J-S75008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GERALD PASLEY                            :
                                          :
                    Appellant             :   No. 3929 EDA 2017

              Appeal from the PCRA Order November 29, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002577-2013


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.:                             FILED JUNE 05, 2019

      Gerald Pasley appeals from the order dismissing his petition for

collateral relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-46 without a hearing. On various theories, Appellant claims the PCRA

court denied him due process. He also alleges ineffective assistance of trial

counsel. We affirm.

      We derive the facts and procedural history of this case from the PCRA

Court’s opinion and our independent review of the certified record.

      On March 28, 2014, a jury convicted Appellant of first-degree
      murder, attempted murder, possession of an instrument of crime,
      carrying a firearm without a license and carrying a firearm in
      public in Philadelphia. On that date, Appellant was sentenced to
      life in prison without the possibility of parole. Appellant filed a
      timely appeal and the trial court subsequently issued its opinion.
      On August 4, 2015, the Superior Court affirmed the trial court’s
      judgment of sentence. On February 2, 2016, the Supreme Court
      of Pennsylvania denied Appellant’s allowance of appeal. On
      January 30, 2017, Appellant filed a PCRA petition. On July 28,
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       2017, the Commonwealth filed a motion to dismiss Appellant’s
       PCRA petition. On August 1, 2017, this Court filed and sent
       Appellant a dismissal notice under Rule 907. On August 3, 2017,
       Appellant filed a brief in opposition to this [c]ourt’s 907 notice. On
       November 13, 2017, Appellant filed another response to this
       [c]ourt’s 907 notice. On November 30, 2017, this [c]ourt formally
       dismissed Appellant’s PCRA petition based upon lack of merit.

       On November 30, 2017, Appellant filed a timely notice of appeal.
       On December 20, 2017, Appellant filed a Statement of Matters
       Complained of on Appeal, pursuant to this [c]ourt’s order. This
       [c]ourt requested counsel to file a second Statement of Matters
       Complained of on Appeal because the first resembled the
       previously filed PCRA petition and did not fit the format of an issue
       statement. Appellant filed a Modified Statement of Matters
       Complained of on Appeal.

PCRA Court Opinion, 4/18/18, at 1-2 (footnotes and internal quotation marks

omitted).

       The shooting which resulted in Appellant’s arrest and conviction

occurred on December 4, 2012, at approximately 7:20 PM. The incident arose

out of a romantic rivalry between Appellant and Rasan Smith for the same

woman, Iesha Henry.1 Appellant confronted Rasan on the street, argued with

him, and fired a handgun at him several times, but missed. Instead, he hit a

passing pedestrian, Solomon Jackson.             Mr. Jackson died shortly afterward

from a bullet wound to the upper chest. The firearm was never recovered.



____________________________________________


1Rasan Smith and Appellant were both known by the street name “Black.”
See N.T. Trial, 3/26/14, at 14. There was a dispute over whether Rasan Smith
was also known as “Hershey.” Another Smith, Khalil, was involved in the case.
Khalil Smith may have had a romantic relationship with Ms. Henry, too. Khalil
Smith is also referred to as “Lil.” To avoid possible confusion, we refer to
Rasan Smith as “Rasan.”

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       Police investigating the homicide scene located three sources of video

surveillance which captured the incident.         The videos recorded the

confrontation, the assault, and the shooting.    However, the police testified

that the images on the videos, taken at night, were dark, of limited quality,

and did not show faces. See N.T. Trial, 3/25/14, at 73-74; 79; and 90.

       Rasan fled, but police tracked him down by a cell phone he dropped

when he fell to the ground trying to dodge the bullets fired by Appellant. Two

days after the shooting, Rasan gave a signed statement to Philadelphia police

Detective David Schmidt. In his statement, Rasan claimed he had known

Appellant for approximately a year. Rasan also unequivocally identified

Appellant as the shooter.

       Shortly after the incident, Rasan told Henry and a family friend, James

Fanning, about being shot at by Appellant. At Appellant’s trial, Rasan, by then

in jail himself on an unrelated drug charge, recanted his prior, signed

statement.2 Rasan was subject to cross-examination. The written statement

was read to the jury. Henry and Fanning both recanted as well.

       Appellant presents four questions for our review on appeal:

       I. Whether the PCRA court [judge] denied procedural due process
       when she based her analysis on the facts in the light most
____________________________________________


2 Specifically, at trial Rasan denied: (1) being shot at on December 4, 2012;
(2) arguing with a man named Black; (3) identifying Black as Appellant; (4)
having a disagreement with Khalil Smith; and (5) telling James Fanning about
the shooting. See Commonwealth v. Pasley, No. 2532 EDA 2014, 2015 WL
6737731, at *3 (Pa. Super. unpublished memorandum filed August 4, 2015).



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       favorable to the Commonwealth as the verdict winner instead of
       basing her analysis on the totality of the evidence as required by
       STRICKLAND v. WASHINGTON?3

       II. Whether the PCRA court [judge] denied procedural due process
       when she refused to hold an evidentiary hearing to take testimony
       from defense counsel?

       III. Whether the PCRA court [judge] erred when she found that
       trial counsel was not ineffective when trial counsel failed to object
       to the trial court’s refusal to give a KLOIBER[4] instruction even
       though all of the evidence indicated it was too dark to identify the
       shooter?

       IV. Whether a conviction based on the unsworn and unreliable
       statement of Rasan Smith is a violation of the right to due process
       of law?

Appellant’s Brief, at 2 (bracketed material added; unnecessary capitalization

omitted).

       Our standard and scope of review for the dismissal of a petition seeking

PCRA relief is well-settled.

       Our review of a PCRA court’s decision 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. We view the findings of the PCRA court and the evidence
       of record in a light most favorable to the prevailing party. With
       respect to the PCRA court’s decision to deny a request for an
       evidentiary hearing, or to hold a limited evidentiary hearing, such
       a decision is within the discretion of the PCRA court and will not
       be overturned absent an abuse of discretion. The PCRA court’s
____________________________________________


3   Strickland v. Washington, 466 U.S. 668 (1984).

4  Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). As more fully
developed below, a Kloiber charge is an instruction to the jury that an
eyewitness identification should be viewed with caution when certain
circumstances exist. See Commonwealth v. Ali, 10 A.3d 282, 303 (Pa.
2010).

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     credibility determinations, when supported by the record, are
     binding on this Court; however, we apply a de novo standard of
     review to the PCRA court’s legal conclusions. The denial of an
     appellant’s request for discovery is reviewed for abuse of
     discretion.

     To be entitled to PCRA relief, a petitioner bears the burden of
     establishing, by a preponderance of the evidence, that his
     conviction or sentence resulted from one or more of the
     circumstances enumerated in 42 Pa.C.S. § 9543(a)(2), which
     include a violation of the Pennsylvania or United States
     Constitution or ineffectiveness of counsel, any one of which “so
     undermined the truth-determining process that no reliable
     adjudication of guilt or innocence could have taken place.” 42
     Pa.C.S. § 9543(a)(2)(i) and (ii). Further, the petitioner must show
     that the allegation of error has not been previously litigated or
     waived pursuant to Pa.C.S. § 9543(a)(3)[.]

     An issue has been previously litigated if the highest appellate court
     in which the petitioner could have had review as a matter of right
     has ruled on the merits of the issue. A PCRA claim 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.

     [ ] Counsel is presumed effective, and in order to overcome that
     presumption a PCRA petitioner must plead and prove that: (1) the
     legal claim underlying the ineffectiveness claim has arguable
     merit; (2) counsel’s action or inaction lacked any reasonable basis
     designed to effectuate petitioner’s interest; and (3) counsel’s
     action or inaction resulted in prejudice to petitioner. With regard
     to reasonable basis, the PCRA court does not question whether
     there were other more logical courses of action which counsel
     could have pursued; rather, [the court] must examine whether
     counsel’s decisions had any reasonable basis. Where matters of
     strategy and tactics are concerned, [a] finding that a chosen
     strategy lacked a reasonable basis is not warranted unless it can
     be concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued. To
     demonstrate prejudice, a petitioner must show that there is a
     reasonable probability that, but for counsel’s actions or inactions,
     the result of the proceeding would have been different. Failure to
     establish any prong of the Strickland/Pierce test will defeat an
     ineffectiveness claim.

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Commonwealth v. Mason, 130 A.3d 601, 617–18 (Pa. 2015) (case citations

and footnote omitted) (emphasis added).

       Here, in Appellant’s first claim, he assigns error to the PCRA court for

viewing the evidence in the light most favorable to the Commonwealth as

verdict winner. See Appellant’s Brief, at 2. Appellant asserts that the PCRA

court should have based its analysis on the totality of the evidence.      See

Appellant’s Brief, at 2. “A court hearing an ineffectiveness claim must consider

the totality of the evidence” that was presented to the fact-finder. Strickland

v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, 2069 (1984). Appellant

fails to acknowledge that the Supreme Court of the United States was

discussing the evaluation of prejudice in this passage. See id., 466 U.S. at

695-696, 104 S. Ct. at 2068-2069.

       Further, Appellant fails to develop an argument that the PCRA court

utilized the wrong standard of review. See Appellant’s Brief, at 11-16. He

also fails to identify what evidence, if any, the court purportedly overlooked.5

Nor does he identify how the trial court’s review of the evidence caused him

any prejudice.



____________________________________________


5  We note that Appellant raises his Kloiber claim in each of his first three
questions. See Appellant’s Brief, at 12-14, 17-19, 19-21. We observe that
there is no obvious intrinsic connection between the Kloiber claims and the
“light most favorable” claim or the “totality of the evidence” claim. Nor does
Appellant develop one.


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          On independent review, we conclude the PCRA court did not ignore any

evidence in its review. Finally, the PCRA court never reached the issue of

prejudice. As a result, Appellant’s argument based on Strickland merits no

relief.

          In his second claim, Appellant asserts the PCRA court erred in not

holding an evidentiary hearing on his claims. See Appellant’s Brief, at 2.        See

Appellant’s Brief, at 19. He argues the PCRA court was required to hold a

hearing to determine whether counsel had a reasonable basis for not filing a

brief in support of his Kloiber instruction request.

          Our standard of review is well-settled.

          A petitioner is not entitled to a PCRA hearing as a matter of right;
          the PCRA court can decline to hold a hearing if there is no genuine
          issue concerning any material fact and the petitioner is not entitled
          to post-conviction collateral relief, and no purpose would be
          served by any further proceedings. A reviewing court on appeal
          must examine each of the issues raised in the PCRA petition in
          light of the record in order to determine whether the PCRA court
          erred in concluding that there were no genuine issues of material
          fact and in denying relief without an evidentiary hearing.

Commonwealth v. Smith, 121 A.3d 1049, 1052 (Pa. Super. 2015) (internal

quotation marks and citations omitted). Generally, a PCRA court should not

address the second prong of the Strickland test, whether counsel had a

reasonable strategy for his decision, in the absence of an evidentiary hearing.

See Commonwealth v. McGill, 832 A.2d 1014, 1023 (Pa. 2003) (concluding

that cases where counsel’s strategy is obvious from the record are rare).




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      Here, however, the PCRA court never reached the issue of reasonable

strategy. Instead, the court’s conclusion is based upon its determination that

Appellant failed to establish the first prong of the Strickland test: whether

the legal basis for the claim has arguable merit. A PCRA court is entitled to

dismiss, without a hearing, a claim of ineffective assistance of counsel based

upon a conclusion that it lacks any legal merit. See Commonwealth v.

Collins, 957 A.2d 237, 264 (Pa. 2008).

      Furthermore, a petitioner may not raise new, non-PCRA counsel

ineffectiveness claims in his response to the PCRA court’s Rule 907 notice.

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

properly preserve new, non-PCRA counsel ineffectiveness claims, a petitioner

must seek leave to amend his petition. See id.

      Here, Appellant originally claimed, in error, that defense counsel failed

to request a Kloiber instruction at all. See PCRA Petition, 1/30/17, at 11-12.

The Commonwealth called attention to that factual error in its motion to

dismiss. See Motion to Dismiss, 7/28/17, at 4-5. In response to the

Commonwealth’s motion, the PCRA court issued its notice of intent to dismiss

the petition under Pa.R.Crim.P. 907.

      Appellant responded to the PCRA court’s notice with two separate filings.

In each, he acknowledged that trial counsel requested a Kloiber instruction.

See, e.g., Motion for Withdrawal of Premature and Insufficient 907 Notice,

8/3/17, at 6 (“The transcript indicates that defense counsel asked for [a


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Kloiber instruction] but does not state that defense counsel provided legal

authority for the requested instruction in light of all the facts”). Therefore,

Appellant’s responses to the 907 notice sought to revise his claim to assert

that trial counsel failed to support the request for a Kloiber instruction with

reasonably persuasive authority. See id.

      There is no indication in the record that Appellant sought leave to amend

his petition after the Commonwealth’s motion to dismiss. His inclusion of the

amended issue in his response to the Rule 907 notice therefore did not

preserve his amended issue. Since he did not preserve the revised argument,

we conclude he has waived this claim.

      Further, Appellant has failed to frame his argument for ineffectiveness

in terms of the three-pronged Strickland/Pierce test. Failure to establish any

prong of the Strickland/Pierce test will defeat an ineffectiveness claim. See

Mason, 130 A.3d at 617–18. Appellant entirely fails to address the arguable

merit prong of the Strickland/Pierce test in any of his issues. Accordingly,

his infectiveness claim is waived on these grounds as well.

      Even if it were not waived, we would conclude that Appellant’s claim is

meritless. “Counsel will not be deemed ineffective for failing to raise a

meritless claim.” Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006)

(citation omitted). As noted above, Appellant does not address this

requirement. We can find no error in the PCRA court’s conclusion that this




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requirement is dispositive of all of Appellant’s ineffective assistance of trial

counsel claims based on Kloiber.

       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.
      However, when the witness already knows the defendant, this
      prior familiarity creates an independent basis for the witness’s in-
      court identification of the defendant and weakens ineffectiveness
      claims based on counsel failure to seek a Kloiber instruction.

Commonwealth v. Reid, 99 A.3d 427, 448 (Pa. 2014) (citations, internal

quotation marks and other punctuation omitted).

      Here, notwithstanding any limitations in the quality of the various video

surveillance tapes, Appellant and the intended victim were acquaintances and

romantic rivals. There was no substantial question of whether or not Rasan

recognized Appellant, or had any difficulty in identifying him as his would-be

assailant. Rasan told police he had known Appellant for approximately one

year before the shooting. Further, he claimed that he and Appellant conversed

before Appellant began opening fire. We note further that Appellant’s assertion

that it was too dark to identify the shooter focuses exclusively on the

limitations of the videotape and ignores the Rasan’s capacity to identify his

assailant.

      Under these circumstances, Appellant cannot establish that his claim

had arguable merit. Specifically, he could not establish that any amount of

briefing or further argument would have caused the trial court to issue a

Kloiber charge. The PCRA court did not reach the issue of reasonable trial

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strategy, and properly exercised its discretion in denying an evidentiary

hearing. Appellant’s second claim does not merit relief.

         Next, Appellant claims that trial counsel was ineffective in failing to

object to the trial court’s refusal to give the instruction.      He argues trial

counsel should have preserved an objection to the trial court’s refusal to give

a requested Kloiber instruction. He maintains that there was a reasonable

probability that if trial counsel had preserved the objection to the refusal of a

Kloiber charge, this Court would have reversed the conviction and judgment

of sentence. However, as discussed previously, on review we conclude that

the PCRA court properly acted well within its discretion in deciding that the

Kloiber instruction did not apply. Appellant cannot establish arguable merit

for this claim.

         Accordingly, Appellant fails to establish arguable merit for his Kloiber

claims. Appellant’s ineffective assistance of trial counsel claims are waived,

and would not merit relief in any event.

         Finally, in his fourth claim, Appellant challenges the use of “the unsworn

and unreliable statement of Rasan Smith[.]” Appellant’s Brief, at 2. This issue

is waived.

         Appellant does not couch this claim in terms of ineffective assistance of

counsel. Rather, he posits that the use of Rasan’s out-of-court statements

constitute a violation of Appellant’s due process rights. See Appellant’s Brief,

at 21.


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      This    claim   could   have   been      raised   on   direct   appeal.   See

Commonwealth v. Henkel, 938 A.2d 433, 442-445 (Pa. Super. 2007)

(addressing due process challenge to evidentiary rulings of trial court on direct

appeal). Appellant did not do so. “An 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.”     Reid, 99 A.3d at 435–36 (citations and

internal quotation marks omitted).

      Moreover, the claim would not merit relief. It is well-settled that:

      [T]he prior inconsistent statements of witnesses—who have
      testified at trial and were subject to cross-examination so that the
      finder-of-fact could hear the witnesses’ explanations for making
      the out-of-court statements, and for their trial recantation—[are]
      sufficient evidence upon which a criminal conviction may properly
      rest if the finder-of-fact could, under the evidentiary
      circumstances of the case, reasonably credit those statements
      over the witness’s in-court recantations.

Commonwealth v. Brown, 52 A.3d 1139, 1168 (Pa. 2012). Pennsylvania’s

rules allow for the substantive use of prior inconsistent statements under a

wider array of circumstance than the federal rules of evidence. See Henkel,

938 A.2d at 443. Thus, Appellant’s arguments based on federal case law are

unavailing.

      The Brown Court explained the reasoning behind Pennsylvania’s rule

on the substantive use of prior inconsistent statements:

      In sum, then, our review of authority from the United States
      Supreme Court and our Court, as well as our consideration of
      jurisprudence from other states which reject a per se rule, coupled
      with our over quarter-century of experience with the use of prior
      inconsistent statements as substantive evidence by the courts of

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     this Commonwealth, convinces us that criminal convictions which
     rest only on prior inconsistent statements of witnesses who testify
     at trial do not constitute a deprivation of a defendant’s right to
     due process of law, as long as the prior inconsistent statements,
     taken as a whole, establish every element of the offense charged
     beyond a reasonable doubt, and the finder-of-fact could
     reasonably have relied upon them in arriving at its decision. Prior
     inconsistent statements, which meet the requirements for
     admissibility under Pennsylvania law,a must, therefore, be
     considered by a reviewing court in the same manner as any other
     type of validly admitted evidence when determining if sufficient
     evidence exists to sustain a criminal conviction.

     ____________________
     a. These requirements are that the witness who gave the prior
     inconsistent statement testify at trial and be subject to cross-
     examination regarding the statement, and, also, that the witness’s
     previous inconsistent statement was “given under oath subject to
     the penalty of perjury at a trial, hearing, or other proceeding, or
     in a deposition, or (b) (sic) is a writing signed and adopted by the
     declarant, or (c) is a verbatim contemporaneous recording of an
     oral statement.” Pa.R.E. 803.1(1).

Id. at 1170–71. Further, Pennsylvania’s rule allowing for the substantive use

of signed prior inconsistent statements does not violate due process. See id.,

at 1171.

     As none of Appellant’s issues on appeal merit relief, we affirm the order

dismissing his PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/5/19


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