J-S57014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MELVIN JACKSON

                            Appellant                No. 2804 EDA 2014


            Appeal from the Judgment of Sentence March 25, 2011
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004208-2010


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED OCTOBER 14, 2015

        Appellant, Melvin Jackson, appeals nunc pro tunc from the March 25,

2011 aggregate judgment of sentence of life imprisonment without the

possibility of parole, imposed after he was found guilty of one count each of

murder in the first degree, robbery, criminal conspiracy, and possession of

an instrument of a crime (PIC).1 After careful review, we affirm.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

                   On January 20, 2009, [at] approximately 6:00
              PM, Decedent, Dwayne Canty, resided with his
              mother, Nikisha Ramsey, in the 2100 block of
              Newkirk Street, Philadelphia, PA, and left home with
              the intentions of making a purchase at a
              neighborhood Kentucky Fried Chicken restaurant.
____________________________________________
1
    18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903(a), and 907(a), respectively.
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          Very shortly after leaving the house, Ramsey heard
          gunshots and she looked out of a window in search
          of her son. When she did not see him she got into
          her car and drove around the block toward the
          restaurant to find him. She soon observed a crowd
          outside an empty lot nearby and upon investigating
          the scene she found Decendent lying in the lot.

                Philadelphia Police Officer Phil Sprague
          responded to the scene and observed Decedent lying
          on his back face up in the lot with his eyes open.
          Decedent was not breathing and he was
          nonresponsive. Sprague checked Decedent’s outer
          garment pockets and found nothing, but he did
          observe an ID card, cell phone, and a hat, nearby.
          Decedent was transported to Temple University
          Hospital and was pronounced dead.

                 Dr. Gary Collins, Assistant Medical Examiner
          for the City of Philadelphia, testified that he
          performed a postmortem examination on the
          remains of the [D]ecedent[,] that the manner of
          death was homicide[,] and that the cause of death
          was multiple gunshot wounds. He stated that four
          gunshot wounds were located about the chest, upper
          torso and left thigh, and that two additional injuries
          were also consistent with gunshot injuries. Some of
          the bullets were recovered from Decedent’s body and
          submitted to the Firearms Investigation Unit for
          analysis. Collins stated that he did not find any close
          or contact gunshot wounds and that the range of fire
          could have been anywhere from more than three
          feet to any further distance from the victim.

                Philadelphia Police Officer Stephen Ahmie, an
          expert in firearms identification and assigned to the
          Police Firearms Identification Unit, testified that he
          examined the pieces of ballistics evidence submitted
          to him in connection with Decedent’s murder. Ahmie
          examined a .38/.357 caliber bullet from Temple
          Hospital and two .38/.357 projectiles received from
          the Medical Examiner’s Office. He determined that
          they were fired from the same firearm. He also
          examined two CBC .45 automatic-caliber fired

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          cartridge casings from the crime scene, and a .45
          caliber bullet. Ahmie went on to opine that the
          bullets removed from the body of the decedent, the
          .38/.357 caliber, were fired from a revolver-type
          weapon. Further investigation led Ahmie to conclude
          that the two fired cartridge casings from the .45
          caliber automatic matched a firearm that was
          recovered in an unrelated incident which occurred on
          March 7, 2009 and that the casings were fired from
          2558 N. 17th Street, Philadelphia, PA and were found
          on the highway near that residence.

                 Philadelphia Police Officer Edward Fidler was
          assigned to the Crime Scene Unit on the day of the
          killing and he testified that he responded to the
          scene at the 2100 block of Newkirk Street, at
          Susquehanna Avenue and Newkirk Street, where he
          did a sketch of the area, took photographs, and
          itemized physical evidence found in the empty lot
          where [D]ecedent’s body was found.          Recovered
          from the scene was a cell phone, a Pennsylvania
          Identification Card in Decedent’s name, fired
          cartridge cases from a semiautomatic handgun, and
          a black knit hat which belonged to [D]ecedent. The
          evidence was submitted to the Criminalistics
          Laboratory to be examined for the presence of hairs,
          fibers, and DNA. Fidler testified that he also [found]
          two CBC .45 caliber automatic fired cartridge cases
          and a copper/lead projectile.

                 Immediately prior to the killing, Monique
          Roane and her friend, Zakia Moseley, were returning
          home from a party and observed Appellant pass by
          upon arriving at the intersection of 29th Street and
          Susquenhanna [sic] Avenue. Mosely [sic] stopped to
          speak with another friend and while Roane waited for
          Moseley to conclude her conversation Roane
          observed Appellant run into the lot and saw him
          firing a handgun. After the shooting police arrived
          and Roane looked into the lot and observed
          Decedent lying there.

               Roane’s son was near the scene and he
          grabbed Roane, admonishing her to be quiet, and

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          quickly escorted her into the house. Roane testified
          that she did not immediately report her observations
          to police because she was afraid for herself and her
          son. The day before Decedent’s funeral Roane and
          her son moved from their home. Roane testified
          that after Decedent’s murder Appellant stalked and
          harassed her. She stated that Appellant interrogated
          her as to what she reported to police, and that
          Appellant told her neighbors that she was a ‘snitch’.

                Michael Strawther was in his grandmother’s
          house in the 2900 block of Newkirk Street on
          January 20, 2009 when he heard gunshots.
          Strawther went out to investigate and he observed
          two males running by, one male was at the next
          corner of Diamond and Newkirk Streets, who he
          could not see sufficiently to identify, and the other
          male was half a block away, who he described to
          police as light complexioned and wearing a black
          jacket with a hood. Strawther testified that he had
          seen Appellant once before in the neighborhood but
          did not know him and did not know his name.
          Strawther further testified that after the shooting
          several friends in the neighborhood rushed to the
          hospital where [Decedent] was taken. He stated
          that he and Decedent worked together and they had
          been friends during the four years Decedent lived in
          the area. As the group was returning from the
          hospital, Strawther saw Appellant sitting on the steps
          leading to the home of Appellant’s accomplice, Isaiah
          Lassiter.

                On January 26, 2009[,] detectives met with
          Strawther and Roane at Roanes’ [sic] home. They
          were shown a photograph of Appellant and his
          accomplice, Isaiah, and Strawther told detectives
          that he did not know Appellant but that he knew
          Isaiah. He also gave detectives a formal statement.
          Strawther met with detectives a second time on
          March 13, 2009 and supplemented his initial
          statement. At that time Strawther was shown a
          photo spread and positively identified Appellant. He
          explained that he did not tell police all he knew on
          the night of the shooting because he was not

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          thinking clearly, having just seen Decedent lying in
          the lot. He also did not know that Appellant was also
          known as “Prophe[c]y” but heard the name in the
          neighborhood after Decedent was killed. Upon being
          shown the photo spread with additional information
          regarding Appellant, Strawther identified Appellant
          as the person he saw on the night of shooting.
          Strawther also told dectectives [sic] that he knew
          Lassiter since they were young children and that he
          also positively identified Lassiter.

                 Several months after the shooting, and after
          Monique Roane and her son moved from their home
          located in the neighborhood where Decedent was
          killed, Appellant began calling her at her new home
          and having conversations with her son.          Roane
          testified that [A]ppellant stalked and harassed her,
          interrogating her as to what she reported to the
          police and telling neighbors that she was a
          “snitch[.]” Roane went on to testified [sic] that on
          October 21, 2009 she was asleep in her bedroom
          when a sound woke her whereupon she observed
          Appellant crawl from beneath her bed and that he
          began to grab Roane by the throat and pushed her
          against the headboard of the bed. He called Roane a
          “snitch-a[**] b[**]ch” and threatened to kill her.
          Roane’s eight year old daughter ran into the room
          and he threw the child back into her bedroom.
          Roane then began to fight Appellant and found an
          iron which she used to hit Appellant in the top of the
          head. Appellant was dazed and fell back onto the
          floor. He then got up and fled.

                Police Officers Katie Lankford and Joseph
          Caruso testified [that they] responded to the report
          of a burglary in progress at Roane’s home where
          [they] met with the Complainant who related that
          she was asleep in her bedroom and was awakened
          by Appellant who did not have permission to be in
          her home and that she chased him out of the house.
          Roane told the officer that Appellant was involved in
          [D]ecedents’ [sic] killing in the 2100 block of
          Newkirk Street. The officers surveyed the area and
          [Officer] Caruso observed Appellant who was the

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          only person on the street and was standing across
          from 2543 Natrona Street. [Officer] Caruso asked
          Appellant what he was doing there and if he had any
          identification and when Appellant refused to respond
          and attempted to walk away, he was detained.
          [Officer] Lankford then accompanied the Roane[s] to
          the location [Officer] Caurso detained Appellant at
          which point R[oane] immediately identified Appellant
          as the person who was just inside her house without
          her permission and that he was involved in
          Decedent’s murder.

                 Isaiah Lassiter, Appellant’s accomplice, pled
          guilty to murder, robbery, and conspiracy in the case
          involving the killing of Dwayne Canty. Lassiter gave
          the police two statements. On April 29, 2009[,]
          Police Detectives McNamee and Manigold interviewed
          Lassiter and took his formal statement in which
          Lassiter stated that Appellant told him that he killed
          [D]ecedent. McNamee believed that Lassiter was
          himself involved in the shooting and he requested
          Detective James Pitts and his partner, Detective
          Cummings, to interview Lassiter again.        Lassiter
          gave Pitts and Cummings an additional formal
          statement and again stated that Appellant shot
          Decedent.      In his second statement Lassiter
          explained:

                “We were outside just chilling and we seen
                Dwayne. We were walking on the corner of
                Newkirk and Susquehanna. Dwayne came out
                of his house and was walking across the lot. I
                told Prophecy [Appellant], let’s jam the boy.
                We went up to him. We both had guns and
                told the boy to give it up. Dwayne reached in
                his pockets and pulled out his money and gave
                it to me. That’s when Prophecy shot him.”

          When he was asked how much money they took
          from [D]ecedent[,] Lassiter responded that they
          robbed him of approximately forty dollars ($40)
          which Appellant and Lassiter divided between them.
          Lassiter signed the statement and he positively


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              identified a photograph of Appellant as the person he
              referred to as Prophe[c]y.

                    Brandon    Holiday,   a    privately  retained
              investigator, testified for the defense that he
              conducted an investigation of the area of 29th Street
              and Susquehanna Avenue, and took several
              photographs and measurements. The photographs
              were published to the jury.

Trial Court Opinion, 1/20/15, at 2-7.

        On April 13, 2010, the Commonwealth filed an information, charging

Appellant with the above-listed offenses, plus one count each of firearms not

to be carried without a license and carrying firearms in public in

Philadelphia.2 On March 16, 2011, Appellant proceeded to a jury trial, at the

conclusion of which, on March 25, 2011, the jury found Appellant guilty of

one count each of murder in the first degree, robbery, criminal conspiracy,

and PIC while the two firearms offenses were nolle prossed. That same day,

the trial court imposed an aggregate sentence of life imprisonment without

the possibility of parole.3 On March 30, 2011, Appellant filed a timely post-

sentence motion, which the trial court denied on April 5, 2011. Appellant did

not file a notice of appeal to this Court.




____________________________________________
2
    18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
3
  Specifically, the trial court imposed life without parole for first-degree
murder, ten to twenty years’ imprisonment each for the robbery and
conspiracy charges, and two and one-half to five years’ incarceration for PIC.



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        On May 20, 2011, Appellant filed a second, counseled post-sentence

motion.     Therein, counsel conceded his own ineffective assistance by not

filing Appellant’s notice of appeal due to a clerical error in his office.

Appellant’s Second Post-Sentence Motion, 5/20/11, at ¶¶ 5-11.             The trial

court treated the motion as a timely first petition for relief pursuant to the

Post Conviction Relief Act (PCRA) and ordered the appointment of new

counsel.4    After many continuances spanning more than three years, on

August 27, 2014, PCRA counsel filed an amended petition. On August 29,

2014, the trial court entered an order reinstating Appellant’s direct appeal

rights nunc pro tunc.        On September 26, 2014, Appellant filed a timely

notice of appeal.5

        On appeal, Appellant raises the following two issues for our review.

              I.     Did the trial court commit error in refusing to
                     give a [Commonwealth v. Kloiber, 106 A.2d
                     820 (Pa. 1954),] instruction to the jury with
                     respect to the identification testimony of
                     Monique Roane?

              II.    Did the trial court abuse its discretion in
                     refusing to give a Kloiber instruction to the
                     jury with respect to the identification testimony
                     of Michael Strawthers that the jury must
                     consider      with    caution    the     witness’s
                     identification of [Appellant]?


____________________________________________
4
    42 Pa.C.S.A. §§ 9541-9546.
5
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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Appellant’s Brief at 7.

      Both of Appellant’s issues on appeal argue that the trial court erred in

refusing to give his requested Kloiber instructions, pertaining to his

identification by two witnesses.      Appellant’s Brief at 14-15, 19.   We first

address the Commonwealth’s argument that Appellant has waived both of

these issues on appeal because he did not object to the trial court’s actual

charge to the jury at trial. See generally Commonwealth’s Brief at 10, 14.

      Pennsylvania Rule of Criminal Procedure 647(B) states that “[n]o

portions of the charge nor omissions from the charge may be assigned as

error, unless specific objections are made thereto before the jury retires to

deliberate.”   Pa.R.Crim.P. 647(B).    Our Supreme Court has reiterated that

Rule 647(B) is mandatory, such that “the mere submission and subsequent

denial of proposed points for charge that are inconsistent with or omitted

from the instructions actually given will not suffice to preserve an issue,

absent a specific objection or exception to the charge or the trial court's

ruling respecting the points.” Commonwealth v. Pressley, 887 A.2d 220,

225 (Pa. 2005); accord Commonwealth v. Janda, 14 A.3d 147, 163 (Pa.

Super. 2011); Commonwealth v. Marquez, 980 A.2d 145, 150-151 (Pa.

Super. 2009), appeal denied, 987 A.2d 160 (Pa. 2009).

      In this case, the certified record reveals that prior to the court giving

its charge to the jury, Appellant requested the two Kloiber instructions.

N.T., 3/22/11, at 152-153; N.T., 3/23/11, at 107-108. For Roane, Appellant


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requested a standard          Kloiber     instruction, which the      Commonwealth

opposed.      N.T., 3/22/11, at 153.             For Strawthers, Appellant and the

Commonwealth agreed that a Kloiber instruction was appropriate, but

disagreed as to which standard jury instruction was proper for this case. Id.

at 154; N.T., 3/23/11, at 108, 110-111.                 Appellant requested the first

alternative instruction, whereas, the Commonwealth believed the second

alternative was more appropriate.              N.T., 3/23/11, at 109, 111; see also

generally Pa. Sugg. Stan. Crim. Jury Instrs. § 4.07B (2015). The trial court

refused to give any type of Kloiber instruction for Roane, and agreed with

the Commonwealth that the second alternative instruction was proper for

Strawthers. N.T., 3/22/11, at 153; N.T., 3/23/11, at 108; N.T., 3/24/11, at

103. After the trial court gave its charge to the jury, at no point in time did

Appellant object to the trial court’s actual charge as required by Pressley

and Rule 647(B).          Therefore, we agree with the Commonwealth that

Appellant    has     waived     both    issues     on   appeal.6    See    generally

Commonwealth’s Brief at 10, 14.




____________________________________________
6
  We note that Appellant actually requested the trial court clarify the second
alternate Kloiber instruction for Strawthers after the trial court gave it to
the jury. N.T., 3/24/11, at 150.




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J-S57014-15


       Based on the foregoing, we conclude both of Appellant’s issues on

appeal are waived under Rule 647(B) and Pressley.7 Accordingly, the trial

court’s March 25, 2011 judgment of sentence is affirmed.

       Judgment of sentence affirmed.




____________________________________________
7
  Even if we were to conclude that Appellant’s issues were not waived, we
would conclude they lack merit. As to Roane, she testified that she knew
Appellant, as he had stayed in her home and was a friend of her son’s. N.T.,
3/16/11, at 62-63. Our Supreme Court has held that “prior familiarity
creates an independent basis for [a] witness’s in-court identification of the
defendant” rendering a Kloiber instruction unnecessary. Commonwealth
v. Ali, 10 A.3d 282, 303 (Pa. 2010). Further, any alleged poor lighting in
the area at the time Roane saw Appellant went to her credibility, not to
whether a Kloiber instruction was required.                See generally
Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995).

      As to Strawthers, to the extent Appellant complains that the conditions
under which Strawthers viewed Appellant were “less than optimal,” this goes
to Strawthers’ credibility. See id. In addition, Appellant points out that
Strawthers did not describe the perpetrator as having a beard, which
Appellant does. Appellant’s Brief at 19-20. However, a Kloiber instruction
is not required where a witness “explained … the reason for his doubt was
that [the defendant]’s appearance in the photograph was different than his
appearance at the [scene].” Commonwealth v. Yarris, 549 A.2d 513, 528
(Pa. 1988). Here, Strawthers explained that the reason he did not mention
Appellant having facial hair to the police was because Appellant’s face was
partially covered with a hood. N.T., 3/21/11, at 20, 55. Therefore, based
on these considerations, even if we could address Appellant’s claims on their
merits, they would not garner him relief on appeal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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