Com. v. Tildon, T.

J-A01011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TYRON DIXON TILDON :

:

Appellant : No. 1126 EDA 2021

Appeal from the PCRA Order Entered May 11, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0008638-2012

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 7, 2023

Tyron Dixon Tildon (Appellant) appeals from the order entered on May

11, 2021, in the Philadelphia County Court of Common Pleas, dismissing his

timely petition for collateral relief filed under the Post Conviction Relief Act

(PCRA).1 Appellant seeks relief from an aggregate sentence of life

imprisonment, imposed on August 5, 2013, after a jury found him guilty of

first-degree murder, carrying a firearm without a license, and recklessly

endangering another person (REAP).2 On appeal, Appellant raises a myriad

of ineffective assistance of counsel claims. Based on the following, we affirm

on the basis of the PCRA court opinion.

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 2502(a), 6106(a)(1), and 2705, respectively.

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The PCRA court summarized the underlying facts as follows:

On the evening of October 6, 2006, Denise Chandler drove

to the intersection of N. Cleveland Street and W. Cumberland

Street, intending to purchase a bag of heroin from Mark Jordan.

Chandler arrived at the intersection and found Jordan standing

outside of a bar. Chandler drove to Jordan, asked if he was

carrying heroin, and invited him to the car. Once Jordan entered

the car, Chandler parked on the corner of Cleveland and

Cumberland Streets.

As Chandler gave Jordan money for the drugs, gunshots

rang out. Chandler attempted to pull out from her parking spot,

but Appellant crossed in front of her car on foot with a black

revolver in his hand, forcing Chandler to wait until he entered the

car in front of her. Jordan looked down Cleveland Street and saw

“a lot of people running, but [Appellant] was the only one coming

down Cleveland. They [were] all running away from where Bilal[3]

was. He ran right past the car and he looked right at me when I

was in the car.”

After . . . Appellant stepped into that car, Chandler forced

her way [in] the front of Appellant, honking her horn and speeding

out of her parking spot onto York Street. Suddenly, Jordan

exclaimed “Stop, stop, that’s my boy.” Chandler stopped the car;

Donnell Goulbourne ran up to Chandler’s car yelling, “Let me get

in, let me get in, they shootin!” Chandler let Goulbourne into her

car. Upon entering, Goulbourne said, “I been hit [sic].” “He was

asking how long to the hospital and he was saying he was short

of breath and that he was going to die. He kept saying that. I

didn’t know he was shot until he said Bilal shot him when he was

chasing us in the car.”

Goulbourne then suddenly exclaimed, “There he is!”

Chandler turned towards the driver’s side window, through which

she saw . . . Appellant point a gun in her direction from his position

inside of the car. Goulbourne exclaimed, “Pull out, that’s who shot

me.” Chandler sped off; a car chase ensued, during which

Chandler ran at least two red lights and nearly collided with a van.

Prior to getting to the hospital, Chandler spotted two police cars

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3 “Bilal” was a nickname for Appellant.

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and pulled up to them. Jordan exited the car and helped to move

Goulbourne into the back of one of the police cars. Goulbourne

was taken to Temple [U]niversity Hospital, where he was

pronounced dead at 11:40 p.m.

Five days after the shooting, Appellant traveled to the

Middle East, where he remained for five and one-half years.

Appellant was arrested in Amman, Jordan and brought back to the

United States by United States Marshals on April 29, 2012.

PCRA Ct. Op., 7/5/22, at 1-2 (record citations & footnote omitted).

Appellant was charged with first-degree murder, carrying a firearm

without a license, carrying a firearm on a public street in Philadelphia,

possession of an instrument of crime,4 and REAP. The matter proceeded to a

jury trial in the summer of 2013. Appellant’s trial counsel was Lawrence S.

Krasner, Esquire (Trial Counsel).5 On August 5, 2013, the jury convicted

Appellant of murder, carrying an unlicensed firearm, and REAP.6 After the

verdict was read, Appellant’s counsel made an oral motion for judgment of

acquittal regarding the carrying an unlicensed firearm charge, which the trial

court granted. See N.T., 8/5/23, 64-65. That same day, the court sentenced

Appellant as follows: (1) a term of life imprisonment without the possibility of

parole for the murder conviction; and (2) a concurrent term of nine to 24

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4 See 18 Pa.C.S. §§ 6108 and 907(a).

5 Krasner is currently the District Attorney of the City of Philadelphia.

6 The remaining charges were nolle prossed.

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months’ incarceration for the REAP conviction. Appellant filed a post-sentence

motion, which was denied on December 3, 2013.

Appellant then filed a direct appeal. A panel of this Court affirmed his

judgment on sentence on June 16, 2015, and the Pennsylvania Supreme Court

denied his petition for allowance of appeal on December 31, 2015. See

Commonwealth v. Tildon, 3438 EDA 2013 (unpub. memo.) (Pa. Super. June

16, 2015), appeal denied, 443 EAL 2015 (Pa. Dec. 31, 2015).

On May 17, 2016, Appellant filed a timely, pro se PCRA petition.

Thereafter, new counsel, the Defender Association of Philadelphia, entered its

appearance. On February 8, 2019, Appellant filed a counseled, amended PCRA

petition, raising, inter alia, ineffective assistance of counsel claims in terms of

Batson,7 Brady,8 prosecutorial misconduct, defective jury instructions,

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7 Batson v. Kentucky, 476 U.S. 79, 85 (1986) (holding the exclusion of

jurors based on race is a violation of the equal protection clause of the United

States Constitution).

8 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “the suppression by

the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution”).

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Ross9/speedy trial, and Kloiber10 instruction challenges. The Commonwealth

filed a motion to dismiss Appellant’s amended PCRA petition on June 21,

2019.11

The PCRA court heard argument on March 3, 2020, but did not provide

a decision at the conclusion of the proceeding. Subsequently, on February 16,

2021, the court issued a Pa.R.Crim.P. 907 notice of intent to dismiss the

petition as meritless.

On March 3, 2021, Appellant filed a witness certification in support of

his amended PCRA petition, which identified Trial Counsel, and indicated he

would proffer the following testimony regarding his defense of Appellant:

Specifically[,] if [the PCRA court held] a hearing[, Trial Counsel]

will testify . . . that his theory of defense at trial was both

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9 Ross v. United States, 349 F.2d 210, 215 (D.C. Cir. 1965) (holding that in

determining whether the Commonwealth has unreasonably delayed the arrest

of a suspect after a criminal event, the court must weigh the reasonableness

of the delay against the prejudice to the defendant). See also Pa.R.Crim.P.

600; Barker v. Wingo, 407 U.S. 514 (1972) (holding whether a delay

violated a defendant’s right to a speedy trial requires a four-part constitutional

analysis); Commonwealth v. Martz, 232 A.3d 801, 812 (Pa. Super. 2020).

10 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). “A Kloiber

instruction informs the jury that an eyewitness identification should be viewed

with caution when either the witness did not have the opportunity to view the

defendant clearly, equivocated on the identification of the defendant, or has

had difficulties identifying the defendant on prior occasions.”

Commonwealth v. Williams, 255 A.3d 565, 577 n.15 (Pa. Super. 2021)

(citation omitted).

11 During this time, the case was reassigned to the Honorable Tracy Brandeis-

Roman, following the retirement of the trial judge, the Honorable Teresa M.

Sarmina.

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sufficiency of the evidence and self-defense and that he requested

a jury instruction on self-defense. He will also testify that he

reviewed two documents that PCRA counsel provided him that

show that prior to trial the Commonwealth had conducted an

investigation that revealed that “[Appellant] shot the victim[ ]

because the victim was selling drugs in [his] area” and also

concluded that the “shooting was prompted over drug territory[. .

. .” Trial Counsel] will also testify that he has no recollection of

receiving these documents any time during his representation of

[Appellant] and that these documents support his theory of self-

defense. [Trial Counsel] will also testify that he was not made

aware that Police Officer [Andre] Daniels was unavailable to testify

because he had been fired from the police force due to his guilty

plea in federal court for numerous counts of prescription drug

fraud.

Appellant’s Certification of Witnesses in Support of Amended Petition for Writ

of Habeas Corpus and for Collateral Relief from Criminal Conviction Pursuant

to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., 3/3/21, at 1-2

(unpaginated). The Commonwealth filed a response to Appellant’s witness

certification on April 7, 2021. Thereafter, on May 11, 2021, the PCRA court

dismissed Appellant’s petition as meritless. This timely appeal followed. 12

Appellant raises eight issues on appeal:

1. Did the PCRA court err in dismissing the claim that [A]ppellate

[C]ounsel were ineffective in failing to raise on appeal the issue

that the Commonwealth used its peremptory strikes in a

discriminatory manner to strike African Americans on the jury

panel, in violation of [Appellant]’s rights to equal protection, due

process of law, and a fair trial under the Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution?

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12 Following an extension of time, Appellant complied with the PCRA court’s

directive to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal.

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2. Did the PCRA court err in dismissing the claim that the

Commonwealth violated Brady v. Maryland when it suppressed

material evidence favorable to the defense in violation of

[Appellant]’s due process rights; specifically, the Commonwealth

suppressed the records of its investigation into the decedent’s

involvement in the drug trade, as well as the fact that Officer

Andre Daniels had been fired by the police department and was

convicted in federal court on drug and fraud offenses, and that

[T]rial [C]ounsel was ineffective in stipulating to Officer Daniels’

testimony?

3. Did the PCRA court err in dismissing the claim that the

prosecution mischaracterized the evidence in this case and misled

the jury by stating that [Appellant] had not given a statement to

authorities, and argued consciousness of guilt based upon that

false claim, when [Appellant] had in fact given a statement to

authorities, and that [T]rial [C]ounsel was ineffective for failing to

object to this prosecutorial misconduct and for failing to introduce

the statement to rebut the prosecutor’s misleading argument?

4. Did the PCRA court err in dismissing the claim that [T]rial

[C]ounsel was ineffective for failing to object to the trial court’s

defective instructions on burden of proof, in that by instructing the

jury that their determination of whether the Commonwealth has

satisfied its burden of proof should be based solely on the

Commonwealth’s evidence, and failing to allow or compel

consideration of evidence presented by the defense, the

instruction violated [Appellant]’s constitutional rights to present a

defense, to testify in his own behalf, and to due process?

5. Did the PCRA court err in dismissing the claim that [T]rial

[C]ounsel was ineffective for failing to litigate a motion to dismiss

the charges due to excessive pre-arrest delay or a violation of the

right to a speedy trial, as the delay of more than six years between

[Appellant]’s trial and the swearing out of the complaint violated

the Sixth Amendment right to a speedy trial and the Fifth and

Fourteenth Amendment rights to due process of law?

6. Did the PCRA court err in dismissing the claim that [T]rial

[C]ounsel was ineffective for failing to move for judgment of

acquittal at the close of the Commonwealth’s case where the

Commonwealth’s evidence did not make out the violation of the

Uniform Firearms Act [(the carrying a firearm without a license

charge)]?

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7. Did the PCRA court err in dismissing the claim that the trial

court erred by refusing to give a “Kloiber charge” that the

witness’ identifications should be viewed with caution as to

witness Mark Jordan and giving a modified version as to Denise

Chandler, and that prior counsel was ineffective for failing to

preserve the claim and litigate it on appeal?

8. Did the PCRA court err in dismissing the claim that [Appellant]

is entitled to relief from his conviction and sentence because of

the cumulative effect of [all] of the errors described in the PCRA

petition?

Appellant’s Brief at 5-7.

Our standard regarding PCRA appeals is well-settled:

When reviewing the denial of a PCRA petition, an appellate court

must determine whether the PCRA court’s order is supported by

the record and free of legal error. Generally, a reviewing court is

bound by a PCRA court’s credibility determinations and its fact-

finding, so long as those conclusions are supported by the record.

However, with regard to a court’s legal conclusions, appellate

courts apply a de novo standard.

Commonwealth v. Drummond, 285 A.3d 625, 633 (Pa. 2022) (footnotes &

quotation marks omitted).

Because Appellant’s claims concern ineffective assistance of counsel, we

also are guided by the following:

To prevail on a claim of ineffective assistance of counsel, a

PCRA petitioner must satisfy the performance and prejudice test

set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687 (1984). This Court has recast

the two-part Strickland standard into a three-part test by

dividing the performance element into two distinct components.

To prove that counsel was ineffective, the petitioner must

demonstrate: (1) that the underlying claim has arguable merit;

(2) that no reasonable basis existed for counsel’s actions or failure

to act; and (3) that the petitioner suffered prejudice as a result of

counsel’s error. To prove that counsel’s chosen strategy lacked a

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reasonable basis, a petitioner must prove that an alternative not

chosen offered a potential for success substantially greater than

the course actually pursued. To satisfy the prejudice prong, a

petitioner must demonstrate that there is a reasonable probability

that the outcome of the proceedings would have been different

but for counsel’s action or inaction. Counsel is presumed to be

effective; accordingly, to succeed on a claim of ineffectiveness the

petitioner must adduce sufficient evidence to overcome this

presumption.

Drummond, 285 A.3d at 634 (footnotes & quotation marks omitted). We

further note: “Failure to satisfy any prong of the test will result in rejection of

the appellant’s ineffective assistance of counsel claim.” Commonwealth v.

McGarry, 172 A.3d 60, 70 (Pa. Super. 2017) (citation omitted).

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

law, and the well-reasoned opinion of the PCRA court, we conclude there is no

merit to Appellant’s issues, and we affirm on the basis of the court’s opinion.

See PCRA Ct. Op. at 6-32 (finding there was no merit to any of the alleged

errors and an evidentiary hearing was not warranted based on the following:

(1) Appellant’s claim of ineffectiveness regarding a Batson challenge was

unavailing because (a) Trial Counsel did raise several Batson challenges,

which the trial court denied relief based on race neutral reasons, including a

juror whose brother had been convicted of third-degree homicide and another

juror who felt her brother’s defense attorney failed to help him by advising

him to take a plea agreement;13 and (b) every reason provided to the trial

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13 PCRA Ct. Op. at 11.

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court as to why a certain juror was struck was supported by the record and

valid where “[t]hese jurors all had circumstances that would lead a reasonable

person to believe that they would not have been likely to make a fair

determination at Appellant’s trial[;]”14 (2) Appellant’s ineffective assistance of

counsel assertion regarding the Commonwealth’s purported withholding of

certain information concerning police investigator, Officer Daniels, and other

exculpatory evidence was without merit because Appellant failed to prove that

any of the alleged evidence would qualify as Brady material where (a) a

stipulated statement was admitted into evidence that included statements

from the police paperwork of Officer Daniels and another unavailable officer

in which both officers indicated that at the time of the shooting, a witness

stated that a vehicle approached and an extended arm shot into another car

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14 See PCRA Ct. Op. at 12. In reviewing this claim, the PCRA court observed

that Appellant did not address Trial Counsel’s purported ineffectiveness as to

a Batson claim in his petition — instead, he focused his allegation that

appellate counsel was ineffective — and therefore, the court found this

omission was fatal to his argument because he waived his underlying Batson

claim and any derivative claim of ineffectiveness necessarily fails. Id. at 8.

The PCRA court acknowledged that Appellant briefly mentioned Trial Counsel’s

ineffectiveness in terms of a Batson claim in his reply brief but pointed out

that “[a] claim is waived if it is raised for the first time in a reply brief.” See

id. at 8, citing Commonwealth v. Wharton, 811 A.2d 978, 990 (Pa. 2002).

We find this conclusion is erroneous as the cited case was referencing an

appellate reply brief. See id. at 990; see also Commonwealth v.

Basemore, 744 A.2d 717, 726-27 (Pa. 2000) (“A reply brief, however, is an

inappropriate means for presenting a new and substantively different issue

than that addressed in the original brief.”). Nevertheless, because the PCRA

court addressed the merits of the claim, this error is harmless.

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containing the victim but the witness could not identify the shooter,15 (b)

evidence of Officer Daniels’ federal indictment and subsequent plea were

public records and therefore, the defense would have been put on notice that

he was not going to testify, it was debatable if the evidence could have been

used as impeachment evidence because it was not clear that this was

prosecutorial evidence since Appellant wanted the stipulated statement read

to the jury, and his claim that the outcome of the trial would have been

different was questionable since the relief he is now seeking would have

precluded evidence favorable to his defense at trial, (c) evidence of a broader

police investigation into a drug turf war would have gone against Appellant’s

own trial strategy since he previously attempted to preclude this same kind

evidence “along with speculation that the testing of [the victim’s] clothing was

motivated by a theory that [the victim] too had fired a weapon[;]”16 (3) with

respect to Appellant’s claim that Trial Counsel was ineffective for failing to

object to purported prosecutorial misconduct during closing arguments, the

underlying issue was previously litigated on direct appeal17 and therefore,

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15 The only difference between Officer Daniels’ and the officer’s statements

was that Officer Daniels described the vehicle as a silver car while the other

officer said it was a gray Honda.

16 PCRA Ct. Op. at 16.

17 The panel concluded the trial court did not err in denying relief where the

Commonwealth’s comments were in “fair response” to Trial Counsel’s

reference to the absence of any statement from Appellant, and any resulting

(Footnote Continued Next Page)

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Appellant failed to establish counsel was ineffective since counsel did object

to the statement and appealed the issue; (4) Appellant’s issue that Trial

Counsel was ineffective for failing to object to an allegedly flawed jury

instruction was meritless where the court utilized the relevant model jury

instruction and may have omitted the word, “Commonwealth,” prior to the

word, “evidence,” but still stated that it was the Commonwealth’s burden to

prove each element of the crimes at issue which did not materially change the

burden of proof requirement, and allowed the jury to consider evidence that

benefitted Appellant (including Appellant’s evidence that he did not flee to

Yemen to avoid prosecution but rather to learn about his faith); (5) Appellant’s

claim that Trial Counsel was ineffective for failing to litigate a Ross/speedy

trial motion was unavailing because pursuant to Commonwealth v.

DeBlase, 665 A.2d 427 (Pa. 1995),18 he was required to present Rule 600

analysis but failed to do so (most likely because he fled to a foreign country

for more than five years), and therefore, the court could not proceed to the

next step in the two-step Barker balancing test; (6) Appellant’s issue that

Trial Counsel was ineffective for failing to file a motion for judgment of

____________________________________________

prejudice was negated by the court’s curative instructions. See Dixon-

Tildon, 3438 EDA 2013 (unpub. memo. at 4-9).

18 DeBlase discussed Rule 600’s predecessor, Pennsylvania Rule of Criminal

Procedure 1100. See Pa.R.Crim.P 1100 (superseded). Effective April 1, 2001,

Pa.R.Crim.P. 1100 was renumbered as Rule 600.

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acquittal for the carrying a firearm without a license charge prior to the

conclusion of trial was meritless where (a) the claim lacked arguable merit

because the law does not support the notion that there was insufficient

evidence, considering the victim’s cause of death, (b) there was a reasonable

basis for Trial Counsel’s action or inaction because if counsel had moved for

an acquittal, “the Commonwealth would have likely asked to reopen the case

to present evidence of the [gun’s] barrel length”19 and counsel would not want

the jury to hear more testimony about the murder weapon, and (c) Appellant

did not suffer any prejudice where the carrying an unlicensed firearm charge

was subsequently dismissed and the crux of the case was the identity of the

shooter, so the length of the barrel would not have affected the conviction;

(7) Appellant’s claim that Trial Counsel was ineffective for not requesting a

Kloiber charge regarding one witness, Jordan, and for not objecting to the

charge being modified with respect to another witness, Chandler, was

meritless as counsel did request Kloiber charges regarding both witnesses

and the trial court rejected one request based upon the view that it did not

apply to Jordan since he did not make an in-court identification of Appellant

and permitted a modified Kloiber charge as to Chandler, which included

certain adjustments requested by Appellant; and (8) Appellant failed to meet

his burden of proving that more than one error occurred and therefore, he

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19 See PCRA Ct. Op. at 29.

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cannot establish he was prejudiced due to cumulative errors.). Accordingly,

we do not disturb the PCRA court’s determinations as Appellant’s arguments

are unavailing.

We direct that a copy of the PCRA court’s July 5, 2022, opinion be filed

along with this memorandum and attached to any future filings of the

memorandum in this case.

Order affirmed.

Date: 11/7/2023

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