J-S29010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DOUGLAS PARKS

                            Appellant                 No. 1137 WDA 2014


                  Appeal from the PCRA Order June 18, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012812-2008


BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                               FILED JULY 16, 2015

        Appellant, Douglas Parks, appeals from the order denying him relief on

his petition pursuant to the Post Conviction Relief Act (“PCRA”).            Parks

argues that the PCRA court erred in finding that trial counsel was not

ineffective for failing to ask the trial court to provide a Kloiber1 instruction

to the jury. We affirm.

        A previous panel of this Court, in reviewing Parks’s direct appeal,

summarized the pertinent facts as follows.

        Appellant was arrested and, on October 20, 2010, represented
        by counsel, he proceeded to a jury trial at which the victim and
        numerous police officers testified.     Specifically, the victim,
        Jeffrey Backus, testified he owns a small used-car dealership in a
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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     poverty stricken part of Pittsburgh, and prior to the incident at
     issue, he was “familiar with” Appellant. Specifically, starting
     approximately twelve to fourteen years ago, Appellant bought
     cars from Mr. Backus’ dealership, and therefore, Appellant was
     familiar with Mr. Backus’ business practices, which included Mr.
     Backus making only cash sales and openly stuffing the cash into
     his socks after the sales.

     On August 9, 2008, at 5:15 p.m., as he was closing the
     dealership for the evening, Mr. Backus went inside of the
     dealership’s trailer to put away keys when he discovered
     someone wearing a skeleton mask and a hooded sweatshirt
     standing near the refrigerator. Poking Mr. Backus in the face
     several times with a BB gun, the person told Mr. Backus to lie
     down on the floor; however, Mr. Backus refused to do so,
     resulting in the pair wrestling. While the pair wrestled, the
     attacker’s mask and hooded sweatshirt fell off, and when Mr.
     Backus would not succumb, the person hit Mr. Backus in the
     forehead with a floor jack, threatening to shoot him. Mr. Backus
     begged for his life and finally relinquished some of the money
     from his socks. Mr. Backus estimated that, prior to the robbery,
     he had a total of $10,000 tucked into both of his socks, and the
     robber left with approximately $7,000.

     As the robber, who appeared to be the same height or a little
     taller than Mr. Backus, fled down the left side of Route 51 toward
     the Liberty Tunnels, Mr. Backus looked out of the trailer and
     observed the following:

        He was wearing blue jeans and a white sleeveless T-shirt,
        and it was a black male, and it was someone that had
        reach on me, especially with the help of a gun, but also
        he had long arms, and that’s pretty much it.

                                  …

     [Police arrested Parks near the scene of the crime shortly
     thereafter. Backus was brought in to identify Parks.] [O]n
     direct examination, Mr. Backus testified, in relevant part, as
     follows:

        Q:And what did you see when you arrived?
        A: I saw the perpetrator leaned up against the police car
        in handcuffs.

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        Q:Did you get a good look at his face?
        A: Yes.
        Q:Did you recognize the individual?
        A:At that time, I did not, no. It had been years since I
        had seen that person.
        Q:And “that person” is [Appellant]. Correct?
        A:Yes.
        Q:Okay. When you saw him, what condition was he in
        and what was he wearing?
        A:He was wearing a white sleeveless T-shirt and blue
        jeans and he was in handcuffs.
                             …
        Q:So when you saw [Appellant] in custody, did you
        believe that he was the perpetrator of the robbery?
        A:Yes.
        Q:Why?
        A:Because of his build, because of what he was wearing,
        and then the rest of it is circumstantial evidence that
        you’re going to present.
                             …
        Q:Did the clothes match the description of the robber that
        you gave?
        A:Yes.
        Q:Did the body structure of [Appellant] match the
        description of the robber that you gave?
        A:Yes.
        Q:And the jeans and the shirt were collected together. Is
        there any doubt in your mind that [Appellant] is the
        person that robbed you?
        A:No.
        Q:Are you sure?
        A:I’m sure.

     On cross-examination … Mr. Backus indicated that, after the
     police arrested Appellant, he went to the scene and identified
     Appellant as his attacker based primarily on his body structure
     and clothes. Mr. Backus admitted he did not see the robber’s
     face during the incident; however, based on the fact he and the
     robber wrestled for three to five minutes, and Mr. Backus
     watched him flee, Mr. Backus knew his robber’s “body structure
     exactly,” and the body structure of Appellant was “exactly the
     same” as the robber’s structure.




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Commonwealth v. Parks, No. 103 WDA 2011, unpublished memorandum

at 2-5 (Pa. Super. filed 11/15/12).    A jury convicted Parks on charges of

robbery, serious bodily injury and criminal trespass.     This Court affirmed

Parks’s judgment of sentence, and the Supreme Court of Pennsylvania

denied his petition for allowance of review.

      Parks subsequently filed a timely pro se PCRA petition.       The PCRA

court appointed counsel to Parks, and counsel filed an amended PCRA

petition. After providing Parks with a notice of intent to dismiss, the PCRA

court denied Parks’s petition. This timely appeal followed.

      On appeal, Parks raises two issues for our review.      Both issues are

based upon Parks’s contention that trial counsel was ineffective for failing to

request a Kloiber instruction.

      Our standard of review of a PCRA court’s denial of a petition for post-

conviction relief is well-settled.   We must examine whether the record

supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. See Commonwealth v. Hall, 867 A.2d

619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.      See

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).               Our

scope of review is limited by the parameters of the PCRA.                 See

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).




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      Parks’s arguments both assert the ineffectiveness of trial counsel as a

basis for relief.   We presume that counsel was effective and an appellant

bears the burden of proving otherwise. See Commonwealth v. Steele, 961

A.2d 215, 223 (Pa. 2007).

      To prevail on his ineffectiveness claims, Appellant must plead
      and prove, by a preponderance of the evidence, three elements:
      (1) the underlying legal claim has arguable merit; (2) counsel
      had no reasonable basis for his action or inaction; and (3)
      Appellant suffered prejudice because of counsel’s action or
      inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).

“A failure to satisfy any prong of the test for ineffectiveness will require

rejection of the claim.” Commonwealth v. Morrison, 878 A.2d 102, 105

(Pa. Super. 2005) (citation omitted). Counsel cannot be deemed ineffective

for failing to raise a meritless claim. See Commonwealth v. Fears, 86

A.3d 795, 803 (Pa. 2014).

      “A   Kloiber    instruction   informs   the   jury   that   an   eyewitness

identification should be viewed with caution when either the witness did not

have an 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. Sanders, 42 A.3d 325,

332 (Pa. Super. 2012). When these circumstances exist, “the Court should

warn the jury that the testimony as to identity must be received with

caution.” Kloiber, 106 A.2d at 826-827.




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      Parks contends that since Backus did not see the robber’s face, a

Kloiber instruction was called for, and thus, trial counsel’s failure to request

one constituted ineffective assistance of counsel.    The Commonwealth and

the PCRA court argue that a Kloiber instruction was not appropriate, as

Backus’s identification of Parks was consistent and positive. However, it is

“well-established that where there is evidence of record upon which a jury

could find that the opportunity for positive identification was not good, a

defendant is entitled to a Kloiber instruction.”          Commonwealth v.

McKnight, 453 A.2d 1, 3 (Pa. Super. 1982).

      In McKnight, an eyewitness testified that he observed the defendant

and two other men backing out of the victim’s bar, carrying a shotgun and

pulling off their masks. See id., at 2. It was broad daylight, and he saw

them from behind and from a distance of approximately 20 feet. See id.

He testified that he never saw more than a profile of any of the men. See

id. Although the eyewitness testified that he recognized the three men and

knew the nicknames of two of them, he did not initially supply their names

to the police. See id., at fn. 1.

      In McKnight, as in the present case, the Commonwealth argued that

a Kloiber instruction is only necessary where “a witness has equivocated in

his identification or has previously failed to identify the defendant.” Id., at 3

(quotation marks and citation omitted). Responding to the Commonwealth’s

argument in McKnight, we observed that it omitted the “primary prong” of


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the Kloiber test: “where the witness is not in a position to clearly observe

the [robbers.]” Id. (citation omitted). Applying the test, we concluded that

the eyewitness’s “opportunity to identify the three men was far from

optimal” and reversed for a new trial.

        In the present appeal, it is undisputed that Backus never had an

opportunity to view the robber’s face.    Furthermore, it is undisputed that

Backus did not initially reveal that he knew Parks when he was brought in to

identify Parks.    During cross-examination, Backus admitted that his

identification of Parks, while positive, was not based upon purely unique

characteristics:

      Q: … So if there were four strong, lean black men, six foot to six
      foot two, wearing a white T-shirt and blue jeans, then you
      wouldn’t know which of the four it was because they all shared
      the common characteristics that you told this jury you used to
      determine it was him. Isn’t that right, sir?

      A: There’s some truth to what you’re saying, yes.

N.T., Trial, 10/20-21/10, at 87.   Thus, pursuant to McKnight, a Kloiber

instruction was justified, and there is arguable merit to Parks’s assertion of

ineffectiveness.

      The PCRA court did not hold a hearing on the petition, so we have no

basis to evaluate the propriety of trial counsel’s strategic concerns, if any,

motivating the decision not to request a Kloiber instruction.      See, e.g.,

Commonwealth v. Spotz, 870 A.2d 822, 833 (Pa. 2005) (“[A]s a general

principle, counsel should have a chance to be heard before being declared


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ineffective.”)    Before remanding for such a hearing, we must determine

whether Parks has established that he suffered prejudice from this failure.

      Parks argues that if the jury had received a Kloiber instruction, “it is

possible that the jury would have concluded that the victim misidentified Mr.

Parks.”   Appellant’s Brief, at 16.   After reviewing the testimony and the

closing arguments presented by trial counsel, we cannot agree.

      Furthermore, the evidence established that Parks was found walking

towards Liberty Tunnels away from the scene of the crime. See id., at 109.

Backus testified that he saw the assailant flee towards Liberty Tunnels. See

id., at 60.      Detective Brian Nicholas testified that when he received the

report of a robber fleeing on foot in his direction, he immediately suspected

the robber would use a nearby creek bed to avoid detection.       See id., at

105. The creek bed is at the bottom of a steep hillside that varies in height

from approximately 8 feet to 15 feet. See id.

      As he checked the creek bed, Detective Nicholas observed a black man

in jeans and a white T-shirt attempting to climb out from the bottom. See

id., at 106-107. When the man noticed Detective Nicholas, he began to run

away. See id., at 109. Detective Nicholas lost sight of the man when he

entered nearby woods, but with the assistance of other units, maintained a

perimeter. See id., at 109-110.

      Lieutenant Larry Scirotto was maintaining the perimeter in the

direction Detective Nicholas had seen suspect run. See id., at 117. He saw


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Parks running at a full sprint away from Detective Nicholas’s position along

railroad tracks. See id., at 118. Lieutenant Scirotto ordered Parks to stop,

but Parks did not comply.     See id.   Parks again ran into a wooded area.

See id., at 119.

      Lieutenant Scirotto ultimately found Parks next to an abandoned house

in the woods. See id., at 120. Parks had hidden himself under a piece of

plywood behind the house. See id. When asked to come out from under

the plywood, Parks refused. See id., at 121. After a K-9 unit was deployed,

Parks complied and showed himself. See id. After Parks was apprehended,

three 20 dollar bills were found next to him on the ground, and “a pile of

money” was found inside a pipe within an arm’s reach. See id., at 135-136.

Furthermore, money was found in Parks’s pockets in the amount of $1,214.

See id., at 138-139.

      Based upon these circumstances, we cannot conclude that the absence

of the Kloiber instruction prejudiced Parks.       Trial counsel made Backus’s

credibility a central issue of the case, and substantial circumstantial evidence

pointed towards Parks’s guilt. We are convinced that a Kloiber instruction

would not have changed the outcome of the trial.         We therefore conclude

that neither of Parks’s issues on appeal merit relief.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.


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Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2015




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