J   -S27038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                 1   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

SHAWN DIXON,

                          Appellant                   No. 2094 EDA 2016


                   Appeal from the PCRA Order June 28, 2016
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0001047-2007

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

MEMORANDUM BY PLATT, J.:                                   FILED MAY 08, 2017

        Appellant, Shawn Dixon, appeals from the order denying his first

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

9541-9546. We affirm.

        We take the following facts from the PCRA court's October 6, 2016

opinion and our independent review of the certified record.

              At trial, the Commonwealth presented the testimony of Mr.
        Tarangi Lewis. Mr. Lewis stated that on July 21, 2006, at
        approximately 7:30[]pm, he visited his cousin on the 2500 block
        of Kingston Street. Later, while at his cousin's house, Mr. Lewis
        stated that there was a commotion going on near his truck,
        which was parked near the corner of Frankford and Kingston.
        Mr. Lewis then walked towards his truck and as he was
        inspecting it for scratches he heard girls arguing back and forth
        near a car which had pulled up to the corner. It was then that


*   Retired Senior Judge assigned to the Superior Court.
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     Mr. Lewis heard a girl say "that is what I brought you up here
     for, shoot, shoot." (N.T. Trial, 5/06/08 at 31).        Mr. Lewis
     testified that he heard four to five gun shots and was shot in his
     leg. He also testified to seeing a young kid get shot and run into
     an alley. (See id. at 33-34). Mr. Lewis then drove himself to
     the hospital.

            The testimony of Darnell Simmons was also presented by
     the Commonwealth. Mr. Simmons, while walking back from the
     Rec Center, arrived at Kingston Street and noticed girls who
     looked like they were about to begin fighting. (See id. at 83-
     84).    He then stated that he saw a vehicle drive up and
     [Appellant] got out of that vehicle. (See id. at 85-87). It was
     at this time that he heard a girl say that [Appellant] had a gun.
     (See id.). Mr. Simmons stated that he heard [Appellant] say[,]
     "fuck that I'll shoot everyone on the corner." (Id. at 87).
     [Appellant] then fired [five] to [six] shots, shooting Mr. Simmons
     twice, once as he was trying to run away. (See id. at 87-88).
     Mr. Simmons ran into an alley and after trying to get help, he
     collapsed until police arrived.
                                   .   .   Mr. Simmons was transported
                                           .


     to Temple Trauma Center.

            The Commonwealth also presented the testimony of
     Jasmine Merritt who testified that she was at a Chinese
     restaurant near Kingston Street when she and her friend Erica
     were involved in a fight. (See N.T. Trial, 05/07/08, at 13).
     After walking to Kingston Street, Ms. Merritt stated that her
     friend Erica called her stepfather to come down. (See id.). At
     the time, Ms. Merritt believed that the stepfather's name was
     Malik. (See id. at 33-34). Ms. Merritt testified that [Appellant]
     pulled up in a Grand Marquis and began shooting [three] to
     [five] times. (See id. at 1[5]-20). Ms. Merritt was interviewed
     by the police and advised them the name of the shooter was
     Malik.    She was shown photographs but could not identify
     anyone.     (See id. at 61-62). The police later received an
     anonymous phone call pointing them to [Appellant]. They then
     showed Ms. Merritt a picture of [Appellant] and asked if that was
     Malik, to which she affirmatively responded and said he was the
     shooter. (See id. at 70-71, 102-05). Mr. Simmons was shown
     a photo array after the police spoke to Ms. Merritt and he
     identified [Appellant]. (See id. at 105-[06]). Mr. Simmons was
     also shown a lineup and selected [Appellant]. (See id. at 127-
     32). .   .   .




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(PCRA Court Opinion,          10/06/16, at 1-3) (some record citations omitted;

record citation formatting provided).

      Before the jury began deliberations, the trial court instructed it about,

inter alia, the identification testimony offered by        Ms.   Merritt and Mr.

Simmons. Specifically, the court stated:

      .   .In her testimony Jasmine Merritt identified [Appellant] as
              .


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

                  Did the witness have a good   opportunity to observe the
      perpetrator of the offense?

           Was there sufficient lighting for the witness to make her
      observation?

            Was the witness close enough to the individual to note his
     facial and other physical characteristics as well as any clothing
     he was wearing?

                  Has  witness made any prior identification of
                        the
      [Appellant] as the perpetrator of these crimes at any other
      proceedings?

                  the identification positive or was it qualified
                  Was                                                   by
      hedging or inconsistencies?

           During the course of this case did the witness identify
      anyone else as the perpetrator?

            In considering whether or not to accept the testimony
      concerning the identification you should consider all the
      circumstances under which the identification was made.

           Furthermore, you should consider all the evidence relative
     to the question of committing a crime including the testimony of
     any witness for which identity or non-identity of a perpetrator of
     a [crime] may be inferred.


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          .    .    the testimony[,] Darnell Simmons has identified
                    In
       [Appellant] as the person who committed the crime. There is a
       question of whether this identification is accurate. A victim or
       other witnesses can sometimes make a mistake when trying to
       identify the criminal. If certain factors are present the accuracy
       of the identification testimony would be so doubtful that the jury
       must receive it with caution. Identification testimony must be
       received with caution if the witness because of bad position, poor
       lighting, or other reasons that [he] does not have a good
       opportunity to observe the criminal. If the witness' positive
       testimony as to the day is weakened by qualification or
       inconsistencies in the rest of his testimony or by his not
       identifying the defendant as a criminal before the trial. If you
       believe that one or more of these factors are present then you
       must consider with caution the testimony of Darnell Simmons,
       identifying [Appellant] as a person who committed the crime. If
       however, you do not believe at least one of these factors is
       present[,] then you need not receive the testimony with caution.
       You may treat it like any other testimony. You should consider
       all the evidence relative to the question who committed the
       crime and the testimony of Darnell Simmons along with other
       evidence and facts and circumstances from which identity or
       non-identity of the criminal may be inferred.

                   You cannot find [Appellant] guilty unless you are satisfied
       beyond         a reasonable doubt by all the evidence direct or
       circumstantial not only that the crime was committed but that it
       was [Appellant] who committed the crime.

(N.T. Trial, 5/09/08, at 53-56).

       On May 9,          2008, the jury convicted Appellant of two counts of

aggravated assault and one count each of attempted murder, criminal

conspiracy, possession of an instrument of crime, carrying            a   firearm without

a   license, and carrying       a   firearm on   a   public street in Philadelphia.   On

August 14, 2008, the trial court sentenced him to an aggregate term of not

less than     twenty-five nor more than fifty years' imprisonment for attempted


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murder and aggravated assault.             No    further sentence was imposed on the

remaining crimes. This Court affirmed the judgment of sentence on October

25, 2011, and the Pennsylvania Supreme Court denied further review on

September 13, 2012.              (See Commonwealth v. Dixon, 37 A.3d 1242 (Pa.

Super. 2011) (unpublished memorandum), appeal denied, 53 A.3d 49 (Pa.

2012)).

        Appellant filed      a   timely pro se   PCRA   petition on February 8, 2013.

Appointed counsel filed an amended petition on February 5, 2015.               On May

13, 2016, the PCRA court notified Appellant of its intention to dismiss his

petition without      a   hearing. See Pa.R.Crim.P. 907(1). On June 28, 2016, the

PCRA    court denied the petition. Appellant timely appealed.'

        Appellant raises four questions for this Court's review:

        1.     Whether the PCRA court erred in failing to find that the
        Commonwealth violated Brady[2] when it failed to present the
        defense with the existence of anonymous information obtained
        by the police which resulted in presentment of a single photo in
        its identification procedure?

        2.    Whether the PCRA court erred in                failing to find that
        Appellant's right to confrontation was              violated where the
        detective was permitted to testify at trial        that he spoke with a
        witness who identified the Appellant as             the shooter but no
        witness was presented at trial?


' The       court did not order Appellant to file a statement of errors
         PCRA
complained of on appeal, but it filed an opinion on October 6, 2016. See
Pa.R.A.P. 1925.

2   Brady    v.   Maryland, 373     U.S. 83 (1963).




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        3.     Whether the PCRA court erred in not holding that the
        absence of complete Kloiber[3] charges resulted in an unfair
        trial, based upon doubtful identifications?

        4.     Whether the PCRA court erred in its conclusion that trial
        counsel did not provide ineffective assistance of counsel when he
        failed to object to the Kloiber charges given by the court and
        where appellate counsel failed to argue the issue on direct
        appeal?

(Appellant's Brief, at 3).

        As a preliminary matter, as properly noted by the Commonwealth,

Appellant has waived his first three claims because he failed to raise them

on direct appeal.    (See Commonwealth's Brief, at 7-10).4 Hence, Appellant

is    not eligible for PCRA relief on these issues.        See 42 Pa.C.S.A. §§

9543(a)(3) ("To be eligible for relief under this subchapter, the petitioner

must plead and prove by         a    preponderance of the evidence   .   .   .   [t]hat the
allegation of error has not been previously litigated or waived."), 9544 ("For

purposes of [the PCRA], an issue is waived if the petitioner could have raised

it but failed to do so before trial, at trial, during unitary review, on appeal or

in a   prior state postconviction proceeding.").


3    Commonwealth v. Kloiber, 106 A.2d 820           (Pa. 1954), cert. denied, 348
U.S. 875 (1954).

4 On direct appeal, Appellant challenged the sufficiency of the evidence to
support his attempted murder conviction, on the basis of the
Commonwealth's        alleged       failure
                                     to establish specific intent. (See
Commonwealth v. Dixon, No. 2602 EDA 2008, unpublished memorandum
at *2 (Pa. Super. filed Oct. 25, 2011)).



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        In his fourth issue, Appellant argues that the court erred in denying his

PCRA     petition where trial and     appellate counsel             provided        ineffective

assistance.      (See Appellant's Brief, at 23-28).5              Specifically, Appellant

maintains that "the PCRA court erred in its conclusion that trial counsel did

not provide ineffective assistance of counsel when he failed to object to the

Kloiber charges given     by the court and where appellate counsel failed to

argue the issue on direct appeal[.]"            (Id. at 23-24) (emphasis omitted).
This issue is waived and would lack merit.

        We first observe it is well -settled that an            "[a]ppellant's failure to

properly develop [his] claim and to set forth applicable case law to advance

it renders [the] issue [] waived." Commonwealth v. Williams, 959 A.2d

1252, 1258 (Pa. Super. 2008) (citations omitted); see also Pa.R.A.P.

2119(a) -(b).     Here, Appellant's argument on this claim contains only

boilerplate law about ineffectiveness of counsel,         a   recitation of what occurred

at trial, and summary conclusions that counsel had no reasonable basis for

his decisions and that he was prejudiced by counsel's actions, all without

pertinent supporting legal authority.               (See Appellant's Brief, at 23-28).




5 This claim properly is brought under the PCRA. See 42 Pa.C.S.A. §
9543a)(2)(ii) ("To be eligible for relief under [the PCRA], the petitioner must
plead and prove by a preponderance of the evidence             [t]hat the
                                                                        .   .   .


conviction or sentence resulted from [i]neffective assistance of counsel
                                        .   .   .                                             .




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Therefore, Appellant's fourth issue   is   waived. See Pa.R.A.P. 2101; see also

Williams, supra at 1258. Moreover, it would not merit relief.

        Our standard of review for an order denying PCRA relief is well -settled:

               This Court analyzes PCRA appeals in the light most
        favorable to the prevailing party at the PCRA level. Our review
        is limited to the findings of the PCRA court and the evidence of
        record and we do not disturb a PCRA court's ruling if it is
        supported by evidence of record and is free of legal error.
        Similarly, we grant great deference to the factual findings of the
        PCRA court and will not disturb those findings unless they have
        no support in the record. However, we afford no such deference
        to its legal conclusions. Where the petitioner raises questions of
        law, our standard of review is de novo and our scope of review is
        plenary.    .    .   .




Commonwealth v. Rigg, 84 A.3d 1080, 1084            (Pa. Super. 2014) (citations,

quotation marks, and brackets omitted).

        In order to be eligible for PCRA relief, the petitioner must prove
        by a preponderance of the evidence that his conviction or
        sentence resulted from one or more of the enumerated
        circumstances found in Section 9543(a)(2), which includes the
        ineffective assistance of counsel.          [See] 42 Pa.C.S. §
        9543(a)(2)(ii).

              "It   well -established that counsel is presumed effective,
                        is
        and to rebut that presumption, the PCRA petitioner must
        demonstrate that counsel's performance was deficient and that
        such deficiency prejudiced him." Commonwealth v. Koehler,
        614 Pa. 159, 36 A.3d 121, 132 (2012) (citing Strickland v.
         Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80
        L.Ed.2d 674 (1984)). To prevail on an ineffectiveness claim, the
        petitioner has the burden to prove that "(1) the underlying
        substantive claim has arguable merit; (2) counsel whose
        effectiveness is being challenged did not have a reasonable basis
        for his or her actions or failure to act; and (3) the petitioner
        suffered prejudice as a result of counsel's deficient
        performance." Commonwealth v. Sneed, 616 Pa. 1, 18, 45
        A.3d 1096, 1106 (2012) (quoting Commonwealth v. Pierce,
        567 Pa. 186, 203, 786 A.2d 203, 213 (2001)). "A petitioner

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        establishes prejudice when he demonstrates []that there is a
        reasonable probability that, but for counsel's unprofessional
        errors, the result of the proceeding would have been
        different.[']" Commonwealth v. Johnson, 600 Pa. 329, 345-
        46,966 A.2d 523,532-33 (2009) (quoting Strickland, 466 U.S.
        at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674). The failure to satisfy
        any one of the three prongs will cause the entire claim to fail.
        [See] Sneed, 616 Pa. at 18,45 A.3d at 1106 (citation omitted).

Commonwealth v. Faureles, 147 A.3d 905,911                   (Pa. Super. 2016), appeal

denied, 2017 WL 721789 (Pa. filed Feb. 23, 2017).

        In this case, Appellant claims "trial counsel was ineffective for failing to

object to the Kloiber charge(s) as read, and [] appellate counsel was

ineffective for failing to raise the issue on appeal." (Appellant's Brief, at 25).

This issue would not merit relief.

        "A Kloiber charge     is   appropriate where there are special identification

concerns:    a   witness did not have the opportunity to clearly view the

defendant, equivocated in his identification of         a   defendant, or had difficulty

making an identification in the past."             Commonwealth v. Reid, 99 A.3d
427,448     (Pa. 2014) (citations      omitted). "However, identification testimony

need not be received with caution where it is positive, unshaken, and not

weakened by      a   prior failure to identify."     Commonwealth v. Jones, 954
A.2d 1194, 1198 (Pa. Super. 2008), appeal denied, 962 A.2d 1196 (Pa.

2008) (citation omitted).

        Here, the PCRA court observed:

              With regards to Ms. Merritt and the instructions given
        regarding her identification testimony, [Appellant's] complaint
        was that the word "caution" was never used in the instructions

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        and a formal Kloiber instruction was not read. Ms. Merritt's
        testimony explained that she viewed [Appellant] as the shooter
        and viewed him step out of the vehicle and fire shots.       Ms.
        Merritt positively identified [Appellant] as the shooter when
        shown a picture of him and did not name anyone else when
        shown a photo array prior to the singular photo. Ms. Merritt's
        identification of [Appellant] never wavered and she never failed
        to identify him as the shooter. The instructions given provided
        the jury with additional factors to think about when evaluating
        the witness' testimony; therefore there was no reason to give a
        Kloiber instruction.
              As   for the instructions for Mr. Simmons' testimony,
        [Appellant's] complaint was with the phrasing of the Kloiber
        instruction. A trial court is given discretion in the phrasing of
        instruction[s]. In -court instructions are to be upheld if they
        clearly and accurately reflect the law.      .Here, the trial court
                                                         .   .


        addressed the identification testimony      of  Mr. Simmons by
        reading a form of the Kloiber instruction.          The jury was
        instructed there was a question regarding the accuracy of Mr.
        Simmons' testimony and they were advised three separate times
        that it should be received with caution. [Appellant's] concern
        with the phrasing of the Kloiber instruction therefore has no
        merit[,] as the reading of the instruction in court accurately
        conveyed the law.

(PCRA Ct. Op., at 8) (record citation    omitted).

        Our review of the certified record supports the PCRA court's decision.

The trial court properly decided that     a   Kloiber instruction was not required
for Ms. Merritt, and the charge given as to Mr. Simmons accurately reflected

the law.     See Reid, supra at 448; Jones, supra at 1198.              Therefore,

because we find no error of law or abuse of discretion in the instructions

given, and neither trial nor appellate counsel can be found ineffective for

failing to raise   a   meritless claim, see Commonwealth v. Fears, 86 A.3d




                                        - 10 -
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795, 811 (Pa. 2014), Appellant's fourth issue would not merit relief, even if

not waived.6 See Rigg, supra at 1084.

     Order affirmed.
Judgment Entered.




J seph D. Seletyn,   Es   .


Prothonotary


Date: 5/8/2017




6
   Appellant also argues that trial counsel was ineffective for "failing to
demand a line-up for Jasmine," "litigate a motion to suppress identification,"
or "thoroughly investigate Erica White and [her] step -father," and that
"[a]ppellate counsel was ineffective for failing to raise these issues on
appeal." (Appellant's Brief, at 25). However, these claims will not be
considered because they are neither included in Appellant's statement of
questions involved, nor are they fairly suggested thereby. See Pa.R.A.P.
2116(a).
