J-S77036-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     Appellee              :
                                           :
                     v.                    :
                                           :
EDDIE MITCHELL,                            :
                                           :
                      Appellant            :    No. 3304 EDA 2017

                Appeal from the PCRA Order August 31, 2017
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005026-2013

BEFORE: OTT, J., DUBOW, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 13, 2019

      Eddie Mitchell (Appellant) pro se appeals from the order entered on

August 31, 2017, which denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On June 3, 2014, Appellant was convicted by a jury of first-degree

murder, carrying a concealed firearm without a license, and carrying a firearm

in Philadelphia. These convictions stemmed from Appellant’s involvement in

the murder of Maurice Hampton on February 11, 2012. That evening, after

receiving a radio call, police found Hampton lying on the street near a van at

the intersection of 25th and Master Streets after being shot multiple times. He

was pronounced dead after arriving at Temple University Hospital.




* Retired Senior Judge assigned to the Superior Court.
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      Police obtained surveillance video from a store located near the scene.

The video showed an individual, later identified as Appellant, waiting in the

area a few minutes before the incident. Hampton exited the store holding a

black plastic bag, and as he walked north on 25th Street, Appellant pulled out

a gun and shot at Hampton. Hampton turned around and began to run down

Master Street; Appellant chased after and shot at Hampton. Hampton then

collapsed near a van, and Appellant fled south on 25th Street.

      Relevant to this appeal, police interviewed three key witnesses during

the course of the investigation in an attempt to identify the shooter.      On

February 16, 2012, police interviewed Jakyle Young, who gave a statement

      in which he explained that while he was sitting in [a] car, he
      observed Hampton walk down Master Street when a man he knew
      as “Abdul” started shooting at Hampton. [Young] heard about ten
      gunshots and saw Abdul run south on 25th Street.         Young
                                                        nd
      explained that he knew Abdul from the mosque on 2 Street and
      Girard Avenue. On August 28, 2012, Young identified [Appellant]
      as the shooter from a photo array.

Commonwealth v. Mitchell, 120 A.3d 383 (Pa. Super. 2015) (unpublished

memorandum at 1).

      Police also interviewed Latoya Ransome, Hampton’s girlfriend, on April

16, 2012. After being shown the surveillance video, she “identified the shooter

as a man she knew as ‘Stacks.’” Id. at 2. “Ransome explained that Stacks

and Hampton were having problems because they were both dating a woman

named Rasheeda Wesley.” Id. Ransome identified Appellant as “Stacks” from

a photo array.


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      Finally, police interviewed Nichole Bennett, Hampton’s sister, on April

17, 2012.

      [A]fter viewing the video in the Homicide Division, she identified
      the shooter as [Appellant], a man she knew as “Stacks.” Bennett
      gave the detectives Stacks’ phone number, which was later
      determined to be [Appellant’s] phone number.[1]           Bennett
      explained that [Appellant] and Hampton were having problems
      because they were dating the same woman. On July 30, 2012,
      Bennett identified [Appellant] from a photo array.

Id.

      Based on the foregoing identifications, Appellant was arrested on

September 6, 2012. During Appellant’s jury trial, both Young and Ransome

testified differently than their previous statements to police. Young testified

that he “heard shots but [] didn’t see nobody [sic] shooting.” N.T., 5/28/2014,

at 78.   Young further testified that he was on drugs when he gave his

statement to police, and parts of his statement were untrue. Also at trial,

Ransome testified that she did not identify Appellant in the surveillance tape

and never told police she did. Id. at 171.

      On the other hand, at trial, Bennett identified Appellant as the shooter

on the video. N.T., 5/29/2014, at 106. She testified that she knew Appellant

as someone who sells “weed in that area.” Id. at 107. Bennett also testified

that she knew that her brother was romantically involved with Rasheeda




1 At trial, Appellant’s employer, Ken Cocchi, testified that he provided a
telephone to Appellant with the same phone number that Bennett provided to
police. N.T., 6/2/2014, at 13.
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Wesley. Id. at 108. In addition, Bennett confirmed that she gave Appellant’s

phone number to police. Id. at 113.

      On June 3, 2014, Appellant was convicted of the aforementioned crimes,

and he was sentenced to a mandatory term of imprisonment of life without

parole for the first-degree murder conviction. Appellant filed a direct appeal

to this Court, and on February 18, 2015, this Court affirmed Appellant’s

judgment of sentence. Mitchell, supra.         Appellant filed a petition for

allowance of appeal, which was denied by our Supreme Court on June 16,

2015. Commonwealth v. Mitchell, 117 A.3d 296 (Pa. 2015).

      On June 2, 2016, Appellant timely filed a pro se PCRA petition. Appellant

pro se filed a supplemental petition on October 24, 2016. On February 17,

2017, counsel was appointed, and on June 1, 2017, counsel filed a motion to

withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).     On the same day, the PCRA court filed notice

pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition without a

hearing. On July 6, 2017, the PCRA court granted counsel’s petition to

withdraw and dismissed Appellant’s petition without a hearing.

      On July 20, 2017, Appellant filed a pro se response to the Rule 907

notice, claiming he did not receive the June 1, 2017 Rule 907 notice.

Therefore, the PCRA court refiled the Rule 907 notice on August 1, 2017.

Appellant timely filed a pro se response to that notice, which included a claim


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that PCRA counsel’s representation was ineffective. On August 31, 2017, the

PCRA court denied Appellant’s petition.     Appellant timely filed a notice of

appeal.2

      On appeal, Appellant presents four claims for our review, and we review

each according to the following. “Our standard of review of a [] court order

granting or denying relief under the PCRA calls upon us to determine ‘whether

the determination of the PCRA court is supported by the evidence of record

and is free of legal error.’” Commonwealth v. Barndt, 74 A.3d 185, 192

(Pa. Super. 2013) (quoting Commonwealth v. Garcia, 23 A.3d 1059, 1061

(Pa. Super. 2011)).

      To the extent Appellant is claiming trial and PCRA counsel were

ineffective, we bear in mind the following. We presume counsel is effective.

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007).                    To

overcome this presumption and establish the ineffective assistance of counsel,

a PCRA petitioner must prove, by a preponderance of the evidence: “(1) the

underlying legal issue has arguable merit; (2) that counsel’s actions lacked an

objective reasonable basis; and (3) actual prejudice befell the [appellant] from

counsel’s act or omission.” Commonwealth v. Johnson, 966 A.2d 523, 533

(Pa. 2009) (citations omitted). “[A petitioner] establishes prejudice when he




2 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), but the PCRA court
did author two separate Pa.R.A.P. 1925(a) opinions upon issuing the
aforementioned Rule 907 notices.
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demonstrates that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. A claim will be denied if the petitioner fails to meet any one of these

requirements. Commonwealth v. Springer, 961 A.2d 1262, 1267 (Pa.

Super. 2008).

      Appellant first contends that trial counsel was ineffective in failing to

request a certain jury instruction. Specifically, Appellant claims that the trial

court should have provided an instruction pursuant to Commonwealth v.

Kloiber, 106 A.2d 820 (Pa. 1954) (requiring an instruction to a jury to receive

testimony of a witness regarding identity with caution when that witness did

not have the opportunity to view defendant clearly, equivocated in

identification of defendant, or had difficulty identifying defendant in the past).

Appellant’s Brief at 10.

      By way of background, the trial court did provide additional instructions

regarding identification testimony. Specifically, the trial court pointed out that

“several witnesses … identified [Appellant] as the person who committed the

crimes.” N.T., 6/2/2014, at 123.          The trial court then gave general

instructions, consistent with Kloiber, supra, regarding evaluation of that

testimony. Id. at 123-25. The trial court went on to point out that two of the

witnesses, Young and Ransome, “did not make identifications in the

courtroom.” Id. at 125. The trial court instructed the jurors to “review those




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… two witnesses’ identification[s] with special scrutiny and receive it with

caution.” Id.

      Appellant acknowledges a Kloiber instruction was given for witnesses

Young and Ransome, but argues that he was prejudiced because “Kloiber’s

safeguard was not afforded to the only witness who identified Appellant at

trial.” Appellant’s Brief at 11. In addition, Appellant contends PCRA counsel

was ineffective for not raising this issue properly. Id. at 18.

      Our review of the transcript reveals that Appellant has misread the trial

court’s instructions to the jury.     The trial court did provide a Kloiber

instruction for all three witnesses, see N.T., 6/2/2014, at 123-25, and then

provided additional cautionary instructions, which actually worked in

Appellant’s favor, with respect to the two witnesses who recanted their

testimony. Id. at 125. Based on the foregoing, Appellant’s claim is without

merit, and neither trial counsel nor PCRA counsel was ineffective for either

failing to raise it or presenting it properly. See Commonwealth v. Tilley,

780 A.2d 649 (Pa. 2001) (holding that counsel will not be deemed ineffective

for failing to raise a meritless claim). Accordingly, Appellant is not entitled to

relief on this claim.

      Appellant next contends that trial counsel was ineffective for failing to

investigate adequately impeachment evidence about Bennett. Appellant’s

Brief at 20-25. According to Appellant, “[t]rial counsel failed to independently

investigate [] Bennett’s account to detectives that she not only knew


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Appellant, but that she had sex with Appellant and called him a few times on

the number that she turned over to detectives.”3 Id. at 20. Appellant claims

that trial counsel’s failure to investigate this impeachment evidence resulted

in prejudice.

      In considering this issue, we first point out that it is not at all clear how

this information is impeachment evidence regarding Bennett or would even

help Appellant’s case.     However, assuming arguendo it is impeachment

evidence, Appellant did not raise this issue before the PCRA court. In the

Turner/Finley letter, counsel set forth the issue that “trial counsel was

ineffective for failing to obtain cell phone records for the purpose of

impeaching [] Bennett’s credibility.” Turner/Finley letter, 6/1/2017, at 12.

In his response to the PCRA court’s Rule 907 notice, Appellant again claimed

that trial counsel should have obtained cell phone records. Pro se Response,

8/17/2017, at 4. At no point prior to his brief on appeal has Appellant ever

made the claim he is now setting forth. Accordingly, this claim is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).




3 This information is presented in an affidavit dated July 3, 2018, which is
signed by Appellant and attached to his appellate brief. See Appellant’s Brief
at Exhibit B. To the extent that this affidavit could be considered evidence, it
is well-settled that because it is being presented for the first time on appeal,
such evidence is not part of the official record, and we cannot consider it. See
Commonwealth v. Crawley, 663 A.2d 676, 681 n.9 (Pa. 1995).
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      We now turn to Appellant’s final two claims, which we address together.

First, he argues that trial counsel was ineffective for failing to object to the

Commonwealth’s calling of two witnesses who refused to testify at trial.

Appellant’s Brief at 28-32.     Appellant also claims that trial counsel was

ineffective for failing to object to statements made by the Commonwealth

during its closing argument. Id. at 35-40.        With respect to both claims,

Appellant claims that PCRA counsel was ineffective by failing to raise these

issues. Id. at 32-34; 40-41.

      First, with respect to Appellant’s claims that trial counsel was ineffective,

it is well-settled that a PCRA petitioner cannot raise a new claim of trial counsel

ineffectiveness on appeal from an order denying PCRA relief.           Instead, a

petitioner must seek leave with the PCRA court to file a new PCRA petition.

Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2012) (holding

that “in order to properly aver a new non-PCRA counsel ineffectiveness claim,

the petitioner must seek leave to amend his petition”). Because Appellant has

not done so, his claims of trial counsel ineffectiveness are waived.

      We now turn to Appellant’s claims that PCRA counsel was ineffective in

failing to raise these claims. We have held “that in the context of [a] rule 907

notice, Appellant as PCRA petitioner had the duty to raise any claims of

ineffective assistance of PCRA counsel in a response to this notice.”

Commonwealth v. Smith, 121 A.3d 1049, 1056 (Pa. Super. 2015).

Instantly, in Appellant’s response to the Rule 907 notice, he first sets forth a


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bare bones claim that PCRA counsel did not investigate all of the issues

Appellant wished to raise. Pro se Response, 8/17/2017, at 2. Appellant then

goes on to explain why each issue counsel set forth in the Turner/Finley no-

merit letter indeed has merit. Id. at 2-5; see also Supplemental PCRA Court

Opinion, 8/31/2017, at 3 (“In the remainder of his 907 Response, [Appellant]

challenges the veracity of PCRA counsel’s investigation and legal analysis, and

reiterates the issues and arguments raised in his pro se and Supplemental

petitions.”). Importantly, nowhere in his response does Appellant set forth

the specific claims he is now raising on appeal.4 Had Appellant done so, the

PCRA court could have addressed those claims in the first instance, which is

precisely why a petitioner is required to raise claims of PCRA counsel

ineffectiveness in a response to a Rule 907 notice. See Smith, supra.

Appellant’s failure to do renders those claims waived.

      Because Appellant has not presented any issue on appeal that would

entitle him to relief under the PCRA, we affirm the order of the PCRA court.

      Order affirmed.




4 In fact, Appellant even acknowledges that he did not suggest either of the
aforementioned issues to PCRA counsel; rather, he merely claims that they
were not presented due to PCRA counsel’s lack of communication. See
Appellant’s Brief at 33, 40.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/19




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