J-S68025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

KYLIL MYATT

                            Appellant               No. 3568 EDA 2013


                Appeal from the PCRA Order November 13, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002114-2008


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 14, 2014

        Kylil Myatt appeals from an order dated November 13, 2013 dismissing

his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §

9541, et seq., without a hearing. We affirm.

        A jury found Myatt guilty of second degree murder1, robbery2 and

conspiracy3. The trial court sentenced him to life imprisonment for second

degree murder with concurrent terms of 10-20 years’ imprisonment for

robbery and conspiracy, respectively. This Court affirmed Myatt’s judgment

of sentence, and the Supreme Court denied his petition for allowance of

appeal.

____________________________________________


1
    18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 3701.
3
    18 Pa.C.S. § 903.
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       Myatt filed a timely PCRA petition. The trial court appointed counsel,

who filed a Finley/Turner letter4 explaining that there were no meritorious

issues and requesting leave to withdraw as counsel.               On September 16,

2013, the trial court issued a notice of intent to dismiss the PCRA petition

without a hearing in twenty days.              On November 13, 2013, the trial court

entered an order dismissing the PCRA petition and granting counsel leave to

withdraw. Thereafter, Myatt proceeded pro se.

       On December 10, 2013, Myatt filed a timely notice of appeal to this

Court. Both Myatt and the trial court complied with Pa.R.A.P. 1925.

       The trial court accurately summarized the evidence adduced during

trial as follows:

              The salient findings are that Myatt gave a statement
              to Gregory Gross, a civilian, that he had witnessed
              the shooting of Troy Moore. Id. at 85. Mr. Gross
              called a friend of his, Philadelphia Police Officer Tony
              Jones, who arrived in full uniform. Id. Myatt told
              Officer Jones that he, his cousin Khalil Myatt a/k/a
              Yanni, and James Felder a/k/a Sonny had planned to
              rob the decedent and that Yanni had done the
              shooting. N.T. MOTION (1/6/09) at 86. At this time,
              Myatt was standing outside, was not in police
              custody, and was not forced in any way to give a
              statement. Id. Thereafter, Myatt was taken to the
              police homicide unit where he was given his Miranda
              rights, an opportunity to use the restroom, eat,
              drink, and produced a signed six-page statement. Id.
              at 87-88.

____________________________________________


4
 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).



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          The testimony at trial was that on September 25,
          2007 at approximately 1:00 a.m., Sonny and Yanni
          approached Myatt and asked him to take a walk with
          them. N.T. TRIAL (1/7/09) at 84. Shortly thereafter,
          Myatt, Sonny, and Yanni approached the home of
          Troy Moore (‘Moore’) at 6013 Baltimore Ave.
          Philadelphia, PA. Id. at 85. After a couple of minutes,
          Moore rode up on his motorcycle and Yanni pulled
          out a gun and starting shooting at Moore. Id. As
          soon as the shooting started, everyone fled in
          separate directions. Id. Nothing was taken from the
          victim. Id. Asa Webster, a neighbor, heard the
          gunshots and ran to assist Moore until the police
          arrived. Id. at 60-62. Police officers arrived at 2:07
          a.m. and found Moore lying on the ground suffering
          from multiple gunshot wounds. N.T. TRIAL (1/7/09)
          at 57. He was taken to University Hospital where he
          later died. Id. The police secured the area and found
          seven .357 caliber cartridge casings, which were
          analyzed by a ballistics expert and found to exhibit
          similar firing characteristics. Id. at 37-43.

          According to Myatt's confession, he knew Yanni and
          Sonny were planning to rob Moore. N.T. TRIAL
          (1/7/09) at 85. About a week earlier, Yanni and
          Sonny were joking about robbing Moore, but Myatt
          did not take them seriously because they were
          intoxicated at the time. Id. at 86-87. As they
          approached Moore's home, Myatt beg[a]n to suspect
          the robbery was about to take place. Id. at 86. Myatt
          thought about the conversation Yanni and Sonny had
          earlier about Moore and knew the robbery was about
          to take place. Id. at 87.       Myatt stated in his
          confession, ‘when we stopped at Troy's house, I
          knew that it was going to be a robbery.’ Id. at 86.

          Dr. Gregory McDonald performed Moore's autopsy,
          which confirmed that he had died on October 8,
          2007 at 3:15 a.m. due to complications from four
          bullets recovered from Moore's abdomen. N.T. TRIAL
          (1/7/09) at 12-15. His cause of death was multiple
          gunshot wounds and the manner was ruled
          homicide. Id. at 15.


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Trial Court Opinion, pp. 3-4.

      Myatt raises the following issues in his Pa.R.A.P. 1925(b) statement:

            1. The trial court erred by allowing photographs to
            come into evidence when the prosecution witness did
            not know the source.

            2. Trial counsel was ineffective for not requesting a
            jury instruction per Pa.R.Crim.P. 647(a) or objecting
            per Rule 647(b) when definitions for critical legal
            terms were never given.

            3. Trial counsel was ineffective by not calling a
            reciprocal expert ballistics witness to testify.

            4. Trial counsel was ineffective for allowing a
            testimonial   statement   into   evidence    without
            confrontation of the person who made the
            statement. A statement originally made by P.O.
            Clyde Frasier was presented by Louis Grandizio.

            5. Trial counsel was ineffective for not compelling the
            Court to provide all transcripts in accordance with
            Pa.R.A.P 1922.

            6. Trial counsel was ineffective for not demanding
            that the trial court comply with 1931(b). The court
            reporter failed in his/her duty to lodge a correctable
            set of transcripts with the Clerk of Courts.

            7. The trial court erred by not allowing eyewitnesses
            to testify at trial about events surrounding this case.

            8. Trial and appellate counsel's many errors should
            be considered cumulatively.

            9. Trial and appellate counsel provided ineffective
            assistance of counsel in violation of the United States
            and Pennsylvania Constitutions.

            10. Trial counsel was ineffective for not requesting a
            bill of particulars pursuant to Pa.R.Crim.P. 572.


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              11. Trial counsel was ineffective for not filing a
              motion for discovery pursuant to Pa.R.Crim.P. 573.

              12. Trial counsel was ineffective for overstepping his
              authority by agreeing to stipulations at trial.

We will re-order discussion of these issues for ease of disposition.

        We first address Myatt’s argument that the trial court erred by

allowing unauthenticated photographs into evidence depicting him on the

night of his arrest5. Myatt waived this claim by failing to raise it in his PCRA

petition. See, e.g., Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.

2004) (claim not raised in a PCRA petition cannot be raised for the first time

on appeal); Commonwealth v. Albrecht, 720 A.2d 693, 706 (Pa. 1998)

("[defendant's] claims were not raised in the amended PCRA petition, and

are therefore waived" on appeal).

        Even if Myatt preserved this issue for appeal, it lacks merit.         The

Commonwealth        properly     introduced    the   photographs   pursuant   to   a

stipulation by and between counsel. Even if counsel had not agreed to such

a stipulation, the Commonwealth presented sufficient evidence to establish

the photographs’ authenticity. To introduce a photograph at trial, the

proponent must demonstrate that the photograph "is what it purports to be."

Commonwealth v. Koch, 39 A.3d 996, 1002 (Pa. Super. 2011). A

photograph may be authenticated where a witness who is "familiar with the

____________________________________________


5
    Pa.R.A.P. 1925(b) statement, Issue 1; Brief For Appellant, p. 5.



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items photographed" testifies "that they are accurately depicted therein."

Commonwealth v. Wiltrout, 457 A.2d 520, 523 (Pa. Super. 1983); accord

Pa.R.E. 901(b)(1).

     Here, the Commonwealth introduced photographs depicting Myatt at

police headquarters on the day that he gave his statement. N.T. 1/7/09, pp.

103-06.   In order to authentic those photographs, the Commonwealth

presented Detective Joseph Bamberski, who had interviewed defendant and

taken his statement only hours before defendant was photographed. When

asked whether the photographs "fairly and accurately depict[ed]" defendant

on the night he gave his statement, Detective Bamberski stated: "Yes." N.T.

1/7/09, p. 93.   The fact that he was not "sure" specifically who took the

photographs, more than one year after the incident, goes to the weight of

his testimony, not the admissibility of the photographs, and is therefore

irrelevant to defendant's claim. N.T. 1/7/09, p. 104. Accordingly, the trial

court properly permitted the Commonwealth to introduce the photographs,

because Detective Bamberski's testimony was sufficient to establish their

authenticity. Commonwealth v. Nauman, 498 A.2d 913, 914 (Pa. Super.

1985) (court properly admitted victim’s photograph where Commonwealth

presented evidence that her appearance in the photograph "was the same as

it was on the day" of the crime); see also Commonwealth v. Reid, 811

A.2d 530, 552 (Pa. 2002) (Commonwealth adequately authenticated




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photograph through witness’ testimony that it depicted the gun she had

identified to police).

        In a related argument6, Myatt contends that trial counsel was

ineffective for stipulating to the admission of the photographs.            To prove

ineffective assistance of counsel under the PCRA, the petitioner must prove

that: (1) the underlying issue is of arguable merit; (2) counsel's actions

lacked an objective reasonable basis; and (3) the petitioner suffered

prejudice by counsel's act or omission. Commonwealth v. Koehler, 36

A.3d 121, 132 (Pa. 2012). For a claim to have arguable merit, a petitioner

must     prove   "that    the   underlying     legal   claim   has   arguable   merit."

Commonwealth v. Steele, 961 A.2d 786, 821 (Pa. 2008). With regard to

prejudice, the petitioner must demonstrate that “there is a reasonable

probability that, but for counsel's error or omission, the result of the

proceeding would have been different." Koehler, 36 A.2d at 132.                    The

failure to prove any prong of this test causes the entire ineffective assistance

claim to fail. Id. at 132. Furthermore, counsel is presumed to be effective;

the petitioner has the burden of proving otherwise.              Commonwealth v.

Jones, 942 A.2d 903, 906 (Pa. Super. 2008).




____________________________________________


6
    Pa.R.A.P. 1925(b) statement, Issue 12; Brief For Appellant, p. 5.



                                           -7-
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        Here, as discussed above, the evidence demonstrates that the

photographs      were    properly     authenticated.       Thus,   Myatt’s   claim    of

ineffectiveness lacks arguable merit.

        Defendant next argues that counsel was ineffective for not asking the

trial court to define the terms "intentionally" and "knowingly" for the jury7.

This claim lacks arguable merit.               A trial court has broad discretion in

phrasing its jury instructions "so long as the law is clearly, adequately, and

accurately set forth."      Commonwealth v. Rizzuto, 777 A.2d 1069, 1088

(Pa. 2001), abrogated on other grounds, Commonwealth v. Freeman,

827 A.2d 385 (Pa. 2003). When considering a challenge to the propriety of

a jury instruction, an appellate court reviews the instruction in its entirety

and "not simply isolated portions." Commonwealth v. Charleston, 94 A.3d

1012, 1021 (Pa. Super. 2014).

        The trial court’s reference to “intent” was proper.         The court stated

that first degree murder requires “intent to kill” but then explained that

Myatt was not charged with first degree murder.              N.T. 1/7/09, p. 7.      The

court did not define intent further because it would have been improper to

do so.     Myatt was only charged with second and third degree murder,

neither of which requires specific intent to kill. The court only made passing



____________________________________________


7
    Pa.R.A.P. 1925(b) statement, Issue 2; Brief For Appellant, p. 5.



                                           -8-
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mention of first degree murder and intent to demonstrate what was not at

issue in this case.


      The court’s reference to “knowingly’”, which occurred during the

court’s charge on third degree murder, was proper as well.        Third-degree

murder occurs when a person commits a killing which is neither intentional

nor committed during the perpetration of a felony, but contains the requisite

malice. Commonwealth v. Morris, 958 A.2d 569, 576 (Pa. Super. 2008).

“Malice is not merely ill will but, rather, wickedness of disposition, hardness

of heart, recklessness of consequences, and a mind regardless of social

duty.”   Id.    To prove malice, “it must be shown that the defendant

consciously disregarded an unjustified and extremely high risk that his

actions might cause death or serious bodily harm.”        Commonwealth v.

Kling, 731 A.2d 145, 148 (Pa. Super. 1999).          The trial court gave the

following instruction for third degree murder:


            Killing is with malice if the perpetrator's actions show
            that his wanton or willful disregard of an unjustified
            or extremely high risk that his conduct would result
            in death or serious bodily injury to another. In this
            form of malice, the Commonwealth need not prove
            that the perpetrator specifically intended to kill
            another. The Commonwealth must prove, however,
            that he took action while consciously, that is,
            knowingly disregarding the most high risk he was
            creating and that by his disregard of that risk, he
            demonstrated his extreme indifference to the value
            of human life.




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N.T.    1/9/09,     pp.   8,     13-14.     The      court    equated     “knowingly”         with

“consciously”, a term frequently employed in judicial definitions of malice,

Kling, supra, and the court properly used “consciously” to convey the

essence of malice, i.e., conscious disregard of an extreme risk that the

actions in question might cause death or serious bodily harm. Thus, the use

of    “knowingly”     does       not   provide   Myatt       with   any   basis   for        relief.

Commonwealth v. Fisher, 813 A.2d 761, 770 (Pa. 2002) (counsel not

ineffective for failing to object to jury instruction that clearly and accurately

stated the law).

        Myatt next argues that trial counsel was ineffective for not presenting

a     reciprocal    ballistics     expert   to    discredit     the     testimony       of      the

Commonwealth’s ballistics expert, Officer Louis Grandizio8.                  The trial court

properly rejected this claim because Myatt failed to show that such a witness

existed or that he was prejudiced by the witness' absence.

        To prevail on a claim that counsel failed to obtain an expert, "the

defendant must articulate what evidence was available and identify the

witness who was willing to offer such evidence."                      Commonwealth v.

Bryant, 855 A.2d 726, 745 (Pa. 2004); Commonwealth v. Luster, 71

A.3d 1029, 1047 (Pa. Super. 2013). The defendant must also demonstrate

that the witness' proposed testimony "was necessary in order to avoid

____________________________________________


8
    Pa.R.A.P. 1925(b) statement, Issue 3; Brief For Appellant, p. 6.



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prejudice" to him.   Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa.

2012). Here, defendant failed to even identify his expert witness or provide

an affidavit that this expert was available to testify on his behalf.    This,

alone, is fatal to his claim. Without evidence of an available witness, the

PCRA court had no reason to believe that any expert would have testified in

the manner that defendant wishes. Commonwealth v. Keaton, 45 A.3d

1050, 1071 (Pa. 2012) (rejecting bald assertion that counsel should have

hired an expert witness); Luster, supra, 71 A.3d at 1047 (counsel not

ineffective for not presenting expert witness where Luster "failed to identify

any forensics expert who would have provided [the desired] testimony").

Even if an expert witness existed, Myatt failed to prove that his proposed

testimony would have helped his case.        According to Myatt, a ballistics

expert could have testified to an alternative method for determining a

bullet's caliber, "which may have revealed" that the bullets recovered from

the crime scene were fired from more than one gun. PCRA Petition, p. 6.

However, the identity of the shooter was not at issue in this case, for as the

PCRA court explained, Myatt could have "just as easily been present at the

scene while two people shot and killed the victim." Trial Court Opinion, p.

10.

      Furthermore, Myatt fails to establish prejudice, since his PCRA petition

merely asserts in boilerplate fashion that expert testimony "could have

changed the outcome of the trial.”     Commonwealth v. Paddy, 15 A.3d


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431, 444 (Pa. 2011) (boilerplate allegations and bald assertions of prejudice

cannot satisfy petitioner's burden).

        Finally, even if Myatt had discredited Officer Grandizio's testimony, the

verdict would have remained the same because the evidence against Myatt

was overwhelming. The victim obviously died due to gunshot wounds and

not of natural causes. Myatt confessed that he attempted to rob the victim,

and that his co-conspirator shot and killed the victim during the robbery.

Myatt also admitted that he and his cohorts had been planning the robbery

for two weeks.         After telling the victim's family, Myatt repeated his

confession to Officer Anthony Jones and gave a signed statement to police.

N.T. 1/6/09, pp. 137-45, 166-77, 206-13; N.T. 1/7/09, pp. 82-91.            See

Commonwealth v. Philistin, 53 A.3d 1, 32 (Pa. 2012) (rejecting

ineffectiveness claim where defendant could not prove that jury would have

acquitted him, where evidence against him was overwhelming).

        Next, Myatt argues that counsel was ineffective for permitting Officer

Grandizio to testify to a property receipt prepared by Officer Clyde Frasier in

violation of the Confrontation Clause9. Myatt waived this claim by failing to

discuss in his brief why counsel's actions lacked a reasonable basis or how

he suffered prejudice from this alleged error. Commonwealth v. Rykard,



____________________________________________


9
    Pa.R.A.P. 1925(b) Statement, Issue 4; Brief For Appellant, pp. 6-7.



                                          - 12 -
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55 A.3d 1177, 1190 (Pa. Super. 2012) (appellant waived issue by neglecting

to present appropriate argument and citation on appeal).

      In any event, this claim lacks arguable merit.          The Confrontation

Clause entitles a defendant to confront witnesses who testify against him.

Commonwealth v. Yohe, 79 A.3d 520, 531 (Pa. 2013).              An out-of-court

statement may nevertheless be admitted where the declarant is unavailable

or   the   defendant   had   a   prior   opportunity   to   cross-examine   him.

Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa. Super. 2010).

      There was no Confrontation Clause error here because Officer Frasier

in fact testified at trial about the location and collection of the ballistics

evidence. He explained that he recovered seven fired cartridge casings from

the crime scene and had documented that information on a property receipt.

N.T. 1/7/09, pp. 19-34.      Since Myatt had ample opportunity to cross-

examine Officer Frasier regarding that property receipt, no basis existed for

a Confrontation Clause objection. Commonwealth v. Fears, 86 A.3d 795,

804 (Pa.2014) ("counsel cannot be deemed ineffective for failing to raise a

meritless claim"); see also Crawford v. Washington, 541 U.S. 36, 60

(2004) ("when the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior

testimonial statements").

      Myatt next argues that trial counsel was ineffective for failing to

compel the court reporter to file all transcripts or to ensure that the reporter


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properly prepared them10. Myatt is incorrect. The court reporter provided

the transcript to defense counsel, Trial Court opinion, p. 11, and the trial

court cited to the transcript in its opinion. Myatt also seems to argue that

the trial court failed to ensure that the transcript was accurate. We find no

prejudice, since Myatt fails to pinpoint a single error in the transcript or any

harm resulting therefrom.

        Myatt contends that the trial court erred by not permitting alleged

eyewitnesses Latoya Brown and Rolanda Danyelle Tucker to testify at trial 11.

Brief for Appellant, p. 10. Myatt waived this claim by failing to present it in

his PCRA petition. Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.

2004) (claim not raised in PCRA petition cannot be raised for the first time

on appeal).     Moreover, this claim lacks merit.    Myatt contends that these

eyewitnesses exonerate him because they failed to identify him as a

perpetrator.      As explained above, however, Myatt twice admitted to

participating in the robbery, once to the victim’s family and again to police in

a signed statement.         Given his damning confessions, the eyewitnesses’

failure to identify him is of no moment.

        Myatt contends that trial counsel was ineffective for failing to request a

bill of particulars12 or seek discovery13. These claims lack arguable merit.

____________________________________________


10
     Pa.R.A.P. 1925(b) Statement, Issues 5-6; Brief For Appellant, p. 7.
11
     Pa.R.A.P. 1925(b) Statement, Issue 7; Brief For Appellant, p. 10.
12
     Pa.R.A.P. 1925(b) Statement, Issue 10; Brief For Appellant, p. 8.



                                          - 14 -
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        "The purpose of a bill of particulars is to give notice to the defendant

of the nature of offenses charged so that he may prepare a proper defense

and avoid surprise." Commonwealth v. Judd, 897 A.2d 1224, 1230 (Pa.

Super. 2006). To request a bill of particulars, a defendant must specify the

information sought and explain why it is being requested. Pa.R.Crim.P. 572.

        Myatt fails to specify what information counsel should have requested

in the bill of particulars, how this information would have assisted his

defense, or how the absence of this information prejudiced him. Nor does

Myatt explain what discovery counsel should have demanded or how the

absence of discovery prejudiced him. Courts do not presume prejudice from

the absence of discovery. Commonwealth v. Manhart, 503 A.2d 986, 990

(Pa. Super. 1986) (defendant must show prejudice arising from counsel’s

failure to request discovery).

        Finally, Myatt argues that the cumulative effect of the foregoing errors

entitles him to relief14 and adds a boilerplate claim of global ineffective

assistance15. Since we conclude that there were no errors, these claims fail.

        Order denying PCRA relief affirmed.




                       _______________________
(Footnote Continued)
13
     Pa.R.A.P. 1925(b) Statement, Issue 11; Brief For Appellant, p. 9.
14
     Pa.R.A.P. 1925(b) Statement, Issue 8; Brief For Appellant, p. 8.
15
     Pa.R.A.P. 1925(b) Statement, Issue 9; Brief For Appellant, p. 8.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




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