J-S42045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT SCOTT                               :
                                               :
                       Appellant               :   No. 3630 EDA 2018

            Appeal from the PCRA Order Entered November 13, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0010894-2007


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                          FILED SEPTEMBER 17, 2019

       Appellant, Robert Scott, pro se, appeals from the order entered

November 13, 2018, that dismissed his first petition filed under the Post

Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.

       The relevant background information underlying this matter is as
       follows.    Appellant was a good friend and neighbor of
       Jahmeil Ragin for fifteen years. Jahmeil and Kahlil Ragin were
       brothers.     On July 12, 2007, Appellant, Jahmeil Ragin,
       Kahlil Ragin, and Appellant’s girlfriend, Reigna Jones, went to an
       illegal bar to celebrate Appellant’s birthday.       Appellant and
       Kahlil Ragin engaged in an intense argument at the bar. The
       owner of the bar then told everyone to leave. Appellant left the
       bar and took Ms. Jones home. Jahmeil Ragin called Appellant to
       ask him why he left, to which Appellant replied that he would drop
       off Ms. Jones and come back to pick up Jahmeil and Kahlil Ragin.
       Ms. Jones also testified that after the phone call Appellant stated,
       “I’m going to see this nigga about something; he’s not going to
       talk to me like that”. N.T., 05/25/10, at 126. Appellant later
       returned and shot both Kahlil and Jahmeil Ragin from a distance
____________________________________________


1   42 Pa.C.S. §§ 9541–9546.


*    Retired Senior Judge assigned to the Superior Court.
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        of a few feet. Kahlil Ragin was killed by a shot to the head;
        Jahmeil Ragin was shot in the shoulder and injured.

Commonwealth v. Scott, No. 1920 EDA 2010, unpublished memorandum

at 1-2 (Pa. Super. filed August 10, 2011).

        Appellant then went to Ms. Jones’s home and told her: “If anybody asks

you tonight, if the cops or anybody ask you, you were with me and I put you

on a bus. Say I put you on a bus.” N.T., 5/25/2010, at 127-28. The next

morning, Ms. Jones gave a statement to police that, at the time of the

shooting, Appellant was walking her to a bus stop. Id. at 131. Ms. Jones

later contacted the District Attorney’s Office and asked to make a new

statement, in which she recanted her first statement and admitted that

Appellant was not with her at the time of the murder. Id. at 132-33.2

        In 2008, a jury convicted Appellant of firearms not to be carried without

a license, possession of instruments of crime, criminal attempt to commit

murder, and aggravated assault3 but could not reach a verdict on murder of



____________________________________________


2 The statements themselves were not included in the certified record.
Ms. Jones’s first statement was marked as Exhibit C-35, and her second
statement was marked as Exhibit C-36. N.T., 5/25/2010, at 132-33. Both
exhibits were admitted into evidence. N.T., 5/26/2010, at 151. We lament
the absence of these exhibits from the record, “which has encumbered our
consideration of this appeal. . . . Omissions like these significantly impair our
ability to consider an appeal.” Erie Insurance Exchange v. Moore, 175
A.3d 999, 1005-06 (Pa. Super. 2017), reargument denied (January 24, 2018),
appeal granted on other grounds, 189 A.3d 382 (Pa. 2018).
3   18 Pa.C.S. §§ 6106(a)(1), 907(a), 901(a), and 2702(a), respectively.



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the first degree.4 This Court affirmed his judgment of sentence, and Appellant

filed a petition for allowance of appeal to the Supreme Court of Pennsylvania.

        In 2010, while that petition was pending, Appellant was retried before a

jury on the murder count.          At trial, Jahmeil Ragin “testified that he saw

Appellant shoot him and his brother.” Scott, No. 1920 EDA 2010, at 4. Ms.

Jones testified about the intense argument between Appellant and Kahlil Ragin

at the bar not long before the shooting and about what Appellant said to her

after the telephone call from Jahmeil Ragin shortly before Kahlil Ragin was

killed. N.T., 5/25/2010, 120-21, 126; Scott, No. 1920 EDA 2010, at 2. On

direct examination, the Commonwealth showed Ms. Jones’s two statements

to police to her, and Ms. Jones admitted that she gave conflicting statements

but asserted that the second one was truthful, as she had “lied through this

whole [first] statement” like Appellant had asked her to do. N.T., 5/25/2010,

at 128, 131-34. On cross-examination, trial counsel impeached Ms. Jones

concerning the inconsistencies between her first and second statements and

why she took so long to contact the authorities about changing her statement.

Id. at 136-38, 140-41. “[T]he medical examiner testified that . . . Kahlil Ragin

was shot in the head from no more than a few feet away.” Scott, No. 1920

EDA 2010, at 3. Appellant was convicted and sentenced to life imprisonment




____________________________________________


4   Id. § 2502(a).

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without the possibility of parole to be served concurrently to the sentences for

his other convictions. He filed a timely direct appeal.

        On September 7, 2010, the Pennsylvania Supreme Court denied

Appellant’s first petition for allowance of appeal from his 2008 convictions. On

August 10, 2011, this Court affirmed his judgment of sentence for his murder

conviction, and Appellant filed a petition for allowance of appeal from this

affirmance with our Supreme Court, which was denied on March 30, 2012.

        On February 22, 2013, Appellant pro se filed his first PCRA petition.5 On

December 5, 2013, the PCRA court appointed counsel to represent Appellant,

but, on August 19, 2016, Appellant filed a motion to proceed pro se.          On

October 13, 2016, the PCRA court held a Grazier6 hearing and granted

Appellant’s motion. On May 24, 2017, the PCRA court granted permission for

Appellant to file an amended PCRA petition, which he did on September 26,

2017.

        The amended PCRA petition alleged that trial counsel from Appellant’s

2010 murder trial was ineffective, because he “failed to request a Kloiber

charge”7 and “fail[ed] to properly utilize witness prior inconsistent statements

for impeachment[.]” Amended PCRA Petition, 9/26/2017, at 9, 14.


____________________________________________


5 Appellant’s PCRA petition only raises claims relating to his 2010 murder
conviction and hence is timely. See 42 Pa.C.S. § 9545(b)(1).
6   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
7   Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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      On June 20, 2018, the Commonwealth filed a motion to dismiss the

petition. On October 11, 2018, the PCRA court entered a notice of intent to

dismiss all claims without a hearing pursuant to Pa.R.Crim.P. 907. Appellant

did not file a response.

      On November 13, 2018, the PCRA court dismissed Appellant’s petition.

On December 3, 2018, Appellant filed this timely appeal.

      On December 18, 2018, the PCRA court ordered Appellant to file a

concise statement of errors complained of on appeal by January 9, 2019. The

order stated, “Any issue not properly included in the Statement timely filed

and served shall be deemed waived.” Order, 12/18/2018. Appellant filed his

statement of errors complained of on appeal on February 12, 2019, more than

a year late.

      The PCRA court entered its opinion on February 27, 2019, in which it

stated that Appellant’s “issues are waived as untimely.” PCRA Court Opinion,

2/27/2019, at 3.    “However, in an abundance of caution,” the PCRA court

“address[ed] each individual issue.” Id.

      When a trial judge orders a timely statement to be filed an
      appellant must comply or risk waiver. Waiver is required when an
      ordered statement is not filed, Commonwealth v. Lord, 553 Pa.
      415, 719 A.2d 306, 308 (1998), but is discretionary with the trial
      court when the statement is belatedly filed. See In re C.R.J.,
      801 A.2d 1261 (Pa.Super.2002) (finding waiver where trial judge
      deemed all issues waived for belated filing); Commonwealth v.
      Ortiz, 745 A.2d 662 (Pa.Super.2000) (finding no waiver where
      trial judge elected to address belated statement). See also
      Middleton v. Middleton, 812 A.2d 1241 (Pa.Super.2002)
      (collecting cases).


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Commonwealth v. Smith, 854 A.2d 597, 599–600 (Pa. Super. 2004). We

decline to exercise our discretion to impose the waiver rule in response to

Appellant’s belatedly filed concise statement where the trial court filed an

opinion addressing the issues on their merits and where Appellant’s delay in

filing does not preclude meaningful review.

      We therefore turn to the following issues that Appellant now presents

for our review:

      I.   The [trial] court committed an error of law in permitting the
      Commonwealth to present testimony of “911” calls that were not
      admissible. These tapes were used to corroborate her evidence
      and not to explain facts.

      II.      Ineffective Assistance of Counsel

            [a.]       Trial counsel failed to properly utilize witnesses’
            prior     inconsistent    statements    for     impeachment.
            Ms. Re[ig]na Jones, gave two different statements on
            7/13/2007 and 7/16/2008, a week before she was
            scheduled for court. And Ms. Jones admitted that she had
            lied to the police.

            [b.]       Trial counsel failed to request a Kloiber charge. A
            Kloiber charge warns jurors that they should receive
            evidence of eyewitnesses with caution. Jahmeil Ragin, both
            failed to identify [Appellant] and stated that he did not know
            who shot him and his brother.

Appellant’s Brief at 4-5 (issues re-ordered to facilitate disposition) (some

additional formatting).

      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting




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Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)), reargument

denied (July 17, 2019).

      Preliminarily, we note that Appellant’s first issue on appeal is waived,

because he could have challenged the admissibility of testimony about 911

calls as part of his direct appeal following his sentencing in 2010, but he failed

to do so. See 42 Pa.C.S. § 9544(b) (“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.”).

      Appellant’s surviving claims allege ineffective assistance of trial counsel

at Appellant’s 2010 retrial for murder.      Appellant’s Brief at 8-11.      When

reviewing a claim that a PCRA court erred by denying PCRA relief based upon

ineffective assistance of counsel, we consider the following legal precepts:

      Counsel is presumed to be effective.

      To overcome this presumption, a PCRA petitioner must plead and
      prove that: (1) the underlying legal claim is of arguable merit;
      (2) counsel’s action or inaction lacked any objectively reasonable
      basis designed to effectuate his client’s interest; and
      (3) prejudice, to the effect that there was a reasonable probability
      of a different outcome if not for counsel’s error.

      A failure to satisfy any of the three prongs of this test requires
      rejection of a claim of ineffective assistance.

Medina, 209 A.3d at 1000 (internal brackets, citations, and quotation marks

omitted) (some additional formatting).        “[C]ounsel will not be deemed

ineffective for failing to raise a meritless claim.” Commonwealth v. Spotz,

896 A.2d 1191, 1211 (Pa. 2006).

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      For Appellant’s first ineffectiveness claim – that trial counsel was

ineffective for failing to utilize Ms. Jones’s prior inconsistent statements to

impeach her, Appellant’s Brief at 10 – neither Appellant’s amended PCRA

petition nor his brief to this Court plead that Appellant suffered “prejudice, to

the effect that there was a reasonable probability of a different outcome if not

for counsel’s error.” Medina, 209 A.3d at 1000. As Appellant failed to plead

the prejudice prong of the ineffectiveness test for this claim, he cannot

overcome the presumption that his trial counsel was effective. Id.

      Assuming arguendo that Appellant had properly pleaded the prejudice

prong, he still would not be entitled to relief. After a thorough review of the

record, we note that trial counsel did not have to impeach Ms. Jones about

her prior inconsistent statement, because the jury already knew about her

conflicting statements, as they were presented and discussed on direct

examination. N.T., 5/25/2010, at 131-34. Nevertheless, even though it may

have been redundant, “[t]his issue was effectively addressed by trial counsel

in his cross examination of Reigna Jones,” because trial counsel “did effectively

utilize the witness’s prior inconsistent statement to impeach her.” PCRA Court

Opinion, filed February 27, 2019, at 6-7 (citing N.T., 5/25/2010, at 136-41).

Appellant has consequently failed to prove that “the underlying legal claim is

of arguable merit;” ergo, we reject this claim of ineffective assistance for this

reason as well. Medina, 209 A.3d at 1000.




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       In the argument section of his brief, Appellant furthermore suggests

that trial counsel was ineffective for not informing the jury that a material

witness warrant had to be issued for Ms. Jones, because, he claims, “such

information would have cast considerable doubt on the credibility of the

witness” and “show[n] her motivation for testifying.” Appellant’s Brief at 11.

However, Appellant makes no reference to the material witness warrant for

Ms. Jones in his statement of questions involved, id. at 4-5, and “[n]o question

will be considered unless it is stated in the statement of questions involved or

is fairly suggested thereby.” Pa.R.A.P. 2116(a).8

       Appellant’s remaining ineffectiveness claims relate to the testimony of

Jahmeil Ragin, who Appellant contends knew him for 15 years yet “on several

occasions failed to identif[y Appellant] to the police.” Appellant’s Brief at 8.

       In a header in his brief, Appellant states that trial counsel was

ineffective, because he “failed to . . . challenge Jahmeil Ragin, inconsistent

statements for impeachment [sic].” Id. Under that heading, he includes only

one sentence about Jahmeil Ragin’s alleged prior inconsistent statements:

“Trial counsel did not motion the court to impeach Mr. Ragin for his

inconsistent statements, and Mr. Ragin admitted that he lied to police.” Id.



____________________________________________


8 Appellant also made no reference to the material witness warrant in his
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).    “Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii).

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at 9. Appellant makes no further mention of trial counsel being ineffective for

failing to use Jahmeil Ragin’s alleged prior inconsistent statements to impeach

him, beyond those two sentences.       See id. at 8-11.     As Appellant’s brief

presents no case law, citations to the record as to what these allegedly

inconsistent statements even were, or other support for this claim, this issue

is thereby waived. See, e.g., Commonwealth v. Spotz, 18 A.3d 244, 281

n.21 (Pa. 2011) (without a “developed, reasoned, supported, or even

intelligible argument[, t]he matter is waived for lack of development”); In re

Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (“The argument

portion of an appellate brief must include a pertinent discussion of the

particular point raised along with discussion and citation of pertinent

authorities[; t]his Court will not consider the merits of an argument which fails

to cite relevant case or statutory authority” (internal citations and quotation

marks omitted)); Commonwealth v. Sullivan, 864 A.2d 1246, 1248-49 (Pa.

Super. 2004) (citing Commonwealth v. Mercado, 649 A.2d 946, 954 (Pa.

Super. 1994) (failure to provide support for an issue may result in waiver of

the claim)) (claims waived, “because none of [the a]ppellant’s cited authority

addresses” issue raised).

      Finally, Appellant argues that trial counsel was ineffective for failing to

request a Kloiber charge.      Appellant’s Brief at 8. “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


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identification of a defendant, or had difficulty making an identification in the

past.” Commonwealth v. Reid, 99 A.3d 427, 448 (Pa. 2014). Appellant

maintains that such an instruction was necessary due to Jahmeil Ragin’s

equivocation and difficulty in his identification of Appellant. Appellant’s Brief

at 8. Additionally, he urges this Court to find that he was prejudiced by trial

counsel’s failure to request a Kloiber charge, as “the guilt or innocence of the

Appellant rested upon identification[,]” where there was “no physical

evidence” and “no one other than Jahmeil [Ragin] made the identification[.]”

Id. at 8-9.

      We consider the record “in the light most favorable to the prevailing

party at the PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa.

Super. 2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.

Super. 2014) (en banc)).      When the record is viewed in the light most

favorable to the Commonwealth as the prevailing party, id., we find that

Appellant has failed to prove that he was prejudiced by the lack of a Kloiber

charge. See Medina, 209 A.3d at 1000. Assuming that a Kloiber charge

had been given and that it had caused the jury to discredit Jahmeil Ragin’s

testimony in its entirety, including his identification of Appellant as the

shooter, the jury still could have concluded that Appellant was the perpetrator

based upon Ms. Jones’s testimony alone. Specifically, the jury could have

reached this conclusion from her testimony that Appellant and Kahlil Ragin

had been arguing shortly before Kahlil Ragin was murdered and that Appellant


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had told her immediately before the shooting that he was not going to let

Kahlil Ragin talk to him “like that.” N.T., 5/25/2010, 120-21, 126; Scott, No.

1920 EDA 2010, at 1-2. Additionally, again assuming the jury were to ignore

Jahmeil Ragin’s testimony in its entirety, the evidence was still sufficient to

establish that Appellant acted with the specific intent to kill, because, as this

Court explained on direct appeal,

      the medical examiner testified that the Kahlil Ragin was shot in
      the head from no more than a few feet away. The use of a deadly
      weapon on a vital part of the body is sufficient evidence to
      establish the required intent for first-degree murder.
      Commonwealth v. Vega, 933 A.2d 997, 1009 (Pa. 2007).

Scott, No. 1920 EDA 2010, at 3-4. Accordingly, Appellant has failed to prove

“that there was a reasonable probability of a different outcome if not for

counsel’s” failure to seek a Kloiber instruction about Jahmeil Ragin’s

identification of Appellant as the perpetrator. Medina, 209 A.3d at 1000.

      For the reasons given above, we conclude that Appellant’s issues raised

on appeal are waived or meritless. Having discerned no error of law, we affirm

the order below. See id. at 996.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/19

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