Com. v. Ellison, A. ( 2018 )

J-S79011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALONZO ELLISON :
:
Appellant : No. 1014 EDA 2017
Appeal from the PCRA Order February 10, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006872-2009
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MARCH 13, 2018
Alonzo Ellison appeals from the order entered in the Court of Common
Pleas of Philadelphia County, on February 10, 2017, denying him relief on his
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §
9541 et seq. In this timely appeal, Ellison raises eight claims of error. Our
review of the submissions by the parties, relevant law, and the certified
record, leads us to find the PCRA judge, the Honorable Glenn B. Bronson, has
authored a thorough decision that is supported by the record and free from
legal error. Accordingly, we affirm the analysis in that opinion with some
additional commentary.
Although we affirm on the basis of the PCRA court opinion, we will
provide a brief synopsis of this matter. Initially, our standard of review for an
appeal of an order denying PCRA relief is well settled.
J-S79011-17
Our standard of review of the denial of a PCRA petition is limited
to examining whether the record evidence supports the court’s
determination and whether the court’s decision is free of legal
error. Commonwealth v. Ford, 947 A.2d 1251 (Pa. Super.
2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This
Court grants great deference to the findings of the PCRA court if
the record contains any support for those findings.
Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007),
appeal denied, 593 Pa. 754, 932 A.2d 74 (2007).
Commonwealth v. Shiloh, 170 A.3d 553, 556 (Pa. Super. 2017).
The certified record reveals that in the early morning hours of July 18,
2008, three men, including Ellison, shot and killed Barry Jacobs, Jr., in an
apparent dispute over drug territory.1 One of the witnesses to the shooting,
Antoinette Gray, had by-passed the defendants and purchased crack cocaine
from Jacobs. While she was still near Jacobs, all three defendants shot Jacobs.
Ellison was seen standing over Jacobs’ fallen body and firing at least one shot
into his head. Gray gave a statement to the police identifying the men as the
perpetrators.
In addition to Gray, Jeffrey Gould told the police he heard several
gunshots and went to his window where he saw a person he identified as
Ellison stand over Jacobs and shoot him in the head.
Eleanore Sampson told the police that the three men came to her
apartment after the shooting occurred and talked about how they had killed
Jacobs. Sampson told the police she saw the men carrying a 9 mm
semiautomatic, a .45 caliber semiautomatic, and a .32 caliber revolver. Those
____________________________________________
1 The other two men, Mikechel Brooker and Ferock Smith, were tried with
Ellison. All were convicted.
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calibers matched the forensic evidence taken at the scene and from Jacobs’
autopsy. Sampson told the men not to leave the weapons in her apartment.
While the other two men left Sampson’s apartment, Ellison fell asleep there.
He attempted to flee when the police arrived that morning to interview people
who may have witnessed the crime. A .32 caliber revolver was found in
Sampson’s apartment.2
All three witnesses’ police statements were transcribed verbatim and
were signed by the witnesses. All three witnesses recanted their statements
at trial. Nevertheless, the jury convicted Ellison of first-degree murder and
related offenses. He received a sentence of life imprisonment. Ellison filed a
direct appeal that afforded him no relief. See Commonwealth v. Ellison,
107 A.3d 233, 2014 WL 10575202, (Pa. Super. 2014) (unpublished
memorandum).3 The Pennsylvania Supreme Court denied Ellison allowance
of appeal on April 29, 2015. Commonwealth v. Ellison, 114 A.3d 1038 (Pa.
April 29, 2015). Ellison filed this, timely, PCRA petition on July 10, 2015.
Counsel was appointed and the matter was assigned to the Honorable Glenn
B. Bronson.4 Counsel filed an amended PCRA petition on August 13, 2016.
____________________________________________
2 This weapon was determined not to have been involved in the shooting.
3In separate decisions, the convictions of Ellison’s co-defendants, Mikechel
Brooker and Ferock Smith, were also affirmed on September 23, 2014. See
Commonwealth v. Brooker, 103 A.3d 325 (Pa. Super. 2014);
Commonwealth v. Smith, 107 A.3d 233 (Pa. Super. 2014) (unpublished
memorandum).
4 The trial judge, the Honorable Carolyn Engel Temin, had retired.
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On December 29, 2016, the PCRA court issued notice pursuant to Pa.R.Crim.P.
907 of intent to dismiss the petition without a hearing. The PCRA court did so
on February 20, 2017. Ellison filed this timely appeal.
As noted above, Ellison has raised eight issues. They are: 1) trial
counsel was ineffective for misrepresenting the scope of Commonwealth
witness Jeffrey Gould’s cooperation agreement; 2) appellate counsel was
ineffective for failing to present a claim that the Commonwealth was
improperly allowed to cross-examine and lead its witness Eleanore Sampson
with her statement to the police; 3) trial counsel was ineffective for failing to
object to the jury instruction on first-degree murder, specifically regarding the
definition of premeditation or deliberation; 4) Commonwealth witness,
Detective Verrechio was improperly allowed to testify that eyewitness Gray
was terrified and scared to be involved in the case; 5) trial counsel was
ineffective for failing to request a Kloiber5 charge; 6) trial counsel was
ineffective for failing to file a motion to sever and Rule 600 motion; 7)
appellate counsel was ineffective for failing to claim trial counsel erred in
allowing witness statements to be sent to the jury during deliberations; and
8) Ellison’s life sentence without parole is unconstitutional as he was 19 years
old when the crime was committed. Also, as noted above, the PCRA court has
authored a comprehensive opinion, conducting a thorough analysis of all the
issues raised in this appeal.
____________________________________________
5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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We write separately to highlight the PCRA court’s conclusions on two of
the issues. We have reviewed the certified record, including all notes of
testimony.6 Regarding Issue Two, all three eyewitnesses7 to the murder “went
south” at trial, recanting their statements. All three witnesses were
questioned regarding their prior statements to the police, which were read
into the record. These statements were not being used to refresh the
recollections of the witnesses; they were properly introduced into evidence as
prior inconsistent statements.
Finally, regarding Issue Three, Ellison claims trial counsel was ineffective
for failing to object to the jury charge for first-degree murder. He argues the
jury charge did not adequately explain certain elements of the crime,
____________________________________________
6 We feel the need to point out that our resolution of this matter was delayed
by the fact that the notes of testimony were not initially included with the
certified record, despite the statement from the Court of Common Pleas that
the entire record was being transmitted and Counsel’s duty to insure that all
relevant documents have been provided for review. The lack of notes of
testimony from a multi-day, multiple defendant murder trial should have been
obvious upon review. This Court requested notes of testimony be located and
transmitted for our review. Some notes were then received, but the most
relevant days’ notes, including the testimony of Gould and Sampson, were,
once again, not provided. Upon second request by this Court, the notes were
finally transmitted for our review. We are aware that the use of electronic
records, such as provided instantly, may still be novel to counsel. However,
it is still the responsibility of counsel to ensure this Court has been provided
ALL the relevant documents needed for review. If an incomplete record is
provided to this Court, thereby hindering our ability to conduct a meaningful
review, we could find issues waived. However, this is a murder case and we
are reluctant to find waiver. We ask the lower court and counsel to be mindful
of our need of a complete record.
7 Annette Gray, Jeffrey Gould, and Eleanore Sampson.
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specifically, premeditation and deliberation. Ellison relied heavily, if not
exclusively, on Chambers v. McDaniel, 549 F.3d 1191 (9th Cir. 2008) to
support his claim. Initially, we note that a federal appellate decision from the
Ninth Circuit, interpreting Nevada law, is not binding upon our Court. The
Chambers decision does not extensively quote the charge given, but noted
the likelihood of confusion in the definitions of premeditation, willfulness, and
deliberate action. This was especially true given a lack of definition provided
for lesser relevant charges of homicide. Ellison notes the 3rd Circuit recently
cited Chambers with approval in Unites States v. Jackson, 862 F.3d 365,
411 n 45 (3rd Cir. 2017). Jackson simply cited Chambers for the standard
proposition that a jury charge must contain all the essential elements of the
crimes charged.
We have read the jury charge instantly at issue and agree with the PCRA
court’s finding that the charge provided sufficient definitions of all the
elements for first-degree murder. See N.T. Trial, 7/13/2012 at 144-145. This
charge virtually tracks the relevant language of the Pennsylvania Suggested
Standard Jury Instruction (Criminal), § 15.2502A. The PCRA court also
accurately found that this instruction has been affirmed by our court, in a
similar challenge, in Commonwealth v. Towles, 106 A.3d 591 (Pa. Super.
2014).
Additionally, we note that, unlike Chambers, the trial court here gave
a full charge on third-degree murder and then compared the two charges.
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See N.T. Trial, 7/13/2102, 145-147. Accordingly, Ellison is not entitled to
relief on this issue.
In light of the above, and the analysis provided by the Honorable Glenn
B. Bronson in his June 21, 2017, Pa.R.A.P. 1925(a) opinion, Ellison is not
entitled to relief. Accordingly, the February 10, 2017 order denying him relief
pursuant to his PCRA petition is affirmed. The parties are directed to attach
a copy of the June 21, 2017 opinion in the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/18
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0033_Opinion
Circulated 02/27/2018 11:57 AM
FILED
JUN 212017
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Office of Judicial Records
CRIMINAL TRIAL DIVISION
AppealS/Post Trial
COMMONWEAL TH OF CP-5 l-CR-0006872-2009
PENNSYLVANIA
CP-51-CR-0006872-2009 Comm. v. En1son. Alonzo
v. Opinion
II I I lll7964319431
ALONZO ELLISON
11111111111111111
OPINION
BRONSON,J. June 21, 2017
I. PROCEDURAL BACKGROUND
On July 16, 2012, following a jury trial before the Honorable Carolyn Engel Temin of
this Court, defendant Alonzo Ellison was convicted of one count each of first degree murder ( 18
Pa.C.S. § 2502), possession a firearm without a license (18 Pa.C.S. § 6106), criminal conspiracy
(18 Pa.C.S. § 903), and possessing an instrument of crime (18 Pa.C.S. § 907). On July 25, 201_2,
the Court imposed the mandatory sentence of life in prison for the murder charge ( 18 Pa.C.S. §
1102(a)(l )), and no further penalty on the remaining charges. Defendant filed a post-sentence
motion, which the Court denied on August 6, 2012. Defendant was represented at trial,
sentencing, and on appeal by Christopher Phillips, Esquire.
On September 23, 2014, the Superior Court affirmed defendant's judgment of sentence.
On October 23, 2014, defendant filed a Petition for Allowance of Appeal with the Pennsylvania
Supreme Court, which was denied on April 29, 2015. Defendant then filed a prose petition
under the Post-Conviction Relief Act ("PCRA") on July 10, 2015. Teri B. Himebaugh, Esquire
was privately retained to represent defendant on November 7, 2015. On May 9, 2016, with
Judge Temin having retired, this case was reassigned to the undersigned judge. On August 13,
2016, defense counsel filed an Amended PCRA Petition (" Amended Petition"). On December
29, 2016, after reviewing defendant's Amended Petition and the Commonwealth's Motion to
Dismiss, this Court ruled that the claims set forth in defendant's petition were without merit.
That day, pursuant to Pa.R.Crim.P. 907, the Court issued notice of its intent to dismiss the
petition without a hearing ("907 Notice"). On February 10, 2017, the Court entered an order
dismissing defendant's petition. This appeal followed.
Defendant has now appealed the Court's dismissal of his PCRA petition, alleging that: I)
trial counsel was ineffective for intentionally and repeatedly misrepresenting to the jury the
evidence concerning the scope of Commonwealth witness Jeffrey Gould's cooperation
agreement; 2) appellate counsel was ineffective for failing to preserve and present a claim that
the trial court violated defendant's due process rights by permitting the prosecution to cross
examine and lead its own witness, Eleanore Sampson, with her prior inconsistent police
statement without first determining that her recollection needed refreshing; 3) trial counsel was
ineffective for failing to object when the trial court instructed the jury on first-degree murder
with a charge that did not define the element of premeditation or deliberation with any degree of
precision; 4) defendant's constitutional rights were violated when Detective Verrechio testified
that a key Commonwealth witness, Antoinette Gray, was "terrified" and "scared" to be involved
in this case; 5) trial counsel was ineffective for failing to request a Kloiber charge; 6) trial
counsel was ineffective for failing to timely file a Rule 600 motion and motion to sever; 7)
appellate counsel was ineffective for failing to argue that the trial court abused its discretion by
permitting the jury to have the statements of witnesses Sampson and Gould sent back to the jury
during deliberations; and 8) defendant's constitutional rights were violated by the trial court's
imposition of a sentence of life without the possibility of parole when the crime was committed
when defendant was 19 years old. Appellant's Concise Statement of Matters Complained of on
2
Appeal ("Statement of Errors") at claims I-VIIl.1 For the reasons set forth below, defendant's
claims are without merit, and the PCRA Court's order dismissing his PCRA Petition should be
affirmed.
II. FACTUAL BACKGROUND
The facts are set forth in Judge Temin's 1925(a) Opinion filed in defendant's direct
appeal as follows:
On July 18, 2008, Barry Jacobs, Jr. ("Jacobs") was shot and killed on the 8700
Block of Glenoch Place in Philadelphia, by the defendant, Ferock Smith
("Smith") and [Mikechel] Brooker ("Brooker") in an apparent dispute over drug
territory after Antoniette Gray ("Gray") refused to purchase drugs from the
defendant. When Gray shortly thereafter purchased drugs from Jacobs, the
defendant, Smith, and Brooker shot Jacobs multiple times. At trial, Gray testified
that she did not remember the shooting and her July 20, 2008 statement to police
was admitted. In her statement, Gray identified the defendant, Smith, and Brooker
as the three people who shot Jacobs. Gray also saw the defendant, Smith, and
Brooker the next day and heard them laughing about shooting Jacob[ s). Another
eyewitness, Jeffrey Gould ("Gould"), testified that he saw someone standing over
Jacobs and shoot him in the head. Gould had identified that person as the
defendant in a July 18, 2008 statement to police, which was introduced at trial.
At trial, Eleanore Sampson ("Sampson") testified that she did not remember the
events after the shooting and her July 19, 2008 statement to police was admitted.
In her statement, Sampson stated that the defendant, Smith, and Brooker came to
her apartment on the night of July 18, 2008. Sampson stated that she let the
defendant, Smith, and Brooker use her apartment because they gave her drugs.
The defendant, Smith and Brooker had a conversation in Sampson's apartment
that night, during which she heard Smith say he shot Jacobs. Smith and Brooker
had handguns with them which they placed in Sampson's apartment. Sampson
asked the defendant to remove the guns from her apartment and the defendant
took a 9 millimeter handgun from Smith. Brooker and Smith left Sampson's
apartment shortly thereafter, at which time, the defendant gave the 9 millimeter
handgun back to Smith. The defendant stayed and slept at Sampson's apartment
and was arrested leaving from the rear of the apartment when the police were
knocking at the front door. A .32 caliber handgun was found during a search of
Sampson's apartment after the defendant's arrest.. ..
Trial Court Opinion, filed 12/26/12, at pp. 2-3.
I There is no claim numbered V in defendant's Statement of Errors. Rather, the
numbering skips from from IV to
VI.
3
Ill. DISCUSSION
An appellate court's review of a PCRA court's grant or denial ofrelief "is limited to
determining whether the court's findings are supported by the record and the court's order is
otherwise free of legal error." Commonwealth v. Yager, 685 A.2d 1000, 1003 (Pa. Super. 1996)
(citing Commonwealth v. Legg, 669 A.2d 389, 391 (Pa. Super. 1995)). The reviewing court "will
not disturb findings that are supported by the record." Id.Here, defendant's claims pertain to the alleged ineffective assistance of counsel. Under
Pennsylvania law, counsel is presumed effective and the burden to prove otherwise lies with the
petitioner. Commonwealth v. Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing
Commonwealth v. Copenhefer, 719 A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based
on the ineffective assistance of counsel, a petitioner must show that counsel's representation fell
below accepted standards of advocacy and that as a result thereof, the petitioner was prejudiced.
Strickland v. Washington, 466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is
interpreted as requiring proof that: (1) the claim underlying the ineffectiveness claim had
arguable merit; (2) counsel's actions lacked any reasonable basis; and (3) the ineffectiveness of
counsel caused the petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009);
Commonwealth v. Pierce, 527 A.2d 973, 974-75 (Pa. 1987). To satisfy the third prong of the
test, the petitioner must prove that, but for counsel's error, there is a reasonable probability that
the outcome of the proceeding would have been different. Commonwealth v. Sneed, 899 A.2d
1067, 1084 (Pa. 2006) (citing Strickland, 466 U.S. at 694). If the PCRA court determines that
any one of the three prongs cannot be met, then the court need not hold an evidentiary hearing as
such a hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.
2008), app. denied, 956 A.2d 433 (Pa. 2008).
4
A. Misrepresenting to the jury the evidence concerning the scope ofJeffrey Gould's
cooperation agreement
First, defendant claims trial counsel was ineffective for "intentionally and repeatedly
misrepresent[ing] to the jury the evidence concerning the scope of Jeffrey Gould's cooperation
agreement." See Statement of Errors at claim I. Gould was an important Commonwealth
witness. Defendant contends that defense counsel, both in his opening statement, and during his
cross-examination of Gould, falsely maintained that Gould had an agreement with the
Commonwealth for assistance in his own criminal cases in exchange for his testimony against
defendant. According to defendant, Gould's only agreement was with the federal Bureau of
Alcohol, Tobacco and Firearms for assistance in exchange for Gould's testimony in unrelated
drug cases. Memorandum of Law in Support of Petitioner's Motion for Post Conviction Relief
("Memorandum in Support of Petition") at pp. 14-16. Defendant argues that trial counsel's
repeated misrepresentations about Gould's agreement were demonstrably false, and served to
greatly bolster Gould's credibility with the jury. Id.Defendant's claim is refuted by the record. It is true that trial counsel stated in his
opening that Gould was promised help in exchange for testifying against defendant. It is also
true that counsel cross-examined Gould about such promises. However, contrary to defendant's
argument, the record shows that this strategy was supported by the evidence. Gould, in fact, did
testify he received multiple benefits in exchange for his testimony. When asked on direct
examination if there were any promises made to him by the Homicide Unit to provide a
statement in this case, Gould responded "of course." N.T. 7/11/2012 at 174. Gould further
testified that detectives told him he "wouldn't have to worry about [his] warrants," that he would
be relocated, that he "wouldn't have to worry about nothing, things like that," and that "[he] was
approached by a couple [ofJ detectives with a special deal. ... " Id. at 174-175.
5
Additionally, during cross-examination Gould testified that the homicide detectives told
him that if he gave a statement then he would not have to worry about his open warrants for
scofflaw and traffic violations. N.T. 7/11/2012 at 199. Gould further testified that he believed
that his sentence in a shooting case was substantially reduced as a result of cooperating with the
Philadelphia police. Id. at 202-203.
Accordingly, the record demonstrates that there is no factual basis for defendant's claim.
Trial counsel did not misrepresent Gould's agreement to the detriment of defendant. To the
contrary, counsel properly impeached Gould's testimony by showing that he received multiple
benefits from the prosecution in exchange for his testimony.
B. Failure to preserve and present a claim that the Court erred in permitting the
prosecution to cross-examine and to lead a Commonwealth witness with her prior
inconsistent police statement without first determining that her recollection needed
refreshing
Next, defendant claims that appellate counsel was ineffective for "fail[ing] to preserve
and present a claim that the trial court violated [defendant's] due process rights by permitting the
prosecution to cross examine and lead its own witness, [Eleanore J Sampson, with her prior
inconsistent police statement without first determining that her recollection needed refreshing."
Statement of Errors at claim 11. This claim is without merit.
The Rules of Evidence provide that "[a] witness may be examined concerning a
prior inconsistent statement made by the witness to impeach the witness's credibility."
Pa.R.E. 613(a). There is no prohibition to impeaching one's own witness, since the Rules
provide that "[a]ny party, including the party that called the witness, may attack the
witness's credibility." Pa.RE. 607. If the prior inconsistent statement was contained in a
writing that was signed and adopted by the declarant, it is admissible not only for
impeachment, but also as substantive evidence under a hearsay exception set forth in the
Rules. Pa.R.E. 803.I(l)(B) (providing an exception to the hearsay rule for a prior
6
inconsistent statement that "is a writing signed and adopted by the declarant" when the
declarant testifies in court).
Here, the statement of Sampson at issue was clearly inconsistent with her
testimony in court. In the statement, Sampson told detectives that defendant, Smith, and
Brooker came into her apartment after the shooting and talked about killing the victim.
N.T. 7/11/12 at 229-230. At trial, Sampson said that defendant and his cohorts came to
her apartment before the shooting. N.T. 7/11/12 at 255-256. Under the Rules of
Evidence cited above, it was entirely proper for the prosecutor to present Sampson with
the prior inconsistent statement and to examine her about its contents. While it is true that
a writing, or anything else for that matter, may not be used to refresh a witness's
recollection unless that witness professes to a lack of memory, there is no such
requirement for introducing a writing as a prior inconsistent statement.
As for the use of leading questions, the Court has wide discretion to reasonably
control the mode and order of examining witness and the presentation of evidence,
including the use ofleading questions on direct examination. See Pa.R.E. 611 (a);
Commonwealth v. Lambert, 765 A.2d 306, 360 (Pa. Super. 2000). Here, defendant fails
to identify any specific leading questions as to which the Court overruled an objection by
trial counsel. In fact, defendant cites the Court in his Statement of Errors to numerous
objections made by counsel to leading questions that were sustained by the Court. Of
course, appellate counsel cannot be faulted for not premising Court error on rulings that
were made in favor of defendant.
Accordingly, there were no meritorious issues for appellate counsel to raise
regarding the questioning of Sampson with her prior inconsistent statement. No relief is
due.
7
C. Failing to object to the trial court's jury instruction pertaining to first-degree
murder
Next, defendant avers that counsel was ineffective for failing "to object when the
trial court instructed the jury on first-degree murder with a charge which did not define
the element of premeditation or deliberation with any degree of precision thereby making
the jury verdict unreliable." Statement of Errors at claim III. This claim is without merit.
Here, the Court gave, nearly verbatim, the Pennsylvania Suggested Standard Jury
Instructions on first degree murder. See Pa. SSJI (Crim), §15.2502A; N.T. 7/13/2012 at
144-145. Our Superior Court has recently held that this precise instruction properly sets
forth all of the elements of first degree murder. Commonwealth v. Towles, 106 A.3d 591,
607 (Pa. 2014) (jury charge substantially identical to the Pennsylvania Suggested
Standard Jury Instructions "thoroughly and accurately represented the law on first degree
murder"). Moreover, the Superior Court specifically rejected the claim, made now by
defendant, that the Standard Instructions failed to adequately define the element of
premeditation or deliberation. Id. Accordingly, defendant's claim is refuted by
established law.
Defendant also contends that it was error to send out with the jury in writing the
portion of the jury charge that set forth the elements of first and third degree murder.
Statement of Errors at claim III(E). However, sending out the elements of the offenses
with the jury is explicitly authorized by the Rules of Criminal Procedure. Pa.R.Crim.P.
646(B).
Since the instruction given to the jury was proper, and since the Rules authorized
the Court to send out to the jury the elements of the offenses, trial counsel could not have
been ineffective for failing to raise these issues in the trial court. No relief is due.
8
D. Detective Verrechio 's testimony that a witness was scared to be involved in
this case
Defendant also claims that trial counsel was ineffective for not to renewing his
objection, moving to strike, and requesting a curative instruction after Detective John
Verrecchia testified that witness Antoniette Gray was terrified and scared to be involved
in this case. Defendant also claims that appellate counsel was ineffective for failing to
raise this claim on appeal. Statement of Errors at claim III; Amended Petition at p. 9.
This claim is without merit.
Under Rule 701 of the Pennsylvania Rules of Evidence, a lay witness may testify
to opinions or inferences "which are rationally based on the perception of the witness and
helpful to a clear understanding of the witness' testimony or the determination of a fact in
issue .... " Pa.R.E. 701. The lay opinion may not be based on scientific or other
specialized knowledge that would require testimony by an expert. Cominsky v. Donovan,
846 A.2d 1256, 1259 (Pa. Super. 2004). An opinion is "rationally based" on the
witness's perception where the witness's prior experience and personal observations
sufficiently support the proffered opinion. See Commonwealth v. Bowser, 624 A.2d 125,
133 (1993). The determination of whether an opinion is "helpful" is left to the discretion
· of the trial judge, and can only be reversed in the case of an abuse of discretion. See
Commonwealth v. Yedinak, 676 A.2d. 1217, 1221 (Pa. Super. 1996); see also Lewis v.
Mellor, 393 A.2d 941 (Pa. Super. 1978) (en bane). A witness's opinion about the
demeanor of another person may be an admissible lay opinion under the Rule. See
Commonwealth v. Boczkowski, 846 A.2d 75, 97 (Pa. 2004) (holding that it was not an
error to permit a witness to testify that a witness appeared "serious" when he admitted to
killing his victims).
9
Here, Detective Verrecchio testified that witness Antoinette Gray appeared to be
"terrified" and "afraid" when he interviewed her. N.T. 7/11/2012 at 89. Because his
opinion that she appeared fearful was based on his personal observations during that
interview, the testimony was a proper lay opinion. See Boczkowski, 846 A.2d at 46, 97.
Moreover, because Gray recanted her statement at trial, Detective Verecchio's
observations were highly probative to explain Gray's differing versions of the facts.
Accordingly, Detective Verecchios testimony regarding the Gray's demeanor was
properly admitted.
Trial counsel did object to the challenged testimony of Detective Verrecchio, and
his objection was overruled. N.T. 7/11/2012 at 46. Since the testimony was properly
admitted, counsel could not have be ineffective for failing to renew his objection to the
testimony or raising the issue on appeal. No relief is due.
E. Failure to Request a Kloiber Charge
Defendant claims that his trial counsel was ineffective for not requesting that the
trial court provide a Kloiber charge to the jury in relation to Gray's testimony.
Defendant argues that he was entitled to a Kloiber charge because Gray had identified
defendant to the police as one of the shooters prior to trial, but failed to identify the
defendant at trial. Statement of Errors at claim IV. This claim is without merit.
A Kloiber charge instructs the jury to receive a witness's identification of a
perpetrator with caution where the eyewitness: (1) did not have an opportunity to clearly
view the perpetrator; (2) equivocated on the identification of the perpetrator; or (3) had a
problem making an identification in the past. Commonwealth v. Kloiber, 106 A.2d 820,
826-27 (Pa. 1954), cerl. denied, 348 U.S. 875 (1954); see Commonwealth v. Rios, 920
A.2d 790, 804 (Pa. 2007). A Kloiber charge is not appropriate where an eyewitness's
JO
identification of the defendant was always positive and the opportunity for the witness to
observe the defendant was good. Kloiber, 106 A.2d at 826; Commonwealth v. Upshur,
764 A.2d 69, 77 (Pa. Super. 2000).
Here, none of the factors that would warrant a Kloiber charge were present. The
witness, Antoinette Gray, told police that defendant attempted to sell her drugs on the
night of the homicide. N.T. 7/10/2012 at 122-123. Additionally, Gray told police that
she was standing "a couple of feet away" from defendant when defendant shot the victim.
N.T. 7/10/2012 at 122. Accordingly, Gray had an excellent view of defendant.
Moreover, Gray told police that she had known defendant for at least six or seven years at
the time of the murder and that she saw defendant every day around the time that the
victim was killed. N.T. 7/10/2012 at 129. Finally, Gray positively identified defendant
to detectives shortly after the victim was killed. N.T. 7/11/2012 at 271, 273-276.
Defendant argues that, notwithstanding the absence of the usual factors requiring
a Kloiber charge, defendant was entitled to the charge because Gray failed to identify him
at trial. However, "[ u]nlike the typical Kloiber situation, where there is a damaging in-
court identification of the accused the same type of concerns are not present where a
witness declines to identify the defendant in court." Commonwealth v. Sanders, 42 A.3d
325, 335 (Pa. Super. 2012), app. denied, 78 A.3d 1091 (Pa. 2013). Accordingly, where,
as here, a fearful witness recants a previous identification, a Kloiber instruction need not
be given so long as the court gives the jury the standard jury instruction on eye-witness
identification. Sanders, 42 A.3d at 332-335.
Accordingly, there was no basis for trial counsel to request a Kloiber instruction
regarding Gray's identification of the defendant. Counsel's failure to do so, therefore,
could not have deprived defendant of effective assistance of counsel.
11
F. Failure to file a timely Rule 600 motion and motion to sever
Defendant next claims: "The PCRA Court erred when it found that counsel was not
constitutionally ineffective under the Sixth Amendment for failing to timely file a Rule 600
motion and Motion to Sever." Statement of Errors at 6. This claim is without merit.
Pennsylvania Rule of Criminal Procedure 600 authorizes charges to be dismissed if the
defendant is not brought to trial within 365 days of when the complaint is filed, after deducting
all excludable time and excusable delay. Pa.R.Crim.P. 600; see Commonwealth v. Murray, 879
A.2d 309, 314 (Pa. Super. 2005). Excludable time and excusable delay are defined as follows:
"Excludable time" is defined in Rule 600(C) [and includes, in pertinent
part, any] period of delay at any stage of the proceedings as results from:
(a) the unavailability of the defendant or the defendant's attorney; (b) any
continuance granted at the request of the defendant or the defendant's
attorney. 'Excusable delay' is not expressly defined in Rule 600, but the
legal construct takes into account delays which occur as a result ·of
circumstances beyond the Commonwealth's control and despite its due
diligence.
Commonwealth v. Hyland, 875 A.2d 1175, 1190 (Pa. Super. 2005), appeal denied, 890 A.2d
1057 (Pa. 2005) (quoting Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en
bane), appeal denied, 875 A.2d 1073 (Pa. 2005)).
Here, the extensive delays in bringing defendant to trial were not caused by defendant,
but rather by applications for continuances by his codefendants. Defendant appears to
acknowledge that Rule 600 would not have been violated so long as those continuances were
properly deducted as excusable time. He contends, however, that the continuances were not
excusable, and that in any event, trial counsel should have timely moved to sever the defendant's
case from the codefendants so that he could have proceeded to trial at an earlier date. While trial
counsel did file a Rule 600 motion shortly before the trial, defendant argues that he should have
filed such a motion along with a motion for severance much sooner.
12
Defendant's arguments are refuted by established law. Continuances sought by co-
defendants constitute excusable delay provided the Commonwealth has been duly diligent and
where the circumstances resulting in the continuances were beyond the Commonwealth's
control. Commonwealth v. Jackson, 765 A.2d 389, 393-394 (Pa. Super. 2000). Moreover, the
Commonwealth's due diligence obligation does not require that it agree to sever a codefendant to
prevent a potential Rule 600 violation. As our Superior Court has stated:
[T]he Commonwealth is not required to sever a defendant's case
from a co-defendant's when faced with a possible Rule 600
violation. Commonwealth v. Jackson, 765 A.2d 389, 395 (Pa.
Super. 2000). This holding is in accordance with the historical
posture of the Rule, which recognizes that a prophylactic
application is not in the interest of justice and also that the Rule
must take into account society's interest in the effective
administration of justice.
Commonwealth v. Kearse, 890 A.2d 388, 394-395 (Pa. Super. 2005), app. denied, 906 A.2d 1196(Pa. 2006). Defendant does not aver any manner in which the Commonwealth was not duly
diligent apart from it not agreeing to a severance, and does not allege any grounds for severance
apart from the potential Rule 600 violation. Accordingly, there would have been no valid bases
for trial counsel to have moved for severance or for dismissal under Rule 600 at any time prior to
the trial. Because counsel cannot be ineffective for failing to raise a meritless claim, no relief is
due.
G. Failing to raise a claim that the trial court erred when it permitted witness
statements to be read back and provided to the jury during de! iberations
Defendant next asserts that counsel was ineffective for failing to assert on appeal
that the trial court erred: 1) "by permitting the jury to have the Sampson and Gould
statements read back to/provided to them during deliberation in contravention of the Trial
Court's own prior ruling;" and 2) by not reaffirming its prior instruction that the jury was
13
not to give any greater weight to the provided statements than to in-court testimony.
Statement of Errors at claim VII. This claim is without merit.
The Rules of Criminal Procedure provide that, "[ u ]pon retiring, the jury may take with it
such exhibits as the trial judge deems proper except [that] ... [ d]uring deliberations, the jury shall
not be permitted to have: ( 1) a transcript of any trial testimony; (2) a copy of any written or
otherwise recorded confession by the defendant; (3) a copy of the information or indictment; and
(4) [except for elements of the offenses or defenses], written jury instructions." Pa.R.Crim.P.
646. In general, a jury should be permitted to review materials during deliberations where those
materials inform the jury and aid it in the determination of the facts. Commonwealth v. Lilliock,
740 A.2d 237, 243 (Pa. Super. 1999), appeal denied, 795 A.2d 972 (Pa. 2000). However, a
Court should not allow the jury to possess an exhibit if it is likely that the jury would skew its
importance or give it undue emphasis. Commonwealth v. Dupre, 866 A.2d l 089, 1102 (Pa.
Super. 2005), appeal denied, 879 A.2d 781 (Pa. 2005); Commonwealth v. Strong, 836 A.2d 884,
888 (Pa. 2003); Commonwealth v. Riggins, 386 A.2d 520, 525 (Pa. 1978). So long as an exhibit
is not specifically prohibited by the rule from being submitted to the jury, a trial court's decision
to grant or deny jury access to such an exhibit will not be reversed absent an abuse of discretion.
See, e.g., Commonwealth v. Bango, 742 A.2d 1070, 1072 (Pa. 1999); Riggins, 386 A.2d at 525.
Here, the jury requested to see the written statements of Jeffrey Gould and Eleanore
Sampson, specifically requesting the paragraphs regarding the events of the shooting. N. T.
7/13/12 at 165. The trial court was not prohibited by the rules from sending out these
documents, which were clearly central to the issues that the jury needed to resolve. Accordingly,
the trial court did not abuse its discretion in providing the statements to the jury. Moreover,
there is no authority for defendant's contention that the court was required to repeat a prior
admonition to the jury that an out-of-court statement should not receive greater weight than in-
14
court testimony. Since defendant's claims are meritless, appellate counsel could not have been
ineffective for failing to raise them on appeal.
H. Imposition of a sentence of life without the possibility ofparole when
defendant was 19 years old at the time the crime was committed
Finally, defendant avers that "The PCRA Court erred when it found that
[defendant's] Sixth, Eight and Fourteenth Amendments were not violated by the
imposition of a sentence of life without the possibility of parole when the crime was
committed when [defendant] was only 19 years old." Statement of Errors at claim VIII.
Defendant bases this claim on the decision of the Supreme Court of the United States in
Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that a mandatory life sentence for a
defendant under the age of 18 at the time of the offense is unconstitutional. This claim is
frivolous.
Under Miller, mandatory life imprisonment without parole is unconstitutional for
defendants under the age of 18 at the time of the offense. Miller, 132 S.Ct. at 2460. In
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the Supreme Court held that Miller
applies retroactively to cases on state collateral review. Montgomery, 136 S.Ct. at 732.
However, "[t]he Miller decision applies to only those defendants who were 'under the
age of 18 at the time of their crimes."' Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.
Super. 2016) (quoting Miller, 132 S. Ct. at 2460). As a result, offenders 18 years of age
or older at the time of their offense do not fall "within the ambit of the Supreme Court's
decision in Miller .... " Furgess, 149 A.3d at 94 (holding that Miller does not apply to a
19 year-old offender). Since the defendant was admittedly 19 at the time of the offense at
issue, Miller is inapplicable. Id.
15
IV. CONCLUSION
For the foregoing reasons, the Court's order dismissing defendant's PCRA Petition
should be affirmed.
�rs
BY THE COURT:
GLENN B. BRONSON, J.
16
Commonwealth v. Alonzo Ellison CP-51-CR-0006872-2009
Type of Order: 1925(a) Opinion
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and
in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:
Defense Counsel/Party:
Teri B. Himebaugh, Esquire
220 I Pennsylvania Ave. #513
Philadelphia, PA 19130
Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify:
District Attorney(s):
Hugh J. Burns, Jr., Esquire
Chief, Appeals Unit
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Type of Service () Personal (X) First Class Mail ( ) Other, please specify:
Additional Counsel/Party:
Joseph D. Seletyn, Esquire
Prothonotary
Office of the Prothonotary - Superior Court
530 Walnut Street, Suite 315
Philadelphia, PA 19106
Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify:
Dated: June 21, 2017
Law Clerk to Hon. Glenn B. Bronson