J. S84039/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                   v.                  :
                                       :
REAFEAL FIELDS,                        :          No. 366 EDA 2018
                                       :
                        Appellant      :


              Appeal from the PCRA Order, December 29, 2017,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0014201-2010


BEFORE: BENDER, P.J.E., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MAY 20, 2019

      Reafeal Fields appeals from the December 29, 2017 order entered by

the Court of Common Pleas of Philadelphia County denying relief pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After

careful review, we affirm.

      The PCRA court provided the following synopsis of the relevant factual

history:

            Timothy Johnson (“Johnson”) arrived at the Ridge
            Food Market . . . at 10:43 AM on February 11, 2010.
            When he arrived he saw two men, whom he knew as
            June and Shiz, on the corner.      Johnson started
            walking down the street toward 26th Street and then
            heard about three gunshots. He turned around and
            saw the decedent, a friend of his, lying on the
            ground and June and Shiz running away. Johnson
            identified June and Shiz as [Kelvin] Bryant and
            [appellant], respectively.
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          Philadelphia   Police  Officer   Patrick  Gereaghty
          (“Officer Gereaghty”) arrived first at the scene,
          where he found the decedent face-down in the snow
          and unresponsive.     Officer Gereaghty transported
          him to Temple University Hospital, where he was
          pronounced dead at 2:31 PM.

          Both [appellant] and Bryant later told Amin Payne
          (“Payne”) that they had killed the decedent.
          [Appellant] and Bryant told Payne that after they had
          spoken with Johnson outside the store, they had
          killed the decedent over drug territory: “They did
          not want him selling drugs on Bailey Street.”
          [Appellant] and Bryant told Payne that Bryant had
          used his 9mm and that [appellant] had used a
          .38 caliber revolver.

          Later that evening, Bryant and [Milique] Wagner
          were inside Bryant’s mother’s apartment with Payne
          and Herman Adams (“Adams”), where they were
          heat-sealing bags of drugs. Bryant received a phone
          call, and he and Wagner went outside. A short time
          later, Payne looked out the window and, not seeing
          Bryant and Wagner, went outside and looked down
          the street. He saw Bryant and Wagner at the corner
          of 25th Street and Cecil B. Moore Avenue speaking
          with King and then saw them “just pull out on the
          boy and shoot him up.” The two then ran down the
          street and turned up 26th Street. Adams testified at
          trial that he heard the gunshots about ten minutes
          after Bryant and Wagner had left the apartment.
          Bryant called Payne thirty minutes later and told
          him, “I had to holler at another one.” A few days
          later, Bryant told Payne, “I killed the one, I might as
          well get the rest. I got to get them out of the way.”

          At the scene, police recovered a sandwich bag
          containing four smaller ziplock bags, each containing
          a green, leafy substance, and two heat-sealed bags
          containing an off-white, chunky substance. Police
          Officer Flade testified that, in his experience, the
          substances appeared to be marijuana and crack
          cocaine. Twenty-seven cartridge casings were also



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            found, all fired from two 9mm semi-automatic
            handguns.

            All    three  defendants    left   Philadelphia   after
            February 11, 2010 and were arrested outside the
            county. Detective James Burke (“Detective Burke”)
            testified that on February 20, 2010, he went to
            1712 North Marston Street in Philadelphia, where he
            found Nikki Williams (“Williams”), [appellant’s]
            girlfriend and mother of his children. [Appellant]
            resided at that location, but was not there.
            Detective Burke told Williams that [appellant] was
            wanted, and that he should call Detective Burke or
            turn himself in to police. Ultimately, Detective Burke
            found [appellant] at a house in Norristown,
            Pennsylvania on March 3, 2010.          When he was
            arrested, [appellant] gave 1712 North Marston
            Street as his address.

PCRA court opinion, 6/19/18 at 3-5 (footnotes and citations to the record

omitted).

     The PCRA court also summarized the following procedural history:

            On February 6, 2013, following a jury trial before
            [the trial court, appellant] was found guilty of
            murder of the first degree, criminal conspiracy, and
            possessing instruments of crime.[Footnote 2] That
            same date, [the trial court] sentenced [appellant] to
            the mandatory term[Footnote 3] of life imprisonment
            for murder of the first degree.[Footnote 4]       On
            February 19, 2013, [appellant] filed post-sentence
            motions, which [the trial court] denied on May 21,
            2013. On May 29, 2013, [appellant] appealed his
            judgment of sentence to [the] Superior Court, and,
            on February 6, 2015, [the] Superior Court affirmed
            the judgment of sentence. [Appellant] did not seek
            further appellate review, therefore, his judgment of
            sentence became final on March 9, 2015, at the
            expiration of the period for filing a Petition for
            Allowance of Appeal. 42 Pa.C.S.[A.] § 9545(b)(3) (a
            judgment of sentence becomes final “at the
            conclusion of direct review, including discretionary


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            review in the Supreme Court of the United States
            and the Supreme Court of Pennsylvania, or at the
            expiration of time for seeking the review.”).

                  [Footnote 2] 18 Pa.C.S.[A.] §§ 2502(a),
                  903, and 907(a), respectively.

                  [Footnote 3] 18 Pa.C.S.[A.] § 1102(a)(1).

                  [Footnote 4] As to the remaining charges,
                  [the trial court] imposed concurrent
                  sentences as follows: as to the conviction
                  for criminal conspiracy, [the trial court]
                  sentenced [appellant] to a term of not
                  less than five years nor more than ten
                  years[’] confinement; as to the conviction
                  for PIC, [the trial court] sentenced
                  petitioner to a term of not less than one
                  year nor more than five years[’]
                  confinement.

            [Appellant] filed the instant timely counseled PCRA
            petition on March 7, 2016.          Following several
            continuance requests by counsel in order to
            supplement and amend [appellant’s] claims, counsel
            filed an amended petition on February 10, 2017.
            After several requests by the Commonwealth for
            additional time to respond, the Commonwealth filed
            a motion to dismiss on September 1, 2017.
            Following a review of the pleadings, [the PCRA court]
            found that [appellant’s] claims lacked merit, and, on
            November 28, 2017, provided [appellant] a notice
            pursuant to Pa.R.Crim.P. 907 ([“]907 Notice[”]) of its
            intent to deny his claims and dismiss his petition
            without a hearing. [Appellant] did not respond to
            the 907 Notice. Therefore, on December 29, 2017,
            [the PCRA court] dismissed [appellant’s] petition
            consistent with the 907 Notice. This timely appeal
            followed.

Id. at 1-2 (citations to exhibits omitted; additional footnotes omitted).




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      The PCRA court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to a Pa.R.A.P. 1925(b).               Appellant

complied.    The PCRA court subsequently filed an opinion pursuant to

Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            [I.]   [Whether] [t]he PCRA court erred because the
                   record supported [appellant’s] trial counsel
                   ineffectiveness claim regarding trial counsel’s
                   failure to consult with [appellant] about the
                   possibility of requesting DNA testing on the
                   black knit hat collected near the shooting
                   scene and subsequently requesting the
                   discussed DNA testing[?]

            [II.] [Whether] [t]he PCRA court erred because the
                  record supported [appellant’s] trial counsel
                  ineffectiveness claim regarding trial counsel’s
                  failure to object to the trial court’s flight
                  instruction as it related to [appellant?]

            [III.] [Whether] [t]he PCRA court erred because the
                   record    supported     [appellant’s]   appellate
                   counsel     ineffectiveness    claim   regarding
                   appellate counsel’s failure to raise, brief, and
                   argue the record-based claim that the trial
                   court erred by refusing to issue a Kloiber
                   instruction        in       connection       with
                   Timothy Johnson’s identification[?]

            [IV.] [Whether] [t]he PCRA court erred because the
                  record supported [appellant’s] cumulative
                  prejudice claim[?]

Appellant’s brief at 3-4 (citations omitted).

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the


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            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, [] 17 A.3d
            297, 301 ([Pa.] 2011) (citation omitted). A PCRA
            court’s credibility findings are to be accorded great
            deference, and where supported by the record, such
            determinations are binding on a reviewing court.
            Id., at 305 (citations omitted). To obtain PCRA
            relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one of more of the errors
            enumerated in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id., § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[,]” id.,
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id., § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to do so before trial, at trial, . . . on appeal or
            in a prior state postconviction proceeding.” Id.,
            § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      On appeal, appellant alleges ineffective assistance of counsel by both

his trial counsel and his counsel on direct appeal.        Under the PCRA, an

individual is eligible for post-conviction relief if the conviction was the result

of “ineffective assistance of counsel which, in the circumstances of the

particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place.”

42 Pa.C.S.A. § 9543(a)(2)(ii).      When considering whether counsel was

ineffective, we are governed by the following standard:




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                 [C]ounsel is presumed effective, and to
                 rebut that presumption, the PCRA
                 petitioner    must    demonstrate      that
                 counsel’s performance was deficient and
                 that such deficiency prejudiced him.
                 Strickland v. Washington, 466 U.S.
                 668 [] (1984). This Court has described
                 the Strickland standard as tripartite by
                 dividing the performance element into
                 two          distinct         components.
                 Commonwealth v. Pierce, [] 527 A.2d
                 973, 975 ([Pa.] 1987). Accordingly, to
                 prove counsel ineffective, the petitioner
                 must demonstrate that:           (1) the
                 underlying legal issue has arguable
                 merit; (2) counsel’s actions lacked an
                 objective reasonable basis; and (3) the
                 petitioner was prejudiced by counsel’s
                 act or omission.       Id.    A claim of
                 ineffectiveness will be denied if the
                 petitioner’s evidence fails to satisfy any
                 one of these prongs.

           Commonwealth v. Busanet, [] 54 A.3d 34, 45
           ([Pa.] 2012) (citations formatted).     Furthermore,
           “[i]n accord with these well-established criteria for
           review, [an appellant] must set forth and individually
           discuss substantively each prong of the [Pierce]
           test.” Commonwealth v. Fitzgerald, 979 A.2d
           908, 910 (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),

order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).



                                     I.

     First, appellant contends that his trial counsel, Andres Jalon, Esq.,

rendered ineffective assistance because he did not request pretrial DNA

testing of a black knit hat found at the scene of the shooting. Specifically,


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appellant argues that the black knit hat “could possibly provide exculpatory

information if subjected to DNA testing.” (Appellant’s brief at 8.) Appellant

further argues that his claim has arguable merit because “the gunman’s

identity was at issue.” (Id. at 11.)

      In his argument, appellant relies on our supreme court’s decision in

Commonwealth v. Williams, 899 A.2d 1060 (Pa. 2006). In Williams, the

court determined that the defendant’s PCRA claim had arguable merit

because the DNA testing at issue would have challenged the victim’s

identification of the defendant.       Id. at 1064.   Williams, however, is

distinguishable from the case presently before us. The victim in Williams

was raped four times and the defendant alleged ineffective assistance of

counsel for failing to request DNA testing. Id. at 1062. The DNA testing at

issue in Williams had the ability to “settle whether there will be a conviction

or not. It [could have] demolish[ed] the prosecution’s case, [or] it [could

have] cast it in concrete as well.” Id. The PCRA court concluded that the

DNA testing at issue here would not have been as conclusive as the DNA in

Williams.

      Indeed, as the PCRA court notes,

            [T]he evidence in question was a black knit cap
            found at the scene of the shooting.             While
            [appellant] offered evidence that one witness
            described the shooter to police[Footnote 14] as
            having worn a black knit cap at the time of the
            shooting, this was insufficient to establish that the
            cap found at the scene is the same cap which was
            worn by the shooter. Upon this record, [the PCRA


                                       -8-
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          court] found nothing to establish that the hat
          recovered at the scene was actually connected to the
          shooting, and not a merely unrelated hat which had
          been discarded in the area for an unknown period of
          time. In order for DNA testing on the found hat to
          have any relevance to [appellant’s] case, there must
          be evidence to establish that this is not merely a hat,
          but, rather, the hat. See Pa.R.E. 401 (providing
          that evidence is relevant if it has “any tendency to
          make a fact more or less probable than it would be
          without the evidence,” and if “the fact is of
          consequence       in   determining     the   action.”);
          Pa.R.E. 402 (providing that evidence that is not
          relevant is not admissible). Without such evidence
          linking the cap itself to the shooter, even if the cap
          was tested for DNA and the results were inconsistent
          with [appellant], those results would not be
          exculpatory. As [appellant] did not establish that it
          is more likely than not that the cap recovered from
          the shooting scene was the same cap allegedly worn
          by the shooter, and, therefore, that DNA testing of
          the cap would have been consequential in
          challenging the identification of [appellant], this
          evidence is irrelevant. As DNA testing of the cap
          could not have corroborated [appellant’s] alibi
          defense, and would not have been admissible on this
          record, this claim lack[s] arguable merit, and it fails.

                [Footnote 14] Indeed, [the PCRA court]
                notes that [appellant’s] evidence more
                strongly suggests that the cap found at
                the scene was not the same cap worn by
                the shooter:    On February 11, 2010,
                Anthony Benton gave a statement to
                [h]omicide [d]etectives asserting that, at
                the time of the shooting, he looked out
                the first floor window of his residence
                after hearing 4-5 gunshots, and saw a
                [b]lack male in his late 20s to early 30s,
                with a full beard, standing near the
                decedent with a gun in his hand and
                wearing a black coat, a black knit hat,
                and blue jeans. Amended PCRA Petition,
                2/10/17, at Exs. 1 and 2.          Benton


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                  asserted that he then saw the shooter
                  run south down Taney Street as he was
                  attempting to put the handgun in his
                  waistband. Id. Benton asserted that he
                  kept his focus on the fleeing shooter “to
                  make sure he didn’t come back,” and
                  that the shooter’s “face really st[ood] out
                  to me.”      Id.    Considering Benton’s
                  opportunity to view the shooter, [the
                  PCRA court] finds it telling that nowhere
                  in Benton’s account did Benton assert
                  anything to suggest that the shooter
                  discarded his black cap, or that the cap
                  fell off the shooter’s head during his
                  flight from the scene.

PCRA court opinion, 6/19/18 at 8-9 (emphasis in original).

      Based upon our review of the record, we find that the PCRA court’s

conclusions are well based in the record. Unlike the defendant in Williams,

appellant has failed to establish that the DNA evidence from the black knit

cap would have the ability to either demolish the Commonwealth’s case or,

inversely, set the Commonwealth’s case in concrete.        See Williams, 899

A.2d at 1064. Accordingly, appellant’s first issue lacks arguable merit.



                                       II.

      In his second issue on appeal, appellant argues that Attorney Jalon

rendered ineffective assistance for failing to object to the trial court’s flight

instruction to the jury as it related to appellant. (Appellant’s brief at 16.)

Specifically, appellant contends that the flight instruction was improper

because the Commonwealth did not present any evidence that appellant



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knew that he was wanted by the police or that the police had obtained a

warrant for his arrest. (Id. at 21.)

        When reviewing a trial court’s instructions to the jury, we are

governed by the following standard:

             [W]hen evaluating the propriety of jury instructions,
             this Court will look to the instructions as a whole,
             and not simply isolated portions, to determine if the
             instructions were improper. We further note that, it
             is an unquestionable maxim of law in this
             Commonwealth that a 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.    Only where there is an abuse of
             discretion or an inaccurate statement of the law is
             there reversible error.

Commonwealth v. Roane, 142 A.3d 79, 95 (Pa.Super. 2016), quoting

Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa.Super. 2007) (citation

omitted).

        When addressing jury instructions pertaining to flight, we have held

that:

             [a] flight instruction is proper when:

                   a person has reason to know he is
                   wanted in connection with a crime, and
                   proceeds to flee or conceal himself from
                   the law enforcement authorities, such
                   evasive conduct is evidence of guilt and
                   may form a basis, in connection with
                   other proof, from which guilt may be
                   inferred.

             Commonwealth v. Harvey, [] 526 A.2d 330, 334
             ([Pa.] 1987). “A defendant's knowledge may be


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            inferred from the circumstances attendant [to] his
            flight.” Commonwealth v. Johnson, [] 838 A.2d
            663, 681 ([Pa.] 2003).

Commonwealth v. Thoeun Tha, 64 A.3d 704, 714 (Pa.Super. 2013).

      Here, appellant argues that the trial court erred when it gave a flight

instruction to the jury because the Commonwealth failed to present

sufficient evidence that a jury instruction on flight was justified. (Appellant’s

brief at 21-22.)

      On this issue, the PCRA court reached the following conclusion:

            Here, Detective James Burke tried to find [appellant]
            at his girlfriend’s house on February 19, 2010.
            [Appellant’s] girlfriend, Nikki Williams, told Detective
            Burke that [appellant] lived there, but was not home
            at the time. Detective Burke informed Williams that
            [appellant] was wanted, that he should turn himself
            in or otherwise contact [the] police, and asked
            Williams to relate this information to [appellant] if
            she was able to make contact with him.[Footnote 15]
            [Appellant] was not arrested until March 3, 201[0],
            when Detective Burke found him at a house in
            Norristown. When he was asked his address after
            his arrest, [appellant] gave Williams’ address. This
            evidence was sufficient to show that [appellant] had
            disrupted his normal pattern of living following the
            shooting in this case.

                   [Footnote 15] At trial, Detective Burke
                   testified that, on February 20, 2010, he
                   also        approached       [appellant’s]
                   grandmother,      another   girlfriend  of
                   [appellant’s] named Lisa Green, and
                   [appellant’s] wife Nicole Carter, at their
                   respective residences and that he told
                   them all the same information which he
                   told Williams. Detective Burke further
                   testified that he and other members of
                   the Homicide Division, Fugitive Squad,


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                    put    up    wanted    posters   around
                    [appellant’s] neighborhood on that same
                    date.

PCRA court opinion, 6/19/18 at 10-11 (citations to the record and

footnote 16 omitted).

        Based on our review of the record, we find that the Commonwealth

presented sufficient evidence that appellant either knew or had reason to

know that he was wanted in connection with the February 11, 2010

shooting.    Accordingly, the trial court did not abuse its discretion when it

provided the jury with the flight instruction.           Therefore, appellant’s

ineffective assistance of counsel claim pertaining to counsel’s failure to

object to the trial court’s jury instructions is without arguable merit.



                                       III.

        Appellant next avers that appellate counsel1 rendered ineffective

assistance for failing to raise, brief, and argue before this court “the

record-based claim that the trial court erred by refusing to issue a




1   Attorney Jalon represented appellant both at trial and on direct appeal.


                                      - 13 -
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Kloiber[2] instruction in connection with Timothy Johnson’s testimony.”

(Appellant’s brief at 25.)

      “We evaluate whether a Kloiber instruction is necessary under an

abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325,

332-333 (Pa.Super. 2012), appeal denied, 78 A.3d 1091 (Pa. 2013), citing

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008), appeal

denied, 962 A.2d 1196 (Pa. 2008).

      Appellant specifically argues that the trial court erred when it failed to

give the jury a Kloiber instruction because Johnson: (1) failed to identify

appellant at the preliminary hearing as one of the men fleeing the scene

immediately following the shooting; (2) testified at the preliminary hearing

that he only picked appellant out of a photo array because appellant was

someone he knew from the neighborhood; (3) failed to testify at trial that

appellant was one of two men leaving the scene of the shooting; and

(4) may   have    mistakenly   identified   appellant   when   he   actually   saw


2 See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). The Kloiber
court held that in cases 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 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.

Id. at 826-827.


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appellant’s brother, Eric Fields, the day of the shooting.     (Appellant’s brief

at 30.)

      The PCRA court concluded as follows:

           Here, Johnson unequivocally identified [appellant] in
           a statement to police as one of two men standing on
           the corner before the decedent was shot, and then
           running from the scene.          Johnson had known
           [appellant] for two years. However, at trial, Johnson
           first said he did not recall who was on the corner or
           who specifically ran away. Later, Johnson admitted
           that he had told detectives that he saw [appellant]
           running away and that that was the truth. He also
           stated on cross-examination that it “could be
           possible” that he confused [appellant] with
           [appellant’s] brother, Eric Fields.

           These qualifications do not neccessitate [sic] the
           cautionary instruction under Kloiber. Johnson never
           failed to identify [appellant] as one of the people on
           the corner running from the scene. Although he
           began to recant his original identification at trial, he
           ultimately admitted that what was in his original
           statement was the truth.

           In any event, [the trial court] gave the jury the
           following identification instruction:

                 There were two identifications in this
                 case which I will address with you. I am
                 referring to the testimony you heard
                 from Police Officer Rios, who identified
                 Kelvin Bryant from a photo array as the
                 person he chased on the night of
                 February 11, 2010, and to the testimony
                 you heard concerning Timothy Johnson’s
                 identification of [appellant] as one of the
                 persons he had seen on the corner of
                 Ridge and Taney Streets on the morning
                 of February 11, 2010.




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                  As you may recall, on cross-examination,
                  Mr. Johnson indicated that he might have
                  confused [appellant] with his brother,
                  Eric Fields, and indicated that they do
                  look alike.

                  In evaluating the testimony, in addition
                  to the other instructions I have provided
                  to you for judging the testimony of
                  witnesses, you should consider the
                  additional following factors.

                  Did the witness have a good opportunity
                  to observe the person he identified? Was
                  there sufficient lighting for that witness
                  to make those observations? Was the
                  witness close enough to the individuals
                  to know the physical characteristics or to
                  see that it was the person that he
                  knows?     When the identification was
                  made, was it positive or was it qualified
                  by any hedging or inconsistencies?

                  In considering whether or not to accept
                  the testimony of these two witnesses,
                  you     should   consider  all of   the
                  circumstances      under   which    the
                  identifications were made.

            [Notes of testimony], 2/6/13 at 30-31.

PCRA court opinion, 6/19/18 at 13-14 (additional citations to the record

omitted).

      Based upon our review of the record, we find that the PCRA court did

not abuse its discretion when it refused to provide the jury with a Kloiber

instruction, and we further find that its conclusions are well based in the

record. Therefore, appellant’s third issue lacks arguable merit.




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                                          IV.

      In his fourth and final issue on appeal, appellant raises a cumulative

prejudice claim.     Specifically, appellant contends that the “cumulative

prejudice    from   the    multiple   trial   errors   rendered   [appellant’s]   trial

fundamentally unfair.” (Appellant’s brief at 37.)

             [Our supreme court has] often held that “no number
             of failed [] claims may collectively warrant relief if
             they fail to do so individually.” [Commonwealth v.
             Johnson, 966 A.2d 523, 532 (Pa. 2009)] (quoting
             Commonwealth v. Washington, [] 927 A.2d 586,
             617 ([Pa.] 2007)).         However, [the court has]
             clarified that this principle applies to claims that fail
             because of lack of merit or arguable merit.
             [Commonwealth v. Sattazahn, 952 A.2d 640, 671
             (Pa. 2008)]. When the failure of individual claims is
             grounded in lack of prejudice, then the cumulative
             prejudice from those individual claims may properly
             be assessed. Id.; Johnson, supra at 532 (citing
             Commonwealth v. Perry, [] 644 A.2d 705, 709
             ([Pa.] 1994), for the principle that a new trial may
             be awarded due to cumulative prejudice accrued
             through multiple instances of trial counsel’s
             ineffective representation.

Commonwealth v. Spotz, 18 A.3d 244, 321 (Pa. 2011).

      Here, none of appellant’s three issues pertaining to ineffective

assistance of counsel was disposed of due to a lack of a showing of

prejudice.    Rather, all three issues failed because they lacked arguable

merit. Accordingly, appellant’s claim of cumulative prejudice from multiple

errors is without merit.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/20/19




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