ms. Merritt and Mr.
Simmons. Specifically, the court stated:
. .In her testimony Jasmine Merritt identified [Appellant] as
.
the person who committed the crime. In evaluating her
testimony, in addition to all other instructions I have provided
you for judging testimony of witnesses you should consider the
additional following factors.
Did the witness have a good opportunity to observe the
perpetrator of the offense?
Was there sufficient lighting for the witness to make her
observation?
Was the witness close enough to the individual to note his
facial and other physical characteristics as well as any clothing
he was wearing?
Has witness made any prior identification of
the
[Appellant] as the perpetrator of these crimes at any other
proceedings?
the identification positive or was it qualified
Was by
hedging or inconsistencies?
During the course of this case did the witness identify
anyone else as the perpetrator?
In considering whether or not to accept the testimony
concerning the identification you should consider all the
circumstances under which the identification was made.
Furthermore, you should consider all the evidence relative
to the question of committing a crime including the testimony of
any witness for which identity or non-identity of a perpetrator of
a [crime] may be inferred.
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. . the testimony[,] Darnell Simmons has identified
In
[Appellant] as the person who committed the crime. There is a
question of whether this identification is accurate. A victim or
other witnesses can sometimes make a mistake when trying to
identify the criminal. If certain factors are present the accuracy
of the identification testimony would be so doubtful that the jury
must receive it with caution. Identification testimony must be
received with caution if the witness because of bad position, poor
lighting, or other reasons that [he] does not have a good
opportunity to observe the criminal. If the witness' positive
testimony as to the day is weakened by qualification or
inconsistencies in the rest of his testimony or by his not
identifying the defendant as a criminal before the trial. If you
believe that one or more of these factors are present then you
must consider with caution the testimony of Darnell Simmons,
identifying [Appellant] as a person who committed the crime. If
however, you do not believe at least one of these factors is
present[,] then you need not receive the testimony with caution.
You may treat it like any other testimony. You should consider
all the evidence relative to the question who committed the
crime and the testimony of Darnell Simmons along with other
evidence and facts and circumstances from which identity or
non-identity of the criminal may be inferred.
You cannot find [Appellant] guilty unless you are satisfied
beyond a reasonable doubt by all the evidence direct or
circumstantial not only that the crime was committed but that it
was [Appellant] who committed the crime.
(N.T. Trial, 5/09/08, at 53-56).
On May 9, 2008, the jury convicted Appellant of two counts of
aggravated assault and one count each of attempted murder, criminal
conspiracy, possession of an instrument of crime, carrying a firearm without
a license, and carrying a firearm on a public street in Philadelphia. On
August 14, 2008, the trial court sentenced him to an aggregate term of not
less than twenty-five nor more than fifty years' imprisonment for attempted
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murder and aggravated assault. No further sentence was imposed on the
remaining crimes. This Court affirmed the judgment of sentence on October
25, 2011, and the Pennsylvania Supreme Court denied further review on
September 13, 2012. (See Commonwealth v. Dixon, 37 A.3d 1242 (Pa.
Super. 2011) (unpublished memorandum), appeal denied, 53 A.3d 49 (Pa.
2012)).
Appellant filed a timely pro se PCRA petition on February 8, 2013.
Appointed counsel filed an amended petition on February 5, 2015. On May
13, 2016, the PCRA court notified Appellant of its intention to dismiss his
petition without a hearing. See Pa.R.Crim.P. 907(1). On June 28, 2016, the
PCRA court denied the petition. Appellant timely appealed.'
Appellant raises four questions for this Court's review:
1. Whether the PCRA court erred in failing to find that the
Commonwealth violated Brady[2] when it failed to present the
defense with the existence of anonymous information obtained
by the police which resulted in presentment of a single photo in
its identification procedure?
2. Whether the PCRA court erred in failing to find that
Appellant's right to confrontation was violated where the
detective was permitted to testify at trial that he spoke with a
witness who identified the Appellant as the shooter but no
witness was presented at trial?
' The court did not order Appellant to file a statement of errors
PCRA
complained of on appeal, but it filed an opinion on October 6, 2016. See
Pa.R.A.P. 1925.
2 Brady v. Maryland, 373 U.S. 83 (1963).
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3. Whether the PCRA court erred in not holding that the
absence of complete Kloiber[3] charges resulted in an unfair
trial, based upon doubtful identifications?
4. Whether the PCRA court erred in its conclusion that trial
counsel did not provide ineffective assistance of counsel when he
failed to object to the Kloiber charges given by the court and
where appellate counsel failed to argue the issue on direct
appeal?
(Appellant's Brief, at 3).
As a preliminary matter, as properly noted by the Commonwealth,
Appellant has waived his first three claims because he failed to raise them
on direct appeal. (See Commonwealth's Brief, at 7-10).4 Hence, Appellant
is not eligible for PCRA relief on these issues. See 42 Pa.C.S.A. §§
9543(a)(3) ("To be eligible for relief under this subchapter, the petitioner
must plead and prove by a preponderance of the evidence . . . [t]hat the
allegation of error has not been previously litigated or waived."), 9544 ("For
purposes of [the PCRA], an issue is waived if the petitioner could have raised
it but failed to do so before trial, at trial, during unitary review, on appeal or
in a prior state postconviction proceeding.").
3 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348
U.S. 875 (1954).
4 On direct appeal, Appellant challenged the sufficiency of the evidence to
support his attempted murder conviction, on the basis of the
Commonwealth's alleged failure
to establish specific intent. (See
Commonwealth v. Dixon, No. 2602 EDA 2008, unpublished memorandum
at *2 (Pa. Super. filed Oct. 25, 2011)).
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In his fourth issue, Appellant argues that the court erred in denying his
PCRA petition where trial and appellate counsel provided ineffective
assistance. (See Appellant's Brief, at 23-28).5 Specifically, Appellant
maintains that "the PCRA court erred in its conclusion that trial counsel did
not provide ineffective assistance of counsel when he failed to object to the
Kloiber charges given by the court and where appellate counsel failed to
argue the issue on direct appeal[.]" (Id. at 23-24) (emphasis omitted).
This issue is waived and would lack merit.
We first observe it is well -settled that an "[a]ppellant's failure to
properly develop [his] claim and to set forth applicable case law to advance
it renders [the] issue [] waived." Commonwealth v. Williams, 959 A.2d
1252, 1258 (Pa. Super. 2008) (citations omitted); see also Pa.R.A.P.
2119(a) -(b). Here, Appellant's argument on this claim contains only
boilerplate law about ineffectiveness of counsel, a recitation of what occurred
at trial, and summary conclusions that counsel had no reasonable basis for
his decisions and that he was prejudiced by counsel's actions, all without
pertinent supporting legal authority. (See Appellant's Brief, at 23-28).
5 This claim properly is brought under the PCRA. See 42 Pa.C.S.A. §
9543a)(2)(ii) ("To be eligible for relief under [the PCRA], the petitioner must
plead and prove by a preponderance of the evidence [t]hat the
. . .
conviction or sentence resulted from [i]neffective assistance of counsel
. . . .
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Therefore, Appellant's fourth issue is waived. See Pa.R.A.P. 2101; see also
Williams, supra at 1258. Moreover, it would not merit relief.
Our standard of review for an order denying PCRA relief is well -settled:
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. 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 and is free of legal error.
Similarly, we 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. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. . . .
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations,
quotation marks, and brackets omitted).
In order to be eligible for PCRA relief, the petitioner must prove
by a preponderance of the evidence that his conviction or
sentence resulted from one or more of the enumerated
circumstances found in Section 9543(a)(2), which includes the
ineffective assistance of counsel. [See] 42 Pa.C.S. §
9543(a)(2)(ii).
"It well -established that counsel is presumed effective,
is
and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel's performance was deficient and that
such deficiency prejudiced him." Commonwealth v. Koehler,
614 Pa. 159, 36 A.3d 121, 132 (2012) (citing Strickland v.
Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)). To prevail on an ineffectiveness claim, the
petitioner has the burden to prove that "(1) the underlying
substantive claim has arguable merit; (2) counsel whose
effectiveness is being challenged did not have a reasonable basis
for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel's deficient
performance." Commonwealth v. Sneed, 616 Pa. 1, 18, 45
A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,
567 Pa. 186, 203, 786 A.2d 203, 213 (2001)). "A petitioner
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establishes prejudice when he demonstrates []that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.[']" Commonwealth v. Johnson, 600 Pa. 329, 345-
46,966 A.2d 523,532-33 (2009) (quoting Strickland, 466 U.S.
at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674). The failure to satisfy
any one of the three prongs will cause the entire claim to fail.
[See] Sneed, 616 Pa. at 18,45 A.3d at 1106 (citation omitted).
Commonwealth v. Faureles, 147 A.3d 905,911 (Pa. Super. 2016), appeal
denied, 2017 WL 721789 (Pa. filed Feb. 23, 2017).
In this case, Appellant claims "trial counsel was ineffective for failing to
object to the Kloiber charge(s) as read, and [] appellate counsel was
ineffective for failing to raise the issue on appeal." (Appellant's Brief, at 25).
This issue would not merit relief.
"A Kloiber charge is appropriate where there are special identification
concerns: a witness did not have the opportunity to clearly view the
defendant, equivocated in his identification of a defendant, or had difficulty
making an identification in the past." Commonwealth v. Reid, 99 A.3d
427,448 (Pa. 2014) (citations omitted). "However, identification testimony
need not be received with caution where it is positive, unshaken, and not
weakened by a prior failure to identify." Commonwealth v. Jones, 954
A.2d 1194, 1198 (Pa. Super. 2008), appeal denied, 962 A.2d 1196 (Pa.
2008) (citation omitted).
Here, the PCRA court observed:
With regards to Ms. Merritt and the instructions given
regarding her identification testimony, [Appellant's] complaint
was that the word "caution" was never used in the instructions
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and a formal Kloiber instruction was not read. Ms. Merritt's
testimony explained that she viewed [Appellant] as the shooter
and viewed him step out of the vehicle and fire shots. Ms.
Merritt positively identified [Appellant] as the shooter when
shown a picture of him and did not name anyone else when
shown a photo array prior to the singular photo. Ms. Merritt's
identification of [Appellant] never wavered and she never failed
to identify him as the shooter. The instructions given provided
the jury with additional factors to think about when evaluating
the witness' testimony; therefore there was no reason to give a
Kloiber instruction.
As for the instructions for Mr. Simmons' testimony,
[Appellant's] complaint was with the phrasing of the Kloiber
instruction. A trial court is given discretion in the phrasing of
instruction[s]. In -court instructions are to be upheld if they
clearly and accurately reflect the law. .Here, the trial court
. .
addressed the identification testimony of Mr. Simmons by
reading a form of the Kloiber instruction. The jury was
instructed there was a question regarding the accuracy of Mr.
Simmons' testimony and they were advised three separate times
that it should be received with caution. [Appellant's] concern
with the phrasing of the Kloiber instruction therefore has no
merit[,] as the reading of the instruction in court accurately
conveyed the law.
(PCRA Ct. Op., at 8) (record citation omitted).
Our review of the certified record supports the PCRA court's decision.
The trial court properly decided that a Kloiber instruction was not required
for Ms. Merritt, and the charge given as to Mr. Simmons accurately reflected
the law. See Reid, supra at 448; Jones, supra at 1198. Therefore,
because we find no error of law or abuse of discretion in the instructions
given, and neither trial nor appellate counsel can be found ineffective for
failing to raise a meritless claim, see Commonwealth v. Fears, 86 A.3d
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795, 811 (Pa. 2014), Appellant's fourth issue would not merit relief, even if
not waived.6 See Rigg, supra at 1084.
Order affirmed.
Judgment Entered.
J seph D. Seletyn, Es .
Prothonotary
Date: 5/8/2017
6
Appellant also argues that trial counsel was ineffective for "failing to
demand a line-up for Jasmine," "litigate a motion to suppress identification,"
or "thoroughly investigate Erica White and [her] step -father," and that
"[a]ppellate counsel was ineffective for failing to raise these issues on
appeal." (Appellant's Brief, at 25). However, these claims will not be
considered because they are neither included in Appellant's statement of
questions involved, nor are they fairly suggested thereby. See Pa.R.A.P.
2116(a).