J-S77044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLAUDIUS TAYLOR,

                            Appellant                 No. 482 MDA 2016


                  Appeal from the PCRA Order March 1, 2016
                in the Court of Common Pleas of Centre County
               Criminal Division at No.: CP-14-CR-0001858-2013


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 14, 2016

        Appellant, Claudius Taylor, appeals from the order dismissing his first

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

9541-9546. Appellant claims that trial counsel was ineffective for failing to

present character evidence at trial, to call certain witnesses, to litigate a

motion to suppress, to request a jury charge, and to request sequestration

of witnesses. We affirm.

        We take the relevant facts and procedural history in this case from the

trial court’s March 1, 2016 opinion and our review of the certified record.

The charges in this matter stemmed from Appellant’s assault on two women

in State College, Pennsylvania after a Penn State Football game.        In the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77044-16



early hours of the morning on October 13, 2013, Appellant was walking with

his first victim, Ashley Ford, to help her locate her friend’s car in a parking

lot. After they left the parking lot, unable to find the car, he proceeded to

attack her. Ms. Ford fought off Appellant with a bucket that she had been

carrying; he took her cell phone from her and fled.     Passersby who heard

Ms. Ford’s screaming found her and summoned the police.

      Within minutes of police arriving to help Ms. Ford, they heard the

screams of Appellant’s second victim, Kieran Stough. Ms. Stough had been

walking home from a friend’s house through Fairmount Park, a few blocks

from the scene of Ms. Ford’s assault, when Appellant attacked her.

Appellant fled after police responded to her screaming.      Ms. Stough was

unable to see her attacker’s face because he had his hood up and it was

dark in the park, but she described him to police as an African American

male wearing a hoodie and red pants.

      Police pursued Appellant from the park as he fled through several

neighboring properties. After police apprehended Appellant, both Ms. Ford

and Ms. Stough, who were seated together in a police vehicle, identified him

as their assailant.

      On February 26, 2014, a jury found Appellant guilty of one count each

of robbery-bodily injury, robbery-physical removal of property, unlawful

restraint, indecent assault, unlawful taking, receiving stolen property, and




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two counts of simple assault.1 On May 19, 2014, the trial court sentenced

Appellant to not less than thirty-eight months nor more than thirteen years

of incarceration.      The court denied Appellant’s post-sentence motion on

October 27, 2014. Appellant did not file a direct appeal.

       On February 9, 2015, Appellant filed his first, timely counseled PCRA

petition alleging ineffective assistance of counsel. The Commonwealth filed

an answer and motion to dismiss Appellant’s petition on April 15, 2015. The

trial court conducted an evidentiary hearing on Appellant’s petition on

August 20, 2015.        Prior to receiving testimony at the hearing, the court

heard argument on the Commonwealth’s motion to dismiss, and granted the

motion in part.2

       At the evidentiary hearing, Appellant introduced the testimony of Janet

Auber, his mother.        Janet Auber testified that, at trial, she notified trial

counsel that she was willing to testify that when she picked up Appellant

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1
  See 18 Pa.C.S.A. §§ 3701(a)(1)(iv), 3701(a)(1)(v),                 2902(a)(1),
3126(a)(1), 3921(a), 3925(a), and 2701(a)(1) respectively.
2
  The PCRA court dismissed Appellant’s claims for ineffectiveness of counsel
for failure to call character witnesses where those witnesses did not provide
character evidence affidavits that stated the information that would have
been given in a trial. (See N.T. Hearing, 8/20/15, at 5, 14). It also
dismissed Appellant’s claim that counsel was ineffective for failing to litigate
a motion to suppress the identification of one victim, (see id. at 15, 27),
that counsel was ineffective for failing to litigate a motion to sever the claims
of the two victims, (see id. at 33, 37), and that counsel was ineffective for
failing to cross-examine a witness about a police report stating that the
attacker was wearing yellow pants, (see id. at 59, 63).



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from jail, he was wearing a sweater and maroon pants, but not a hoodie

sweatshirt. She further explained that she brought the clothing to trial in a

bag. (See N.T. Hearing, 8/20/15, at 76-77).

      Next, Appellant introduced the testimony of Christine Brown-Auber, his

aunt, who was also willing to testify about the clothing that Appellant was

wearing when picked up from jail, and who also testified that she brought

the clothing to trial in a bag. (See id. at 83). Christine Brown-Auber also

stated that she asked trial counsel about testifying as a character witness,

and that had she been called, she would have testified that Appellant had a

reputation for being peaceable and law-abiding. (See id. at 84-85).

      Appellant also introduced the testimony of Claudette Taylor, his sister,

who stated that she was willing to testify as a character witness, and if

called, would have testified that he had a reputation as being peaceful and

law-abiding. (See id. at 105).

      Finally, Appellant testified on his own behalf, and explained that he

told trial counsel that he had a number of available people, including

Christine Brown-Auber and Claudette Taylor, who were willing to testify on

his behalf. (See id. at 118). Appellant further testified that while at jail, his

clothing was inventoried and he was given an itemized property receipt for

that clothing, which did not reflect a hoodie sweatshirt. (See id. at 119).

      Thereafter, the Commonwealth called trial counsel, Attorney Tami

Fees. She testified that, with regard to character witnesses, she did plan to

call witnesses, including either the Governor of Maryland or Mayor of

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Baltimore, but they were unavailable for trial.      (See id. at 159).    Trial

counsel testified that she was unaware that Christine Brown-Auber wanted

to be a character witness, and regardless would not have called her because

“family is probably one of the worst to use as character witnesses based

upon the fact that the jury will look to the bias[.]” (Id. at 160). Counsel

also testified that she was unaware that Claudette Taylor was willing to

testify as a character witness. (See id. at 163-64).

       With regard to clothing, trial counsel testified that she did not recall

that she ever saw the property report from the prison, but did recall

Claudette Taylor asking her during trial about introducing evidence about the

hoodie.    Counsel explained that she asked Appellant during his testimony

what he was wearing, and attempted to get it in through cross-examination

of police officers. (See id. at 123-25). She conceded that if she had been

given the clothing, and it was still in the property bag, she absolutely would

have used it because it would have corroborated Appellant’s testimony about

what he was wearing. However, she did not believe that clothing in general

had anything to do with the verdict decision. (See id. at 126).

       Trial counsel further testified that she did not request a Kloiber3 jury

charge, or litigate a motion to suppress the identification of Ms. Stough


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3
  Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348
U.S. 875 (1954) (holding that jury instruction that identification should be
viewed with caution is appropriate where eyewitness did not have a clear
(Footnote Continued Next Page)


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because she thought that her testimony—she did not see his face and only

identified his clothing—would be helpful to Appellant given that there were

many different descriptions of his clothing.           (See id. at 190).    Counsel

further explained that she did not request a Kloiber instruction because, at

the preliminary hearing, Ms. Stough identified Appellant in person and

described the correct clothing that he was wearing, and during trial she did

the same thing, thus she did not change her testimony. (See id. at 191-

94).

       On March 1, 2016, the PCRA court issued an Opinion and Order

denying Appellant’s PCRA petition.          This timely appeal followed.4

        Appellant raises five issues on appeal.

       1. Whether Appellant’s trial counsel was ineffective for failure to
       present character evidence at trial?

       2. Whether Appellant’s trial counsel was ineffective for not
       calling Janet Auber and Christine Brown-Auber, who would have
       testified that when [Appellant] made bail and they subsequently
       picked him up from the Centre County jail, he was not wearing a
       hoody, as alleged by the [c]omplainants Kieran Stough and
       Ashley Ford, but a long sleeved grey sweater with a navy blue
       shirt underneath it, which the witnesses brought to Appellant’s

                       _______________________
(Footnote Continued)

opportunity to view defendant, equivocated on identification of defendant, or
had difficult making identification in past).
4
 Appellant filed his concise statement of errors complained of on appeal on
March 23, 2016. See Pa.R.A.P. 1925(b). The court entered an opinion on
March 31, 2016, in which it explained that its Opinion and Order of March 1,
2016, adequately addressed the matters raised on appeal. See Pa.R.A.P.
1925(a).



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      trial and made available to Appellant’s trial counsel, who refused
      to introduce the evidence to the jury?

      3. Whether Appellant’s trial counsel was ineffective for failure to
      litigate motion to suppress the out of court identification of
      Appellant, by the [c]omplainaint [sic], Kieran Stough, where Ms.
      Stough did not see the face of her assailant during the assault,
      because the perpetrator’s face was covered by a hood, and her
      identification of Appellant was based solely on a unduly
      suggestive post-incident identification?

      4. Whether Appellant’s trial counsel was ineffective for failure to
      request Kloiber [j]ury [c]harge, where the [c]omplainant,
      Kieran Stough, testified that she was unable to see the face of
      her attacker, because his face was covered by a hood and the
      assault occurred in a very dark area of public park, which had no
      overhead lights?

      5. Whether Appellant’s trial counsel was ineffective for failure to
      request sequestration, where the absence of sequestration
      resulted in multiple instances of witnesses tailoring their
      testimony after hearing the testimony of prior witnesses?

(Appellant’s Brief, at 29-30).

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s findings of fact, and whether the PCRA

court’s determination is free of legal error. See Commonwealth v.

Phillips, 31 A.3d 317, 319 (Pa. Super. 2011), appeal denied, 42 A.3d 1059

(Pa. 2012).

      To prevail on a petition for PCRA relief on grounds of ineffective

assistance    of   counsel,   a   petitioner    must   plead   and   prove,   by   a

preponderance of the evidence:

      (2) That the conviction or sentence resulted from . . . :


                                      *    *     *



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       (ii) Ineffective assistance of counsel which, in the circumstances
      of the particular case, so undermined the truth-determining
      process that no reliable adjudication of guilt or innocence could
      have taken place.

42 Pa.C.S.A. § 9543(a)(2)(ii).

      In evaluating claims of ineffective assistance of counsel, we
      presume that counsel is effective.           To overcome this
      presumption, Appellant must establish three factors. First, that
      the underlying claim has arguable merit. Second, that counsel
      had no reasonable basis for his action or inaction.              In
      determining whether counsel’s action was reasonable, we do not
      question whether there were other more logical courses of action
      which counsel could have pursued; rather, we must examine
      whether counsel’s decisions had any reasonable basis. Finally,
      Appellant must establish that he has been prejudiced by
      counsel’s ineffectiveness; in order to meet this burden, he must
      show that but for the act or omission in question, the outcome of
      the proceedings would have been different.            A claim of
      ineffectiveness may be denied by a showing that the petitioner’s
      evidence fails to meet any of these prongs. In the context of a
      PCRA proceeding, Appellant must establish that the ineffective
      assistance of counsel was of the type which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt of [sic]
      innocence could have taken place.

Commonwealth v. Washington, 927 A.2d 586, 594 (Pa. 2007) (citations

and quotation marks omitted).

      In his first issue, Appellant claims that trial counsel was ineffective for

failing to present character evidence, specifically the testimony of his aunt,

Christine Brown-Auber, and his sister, Claudette Taylor, who were present at

trial and willing to testify on his behalf. (See Appellant’s Brief, at 31-47).

He argues that he presented an issue of arguable merit because character

witness testimony would have been critical to the jury’s determination of the

credibility of the victims, and that trial counsel’s decision not to call

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J-S77044-16



character witnesses based on her prejudice toward familial witnesses was

unreasonable. Finally, he argues that, based on Commonwealth v. Weiss,

606 A.2d 439 (Pa. 1992), and Commonwealth v. Hull, 982 A.2d 1020 (Pa.

Super. 2009), counsel’s failure to call these witnesses was so prejudicial as

to have denied him a fair trial. (See Appellant’s Brief, at 42-47).       We

disagree.

             When raising a claim of ineffectiveness for the failure to
       call a potential witness, a petitioner satisfies the performance
       and prejudice requirements of the Strickland[5] test by
       establishing that: (1) the witness existed; (2) the witness was
       available to testify for the defense; (3) counsel knew of, or
       should have known of, the existence of the witness; (4) the
       witness was willing to testify for the defense; and (5) the
       absence of the testimony of the witness was so prejudicial as to
       have denied the defendant a fair trial. . . .

Commonwealth v. Sneed, 45 A.3d 1096, 1108–09 (Pa. 2012) (citations

omitted). To establish prejudice that denied a fair trial, an appellant must

show that the witnesses’ testimony would have “created a reasonable

probability of a different outcome at trial.” Commonwealth v. Wantz, 84

A.3d 324, 333 (Pa. Super. 2014) (citations omitted).

       Initially, we note that the instant case is distinguishable from Weiss

and Hull.      In Hull, this Court concluded that the absence of character

testimony was prejudicial because the trial strategy was that the victims

made up their claims, and no one other than the victims testified about the

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5
    Strickland v. Washington, 466 U.S. 668 (1984).



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acts on which the charges were based, and there were no physical findings

to corroborate the acts.    See Hull, supra at 1023-24.        In Weiss, our

Supreme Court reasoned that, “where there are only two direct witnesses

involved, credibility of the witnesses is of paramount importance, and

character evidence is critical to the jury’s determination of credibility.”

Weiss, supra at 442.       Here, however, the Commonwealth did not rely

solely on the victims’ testimony, but rather introduced other evidence that

corroborated the victims’ accounts including physical evidence from the

scene, and testimony from witnesses who aided the women after their

attacks.   It also offered testimony from police describing Appellant’s flight

from officers at the scene.     Appellant’s reliance on Weiss and Hull is

misplaced.

      In the instant case, the PCRA court found that trial counsel was

unaware that family members wanted to testify as character witnesses, but

believed that generally family members are poor character witnesses

because the jury will feel the testimony is biased. Furthermore, the court

found that Appellant was unable to establish that he was denied a fair trial

because of the absence of the proposed testimony of the character

witnesses, and concluded that trial counsel was not ineffective for failing to

call these witnesses. (See PCRA Court Opinion, 3/01/16, at 6).

      Upon review, we conclude that the PCRA court correctly determined

that Appellant’s trial counsel did not render ineffective assistance by

declining to call Christine Taylor or Christine Brown-Auber as character

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witnesses. We agree that counsel had a reasonable basis for not introducing

family members as character witnesses. Finally, we conclude that Appellant

was not prejudiced by counsel’s failure to call these witnesses. See Sneed,

supra at 1108-09; Wantz, supra at 333. Appellant’s first issue does not

merit relief.

      In his second issue, Appellant claims that trial counsel was ineffective

for failing to present evidence that he was not wearing a hooded sweatshirt

at the time of his arrest through the testimony of his mother, Janet Auber,

or his aunt, Christine Brown-Auber, who picked him up from jail.           (See

Appellant’s Brief, at 48-51).   Appellant has failed to support his argument

with citation to pertinent authority, thus it is waived. See Pa.R.A.P. 2101,

2119(a)-(b). Moreover, it would not merit relief.

      “Failure to call a witness is not per se ineffective assistance of counsel,

for such a decision implicates matters of trial strategy.      It is Appellant’s

burden to demonstrate that trial counsel had no reasonable basis for

declining to call . . . a witness.”    Washington, supra at 599 (citations

omitted).

      Here, the PCRA court found that “[d]espite the clothes not being

introduced during trial, [trial counsel] adequately cross-examined the

Commonwealth witnesses about what [Appellant] was wearing on the night

in question, and [Appellant] testified as to his exact clothing during his direct

examination.” (PCRA Ct. Op., at 15). Finally, the court concluded:




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      Based on the testimony at the hearing, and assuming for             the
      sake of argument that [trial counsel] was presented with            the
      clothing, she would have had a reasonable basis for                 not
      presenting it due to the Commonwealth’s ability to question         the
      veracity of the evidence resulting in a low probative value.         As
      such [Appellant] is not entitled to relief on this claim.

(Id. at 15-16).

      After review, we conclude that the record supports the PCRA court’s

findings, and Appellant has not met his burden of demonstrating that

counsel was ineffective for deciding not to call Janet Auber or Christine

Brown-Auber        as   factual   witnesses   concerning   his    clothing.       See

Washington, supra at 594; Phillips, supra at 319. Thus we conclude that

the   PCRA    court      correctly   dismissed   Appellant’s     second   claim    of

ineffectiveness.

      In his third issue, Appellant claims that trial counsel was ineffective for

failure to litigate a motion to suppress the out-of-court identification of

Appellant by his second victim, Ms. Stough. (See Appellant’s Brief, at 52-

55). Specifically, he argues that, because Ms. Stough was unable to see her

assailant’s face during the attack, her identification was derived from an

unduly suggestive post-incident identification procedure where she was in

the police car with the first victim, Ms. Ford, who observed Appellant and

identified him to officers. (See id.). We disagree.

      Where an ineffectiveness claim is based on a failure to pursue

suppression of evidence, “the defendant must establish that there was no

reasonable basis for not pursuing the suppression claim and that if the

evidence had been suppressed, there is a reasonable probability the verdict

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would have been more favorable.”          Commonwealth v. Arch, 654 A.2d

1141, 1143 (Pa. Super. 1995) (citation omitted).                 Thus, we must first

determine     whether   the   out-of-court      identification   should   have   been

suppressed.

      In reviewing the propriety of identification evidence, the central
      inquiry is whether, under the totality of the circumstances, the
      identification was reliable. See Commonwealth v. Sample,
      468 A.2d 799, 801 (Pa. Super. 1983). Suggestiveness in the
      identification process is but one factor to be considered in
      determining the admissibility of such evidence and will not
      warrant exclusion absent other factors. Id. at 801. As the
      Sample court explained, the following factors are to be
      considered in determining the propriety of admitting
      identification evidence: the opportunity of the witness to view
      the perpetrator at the time of the crime, the witness’ degree of
      attention, the accuracy of his prior description of the perpetrator,
      the level of certainty demonstrated at the confrontation, and the
      time between the crime and the confrontation.             Id.   The
      corrupting effect of the suggestive identification, if any, must be
      weighed against these factors. Id.

McElrath v. Commonwealth, 592 A.2d 740, 742–43 (Pa. Super. 1991)

(citation formatting provided; some citations omitted).

      Here,    the   PCRA     court   found     that   Ms.   Stough’s     out-of-court

identification was not unduly suggestive, despite the presence of Ms. Ford in

the vehicle, and Ms. Ford’s identification of Appellant as her attacker in Ms.

Stough’s presence. It explained that

      [a]lthough Ms. Stough was not one hundred percent certain that
      the individual in custody was her attacker, the [PCRA c]ourt
      finds the similarities between Ms. Stough’s prior description of
      the clothing the individual was wearing and that of the person
      chased out of the woods shortly thereafter weighs in favor of a
      reliable identification.



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(PCRA Ct. Op., at 7). The court explained that it was clear that Ms. Stough

never deviated from her testimony that her attacker was wearing red pants

and a hoody, and that any inconsistent descriptions of clothing were police

misstatements because of the confusion in the initial moments after the

attack. (See id.). Therefore, the court concluded that Appellant “failed to

prove that there was a basis to suppress Ms. Stough’s identification, that

[trial counsel’s] strategy lacked any reasonable basis, or that but for the

failure to litigate such motion, the outcome of the proceeding would have

been different.” (Id.).

      Upon review, we conclude that, in the totality of the circumstances,

Ms. Stough’s identification was reliable, and thus any motion to suppress her

identification on that basis would have been unsuccessful. See McElrath,

supra at 742-43.      Appellant has not shown that there was no reasonable

basis for not pursuing the suppression motion. See Arch, supra at 1143.

Appellant’s third issue does not merit relief.

      In his fourth issue, Appellant argued that counsel was ineffective for

failing to request a Kloiber jury charge with respect to Ms. Stough’s

identification.   (See Appellant’s Brief, at 55-56).   Specifically, he argues

that, because Ms. Stough testified that she was unable to see the face of her

attacker, and that she was not one hundred percent certain about her out-

of-court identification, counsel should have requested a Kloiber charge

instructing the jury that her identification should be viewed with caution.

(See id.). We disagree.

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       “A   Kloiber   charge   instructs   the   jury   that   a[n]   eyewitness’

identification should be viewed with caution where the eyewitness: (1) did

not have an opportunity to clearly view the defendant; (2) equivocated on

the identification of the defendant; or (3) had a problem making an

identification in the past.” Commonwealth v. Rollins, 738 A.2d 435, 448

n.14 (Pa. 1999) (citing Kloiber, supra at 826–27).

       Here, however, Ms. Stough did have an opportunity to observe

Appellant sufficient to later identify Appellant as her attacker.     (See PCRA

Ct. Op., at 8-9). Although she did not observe her attacker’s face, she was

able to describe the clothing that he was wearing and that he was African

American. (See id.); see also Rollins, supra at 448 n.14. The record is

clear that Ms. Stough did not have a problem identifying Appellant or

equivocate on her identification.   Furthermore, on cross-examination, trial

counsel addressed the quality of Ms. Stough’s identification and the fact that

she indicated that she was not one hundred percent certain about her

identification. Thus, we conclude that a Kloiber instruction would not have

been warranted, and trial counsel was not ineffective for failing to request

one.

       Furthermore, Appellant does not demonstrate actual prejudice because

he failed to show a reasonable probability that the outcome of trial would

have been in his favor had the court issued such instruction.                See

Washington, supra at 594. Therefore, we conclude that the PCRA court

correctly dismissed Appellant’s fourth claim.

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      In his final claim, Appellant argues that trial counsel was ineffective for

failing to request sequestration of witnesses during trial.       (See Appellant’s

Brief, at 57-58). We disagree.

      Preliminarily, we note that Appellant has not shown actual prejudice

because of the alleged failure to request sequestration, rather arguing that

the interests of justice would have been better served by the witnesses

being sequestered.      (See id.).     Additionally, we conclude that the PCRA

court’s finding—that Appellant failed to prove that trial counsel failed to

request   sequestration,    and      therefore   failed   to   prove   a   claim   of

ineffectiveness—is supported by the record.          (See PCRA Ct. Op., at 12).

Therefore, he has failed to satisfy his burden to prove that counsel was

ineffective. See Washington, supra at 594. Appellant’s fifth issue does

not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2016




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