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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WHITNEY MILTON,                            :
                                               :
                       Appellant               :       No. 3901 EDA 2017

                 Appeal from the PCRA Order November 2, 2017
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007563-2007

    COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                                 :                       PENNSYLVANIA
                                 :
         v.                      :
                                 :
                                 :
    WHITNEY MILTON,              :
                                 :
              Appellant          :                    No. 3902 EDA 2017

                 Appeal from the PCRA Order November 2, 2017
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009031-2007

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED APRIL 16, 2019

       Whitney Milton (“Milton”) appeals from the Order1 dismissing his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.


____________________________________________
1 Milton was charged at two separate dockets, which were consolidated for
trial. Additionally, although Milton filed separate appeals at each docket
number, we consolidated these consecutively-listed appeals for disposition.
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       On May 11, 2010, a jury found Milton guilty of two counts each of

aggravated assault and possession of an instrument of crime, and one count

each of firearms not to be carried without a license and possession of a firearm

prohibited, resulting from his assaults of Levi Miller (“Miller”) and Philadelphia

Police Officer Andy Chan. The trial court sentenced Milton to an aggregate

term of 12½ to 25 years in prison. This Court affirmed Milton’s judgment of

sentence, and the Pennsylvania Supreme Court denied allowance of appeal.

Commonwealth v. Milton, 60 A.3d 848 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 64 A.3d 631 (Pa. 2013).

       Milton, pro se, filed the instant timely PCRA Petition on June 19, 2013.

The PCRA court appointed Milton counsel, who filed an Amended Petition on

his behalf. Following appropriate Notice pursuant to Pa.R.Crim.P. 907, the

PCRA court dismissed Milton’s Petition on November 2, 2017.           This timely

appeal followed.2

       Milton now presents the following question for our review:

       I. Did the [PCRA] court err by dismissing the [PCRA] Petition of …
       Milton where direct appellate counsel … was ineffective for failure
       to raise the issue of the trial court’s failure to give Standard Jury
       Instruction 3.21A: failure to call a potential witness, relating to
       [Miller]?

Brief for Appellant at 3.


____________________________________________
2 In its Opinion, the PCRA court stated that Milton’s Notice of Appeal, filed
thirty-two days after the Order dismissing his Petition was filed, was untimely.
PCRA Court Opinion, 5/23/18, at 2. However, the thirtieth day following the
entry of the Order was a Saturday. See 1 Pa.C.S.A. § 1908. Thus, Milton’s
Notice of Appeal was timely filed.


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      Milton claims that his direct appeal counsel was ineffective for not

challenging the trial court’s failure to give the “missing witness instruction.”

Id. at 12, 15. Milton asserts that because Miller did not testify at trial, he was

entitled to the instruction, and the accompanying inference that Miller’s

testimony would have been unfavorable to the Commonwealth. Id. at 12, 13,

14-15.

      The applicable standards of review regarding the dismissal of a PCRA

petition and ineffectiveness claims are as follows:

             Our standard of review of a PCRA court’s [dismissal] of a
      petition for post[-]conviction relief is well-settled: We must
      examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is free
      of legal error. The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.

                                      ***

             It is well-established that counsel is presumed to have
      provided effective representation unless the PCRA petition pleads
      and proves all of the following: (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. The PCRA court may deny an ineffectiveness claim if the
      petitioner’s evidence fails to meet a single one of these prongs.
      Moreover, a PCRA petitioner bears the burden of demonstrating
      counsel’s ineffectiveness.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations

omitted).




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             A missing witness instruction may be given in limited
      circumstances. When a potential witness is available to only
      one of the parties to a trial, it appears this witness has special
      information material to the issue, and this person’s testimony
      would not merely be cumulative, then if such party does not
      produce the testimony of this witness, the jury may draw an
      inference that it would have been unfavorable. However, this
      Court has clarified at least six circumstances where a party is not
      entitled to the missing witness adverse inference instruction:

         1. The witness is so hostile or prejudiced against the party
         expected to call him that there is a small possibility of
         obtaining unbiased truth;

         2. The testimony of such a witness is comparatively
         unimportant, cumulative, or inferior to that already
         presented;

         3. The uncalled witness is equally available to both
         parties;

         4. There is a satisfactory explanation as to why the party
         failed to call such a witness;

         5. The witness is not available or not within the control of
         the party against whom the negative inference is desired;
         and

         6. The testimony of the uncalled witness is not within the
         scope of the natural interest of the party failing to produce
         him.

Commonwealth v. Miller, 172 A.3d 632, 645-46 (Pa. Super. 2017)

(citations, quotation marks, and brackets omitted; emphasis added); see

also id. at 645 (stating that “[t]he trial court is not required to give every

charge that is requested by the parties[,] and its refusal to give a requested

charge does not require reversal unless the [a]ppellant was prejudiced by that

refusal.” (citation omitted)).




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     The PCRA addressed Milton’s claim as follows:

            The trial record clearly shows that the witness, [] Miller, was
     not available for testimony to either party, because his
     whereabouts were unknown to both sides. [] Miller was the victim
     in this case: [Milton] chased [] Miller out of a house and down
     the street, firing four shots in his direction, following an argument
     about a romantic entanglement. [] Miller was not hit by any of
     the gunshots, but the jury found that [Milton’s] firing of the gun
     evidenced an intent to cause serious bodily injury. Police officers
     investigating the incident had, with difficulty, taken an official
     statement from [] Miller at the scene regarding the shooting, but
     he “was not cooperative [with police] in the sense that someone
     who had just been shot at” [sic].

            As the Commonwealth [] noted in its Motion to Dismiss, the
     [trial c]ourt stated on the record that it “fe[lt] that the
     Commonwealth ha[d] made out its case for its inability to call []
     Miller.” At the beginning of trial, defense counsel … asked if []
     Miller was going to be testifying. [The prosecutor] responded, “I
     don’t know yet when [] Miller—I’m doing everything I can do to
     get him.” … [I]n a sidebar conference held in chambers, [the
     prosecutor] told the [c]ourt, “Levi Miller isn’t here, has not
     testified yet. He would be a witness, I assume, for me, if I can
     get him in here. But … I’ve been having a lot of trouble getting
     him in court, and I don’t expect him to come. Therefore, anything
     he said would be hearsay.”

            Furthermore, the Commonwealth’s witness, Philadelphia
     Police Detective Ralph Dominic, testified that he and other officers
     had expended significant efforts to find [] Miller over a period of
     “several months,” including attempts made the weekend before
     trial. The efforts included in-person visits to residences and
     various places of business “twenty to thirty times,” trying the
     telephone number [Miller] had provided to police and leaving
     messages until the number was disconnected, attempting to
     locate the girlfriend with whom he was rumored to be living,
     conducting a background check and a Lexis-Nexis search, and
     leaving subpoenas and police business cards at the vendor-
     licensed site of his food truck and at his other place of business.
     Two of [] Miller’s close associates, his uncle/business partner Earl
     Baker and his girlfriend[,] Kalisa Simmons, both gave police
     information on his possible whereabouts, but neither knew where


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      he was at that time. And clearly, the defense never produced []
      Miller to testify at trial.

            At the jury charging conference, [Milton’s] trial counsel
      argued for inclusion of the missing witness instruction, but her
      argument did not specifically address [] Miller’s unavailability as a
      Commonwealth witness. It is clear from the record that [] Miller
      was a witness unavailable to both the prosecution and defense at
      [Milton’s] trial.

             The requested jury instruction requires that the witness be
      available to one party and not the other. Pa. SSJI (Crim)
      3.21A(2). The uncontroverted evidence in this case showed that
      [Miller] was not available to either party.          Because that
      requirement was unmet, it would have been improper and
      erroneous for the [trial c]ourt to read that jury instruction.
      Therefore, the issue was meritless, and [Milton’s] counsel on
      direct appeal could not have been ineffective for failing to raise
      the issue. As the underlying claim of the PCRA [P]etition is not of
      arguable merit, no PCRA relief is due under the ineffective
      assistance of counsel standard. Therefore, dismissal of the
      [P]etition was proper.

PCRA Court Opinion, 5/23/18, at 4-6 (emphasis in original; some citations and

quotation marks omitted).

      We agree with the PCRA court’s determination that Milton’s underlying

claim lacks arguable merit, as Miller was equally unavailable to both parties

at trial.   See Miller, 172 A.3d at 646 (concluding that appellant was not

entitled to a missing witness instruction, where the Commonwealth witness

(the victim) was brought to the courthouse but refused to testify or leave the

sheriff’s cell room, because the witness was equally available to both parties,

and the Commonwealth had no control over the witness’s refusal to

cooperate). Additionally, Milton failed to assert that he was prejudiced as a

result of direct appeal counsel’s alleged failure. See Franklin, supra; see



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also Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018) (stating

that “[a] PCRA petitioner must address each of [the ineffectiveness] prongs

on appeal. A petitioner’s failure to satisfy any prong of this test is fatal to the

claim.”) (citations omitted). Accordingly, Milton has failed to establish that he

is entitled to relief on this basis.

      Based upon the foregoing, we affirm the PCRA court’s Order dismissing

Milton’s Petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/19




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