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NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
LAMARTH DUBOSE,                           :         No. 1900 EDA 2013
                                          :
                         Appellant        :


                 Appeal from the PCRA Order, June 7, 2013,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0009242-2008


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND SHOGAN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED AUGUST 27, 2014

      Appellant, Lamarth Dubose, appeals from the order of June 7, 2013,

denying his first petition for post-conviction relief. We affirm.

      The PCRA court accurately summarized the facts of the case as

follows:

            On June 25, 2005, the complainant, Mattie Epps
                                                     me at
            426 North Gross Street.  Epps arrived at her


            graduation [from kindergarten].     Around 7:30 P.M.,

            Nydia                       and their children arrived.

            and began dancing with his grandmother who was
            waiting for a ride home.        [Nydia] was in the
            backyard getting food and [Niemah] was standing in
            the doorway of the home. While [Niemah] was
            standing in the doorway, she saw two (2) men
            across the street standing in between two (2) flatbed
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             trucks. The streetlights were on as well as the porch
             lights and the lights inside of the home. [Niemah]
             observed the appellant pass an object to a taller
             male. When the taller male raised the object in the
             air, [Niemah] saw that he was holding a gun.
             [Niemah] saw the taller male cock the gun and then
             both men began to run toward the house. As the
             men ran toward the house, [Niemah] ran inside the
             house. Epps heard the gunshots then she pushed
             C.C. into the house and onto the floor. After the
             shooting ended, Epps carried C.C. to the couch and
             realized that he had been shot in his face and she
             was shot in her back below her right shoulder bone,
             causing a rib fracture. The police were called and
             Epps was taken to University of Pennsylvania

             Philadelphia.

PCRA court opinion, 9/20/13 at 2-3.

      Both of the victims survived their injuries.   On May 8, 2009, a jury

convicted appellant of two counts of aggravated assault, criminal conspiracy,

possessing an instrument of crime, knowing and intentional possession of a

controlled substance, and two violations of the Uniform Firearm Act.        On

June 11, 2009, the Honorable Lillian H. Ransom sentenced appellant to a

term of imprisonment of ten to twenty years for criminal conspiracy and five

to ten years for aggravated assault, to be served consecutively. No further

penalty was imposed for the remaining offenses.

      Appellant filed a direct appeal challenging the weight and sufficiency of

the evidence with respect to each of his convictions, in particular, the

identification evidence used to establish his identity as a perpetrator in the

shootings.   This court affirmed on September 2, 2010, and on March 29,



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2011, our supreme court denied allocatur.              See Commonwealth v.

Dubose, 13 A.3d 970 (Pa.Super. 2010) (unpublished memorandum),

appeal denied, 19 A.3d 1049 (Pa. 2011).

        Appellant filed a timely pro se PCRA1 petition on September 7, 2011.

Counsel was appointed and filed an amended PCRA petition on October 11,

2012. On May 15, 2013, the PCRA court entered an order giving appellant

notice, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to

dismiss his petition without further hearing.       On June 7, 2013, the PCRA



2013. Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and

the PCRA court has filed an opinion.



              Is the defendant entitled to a remand to the PCRA
              Court for a full evidentiary hearing where the PCRA
              Court erred in dismissing without a Hearing even
              though the defendant properly pled and would have
              been able to demonstrate that he was entitled to
              relief; or, in the alternative, is the defendant entitled
              to relief in the form of a new trial to be granted by
              this Court based upon the papers filed by the
              defendant?

                      3.


              denying a petition under the PCRA is whether the
              determination of the PCRA court is supported by the
              evidence of record and is free of legal error.
              Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
              795, 7

1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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             not be disturbed unless there is no support for the
             findings in the certified record. Commonwealth v.
             Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

       Appellant argues the PCRA court erred in dismissing his petition



             The right to an evidentiary hearing on a
             post-conviction petition is not absolute. A hearing

             frivolous and is without a trace of support either in
             the record or from other evidence. A post-conviction
             petition may not be summarily dismissed, however,
                                                       ged in the
             petition, if proven, would entitle the petitioner to
             relief.

Commonwealth v. Granberry, 644 A.2d 204, 208 (Pa.Super. 1994), citing

Commonwealth v. Box, 451 A.2d 252 (Pa.Super. 1982).

       In his amended PCRA petition, appellant claimed trial counsel was

ineffective for failing to (1) preserve his request for a Kloiber2 instruction,

(2) file a motion to suppress, or (3) object to alleged prosecutorial



ineffective assistance of counsel, we also note that appellant is required to

make the following showing in order to succeed with such a claim: (1) that

the underlying claim is of arguable merit; (2) that counsel had no reasonable

strategic basis for his or her action or inaction; and (3) that, but for the


2
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).


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errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010).        The failure to satisfy any

prong of this test will cause the entire claim to fail.   Commonwealth v.

Daniels, 947 A.2d 795, 798 (Pa.Super. 2008). Finally, counsel is presumed

to be effective, and appellant has the burden of proving otherwise.

Commonwealth v. Pond, 846 A.2d 699, 708 (Pa.Super. 2003).

      Appellant argues that counsel was ineffective for failing to preserve his

request for a jury instruction pursuant to Kloiber, supra, in order to caution

                                                       Kloiber, our supreme

court explained that

            [w]here the opportunity for positive identification is
            good and the witness is positive in his identification
            and his identification is not weakened by prior failure
            to     identify,    but     remains,    even      after
            cross-examination, positive and unqualified, the
            testimony as to identification need not be received
            with caution --
            [positive] testimony as to identity may be treated as


                   On the other hand, where 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 [c]ourt should warn the jury that
            the testimony as to identity must be received with
            caution.

Kloiber, 106 A.2d at 826-827 (citations omitted).



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      Instantly, Niemah Thomas explicitly identified appellant as one of the

assailants at trial and at the preliminary hearing.             (Notes of testimony,

5/7/09 at 61, 69-70.)         Ms. Thomas testified that before the shooting,

appellant and his cohort caught her attention as they were standing between

two flatbed tow trucks. (Id.

wer                                               Id. at 59, 66.) According to her

testimony, she was standing in the doorway with the screen door open, her

view was unobstructed, and the two men were standing directly under a

streetlight approximately 30 to 35 feet away. (Id. at 60-61, 68, 88.) Ms.

Thomas also indicated that neighboring houses had their porch lights on.



               Id. at 100.) When asked on re-direct examination if she had



           Id. at 114.)      Clearly, her identification of appellant was positive

and unshaken.



sufficiently   speculative    as   to   warrant   a   Kloiber    instruction.   See

Commonwealth v. Ali, 10 A.3d 282, 304 (Pa. 2010) (counsel was not

ineffective for failing to request a Kloiber instruction where the witness

                                                            er equivocated in her

                                   Kloiber instruction was not warranted, counsel

cannot be deemed ineffective for failing to preserve his request for the



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instruction for appeal purposes. See Commonwealth v. Koehler, 36 A.3d

121, 144 (Pa



       Next, appellant argues that counsel was ineffective for not filing a



preliminary hearing. Appellant contends Ms. Thomas was told by the District




determining the admissibility of identification testimony, this court has held

that

            [s]uggestiveness in the identification process is a
            factor to be considered in determining the


            identification will not be suppressed as violative of
            due process rights unless the facts demonstrate that
            the identification procedure was so infected by



Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa.Super. 1998) (citation

omitted), appeal denied, 794 A.2d 359 (Pa. 1999).



claim that the Commonwealth told Ms. Thomas the man who did the crime

would be in court and sitting next to the defense attorney.          At trial,

Ms. Thomas was asked if she went to a line-up or if she was shown a photo

spread.   (Notes of testimony, 5/7/09 at 68.)    Ms. Thomas responded that



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she did not go to a line-up; however, she was shown photos but did not get

a chance to identify anyone. (Id. at 68-



(Id. at 69.)     She was then asked if she remembered attending the

preliminary hearing in July of 2008 and if she remembered identifying

                                       Id.

him?    Was it because he was the only person standing there next to his

           id.

           (Id. at 69-70.) Ms. Thomas was asked if she could be mistaken,

                         Id. at 70.)



Consequently, counsel cannot be deemed ineffective for failing to file a

motion to suppress identification evidence on a patently meritless claim.

Commonwealth v. Bryant, 855 A.2d 726, 742 (Pa. 2004).

       Last, appellant claims trial counsel was ineffective for not objecting to

alleged prosecutorial misconduct by the Commonwealth. Appellant alleges

that the trial court ordered the Commonwealth to conduct a line-up for

Niemah Thomas.         Appellant contends the Commonwealth committed

misconduct by calling Ms.

been subjected to the ordered line-



prosecutorial misconduct is that the prosecutor . . . has abused [their



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Commonwealth v. Pierce, 645 A.2d 189, 197 (Pa. 1994) (citations

omitted).    Instantly, appellant has failed to proffer any evidence that a

line-

                                                        ia the official Court of



15.)    He claims, however, that does not mean that no such order exists.

(Id.)    It is well settled that a defendant is not entitled to an evidentiary

hearing unless he proffers evidence to substantiate his claim.

             [R]emand for an evidentiary hearing is not a
             discovery tool wherein counsel may conduct
             investigation and interrogation to search for support
             for    vague     or    boilerplate   allegations   of
             ineffectiveness. Rather, appellant must set forth an
             offer to prove at an appropriate hearing sufficient
             facts upon which a reviewing court can conclude that
             trial counsel may have, in fact, been ineffective,
             before remand for an evidentiary hearing will be
             granted. Commonwealth v. Petras, [534 A.2d
             483, 487 (Pa.Super. 1987).]

Commonwealth v. Wells, 578 A.2d 27, 32 (Pa.Super. 1990), appeal

dismissed as improvidently granted, 606 A.2d 1171 (Pa. 1992).

        Instantly, the prosecutor could not have engaged in misconduct if the

court did not order a line-up.    Counsel cannot be deemed ineffective for

failing to object to alleged misconduct absent evidence that the misconduct

actually occurred.    See Commonwealth v. Simpson, 66 A.3d 253, 266

(Pa. 2013) (PCRA court properly dismissed petition without an evidentiary



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      Accordingly, we conclude that the PCRA court did not err in dismissing

                    d PCRA petition without holding a hearing. Having found

no merit to the issues raised on appeal, we will affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2014




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