J-S64013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
LAQUINCEY ANTRON WATSON                  :
                                         :
                   Appellant             :   No. 687 MDA 2017

                Appeal from the PCRA Order March 30, 2017
              In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0004163-2010
                                        CP-22-CR-0004167-2010


BEFORE:     GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                      FILED FEBRUARY 01, 2018

      Appellant, LaQuincey Antron Watson, appeals from the order entered

in the Court of Common Pleas of Dauphin County, denying his petition filed

pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Watson contends both his pre-trial counsel and trial counsel provided

ineffective assistance. We affirm.

      The   Commonwealth       charged   Watson   with   numerous   offenses

stemming from a residential burglary spree spanning four counties, which

took place from November 2009 until March 2010. Typically, Watson parked

his car near or at the targeted home and kicked in a door to gain access. He

would then methodically rummage the home, stealing household electronics,

cash, and other items of value.
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      After a three-day trial, a jury convicted Watson of twelve counts of

burglary and one count each of robbery, receiving stolen property, and

possession of a firearm. The trial court ultimately imposed an aggregate

sentence of imprisonment of 22 to 44½ years. This Court affirmed his

judgment of sentence. See Commonwealth v. Watson, 900 MDA 2013

(Pa. Super., filed August 11, 2014) (unpublished memorandum). And our

Supreme Court denied Watson’s petition for allowance of appeal. See

Commonwealth v. Watson, 112 A.3d 652 (Pa. 2015) (Table).

      Watson filed a timely pro se PCRA petition. The PCRA court appointed

counsel who later filed an amended petition. The PCRA court denied the

petition and this timely appeal followed. On appeal, Watson raises four

issues concerning the ineffective assistance of counsel.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      To establish ineffectiveness of counsel, a PCRA petitioner must plead

and prove: his underlying legal claim has arguable merit; counsel’s actions

lacked any reasonable basis; and counsel’s actions prejudiced the petitioner.

See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to

satisfy any prong of the ineffectiveness test requires dismissal of the claim.

See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

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        Watson first argues that Korey Leslie, Esquire, his preliminary hearing

counsel,     provided     ineffective    assistance   by   providing   “confidential

information” to the Commonwealth at a pretrial hearing. Appellant’s Brief, at

12.

        Prior to trial, Watson filed a petition for writ of habeas corpus, alleging

the Commonwealth failed to present a prima facie case at the preliminary

hearing. Attorney Leslie testified at the hearing held on the habeas petition.

Watson claims he never waived his attorney-client privilege.1 And according

to Watson, Attorney Leslie’s testimony “provided the Commonwealth with

information on how the Appellant was going to proceed during the trial” and

that his testimony explicitly disclosed “what the trial strategy would be[.]”

Id. In support of this argument, Watson provides a single citation to the

notes of testimony. The record, however, does not support his assertions as

to any revelation of trial strategy.

        At the hearing, Attorney Leslie testified only as to the strategy he

employed at the preliminary hearing. See N.T., Pre-Trial Hearing, 6/28/12,

at 11-12. There were 45 witnesses at the preliminary hearing ready to

testify for the Commonwealth. See id., at 10. The Commonwealth called

Attorney Leslie as a witness to explain his reasoning behind waiving the

requirement of the Commonwealth calling all 45 witnesses to testify.


____________________________________________


1   Watson’s trial counsel lodged no objection to Attorney Leslie’s testimony.



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Attorney Leslie explained that “[u]p to that point there had only been maybe

one or two identifications” and he “didn’t want to run the risk of everyone

getting on the stand and saying that they remembered him from

somewhere.” Id., at 12. At that stage of the proceedings, the defense, not

surprisingly, was that Watson was not the perpetrator of the burglaries. See

id., at 13, 23. So, to avoid potential identifications from the 45 witnesses

assembled and ready to testify, Attorney Leslie entered into an agreement

with the Commonwealth permitting them to proceed at the preliminary

hearing without putting all of those witnesses on the stand. See id., at 15.

      Attorney Leslie never disclosed anything about trial strategy. His

testimony focused exclusively on the strategy employed at the preliminary

hearing. See id., at 7-26. Thus, Watson’s assertion he was prejudiced by

Attorney Leslie’s “reciting what the trial strategy would be” is simply

baseless. Appellant’s Brief, at 12.

      Watson next argues trial counsel provided ineffective assistance by

failing to object to the exclusion of all African-American jurors in violation of

Batson v. Kentucky, 476 U.S. 79 (1986). There, the Court held that a

prosecutor’s challenge of potential jurors solely because of their race violates

the Equal Protection Clause. See id., at 89.

      If a defendant establishes a prima facie Batson claim, “the burden

shifts to the prosecutor to articulate a race-neutral explanation for striking

the juror(s) at issue.” Commonwealth v. Hanible, 30 A.3d 426, 475 (Pa.

2011) (citation omitted). However, “where,” as here, “no Batson challenge

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was raised during the voir dire process, a post-conviction petitioner is not

entitled to the benefit of Batson’s burden-shifting formula, but instead,

bears the burden in the first instance and throughout of establishing actual,

purposeful discrimination by a preponderance of the evidence.” Id., at 476

(internal quotation marks and citation omitted). And a defendant who lodged

no objection to the prosecutor’s use of peremptory strikes during voir dire

must “present a record identifying the race of the venirepersons stricken by

the Commonwealth, the race of the prospective jurors acceptable to the

Commonwealth but stricken by the defense, and the racial composition of

the final jury selected.” Id. (citation omitted).

      Here, in his counseled PCRA petition, Watson did not even allege

purposeful discrimination; he simply alleged the Commonwealth struck two

African-American male jurors. See Amended PCRA Petition, filed 8/31/16, at

¶ 16. Nor did he present a record identifying the race of the prospective

jurors stricken by the Commonwealth, the race of the prospective jurors

acceptable to the Commonwealth, and the racial makeup of the selected

jury. Rather, for the first time in his appellate brief, and without any citation

to the record, Watson states, “all of the victims that testified in this case

were white families, and his jury was all white.” Appellant’s Brief, at 14.

      Assuming for the sake of argument the prosecutor struck more

African-Americans than Caucasians, “[t]his fact, absent any other evidence

of discrimination, is insufficient to demonstrate purposeful discrimination.”

Hanible, 30 A.3d at 478 (citation omitted). Nor has Watson provided (or

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even alleged) any other evidence of racial bias, such as comments made by

the prosecutor during voir dire. See id., at 478-479.

       In fact, Watson concedes that a review of the record reveals “there is

not   enough     evidence      to   meet       the   burden   of   showing   purposeful

discrimination.” Appellant’s Brief, at 14 n.1. This burden fell squarely on

Watson. And as he cannot establish it, his claim fails.

       Next, Watson argues trial counsel provided ineffective assistance when

he failed to request a Kloiber instruction.

       A Kloiber instruction informs the jury that an eyewitness
       identification should be viewed with caution when either the
       witness did not have an opportunity to view the defendant
       clearly, equivocated on the identification of the defendant, or has
       had difficulties identifying the defendant on prior occasions.

Commonwealth v. Sanders, 42 A.3d 325, 332 (Pa. Super. 2012) (citation

and footnote omitted). See also Pa. SSJI (Crim) § 4.07B Identification

Testimony—Accuracy in Doubt.

       At trial, Pamela Heinbaugh testified Watson broke into her home and

she identified him directly. See N.T., Jury Trial, 9/11/12, at 57-60, 67. But

she also admitted that approximately five months after the burglary she was

unable to identify Watson in a Pennsylvania State Police photo array. See

id., at 66-67.2 Trial counsel extensively cross-examined Heinbaugh about


____________________________________________


2 On cross-examination, she explained the photo array provided to her “was
a terrible copy.” N.T., Jury Trial, 9/11/12, at 79.



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inconsistencies in her trial testimony and preliminary hearing testimony and

about her failure to identify Watson in the photo array. See id., at 68-80.

       But trial counsel did not request a Kloiber instruction. And such an

instruction was clearly warranted, as Heinbaugh equivocated in her

identification between the photo array and trial testimony.3 Thus, this issue

has arguable merit. We proceed to the prejudice prong.

       Watson did not plead prejudice in his PCRA petition. See Amended

PCRA Petition, filed 8/31/16, at ¶ 17. That alone is fatal to his claim. He did,

however, assert prejudice in his brief. Even accepting that, Watson’s entire

argument on that prong is as follows: “Because it [i.e., the Kloiber

instruction] was not [given to the jury], the Appellant suffered prejudice and

counsel was ineffective.” Appellant’s Brief, at 17. How? Saying it does not

make it so. “Claims of ineffective assistance of counsel are not self-

proving[.]” Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002)

(citations omitted).

____________________________________________


3  The Commonwealth maintains no Kloiber charge was necessary as
Heinbaugh testified she had a clear opportunity to observe Watson. See
Commonwealth’s Brief, at 12-13 The Commonwealth cites cases for the
proposition that “once the opportunity to observe is established it becomes
defense counsel’s cross-examination, not the court’s Kloiber charge, which
must highlight any problems with the quality of a witness’s observation.”
Commonwealth v. Cleveland, 703 A.2d 1046, 1049 (Pa. Super. 1997).
That is certainly correct. But we are not dealing with opportunity to observe
here; we are dealing with equivocation in the two identifications. Heinbaugh
identified Watson at trial, but not in the photo array. Cleveland is
inapposite. See Pa. SSJI (Crim) § 4.07B 2.



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      “In order to meet the prejudice prong of the ineffectiveness standard,

a defendant must show that there is a reasonable probability that but for

counsel’s unprofessional errors, the result of the proceeding would have

been different.” Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super.

2012) (internal quotation marks omitted; citations omitted). The PCRA

“requires that the prejudice prong of an ineffectiveness claim be ‘plead and

prove[n] by a preponderance of the evidence.’” Commonwealth v.

Lassiter, 722 A.2d 657, 663 n.8 (Pa. 1998) (opinion announcing the

judgment of the court) (quoting 42 Pa.C.S.A. § 9543(a)) (emphasis and

brackets in original). Watson’s blunt conclusion in his brief does not establish

a reasonable probability.

      Lastly, Watson argues trial counsel provided ineffective assistance

when he failed to request a corrupt source charge in regards to the

testimony of Watson’s girlfriend, Latoya Craighead, who testified as a

Commonwealth witness.

      Craighead testified Watson instructed her to go to his apartment and

remove his possessions. See N.T., Jury Trial, 9/12/12, at 13-14. She went

there and took “everything” out of his apartment, including “electronics.”

Id., at 14. She further testified Watson instructed her to try to sell two

televisions and a radio. See id., at 17.

      Watson maintains Craighead was an accomplice. “A person is an

accomplice of another person in the commission of an offense if … with the


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intent of promoting or facilitating the commission of the offense, [s]he …

aids or agrees or attempts to aid such other person in planning or

committing it[.]” 18 Pa.C.S.A. § 306(c)(1)(ii). “An accomplice charge is

necessitated not only when the evidence requires an inference that the

witness was an accomplice, but also when it permits that inference.”

Commonwealth v. Watts, 501 A.2d 1152, 1154 (Pa. Super. 1985)

(citation omitted). See also Hanible, 30 A.3d at 462 (“The charge is

warranted where the evidence is sufficient to present a jury question with

respect to whether the Commonwealth’s witness is an accomplice.”) The

motivation behind the instruction is that an accomplice witness will implicate

others to gain leniency. See Watts, 501 A.2d at 1154. The instruction can

be found at Pa. SSJI (Crim) § 4.01 Accomplice Testimony.

      The Commonwealth never charged Craighead with any crime, nor was

she facing charges. But the jury was unaware of this. From the jurors’

perspective, her actions in removing “everything” from Watson’s apartment

and then her complying with his directive for her to try to sell two televisions

and a radio, in the context of this case, permits a reasonable inference that

she was an accomplice to the crime of receipt of stolen property.

      The PCRA court relies on the fact that “Mrs. Craighead was cooperative

and testified on behalf of the Commonwealth” to support its finding that

Craighead was not an accomplice. PCRA Court Opinion, at 7. As does the

Commonwealth. See Commonwealth’s Brief, at 14 (stating Craighead “was


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fully cooperative with the investigation”). The witness’s cooperation and

testimony on the Commonwealth’s behalf is the impetus behind the

instruction. Accordingly, we find this issue has arguable merit. But is there

prejudice?

      Watson’s argument founders, once more, on the prejudice prong. He

did not plead prejudice in his PCRA petition. See Amended PCRA Petition,

filed 8/31/16, at ¶ 20. As noted, by itself that is fatal to his claim. See 42

Pa.C.S.A. § 9543(a). And even looking past the failure to plead, in his brief

Watson merely claims, “the testimony of Mrs. Craighead was crucial to the

Commonwealth’s case” and then simply concludes he “suffered prejudice, as

the outcome of the trial could have been different if the correct jury

instruction was given.” Appellant’s Brief, at 19. Again, one cannot but

wonder how, exactly?

      As mentioned, “[t]o 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.”

Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015) (citations

omitted). Watson’s terse conclusion falls far short of this standard.

      Even if the jury disbelieved Craighead’s testimony, the Commonwealth

presented a plethora of evidence to establish beyond a reasonable doubt

that Watson was the perpetrator of the burglaries and related crimes. For

instance: Heinbaugh’s identification of Watson at trial, see N.T., Jury Trial,


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9/11/12, at 57-60, 67; Anthony Valenti’s testimony of catching Watson

trying to kick his home’s door down, see N.T., Jury Trial, 9/11/12, at 106-

107, 109; Detective James Glucksman’s testimony, see N.T., Jury Trial,

9/11/12, at 126-191; and the testimony throughout trial concerning the

technological ability to place Watson in close proximity to the burglaries

through cellphone “pings.”

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/18




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