J-S11030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DERRICK WHITFIELD

                            Appellant                No. 2918 EDA 2014


                Appeal from the PCRA Order September 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007859-2008


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 03, 2016

       Derrick Whitfield appeals from the order entered September 18, 2014,

in the Court of Common Pleas of Philadelphia County, dismissing, without a

hearing, his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq.1 In this timely appeal, Whitfield raises

two issues: (1) trial counsel was ineffective in four ways, and (2) as a result

of the ineffective assistance of counsel, he was effectively denied counsel in

violation of both the United States and Pennsylvania Constitutions. After a

thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.
____________________________________________


1
  This petition was timely filed and there has been no challenge to the
timeliness of the petition. Accordingly we see no need to recite the familiar
timeliness standards of the PCRA.
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        In February, 2009, Whitfield was convicted by jury of aggravated

assault and firearms not to be carried without a license. 2 In April, 2009 he

was sentenced to an aggregate term of 8 to 16 years’ incarceration.           His

direct appeal afforded him no relief.3         On December 1, 2011, four months

after his judgment of sentence became final, he filed the instant PCRA

petition. Counsel was appointed and an amended PCRA petition was filed in

December 2013.        After proper notice, the petition was dismissed in open

court on September 18, 2014. This timely appeal follows.

        Whitfield now claims four instances of ineffective assistance of trial

counsel; they are: (1) failure to call Whitfield’s father as an alibi witness, (2)

failure to seek a line-up prior to the preliminary hearing, (3) failure to

challenge the in court identifications prior to trial, and (4) failure to seek a

Kloiber4 charge.

        Initially, we note

        Our standard of review is limited to examining whether the PCRA
        court's findings of fact are supported by the record, and whether
        its conclusions of law are free from legal error. Commonwealth
        v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010). Our scope of
        review is limited to the findings of the PCRA court and the
        evidence of record, viewed in the light most favorable to the
        party who prevailed in the PCRA court proceeding. Id.
____________________________________________


2
    18 Pa.C.S. §§ 2702(a) and 6106(a)(1), respectively.
3
  See Commonwealth v. Whitfield, 32 A.3d 258 (Pa. Super. 2011)
(unpublished memorandum).
4
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).



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Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).

      Regarding the claims of ineffective assistance of counsel,

      Our standard of review when faced with a claim of ineffective
      assistance of counsel is well settled. First, we note that counsel
      is presumed to be effective and the burden of demonstrating
      ineffectiveness rests on appellant.

      ***
        A petitioner must show (1) that the underlying claim has
        merit; (2) counsel had no reasonable strategic basis for his
        or her action or inaction; and (3) but for the errors or
        omissions of counsel, there is a reasonable probability that
        the outcome of the proceedings would have been different.
        The failure to prove any one of the three prongs results in
        the failure of petitioner's claim.

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011)

(citations omitted).

      Because the facts underlying Whitfield’s conviction are relevant to the

determination of the instant appeal, we quote the facts as related by a panel

of our Court in the direct appeal, Commonwealth v. Whitfield, supra.

      In February 2009, [Appellant] appeared for trial, pled not guilty,
      and elected to be tried by a jury. (N.T. 2/19/2009) at 5-7. The
      victim, Edward Schwarz, testified that, on the night of April 25,
      2008, he was at a bar with his friends and his girlfriend. Id. at
      22-23. Schwarz admitted that he was drunk during the relevant
      time period. Id. at 30. Schwarz testified that, during the night,
      he and [Appellant] had an argument and afterward he instigated
      a fistfight with [Appellant]. Id. at 22-25. Shortly after the
      fistfight, Schwarz’s friend Glenn walked him outside to his car.
      Id. at 31-32. Schwarz stated that, as he was walking to the car,
      he heard somebody say something, turned around and saw
      [Appellant] standing about 10-20 feet away from him holding a
      gun. Id. at 33-34. Schwarz testified that [Appellant] pointed the
      gun at him and Schwarz threw up his hands. [Appellant] started
      shooting; Schwarz was struck by the gunfire and fell to the
      ground. Id. Schwarz stated that, immediately afterward, his

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     friends and his girlfriends ran up to him. Id. at 35-36. An
     ambulance arrived and Schwarz was taken to the hospital. Id.

     Schwarz further testified that he was in the hospital for three
     days and had one surgery. Id. at 36. In particular, Schwarz
     stated: “I had an eight-screw plate, in my arm and a bone graft
     to fix my arm. I still have to get more surgery on my hand and
     my arm and possibly on my knee.” Id. Schwarz asserted that,
     since the shooting, he had been in pain every day. Id. at 36.
     Medical records were later read into evidence, confirming the
     surgery, stating that Schwartz had a total of 14 entry and exit
     wounds, and showing that he was wounded in all four limbs.
     (N.T. 2/25/2009) at 117-19.

     Schwarz asserted that there was no question in his mind that
     [Appellant] was the man who shot him. (N.T., 2/19/2009) at 39.
     Moreover, Schwarz testified that he had identified [Appellant] as
     the shooter at the preliminary hearing. Id. at 38. Defense
     counsel cross-examined Schwarz about the lighting conditions,
     and Schwarz stated that it was dark but there was sufficient light
     to identify his attacker. Id. at 76, 79. Schwarz explained that the
     scene was lit by street lights, house lights, and light from a gas
     station across the street. Id. at 72, 76, 79, 83.

     David Firth, Schwarz’s friend, corroborated Schwarz’s testimony,
     stating that he saw [Appellant] standing over Schwarz and
     shooting him repeatedly as Schwarz lay on the sidewalk. (N.T.
     2/20/2009) at 39. Firth stated that, after shooting Schwarz,
     [Appellant] jumped into the driver’s side door of a black four-
     door car and drove away. Id. at 39-40. Firth admitted that he
     was intoxicated during the shooting and that he had originally
     told the police that [Appellant] had gotten in the back seat of the
     car and a white female had driven the get-away car. Id. at 40-
     46.

     Maria Cardenas-Spicer was in the bar with a friend on the night
     of the shooting. Id. at 140. Spicer stated that she saw
     [Appellant] in the bar and spoke with him while smoking outside
     the bar. Id. at 142. Spicer testified that, later in the evening, she
     was smoking outside the bar with her friend when she heard
     loud pops. Id. at 144-45. Spicer looked down the street and saw
     [Appellant] shooting Schwarz. Id. Spicer further testified that,
     after the shooting, [Appellant] got into the driver’s side door of a
     black car and drove away. Id. at 146-47. Spicer asserted that

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     the license plate number on the car containing [Appellant] was
     GPG2327. Id. at 147-48.

     Kevin Clayton provided further corroboration testimony. (N.T.
     2/23/2009. p. 39)[.] Clayton confirmed that [Appellant] was the
     man who shot the defendant [sic] and that [Appellant] escaped
     by getting in the driver’s side door of a black Maxima with the
     license plate number GPG2327. Id. 47-54. Clayton further
     testified that, after the shooting, he called the police and gave
     them the license plate number of the getaway car. Id. at 51.
     Between 30 and 40 minutes later the police asked him to look at
     a car they had stopped several blocks away. Id. at 53-55.
     Clayton asserted that the car the police showed him was the
     getaway car. Id. Clayton further testified that the car was being
     driven by a man who was not [Appellant] and that the passenger
     was a girl he thought he might have seen in the bar. Id. at 54.
     Furthermore, Clayton stated that he later picked [Appellant]’s
     photograph out of an array. Id. at 61.

     Police officer Joseph Corrigan testified that he was informed of
     the shooting over the police radio and told that a vehicle with
     plate number GPG2327 was involved. (N.T. 2/25/2009 pp 38,
     48). Around 2 AM on April 26, Detective Kelly stopped a black
     Chevrolet Malibu car with license plate number GPG2327. Id. at
     43. Officer Corrigan stated that Derrick Whitfield Sr.-
     [Appellant]’s father- was driving the car and that Regina
     Whitfield was in the passenger seat. Id. [at] 48. Officer Corrigan
     further asserted that the car and its passengers were shown to a
     number of witnesses to the shooting and none of these
     witnesses identified Derrick Whitfield Sr. as the shooter. Id. at
     50. Furthermore, Officer Corrigan testified that Derrick Whitfield
     Sr. was the owner of the Black Malibu and the [sic] he lived at
     4511 Aberdale in Philadelphia where the car was registered. Id.
     at 65-66. A search warrant was executed on a vehicle with the
     license plate number GPG2327. (N.T. 2/23/2009 p 154). No gun
     was found. Id. at 153-54. Detective Brian Kelly testified,
     however, that a search warrant was also executed for 4511
     Aberdale. Id. at 139. This search recovered mail sent to
     [Appellant] at that address.

Commonwealth v. Whitfield, supra, at 2-5.




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       Whitfield first argues trial counsel was ineffective for failing to call his

father to testify that Whitfield returned to his father’s home immediately

after the fight in the bar, and that Whitfield’s father subsequently left the

house to pick up Whitfield’s wife, who was apparently walking home from

the bar on her own. Without addressing the substance of this claim, we note

that during trial, Whitfield was duly sworn and participated in an oral

colloquy regarding whether he wanted to testify on his own behalf or wanted

to present any other witnesses on his behalf.         Whitfield asserted he had

discussed the presentation of evidence with his counsel and did not want to

present any witnesses. See N.T. Trial 2/25/2009, at 89-92. Accordingly, he

cannot now argue counsel was ineffective for failing to call a witness. See

Commonwealth v. Muhammad, 794 A.2d 378, 384 (defendant cannot

contradict statements made under oath during colloquy).5 Further, we note

that the Commonwealth attempted to subpoena Whitfield, Sr., but Whitfield

objected, claiming any testimony from his father would be irrelevant. Id. at

9. Having objected to having his father testify at trial, as well as confirming

he was not going to present any witnesses on his behalf, the instant claim


____________________________________________


5
  Muhammad addressed statements made under oath during a guilty plea
colloquy.   Instantly, Whitfield was also under oath when he was under
colloquy regarding presentation of witnesses. We see no reason why a
defendant, under oath, should not be bound by his or her statements in that
circumstance. Accordingly, we believe Muhammad is applicable to this
matter.



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that counsel was ineffective for failing to call Whitfield’s father as a witness

is clearly frivolous.

      Whitfield’s next three arguments all address different aspects of his

identification.   First, he claims trial counsel was ineffective for failing to

request a line-up prior to the preliminary hearing.     The PCRA court found

that the counsel’s failure to request a pre-trial line-up was “reasonable under

the law and facts of this case.” See Trial Court Opinion, 7/21/2015, at 8-9.

The PCRA court noted there is no constitutional right to line-up.          See

Commonwealth v. Edwards, 762 A.2d 382, 391 (Pa. Super. 2000).

Further, the totality of the circumstances, including multiple identifications

from independent witnesses, who all claimed they had ample opportunity to

view Whitfield either in the bar, or in the act of shooting Schwarz and fleeing

in Whitfield’s father’s car, as well as testifying as to the sufficiency of

ambient light outside at the shooting scene led to a strong indicia of

reliability of the identification of Whitfield without a line-up. Id. (applying

totality of circumstances analysis to determine prejudice for lack of line-up).

      Next, Whitfield claims trial counsel was ineffective for failing to file a

motion to suppress the pre-trial identifications by the witnesses. Whitfield

argues because the witnesses collectively identified the get-away vehicle,

and were collectively transported to the police station and waited to be

interviewed in the same room, the identification process was subject to

impermissible taint. This claim is unavailing.


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       The PCRA court noted that the witnesses were interviewed separately

and independently identified Whitfield from the photo array. Moreover, all

the witnesses testified they did not discuss the identity of the assailant while

being transported or while awaiting interview.      Even though the witnesses

may have identified the vehicle in the presence of each other, that fact alone

does not render the identification improper. See Commonwealth v. Moye,

836 A.2d 973, 976 (Pa. Super. 2003) (absent some special element of

unfairness, instantly similar identification process not tainted). 6 The lack of

taint regarding the identification of the vehicle is further supported by the

fact that two witnesses, before they knew who the assailant was, gave the

license plate number of the get-away vehicle to the police and that license

plate belonged to Whitfield’s father.

       In light of the above, the PCRA court determined trial counsel was not

ineffective for failing to litigate an unsupportable motion.        Our review

confirms that determination. See Commonwealth v. Fears, 86 A.3d 795,

811 (Pa. 2014) (counsel cannot be deemed ineffective for failing to raise an

unsupportable issue).

       Whitfield’s final claim of ineffective assistance of counsel is that trial

counsel failed to request a Kloiber charge. The PCRA Court properly noted

____________________________________________


6
  We are aware that Moye involves the identification of the defendant,
rather than a vehicle. However, we see no reason why the standard would
change due to that fact.



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that 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.’” PCRA Court Opinion, 7/21/15, at 10,

citing Commonwealth v. Reid, 99 A.3d 427, 448 (Pa. Super. 2014)

(interior quotation marks omitted).            In response to Whitfield’s claim, the

PCRA court stated:

              Here, a Kloiber charge was not warranted. No witness
       failed to identify [Whitfield] prior to trial and all were in positions
       to clearly observe him during the incident. Maria Cardenas-
       Spicer spoke with [Whitfield] outside of the bar before the
       shooting and knew him by name.[7] Kevin Clayton bumped into
       [Whitfield] inside the bar and saw him outside from thirty feet
       away with an unobstructed view. Edward Schwarz recognized
       [Whitfield] from the fight inside the bar and testified he saw
       [Whitfield] clearly when he stood over him and shot him multiple
       times.

             All three witnesses unequivocally identified [Whitfield] as
       the shooter. All three recognized him from prior interactions
       that evening. A Kloiber charge would not have been granted.

PCRA Court Opinion, 7/21/2016, at 11.

       The certified record supports the PCRA court’s determinations and we

find no error or abuse of discretion therein. Accordingly, trial counsel cannot

have been ineffective for failing to raise a non-meritorious issue.              See

Commonwealth v. Fears, supra.
____________________________________________


7
  To clarify, although Cardenas-Spicer and Whitfield met for the first time
that night, the evidence showed they spent enough time together that
evening for Cardenas-Spicer to learn Whitfield’s name.



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      Finally, Whitfield argues that in light of the errors committed by trial

counsel, he was effectively abandoned by counsel during his trial.        This is

essentially a claim of cumulative error. This claim warrants no relief.

      We have held that no number of failed ineffectiveness claims
      may warrant relief collectively if they fail to do so individually.
      Commonwealth v. Elliott, 622 Pa. 236, 80 A.3d 415, 450
      (2013). As we have found no merit to any individual claim of
      ineffectiveness, there is no prejudice for this Court to consider in
      the aggregate.

Commonwealth v. Staton, 120 A.3d 272, 295 (Pa. 2015).

      Accordingly, Whitfield’s final claim also fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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