J-S06008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DENNIS B. JOHNSON,

                            Appellant                 No. 2706 EDA 2013


            Appeal from the PCRA Order Entered September 9, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007319-2009


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 23, 2015

        Appellant, Dennis B. Johnson, appeals from the post-conviction court's

September 9, 2013 order denying, without a hearing, his first petition for

relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.

Appellant is currently serving a life sentence for his conviction of second

degree murder, robbery, and a violation of the Uniform Firearms Act.

Appellant raises four claims asserting the ineffective assistance of his trial

counsel. After careful review, we affirm.

        The following facts were adduced at Appellant’s trial. On August 27,

2007, Appellant, Curtis Smith (Curtis), and Amin Vicks were at a

convenience store located at 30th Street and Lehigh Avenue in Philadelphia,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S06008-15



where Ozzie Clark (Clark) was working as the sole clerk. At the time Curtis

arrived, the doors to the store were locked, and business was being

conducted through a window on the side of the store.

       Curtis identified Appellant in court, and testified that he knew

Appellant all of his life. N.T., 9/28/10, at 112-14. While Curtis was at the

window completing his purchase of cigars, he heard a commotion.             Curtis

turned to see Appellant “with a gun out[,]” and pointed at the chest of the

victim, Kenyatta Smith (Kenyatta or “the victim”). Id. at 126, 136. Curtis

also heard Appellant say to the victim, “Put everything on the steps or

something like that.”       Id. at 128.        He then observed Kenyatta place his

personal effects, including a phone, on the steps. He also heard Appellant

instruct the victim not to touch the items.           When he observed what was

going on, Curtis asked Appellant, “Yo, what [are] you doing, Dog?” Id. at

126.     Soon thereafter, Curtis heard gunshots.1 Id. He immediately ran

away, explaining that “When somebody is shooting a gun, I’m moving out of

the way so I don’t get hit.” Id. at 160.
____________________________________________


1
   There does not appear to be any dispute that Curtis also testified that he
saw Appellant shoot the victim. However, the relevant portion of the
transcript in which this testimony occurred is missing from the certified
record. Nevertheless, during cross-examination, Appellant’s counsel clearly
alludes to this testimony, asking Curtis, “But then you testified that you saw
it. My question is, how could you see it if … you were around the corner
hearing it?” N.T., 9/28/10, at 161-62. Curtis explained that he was
standing at the corner of the store, that his view was not obstructed by the
building, and that he had no difficulty observing the shooting and the events
that immediately preceded it. Id. at 163-64.



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     Clark also testified for the Commonwealth.       He had worked at his

parents’ business, the convenience store located at 30th Street and Lehigh

Avenue, since he was a child. Clark identified Appellant in court, indicating

that he had known him for 5 or 6 six years at the time of the shooting. N.T.,

9/29/10, at 41. Appellant would frequent the convenience store about once

or twice a week as a customer. Clark knew Kenyatta as a frequent customer

at the store as well, and further recalled that Kenyatta was a nighttime

security guard at a local pool. Clark also indicated that he knew Amin Vicks

and Curtis, as they were also regular customers.

     Clark was working alone the evening of the shooting. He saw Curtis,

Amin Vicks, and Appellant approach the store.      Kenyatta arrived at nearly

the same time on a bicycle. Kenyatta purchased a few items first. While he

was taking an order for Amin Vicks or Curtis, Clark noticed Appellant holding

Kenyatta at gunpoint with a chrome revolver, and rifling through the victim’s

pockets.   Clark heard Appellant say something like, “you want to get

popped, Oldhead?” Id. at 54. Clark believed that Appellant said this when

Kenyatta resisted giving up his phone. Id. at 61. Immediately thereafter,

Clark heard a gunshot ring out, and saw everyone run away, including

Kenyatta, who only ran for a short time before collapsing. Clark indicated

that he was only about eleven feet from where the shooting took place, and

that he heard only one shot. Immediately after the shooting, Clark called

the police and then tried to attend to Kenyatta, who was “[b]arely

breathing.” Id. at 66.

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       Police Officer Lewis Grandizio, a firearms expert, testified that he

analyzed the bullet taken from Kenyatta’s body.            It was consistent with

being fired from a .32 caliber revolver.           Dr. Gary Collins, an assistant

medical examiner for the Philadelphia Medical Examiner’s Office, reviewed

the report of the autopsy that had been performed by Dr. Gregory

McDonald.2      Dr. Collins concluded that Kenyatta died of a single gunshot

wound to the right side of his chest under the armpit, and that the manner

of death was homicide. The single bullet had penetrated the victim’s liver,

heart, and left lung.

       On September 30, 2009, Appellant was convicted by a jury of the

above-listed offenses.       On November 2, 2010, the trial court sentenced

Appellant to life imprisonment for second degree murder, and concurrent

terms of 5-10 years’ and 3½-7 years’ imprisonment for robbery and the

firearms violation, respectively.        Appellant filed a direct appeal, but that

appeal was ultimately discontinued on September 9, 2009, before a brief

was filed with this Court.

       Appellant filed a counseled PCRA petition, his first, on July 20, 2012.3

The Commonwealth filed a motion to dismiss on February 2, 2013.
____________________________________________


2
  Dr. McDonald was no longer employed with the Philadelphia Medical
Examiner’s Office at the time of Appellant’s trial.
3
  This petition was titled “Amended [PCRA] Petition,” however, the lower
court docket does not indicate that any prior PCRA petition was filed by
Appellant.



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Appellant filed a response to the Commonwealth’s motion to dismiss on

March 5, 2013. Subsequently, on July 9, 2013, the PCRA court issued notice

of its intent to dismiss Appellant’s PCRA petition without a hearing pursuant

to Pa.R.Crim.P. 907. Appellant’s petition was susequently dismissed by the

court by order dated September 9, 2013.

       Appellant filed a timely notice of appeal to this Court from that order

on October 4, 2013. He also filed a timely Pa.R.A.P. 1925(b) statement with

the PCRA court, which then filed its Rule 1925(a) opinion on July 15, 2014.

Appellant now presents the following questions for our review:

        I.    Was trial counsel ineffective because he failed to object to
              the charge of the court which failed to define robbery and
              its intent elements, robbery being the statutorily
              enumerated felony on which Appellant’s second degree
              murder conviction was predicated?

       II.    Was trial counsel ineffective because he failed to object on
              confrontation clause grounds and on hearsay grounds to
              detective McDermott’s testimony that Amin Vicks, who did
              not testify, when reinterviewed informed detectives “that
              Curtis Smith was there, Dennis Johnson [Appellant] was
              the shooter…”?

      III.    Was trial counsel ineffective because he failed to object to
              the introduction of testimony from a medical examiner who
              did not perform the autopsy and who was substituting for
              the medical examiner who did perform the autopsy?

       IV.    Was trial counsel ineffective because he failed to ask for a
              cautionary    Kloiber[4]      instruction   because      the
____________________________________________


4
  Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa. 1954) (holding
that “where the witness is not in a position to clearly observe the assailant,
or he is not positive as to identity, or his positive statements as to identity
are weakened by qualification or by failure to identify defendant on one or
(Footnote Continued Next Page)


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             Commonwealth’s case rested entirely on the identifications
             [of Appellant] made by Curtis Smith and Ozzie Clark, when
             each of them had not identified Appellant to the police
             when interviewed after the crime and at other times?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      We review an order dismissing a petition under the PCRA in the
      light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court's ruling if it
      is supported by evidence of record and is free of legal error.
      This Court may affirm a PCRA court's decision on any grounds if
      the record supports it. Further, 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. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

      Appellant presents four ineffective assistance of counsel (IAC) claims.

In reviewing such claims:

      We begin with the presumption that counsel rendered effective
      assistance. To obtain relief on a claim of ineffective assistance
      of counsel, a petitioner must rebut that presumption and
      demonstrate that counsel's performance was deficient, and that
      such performance prejudiced him. Strickland v. Washington,
      466 U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
      In our Commonwealth, we have rearticulated the Strickland
      Court's performance and prejudice inquiry as a three-prong test.
      Specifically, a petitioner must show: (1) the underlying claim is
      of arguable merit; (2) no reasonable basis existed for counsel's
                       _______________________
(Footnote Continued)

more prior occasions, the accuracy of the identification is so doubtful that
the Court should warn the jury that the testimony as to identity must be
received with caution”).



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       action or inaction; and (3) counsel's error caused prejudice such
       that there is a reasonable probability that the result of the
       proceeding would have been different absent such error.
       Commonwealth v. Pierce, 515 Pa. 153, 158–59, 527 A.2d
       973, 975 (1987).

Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (some internal

citations omitted).

                                               I.

       Appellant’s first claim concerns the trial court’s jury instructions

regarding the definition of robbery, the predicate offense for Appellant’s

second degree murder conviction.5 “For a verdict to be founded on second

degree murder, the jury must be instructed as to the elements of the alleged

felonies.”    Commonwealth v. May, 656 A.2d 1335, 1343 (Pa. 1995).

Here, Appellant asserts that the trial court failed to instruct the jury on the

elements of robbery, and that trial counsel was ineffective for failing to

object to the jury instructions on that basis.      He contends that he was

prejudiced by this error because the jury might have convicted him under an

incorrect definition of robbery, which would also undermine Appellant’s

conviction for second degree murder. Id. Specifically, Appellant contends

____________________________________________


5
  “A criminal homicide constitutes murder of the second degree when it is
committed while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.” 18 Pa.C.S. § 2502(b). The statute further
explains the phrase “perpetration of a felony” as follows: “The act of the
defendant in engaging in or being an accomplice in the commission of, or an
attempt to commit, or flight after committing, or attempting to commit
robbery, rape, or deviate sexual intercourse by force or threat of force,
arson, burglary or kidnapping.” 18 Pa.C.S. § 2502(d) (emphasis added).



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that the “trial court never defined robbery in terms of the element of intent

and never required the jury to find, beyond a reasonable doubt, Appellant

harbored an intent to rob.” Appellant’s Brief at 12.

      In considering the underlying merits of this IAC claim, we consider the

following standards:

             When reviewing a challenge to jury instructions, the
      reviewing court must consider the charge as a whole to
      determine if the charge was inadequate, erroneous, or
      prejudicial. “The trial court has broad discretion in phrasing its
      instructions, and may choose its own wording so long as the law
      is clearly, adequately, and accurately presented to the jury for
      its consideration.” Commonwealth v. Prosdocimo, 525 Pa.
      147, 578 A.2d 1273, 1274 (1990). A new trial is required on
      account of an erroneous jury instruction only if the instruction
      under review contained fundamental error, misled, or confused
      the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009) (some internal

citations omitted).

      In the instant case, the trial court instructed the jury, in pertinent

part, as follows:

            The Defendant has been charged with robbery. To find the
      Defendant guilty of this offense[,] you must find that the
      following two elements have been proven beyond a reasonable
      doubt: that the Defendant killed Kenyatta Smith. Second, that
      the defendant did this during the course of a theft.

            During the course of committing means that you could find
      the Defendant guilty if you find beyond a reasonable doubt that
      he did these things either – and that refers to the killing. Either
      while – I’m sorry. That he did these things either while actually
      committing a theft, attempting to commit a theft, or while
      fleeing after either committing or attempting to commit a theft.

            A theft[,] of course[,] means taking unlawful control of or
      exercising unlawful control over someone else’s property and

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     intending not to give it back. The Defendant is charged with
     second degree murder. I will start [with] some terminology and
     basic principles. The more serious types of crimes are called
     felonies. For example, robbery is a felony.

             Second degree murder is called felony murder because it’s
     a killing connected with a felony. The felon need [] not intend to
     kill anyone or anticipate that anyone be killed.

           The Defendant has been charged with second degree
     murder, that is[,] felony murder. To find the Defendant guilty of
     this offense[,] you must find that the following three elements
     have been proven beyond a reasonable doubt:

     First, that the Defendant killed Kenyatta Smith. Second, that
     the Defendant did so while committing a robbery. Third, that
     the Defendant was acting with malice.

           You may find that the Defendant acted with malice if you
     are satisfied beyond a reasonable doubt that he committed the
     robbery. Because robbery is a crime inherently dangerous to
     human life[,] there does not have to be any other proof of
     malice. And[,] I have already defined robbery for you.

N.T., 9/30/10, at 103-05.

     Appellant contends that the court failed to instruct the jury that it was

required to find, beyond a reasonable doubt, that Appellant intended to rob

the victim to sustain a conviction for robbery. We disagree. No such intent

element is required by the statute defining the offense. Section 3701 of the

Crimes Code defines robbery as follows:

     (a) Offense defined.--

           (1) A person is guilty of robbery if, in the course of
           committing a theft, he:

                 (i) inflicts serious bodily injury upon another;

18 Pa.C.S. § 3701(a).




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      The trial court’s instructions mirror the statutory definition of robbery

with a single caveat: the trial court replaced the infliction-of-serious-bodily-

injury element with “the Defendant killed Kenyatta Smith.” N.T., 9/30/10,

at 103. Clearly, however, a conclusion that Appellant killed the victim would

satisfy the infliction-of-serious-bodily-injury element of robbery. Indeed, the

trial court’s instruction narrowed the range of conduct for which Appellant

was culpable for robbery and, thus, he suffered no prejudice as a result of

the court’s modification in this regard.

      The court did not directly define the mens rea, or intent element, of

robbery.     Notably, no such element appears in the statute.     Instead, the

court instructed the jury that a robbery occurs when a killing occurs during

the course of a theft.     The court then defined theft as “taking unlawful

control of or exercising unlawful control over someone else’s property and

intending not to give it back.”    Id. at 104 (emphasis added).      Thus, the

court included an intent element in its definition of robbery by incorporating

the ‘intent to steal’ element of theft. Consequently, Appellant’s contention

that the trial court failed to define the intent element of robbery at all is

meritless.    The trial court’s instructions required, at a minimum, that the

jury find that Appellant intended to keep the items stolen during the course

of the robbery.

      Appellant argues, however, that this invited the jury to convict

Appellant of second degree murder if the Appellant killed the victim during

the course of a theft rather than during a robbery. Theft is not an offense

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J-S06008-15



enumerated in 18 Pa.C.S. § 2502(d) and, therefore, Appellant is correct that

a conviction for theft cannot sustain a conviction for second degree murder.

Moreover, it is true that our Supreme Court has previously held that robbery

consists of two elements: “(1) The felonious intent to take money or goods

from   the   person,      presence   or     control     of    another;   and,    (2)   the

accomplishment       of    that   end     by       violence    or   putting     in   fear.”

Commonwealth v. Simpson, 260 A.2d 751, 754 (Pa. 1970) (emphasis

added).   Appellant contends that “the intent to rob is markedly different

from the intent to commit a theft.” Appellant’s Brief at 12.

       However, we view the difference between “intending not to give it

back” and “felonious intent to take money or goods from the person” to be,

at best, illusory.   The Simpson Court’s definition predates the substantial

adoption of the Model Penal Code as our Crimes Code, which did not occur

until 1973. Indeed, “felonious intent” is not used to describe any offenses

defined by our Crimes Code.          See generally 18 Pa.C.S. § 302 (General

requirements of culpability).     Thus, the Simpson Court’s definition of the

intent element of robbery was superseded by the adoption of the Crimes

Code in 1973. Moreover, we see no reason why, under the current Crimes

Code, the specific intent to steal, when accompanied by the use of force or

the threat of the use of force, would not be sufficient to demonstrate the

mens rea element of robbery under the current statute governing that

offense. The difference between the offense of robbery and theft is not, or is




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no longer, a difference of intent. It is a difference in the manner in which

the intended act is accomplished.

      Appellant   does     draw   our   attention   to   Commonwealth       v.

Prosdocimo, 578 A.2d 1273 (Pa. 1990), a case that occurred after the

adoption of the Crimes Code.        Appellant concedes that Prosdocimo is

adverse to his position, but claims that his case is distinguishable. We agree

that Prosdocimo is adverse to Appellant’s position, but we disagree that his

case is distinguishable.

      In Prosdocimo, our Supreme Court reversed the decision of this

Court granting Prosdocimo a new trial because of a “confusing and incorrect

jury instructions on felony-murder and robbery….”        Id. at 1274.   As our

Supreme Court explained:

      The crux of the Superior Court holding is that the trial judge's
      instructions interchanged the legal definitions of robbery and
      theft in such a way as to confuse the jury and permit the jury to
      convict Prosdocimo of felony-murder if he participated in a theft,
      whereas the law requires that felony-murder be predicated on
      one of several enumerated felonies, including robbery but
      excluding theft. The Commonwealth, as appellant, challenges
      this holding, claiming instead that the jury instructions were not
      incorrect or misleading, and that they were no more complicated
      than necessary in view of the complexity of the law of felony-
      murder.

Id.

      Appellant adopts a similar argument to the one addressed in

Prosdocimo – that the jury may have been permitted to convict Appellant

of second degree murder due to his participation in a theft. However, our



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Supreme Court criticized the Superior Court’s decision in Prosdocimo for

failing to “examine the charge in its entirety.” Id. at 1276. Our Supreme

Court noted that “[t]he trial court instructed the jury four times during its

charge that the underlying felony was robbery and nowhere stated that the

homicide might be felony-murder if it occurred during a theft rather than a

robbery.” Id.

      We have the same concern here.          Appellant’s evaluation of the trial

court’s jury charge is hypercritical. Although the trial court’s charge could

have been clearer, the court never instructed the jury that it could find

Appellant guilty of second degree murder based upon the commission of a

theft, rather than a robbery.    To the contrary, the trial court specifically

instructed the jury that it must find that Appellant committed a robbery to

convict him of second degree murder.           Moreover, because we are not

convinced that the court was required to instruct the jury that Appellant

“intended to rob” rather than “intended to steal,” we conclude that

Appellant’s claim lacks arguable merit.

      Nevertheless, even if there were arguable merit to Appellant’s claim,

Appellant cannot possibly demonstrate that he was prejudiced by counsel’s

failure to object to the jury charge under the facts of this case. Had the trial

court explicitly instructed the jury that it was required to find that Appellant

intended to rob the victim, we have no doubt that the jury would have

reached the same result.        Two eyewitnesses testified that Appellant

demanded that the victim turn over his personal property at gunpoint, that

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Appellant specifically threatened to shoot the victim if he did not comply with

that demand, and that Appellant did, in fact, shoot the victim during the

encounter.    It is simply not plausible that the jury’s decision would have

turned on the question of whether Appellant intended to rob the victim

versus whether he merely intended to steal from him. The facts adduced at

Appellant’s trial demonstrate overwhelmingly that Appellant intended to

commit a robbery. Accordingly, we also conclude that Appellant could not

have been prejudiced by trial counsel’s failure to object.

                                      II.

      Appellant also claims that trial counsel ineffectively failed to object on

confrontation and/or    hearsay grounds to       a Commonwealth witness’s

testimony regarding a statement made by Amin Vicks’ identifying Appellant

as the shooter, where Amin Vicks did not testify at Appellant’s trial.      We

agree with the PCRA court that this statement should not have been

admitted, as it was inadmissible on both hearsay and confrontation clause

grounds. However, we also agree with the PCRA court that Appellant cannot

demonstrate prejudice because there is no reasonable probability that the

outcome of his trial would have been different had this statement been

excluded.

      The PCRA court determined that Amin Vick’s statement was merely

cumulative of the testimony of eyewitnesses Curtis Smith and Ozzie Clark

and, as such, Appellant could not demonstrate outcome-determinative

prejudice. As our Supreme Court noted in Commonwealth v. Chmiel, 889

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A.2d 501, 521 (Pa. 2005), harmless error exists where “the erroneously

admitted evidence was merely cumulative of other untainted evidence which

was substantially similar to the erroneously admitted evidence[.]”        Id. at

521 (citing Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)).

Here, the erroneously admitted statement, which was not itself an extensive

or detailed statement regarding the shooting, was merely cumulative of the

eyewitness accounts of Curtis Smith and Ozzie Clark, both of whom testified

at length at Appellant’s trial to the same information: that Appellant shot the

victim, Kenyatta Smith.        Thus, Appellant could not have been significantly

prejudiced by trial counsel’s failure to object.6

                                           III.

       Next, Appellant asserts that trial counsel was ineffective for failing to

object to Dr. Collins’ testimony because Dr. Collins did not perform the

autopsy on the victim, nor did he write the autopsy report referenced in his

testimony.     Appellant contends this testimony violated his confrontation

clause rights under Crawford v. Washington, 541 U.S. 36 (2004).
____________________________________________


6
  Appellant argues that “the Amin Vick identification was the strongest one
presented by the Commonwealth” because it was the only unimpeached
identification of Appellant as the shooter. Appellant’s Brief at 25. Appellant
does not cite to any portion of the record where this statement was
repeated, nor has he identified where in the record the Commonwealth relied
upon this statement. Indeed, our review of the Commonwealth’s closing
argument reveals that Amin Vick was only mentioned once, in passing, and
that the statement in question was never referenced.               Accordingly,
Appellant’s characterization that the Amin Vick’s statement was the
strongest evidence against Appellant is simply belied by the record.



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Appellant argues that Dr. Collins provided the Commonwealth’s only

evidence regarding the victim’s cause of death.       Furthermore, Appellant

asserts that the medical examiner who did performed the autopsy, Dr.

Gregory McDonald, was not unavailable to testify merely because he had left

the medical examiner’s office to take a faculty position at the Philadelphia

College of Osteopathic Medicine.    The PCRA court rejected this IAC claim

because it found that Dr. Collins had come “to [his] own independent

conclusion” with regard to the victim’s cause of death. N.T., 7/9/13, at 4.

      In Commonwealth v. McCloud, 322 A.2d 653 (Pa. 1974), the trial

court permitted the Commonwealth to admit “substantial portions of the

written report of the official, salaried medical examiner who performed an

autopsy on the deceased,” where “[t]he medical examiner was not called to

testify [because,] at the time of trial[,] he was attending a convention.” Id.

at 654.   Although it recognized the evidence as hearsay, the trial court

allowed the autopsy report to be admitted under the business records

exception to the hearsay rule.      Our Supreme Court ultimately granted

McCloud a new trial because “the Commonwealth could have produced the

maker of the autopsy report, but did not. Its failure to do so clearly was

error of constitutional dimension.” Id. at 657.

      However, in Commonwealth v. Mitchell, 570 A.2d 532 (Pa. Super.

1990), this Court reached a different result.      In that case, a medical

examiner, Dr. Robert Catherman, testified “as to the manner and cause of

the victim’s death.” Id. at 534. However, Dr. Catherman’s testimony “was

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based on autopsy reports prepared by Dr. Kenneth Carpenter, who was

unavailable for trial because he had moved to Germany.”         Id.      Yet, the

Mitchell Court rejected the appellant’s confrontation clause claim on the

following grounds:

     Experts may offer testimony based on the reports of others.
     Commonwealth v. Thomas, 444 Pa. 436, 443, 282 A.2d 693,
     698 (1971). In homicide cases, pathologists may base their
     opinions on facts from autopsy reports prepared by others.
     Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978).
     The present case is distinguishable from Commonwealth v.
     McCloud, 457 Pa. 310, 322 A.2d 653 (1974), cited by appellant.
     In McCloud, the Commonwealth read substantial portions of the
     autopsy report, including opinions and conclusions, into the
     record. The Commonwealth relied on the business records
     exception to the hearsay rule.       In the present case, Dr.
     Catherman did not read any of Dr. Carpenter's opinions or
     conclusions. He read only the facts contained in the report,2 and
     based his own opinion on those facts. Furthermore, in McCloud,
     the medical examiner who prepared the report was away
     temporarily attending a convention. The court emphasized the
     fact that the Commonwealth could have produced him. In the
     present case, the person who prepared the report moved out of
     the country, and was not available to testify.
                                   ___
        2
          The facts upon which Dr. Catherman based his report
        were merely Dr. Carpenter's observations of the nature
        and location of various injuries and results of various tests.
        Dr. Catherman drew his own conclusions as to the cause of
        these facts.

Mitchell, 570 A.2d at 534.

     The facts of the instant case fall between those present in McCloud

and Mitchell.   However, after careful consideration, we conclude that the

operative facts in this case are more analogous to those present in Mitchell.

Here, Dr. Collins utilized the facts presented by the autopsy report prepared


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by Dr. McDonald, but arrived at his own opinion regarding the manner of

death. N.T., 9/29/10, at 32. Thus, the jury was presented with an expert

witness who came to his own conclusions based upon the facts presented in

the autopsy report, and Appellant has not demonstrated that Dr. Collins

relied on opinions contained in the report. There is little or no evidence of

record regarding why Dr. McDonald was unavailable, particularly since there

was testimony that Dr. McDonald was teaching at a school in Philadelphia.

While this latter fact is concerning to us, we do not find it dispositive in this

case. Thus, we conclude that Appellant’s claim lacks merit.

       In any event, we also conclude that Appellant cannot demonstrate that

he was prejudiced by trial counsel’s failure to object to Dr. Collins’

testimony, even if that testimony should have been excluded. In this case,

there is no serious dispute regarding the manner of the victim’s death, nor,

for that matter, that the victim did, in fact, die. Appellant has not proffered

any evidence or, indeed, any theory, regarding why there would be any

serious doubt regarding the fact that the victim was dead, and/or that he

died from a gunshot wound.7 Indeed, Kenyatta Smith died at the scene of

the shooting, which had been witnessed by both Curtis Smith and Ozzie


____________________________________________


7
  Of course, Appellant did not have a burden of offering such evidence or
theories during his trial.   However, it is his burden on appeal, and
particularly in an appeal from a collateral proceeding, to prove that the
underlying error and ineffectiveness of counsel resulted in outcome-
determinative prejudice.



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Clark, as detailed above.   Furthermore, Police Officer Lisa Conroy testified

that when she arrived at the scene of the crime, in response to a radio call

that was received at 3:19 a.m., medics were already transporting the victim

to Temple Hospital.   N.T., 9/28/10, at 85-87.   Officer Conroy immediately

went to the hospital to check on the status of the victim. Id. at 85. When

she arrived, she discovered that the victim had been declared dead at 4:04

a.m. Id. at 85-86. Moreover, Officer Conroy was able to identify the victim

by the contents of his wallet. Id. at 88.

      Given these circumstances, this is not a case where expert medical

testimony was necessary to prove the manner of death.           Indeed, our

Supreme Court has held, as a general proposition, that “medical testimony is

not required to prove the cause of death.” Commonwealth v. Gilman, 401

A.2d 335, 339 (Pa. 1979) (citing Commonwealth v. Ilgenfritz, 353 A.2d

387 (Pa. 1976)).   In Gilman, the High Court determined that a witness’s

“testimony that appellant beat decedent with a blunt instrument and the

subsequent discovery of decedent's body are evidence of the cause of

death.” Id. Similarly, in Ilgenfritz, our Supreme Court stated that “[w]hile

it is true, of course, that the Commonwealth must prove causation, like

every element of a crime, beyond a reasonable doubt, it does not follow that

only medical testimony can prove causation.” Ilgenfritz, 353 A.2d at 390.

      There is some authority to the contrary.     See Commonwealth v.

Baker, 445 A.2d 544 (Pa. Super. 1982) (holding lay coroner’s opinion

insufficient to prove causation of death in the absence of an autopsy where

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the victim had died following a collision with the intoxicated defendant’s

vehicle); however, two factors lead us to reject Baker as controlling

authority in this instance. First, the instant case is factually distinguishable

from Baker because there were eyewitnesses to the shooting of the victim,

whereas no comparable testimony existed in Baker.           Second, the Baker

holding, a decision of the Superior Court, did not distinguish itself from our

Supreme Court’s rulings in Gilman and Ilgenfritz, nor even recognize those

decisions as contrary authorities, on the question of whether expert medical

testimony was necessary to prove the manner of death.

      Here, there was ample circumstantial evidence for the jury to have

determined, even without the testimony of Dr. Collins, that Kenyatta Smith

died, and that the manner of his death was homicide by gunshot. The facts

of this case regarding the manner and cause of death are not beyond the

comprehension of a lay juror.      Consequently, we conclude that Appellant

cannot demonstrate that there is a reasonable probability that the result of

his trial would have been different had trial counsel successfully convinced

the trial court to exclude the testimony of Dr. Collins. As such, Appellant’s

third IAC claim lacks merit.

                                      IV.

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

ask for a Kloiber jury instruction, because the in-court identifications

provided by Curtis Smith and Ozzie Clark were suspect. Both witnesses had

failed to identify Appellant until long after the shooting occurred. Recently,

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our Supreme Court addressed the applicability of Kloiber charges as

follows:

      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. Rollins, 558 Pa. 532, 738 A.2d 435, 448 n.
      14 (1999); Commonwealth v. Gibson, 547 Pa. 71, 688 A.2d
      1152, 1163 (1997). However, “[w]hen the witness already
      knows the defendant, this prior familiarity creates an
      independent basis for the witness's in-court identification of the
      defendant and weakens ineffectiveness claims based on counsel
      failure to seek a Kloiber instruction.” Commonwealth v. Ali,
      608 Pa. 71, 10 A.3d 282, 303 (2010) (citations omitted).

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

      Here, both Curtis Smith and Ozzie Clark testified that they had known

Appellant for many years. The also both testified that the only reason that

they did not come forward sooner to identify Appellant as the shooter was

because both feared reprisals for cooperating with police, not because of any

difficulty in their ability to observe or identify Appellant at the time of the

shooting. Accordingly, there was no basis for a Kloiber charge to be issued

to the jury, and counsel could not have provided IAC for failing to request it.

      Having found no merit to any of Appellant’s IAC claims, we affirm the

order of the PCRA court denying Appellant’s PCRA petition.

      Order affirmed.

      Judge Lazarus joins the memorandum.

      Justice Fitzgerald concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2015




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