J-S41009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY PAUL WHITE,

                            Appellant                 No. 1615 MDA 2016


                Appeal from the PCRA Order September 1, 2016
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0001280-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JULY 26, 2017

        Appellant, Anthony Paul White, appeals from the denial of his second

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, after a hearing. We affirm.

        We take the facts of this case from this Court’s December 2, 2013

memorandum and our independent review of the certified record:

        On December 10, 2011, a woman, Julie Ann Wolpert, walked to
        a corner store located at the intersection of College Street and
        Penn Street in York, Pennsylvania [at approximately 7:30-8:00
        p.m.]. (See N.T. Trial, 9/10/12, at 76). She observed people
        on the corner, who did not make her feel “comfortable.” (Id. at
        77). She called a friend, “Will,” who picked her up in his vehicle
        and dropped her off a half-block from her home, located at 315
        South Penn Street. She also called her boyfriend, Roy Swaney,
        to come escort her home. When she got out of the car, she
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*
    Retired Senior Judge assigned to the Superior Court.
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     realized a male individual had followed her. [Although she
     stated she had poor eyesight,] [s]he described the person as a
     “[t]all black guy, he had all black on, and his eyes [were]
     piercing[.]” (Id. at 84). She stated he also had two gold teeth
     and a black piece of material on his head. (See id. at 85). She
     met up with Swaney at the rear of the residence, but the man
     continued to follow them, saying that he wanted them to stop
     and he wanted to talk to them. (See id. at 83). When Wolpert
     and Swaney got into the house, they closed the door. Swaney
     went to call 9-1-1 while Wolpert grabbed her cats to remove
     them from harm’s way. The perpetrator then kicked in the door
     and aimed a silver automatic pistol at Wolpert’s cat, but the gun
     jammed. Another resident of the house, Christopher Armagost,
     came down the stairs, pushed the man out of the home, and
     shut the door. From outside, the perpetrator fired multiple shots
     through the door and windows of the residence, killing
     Armagost.

            On December 12, 2011, Detectives Travis A. Sowers and
     Jeffrey Spence of the York City Police Department showed a
     photo line-up to Wolpert and Swaney separately. (See N.T.
     Trial, 9/12/11, at 356-57, 359). The line-up included a picture
     of [Appellant] and seven other individuals. Both witnesses used
     a piece of paper to cover up the top portion of each person’s
     head on the line-up because the suspect was wearing a black
     hoodie or skull cup at the time of the shooting. (See id. at
     358). Both Wolpert and Swaney positively identified [Appellant]
     as the shooter. (See id. at 357-58). [They also positively
     identified him at trial. (See N.T. Trial, 9/10/12, at 83-84; N.T.
     Trial, 9/11/12, at 223).]

            During the investigation, the investigating officers removed
     a wooden piece of the door from the home, approximately
     [nineteen] inches by [eleven] inches, which contained a shoe
     impression on it. (See N.T. Trial, 9/12/12, at 299). Sergeant
     Daryl Van Kirk analyzed the piece of wood in comparison with
     two Polo Ralph Lauren boots, size [eight]-and-a-half D, which
     belonged to [Apellant] and were confiscated at the time of his
     arrest. (See id.). After examining the evidence, Sergeant Van
     Kirk concluded “that the questioned shoe impression from the
     door could have been made by the left Polo Ralph Lauren shoe .
     . . or another shoe with the same characteristics.” (Id. at 314).
     The police also seized a set of gold front teeth from [Appellant’s]
     right front pants pocket. (See id. at 353). [The investigation

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     also revealed gunshot residue (GSR) on Appellant’s pajama
     pants, white t-shirt, and left hand; a magazine with bullets found
     in Appellant’s room that matched the manufacturer type and
     caliber of the casings found at the scene; and video evidence of
     Appellant walking toward the scene at approximately 8:25 p.m.,
     and away from it at 8:27 p.m. (See N.T. Trial, 9/11/12, at 267-
     75, 283-84; N.T. Trial, 9/12/12, at 314, 328-29, 338-39, 373.)]

            [Appellant] was arrested and charged with first-degree
     murder, second degree murder, third-degree murder, and
     burglary. On April 19, 2012, [Appellant] filed an omnibus pre-
     trial motion to suppress, claiming the photo lineup identification
     was unduly suggestive. A suppression hearing was held on May
     29, 2012. That same day, the trial court denied the motion to
     suppress.

           The case proceeded to trial, which was held from
     September 10, 2012 to September 13, 2012. The jury found
     [Appellant] guilty of second-degree murder and burglary, and
     not guilty of first-degree murder and third-degree murder. On
     October 22, 2012, the court imposed a term of life imprisonment
     on the murder conviction. . . .

(Commonwealth       v.   White,    No.    1962   MDA    2012,   unpublished

memorandum at **2-4 (Pa. Super. filed Dec. 2, 2013) (footnote omitted;

some record citation formatting provided; some record citations provided)).

     Appellant timely appealed on November 7, 2012. On April 15, 2013,

he filed a pro se PCRA petition, which the PCRA court denied as premature.

On December 2, 2013, a panel of this Court affirmed Appellant’s judgment of

sentence.     (See id. at *1).    Appellant did not seek review in the

Pennsylvania Supreme Court.

     Appellant filed a counseled second PCRA petition on December 8,

2014, and an amended petition on January 19, 2016.         The court held a




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hearing on June 6, 2016, and denied the request for relief on September 1,

2016. Appellant timely appealed on September 28, 2016.1

       Appellant raises two questions for our review:

       I.    [Whether] [t]he PCRA court erred because the record does
       not support its prejudice analysis[?] Stated differently,
       [whether,] in the absence of Julia Wolpert’s and Roy Swaney’s
       out-of-court and in-court identifications, the PCRA court can
       have [any] confidence in [Appellant’s] convictions requiring the
       PCRA court to grant [Appellant] a new trial[?]

       II.   [Whether] [t]he PCRA court erred as a matter of law in
       finding that the facts elicited at trial did not warrant a Kloiber[2]
       instruction and that [Appellant] was not prejudiced by the
       absence of a Kloiber instruction[?]

(Appellant’s Brief, at 3) (citations omitted).3 Although not phrased as such

in the Issues Presented section of Appellant’s brief, a review of the argument

section reveals that both of his questions challenge the PCRA court’s finding


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1
  Appellant filed a timely statement of errors complained of on appeal on
November 19, 2016, pursuant to the PCRA court’s order. See Pa.R.A.P.
1925(b). The court filed a statement on November 21, 2016 in which it
relied on the reasons stated in its September 1, 2016 opinion to support its
decision. See Pa.R.A.P. 1925(a).
2
 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348
U.S. 875 (1954).
3
  We remind counsel that his statement of questions involved (which he
identifies as “Issues Presented”) “must state concisely the issues to be
resolved, expressed in the terms and circumstances of the case but without
unnecessary detail. . . . Each question shall be followed by an answer stating
simply whether the court or government unit agreed, disagreed, did not
answer, or did not address the question. . . .” Pa.R.A.P. 2116(a).




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that trial counsel did not render ineffective assistance. (See id. at 3, 33,

36, 52).

            The standard of review for an order denying post-
      conviction relief is limited to whether the record supports the
      PCRA court’s determination, and whether that decision 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.

Commonwealth v. Taylor, 933 A.2d 1035, 1040 (Pa. Super. 2007), appeal

denied, 951 A.2d 1163 (Pa. 2008) (citations omitted).

             A PCRA petitioner alleging ineffectiveness of his counsel
      will be granted relief only if he is able to prove that “in the
      circumstances of [his] particular case,” the truth-determining
      process was undermined to the extent “that no reliable
      adjudication of guilt or innocence could have taken place.” 42
      Pa.C.S.[A.] § 9543(a)(2)(ii). The law presumes that counsel
      was effective, and it is the petitioner’s burden to prove the
      contrary. Thus, to prove counsel ineffective, the petitioner must
      show that: (1) his underlying claim is of arguable merit; (2)
      counsel had no reasonable basis for his action or inaction; and
      (3) the petitioner suffered actual prejudice as a result. To
      satisfy the prejudice prong, it must be demonstrated that,
      absent counsel’s conduct, there is a reasonable probability that
      the outcome of the proceedings would have been different. . . .

Commonwealth v. Perez, 103 A.3d 344, 347-48 (Pa. Super. 2014), appeal

denied, 116 A.3d 604 (Pa. 2015) (case citations omitted). Further, “[f]ailure

to prove any prong of this test will defeat an ineffectiveness claim.”

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (citation omitted).

      Here, in his first issue, Appellant argues that counsel rendered

ineffective   assistance   because,   although   he   moved   to   suppress   the




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December 12, 2011 photo array as being unduly suggestive, 4 he failed to

“adequately research the eyewitness identification case law.”             (Appellant’s

Brief, at 36; see id. at 37-44). Appellant maintains that, had trial counsel

argued the theories of “mug shot exposure, non-blind administration, and

simultaneous      presentation,”      the      court   would   have   suppressed   the

identifications, and “the outcome of his trial would have come out

differently.”   (Id. at 37, 50 (emphasis omitted); see id. at 37, 51).             This

issue is waived and would lack merit.

       “When an appellant fails to meaningfully discuss each of the three

ineffectiveness prongs, he is not entitled to relief, and we are constrained to

find such claims waived for lack of development.”               Fears, supra at 804

(internal quotation marks, citations, and footnote omitted).             In this case,

Appellant utterly fails to discuss, or even mention, the three prongs of the

ineffectiveness test, and then apply them to his claim.               (See Appellant’s

Brief, at 33-51). Instead, he argues extensively about the scientific theories

surrounding eyewitness identification, (see id. at 36-44), and then

concludes he was prejudiced because, if counsel had argued the theories,

then the trial court would have suppressed the identifications, and that there

is a reasonable probability the outcome of the trial would have been

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4
  On direct appeal, this Court concluded that the trial court properly found
that the photo array was not unduly suggestive where “[Appellant’s] picture
does not standout more than those of the others.” (White, supra at *10).



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different. (See id. at 50-51). This does not meet Appellant’s burden, and

his claim is waived. Moreover, it would not merit relief.

       As a preliminary matter, we observe that Appellant fails to identify,

and our research has failed to reveal, any relevant5 caselaw in this

Commonwealth that either contains the term, “mug shot exposure, non-

blind administration, or simultaneous presentation,” or holds that trial

counsel is ineffective for failing to argue these theories at a suppression

hearing. (Appellant’s Brief, at 37; see also id. at 33-43).6 Therefore, he


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5
  Although the words, “simultaneous presentation” are mentioned in two
cases in this Court, they are part of sentences referring to presenting a
weapon and a defendant at the same time. See Commonwealth v.
Derrick, 469 A.2d 1111, 1120 (Pa. Super. 1983); Commonwealth v.
Carter, 414 A.2d 369, 372 (Pa. Super. 1979).
6
   Appellant cites State v. Henderson, 27 A.3d 872 (N.J. 2011), “to
demonstrate how easily trial counsel could have researched the various
eyewitness identification issues relevant to Wolpert’s and Swaney’s out-of-
court identifications.” (Appellant’s Brief, at 34). In Henderson, the New
Jersey Supreme Court discussed the scientific research about human
memory and eyewitness misidentification, and revised its legal framework
for evaluating eyewitness identifications. See Henderson, supra at 877-
78, 919-21. First, we note that this case is not binding on this Court
because it is state authority from another jurisdiction. See Verdini v. First
Nat. Bank of Penn., 135 A.3d 616, 619 n.5 (Pa. Super. 2016) (“The
decisions of the lower federal courts and other states’ courts may provide
persuasive, although not binding, authority.”) (citations omitted). Moreover,
as stated supra, there is no legal precedent in Pennsylvania that even
mentions the scientific principles of “mug shot exposure, non-blind
administration, [or] simultaneous presentation,” let alone has adopted them
as necessary considerations for eyewitness identifications and the effective
representation of counsel. (Appellant’s Brief, at 37) (emphasis omitted).

(Footnote Continued Next Page)


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has failed to meet his burden of proving the merit of his underlying claim,

that trial counsel was ineffective for failing to argue these scientific theories

to support Appellant’s motion to suppress.        See Fears, supra at 804;

Perez, supra at 347-48.

      Additionally, our review of the record supports the PCRA court’s finding

that, even if counsel did fail to research all potential avenues for the

suppression of the eyewitnesses’ identifications, Appellant cannot establish

that he was prejudiced. Specifically, the court observed:

            Aside from Ms. Wolpert and Mr. Swaney identifying
      [Appellant] as the gunman, the jury also heard the following
      evidence:      (1) evidence demonstrating boots owned by
      [Appellant], that were confiscated at the time of his arrest, could
      have matched the shoeprint on the door, which had been kicked
      in when the gunman had entered the residence[;] (2) evidence
      that a set of front gold teeth were seized from [Appellant’s] right
      front pants pocket at the time of his arrest[;] (3) testimony from
      a [GSR] expert that GSR was found on [Appellant’s] pajama
      pants, white t-shirt and left hand[;] (4) testimony that a
                       _______________________
(Footnote Continued)

       We acknowledge that, in Commonwealth v. Walker, 92 A.3d 766
(Pa. 2014), our Supreme Court cited Henderson and, in recognition of the
growing scientific literature on the potential fallibility of eyewitness
identification, held that “the admission of expert testimony regarding
eyewitness identification is no longer per se impermissible in our
Commonwealth,” and left “the admissibility of such expert testimony to the
discretion of the trial court.” Walker, supra at 792; see also id. at 781.
However, Walker was decided after Appellant’s conviction and has no
bearing on his case. Moreover, although it acknowledged the growing
scientific literature, it did not hold that the effective representation of a
client requires arguing such scientific principles, and we decline to so hold
now. See Aivazoglou v. Drever Furnaces, 613 A.2d 595, 600 (Pa. Super.
1992) (until Supreme Court changes law, “this Court, being an error
correcting court, will affirm trial court decisions which are in accord with
principles of law adopted by prior appellate court decisions.”).



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      magazine containing six bullets was found in [Appellant’s]
      bedroom at the time of his arrest, which matched the
      manufacturer type and caliber of the ammunition casings found
      at the crime scene[;] and (5) video evidence showing
      [Appellant] walking by Young’s store, one block from the location
      of the murder at 8:25 p.m., heading south in the direction of the
      murder─then, subsequently, at 8:27 p.m., the video evidence
      showed [Appellant] walking north, away from the location of the
      murder, presumably back to his residence. Based on the above
      evidence, [the PCRA court] believes, aside from [] Ms. Wolpert
      and Mr. Swaney’s identification of [Appellant], there was
      sufficient evidence to convict [him] of second-degree murder
      and burglary.

(Trial Court Opinion, 9/01/16, at 10-11) (record citation omitted).

      Based on the foregoing, and our independent review, we agree.

Therefore, we conclude that the certified record supports the PCRA court’s

determination that Appellant is unable to meet his burden to plead and

prove that he was prejudiced by trial counsel’s alleged inaction where it did

not affect the outcome of the trial. See Taylor, supra at 1040; see also

Fears, supra at 804; Perez, supra at 348.         Appellant’s first issue would

lack merit, even if not waived.

      In his second issue, Appellant claims that, “[t]he PCRA court erred as

a matter of law in finding that the facts elicited at trial did not warrant a

Kloiber instruction and . . . . because the record does not support its

Kloiber prejudice analysis.” (Appellant’s Brief, at 51). This issue is waived

and would not merit relief.

      Again, as in his first issue, Appellant fails to meaningfully discuss each

of the ineffectiveness prongs. (See id. at 51-54). In fact, his question is


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not phrased as a claim of ineffective assistance of counsel. (See id. at 3,

51).   It is not until the second page of his argument on this issue that

Appellant mentions that trial counsel was allegedly ineffective for not

requesting a Kloiber instruction.     (See id. at 52).    Appellant spends the

majority of his argument explaining why he believes a Kloiber charge was

warranted, and then concludes that, had the jury heard that instruction, the

outcome of the trial would have been different.           (See id. at 51-54).

Therefore, Appellant’s second issue is waived for his failure to provide

substantive discussion for each prong of the ineffectiveness test.            See

Fears, supra at 814. Moreover, it would not merit relief.

       Pursuant to Kloiber, supra:

       . . . [W]here 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.

Kloiber, supra at 826-27.

       Here, the PCRA court observed:

       [Appellant] contends that his trial counsel was ineffective for
       failing to request a Kloiber instruction with respect to Ms.
       Wolpert’s and Mr. Swaney’s testimony indicating both were not
       in a position to clearly observe the gunman.       Ms. Wolpert
       testified to her very poor eyesight, while Mr. Swaney stated he
       used heroin on the day of the shooting and only saw the gunman
       for a “split second.”

             The citations noted above however are not the complete
       testimony of the witnesses as to the issue of identification. The

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       evidence reveals that Ms. Wolpert had ample time to identify the
       subject following her from the corner store. She described the
       person as a “[t]all black guy, he had all black on, and his eyes
       [were] piercing.” Additionally, she stated he had two gold teeth
       and a black piece of material on his head. Further, on December
       12, 2011, both [Ms.] Wolpert and Mr. Swaney positively
       identified [Appellant] as the shooter when both were separately
       presented with a photo line-up of [Appellant] and seven other
       individuals. Also, both Ms. Wolpert and Mr. Swaney positively
       identified [Appellant] during trial. Lastly, Ms. Wolpert and Mr.
       Swaney’s identification of [Appellant] as the shooter never
       wavered.

             Under these circumstances, [the PCRA court] finds a
       Kloiber charge was not required. Therefore, because a Kloiber
       charge was unwarranted on these facts, counsel could not have
       been ineffective for failing to raise a meritless issue.

(PCRA Ct. Op., at 15-16) (some record citation formatting provided); see

Commonwealth v. Sneed, 45 A.3d 1096, 1115 (Pa. 2012) (“Counsel will

not be deemed ineffective for failing to raise a meritless claim.”) (citation

omitted). We agree.

       Our    review of the       certified record supports the           PCRA court’s

conclusion,    and    Appellant     cannot     establish   the   first   prong   of   the

ineffectiveness test.7 Accordingly, Appellant’s second issue would not merit

relief, even if it was not waived.

       Order affirmed.

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7
  Moreover, as we stated in our review of Appellant’s first issue, the jury had
sufficient evidence to convict him without the eyewitness identification.
Therefore, he cannot prove that he was prejudiced by counsel’s decision not
to request a Kloiber instruction. See Fears, supra at 804; Perez, supra
at 348.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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