Com. v. Parks, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DOUGLAS PARKS
Appellant No. 1137 WDA 2014
Appeal from the PCRA Order June 18, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012812-2008
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 16, 2015
Appellant, Douglas Parks, appeals from the order denying him relief on
his petition pursuant to the Post Conviction Relief Act (“PCRA”). Parks
argues that the PCRA court erred in finding that trial counsel was not
ineffective for failing to ask the trial court to provide a Kloiber1 instruction
to the jury. We affirm.
A previous panel of this Court, in reviewing Parks’s direct appeal,
summarized the pertinent facts as follows.
Appellant was arrested and, on October 20, 2010, represented
by counsel, he proceeded to a jury trial at which the victim and
numerous police officers testified. Specifically, the victim,
Jeffrey Backus, testified he owns a small used-car dealership in a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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poverty stricken part of Pittsburgh, and prior to the incident at
issue, he was “familiar with” Appellant. Specifically, starting
approximately twelve to fourteen years ago, Appellant bought
cars from Mr. Backus’ dealership, and therefore, Appellant was
familiar with Mr. Backus’ business practices, which included Mr.
Backus making only cash sales and openly stuffing the cash into
his socks after the sales.
On August 9, 2008, at 5:15 p.m., as he was closing the
dealership for the evening, Mr. Backus went inside of the
dealership’s trailer to put away keys when he discovered
someone wearing a skeleton mask and a hooded sweatshirt
standing near the refrigerator. Poking Mr. Backus in the face
several times with a BB gun, the person told Mr. Backus to lie
down on the floor; however, Mr. Backus refused to do so,
resulting in the pair wrestling. While the pair wrestled, the
attacker’s mask and hooded sweatshirt fell off, and when Mr.
Backus would not succumb, the person hit Mr. Backus in the
forehead with a floor jack, threatening to shoot him. Mr. Backus
begged for his life and finally relinquished some of the money
from his socks. Mr. Backus estimated that, prior to the robbery,
he had a total of $10,000 tucked into both of his socks, and the
robber left with approximately $7,000.
As the robber, who appeared to be the same height or a little
taller than Mr. Backus, fled down the left side of Route 51 toward
the Liberty Tunnels, Mr. Backus looked out of the trailer and
observed the following:
He was wearing blue jeans and a white sleeveless T-shirt,
and it was a black male, and it was someone that had
reach on me, especially with the help of a gun, but also
he had long arms, and that’s pretty much it.
…
[Police arrested Parks near the scene of the crime shortly
thereafter. Backus was brought in to identify Parks.] [O]n
direct examination, Mr. Backus testified, in relevant part, as
follows:
Q:And what did you see when you arrived?
A: I saw the perpetrator leaned up against the police car
in handcuffs.
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Q:Did you get a good look at his face?
A: Yes.
Q:Did you recognize the individual?
A:At that time, I did not, no. It had been years since I
had seen that person.
Q:And “that person” is [Appellant]. Correct?
A:Yes.
Q:Okay. When you saw him, what condition was he in
and what was he wearing?
A:He was wearing a white sleeveless T-shirt and blue
jeans and he was in handcuffs.
…
Q:So when you saw [Appellant] in custody, did you
believe that he was the perpetrator of the robbery?
A:Yes.
Q:Why?
A:Because of his build, because of what he was wearing,
and then the rest of it is circumstantial evidence that
you’re going to present.
…
Q:Did the clothes match the description of the robber that
you gave?
A:Yes.
Q:Did the body structure of [Appellant] match the
description of the robber that you gave?
A:Yes.
Q:And the jeans and the shirt were collected together. Is
there any doubt in your mind that [Appellant] is the
person that robbed you?
A:No.
Q:Are you sure?
A:I’m sure.
On cross-examination … Mr. Backus indicated that, after the
police arrested Appellant, he went to the scene and identified
Appellant as his attacker based primarily on his body structure
and clothes. Mr. Backus admitted he did not see the robber’s
face during the incident; however, based on the fact he and the
robber wrestled for three to five minutes, and Mr. Backus
watched him flee, Mr. Backus knew his robber’s “body structure
exactly,” and the body structure of Appellant was “exactly the
same” as the robber’s structure.
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Commonwealth v. Parks, No. 103 WDA 2011, unpublished memorandum
at 2-5 (Pa. Super. filed 11/15/12). A jury convicted Parks on charges of
robbery, serious bodily injury and criminal trespass. This Court affirmed
Parks’s judgment of sentence, and the Supreme Court of Pennsylvania
denied his petition for allowance of review.
Parks subsequently filed a timely pro se PCRA petition. The PCRA
court appointed counsel to Parks, and counsel filed an amended PCRA
petition. After providing Parks with a notice of intent to dismiss, the PCRA
court denied Parks’s petition. This timely appeal followed.
On appeal, Parks raises two issues for our review. Both issues are
based upon Parks’s contention that trial counsel was ineffective for failing to
request a Kloiber instruction.
Our standard of review of a PCRA court’s denial of a petition for post-
conviction relief is well-settled. We must examine whether the record
supports the PCRA court’s determination and whether the PCRA court’s
determination is free of legal error. See Commonwealth v. Hall, 867 A.2d
619, 628 (Pa. Super. 2005). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record. See
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Our
scope of review is limited by the parameters of the PCRA. See
Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005).
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Parks’s arguments both assert the ineffectiveness of trial counsel as a
basis for relief. We presume that counsel was effective and an appellant
bears the burden of proving otherwise. See Commonwealth v. Steele, 961
A.2d 215, 223 (Pa. 2007).
To prevail on his ineffectiveness claims, Appellant must plead
and prove, by a preponderance of the evidence, three elements:
(1) the underlying legal claim has arguable merit; (2) counsel
had no reasonable basis for his action or inaction; and (3)
Appellant suffered prejudice because of counsel’s action or
inaction.
Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011) (citations omitted).
“A failure to satisfy any prong of the test for ineffectiveness will require
rejection of the claim.” Commonwealth v. Morrison, 878 A.2d 102, 105
(Pa. Super. 2005) (citation omitted). Counsel cannot be deemed ineffective
for failing to raise a meritless claim. See Commonwealth v. Fears, 86
A.3d 795, 803 (Pa. 2014).
“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). When these circumstances exist, “the Court should
warn the jury that the testimony as to identity must be received with
caution.” Kloiber, 106 A.2d at 826-827.
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Parks contends that since Backus did not see the robber’s face, a
Kloiber instruction was called for, and thus, trial counsel’s failure to request
one constituted ineffective assistance of counsel. The Commonwealth and
the PCRA court argue that a Kloiber instruction was not appropriate, as
Backus’s identification of Parks was consistent and positive. However, it is
“well-established that where there is evidence of record upon which a jury
could find that the opportunity for positive identification was not good, a
defendant is entitled to a Kloiber instruction.” Commonwealth v.
McKnight, 453 A.2d 1, 3 (Pa. Super. 1982).
In McKnight, an eyewitness testified that he observed the defendant
and two other men backing out of the victim’s bar, carrying a shotgun and
pulling off their masks. See id., at 2. It was broad daylight, and he saw
them from behind and from a distance of approximately 20 feet. See id.
He testified that he never saw more than a profile of any of the men. See
id. Although the eyewitness testified that he recognized the three men and
knew the nicknames of two of them, he did not initially supply their names
to the police. See id., at fn. 1.
In McKnight, as in the present case, the Commonwealth argued that
a Kloiber instruction is only necessary where “a witness has equivocated in
his identification or has previously failed to identify the defendant.” Id., at 3
(quotation marks and citation omitted). Responding to the Commonwealth’s
argument in McKnight, we observed that it omitted the “primary prong” of
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the Kloiber test: “where the witness is not in a position to clearly observe
the [robbers.]” Id. (citation omitted). Applying the test, we concluded that
the eyewitness’s “opportunity to identify the three men was far from
optimal” and reversed for a new trial.
In the present appeal, it is undisputed that Backus never had an
opportunity to view the robber’s face. Furthermore, it is undisputed that
Backus did not initially reveal that he knew Parks when he was brought in to
identify Parks. During cross-examination, Backus admitted that his
identification of Parks, while positive, was not based upon purely unique
characteristics:
Q: … So if there were four strong, lean black men, six foot to six
foot two, wearing a white T-shirt and blue jeans, then you
wouldn’t know which of the four it was because they all shared
the common characteristics that you told this jury you used to
determine it was him. Isn’t that right, sir?
A: There’s some truth to what you’re saying, yes.
N.T., Trial, 10/20-21/10, at 87. Thus, pursuant to McKnight, a Kloiber
instruction was justified, and there is arguable merit to Parks’s assertion of
ineffectiveness.
The PCRA court did not hold a hearing on the petition, so we have no
basis to evaluate the propriety of trial counsel’s strategic concerns, if any,
motivating the decision not to request a Kloiber instruction. See, e.g.,
Commonwealth v. Spotz, 870 A.2d 822, 833 (Pa. 2005) (“[A]s a general
principle, counsel should have a chance to be heard before being declared
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ineffective.”) Before remanding for such a hearing, we must determine
whether Parks has established that he suffered prejudice from this failure.
Parks argues that if the jury had received a Kloiber instruction, “it is
possible that the jury would have concluded that the victim misidentified Mr.
Parks.” Appellant’s Brief, at 16. After reviewing the testimony and the
closing arguments presented by trial counsel, we cannot agree.
Furthermore, the evidence established that Parks was found walking
towards Liberty Tunnels away from the scene of the crime. See id., at 109.
Backus testified that he saw the assailant flee towards Liberty Tunnels. See
id., at 60. Detective Brian Nicholas testified that when he received the
report of a robber fleeing on foot in his direction, he immediately suspected
the robber would use a nearby creek bed to avoid detection. See id., at
105. The creek bed is at the bottom of a steep hillside that varies in height
from approximately 8 feet to 15 feet. See id.
As he checked the creek bed, Detective Nicholas observed a black man
in jeans and a white T-shirt attempting to climb out from the bottom. See
id., at 106-107. When the man noticed Detective Nicholas, he began to run
away. See id., at 109. Detective Nicholas lost sight of the man when he
entered nearby woods, but with the assistance of other units, maintained a
perimeter. See id., at 109-110.
Lieutenant Larry Scirotto was maintaining the perimeter in the
direction Detective Nicholas had seen suspect run. See id., at 117. He saw
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Parks running at a full sprint away from Detective Nicholas’s position along
railroad tracks. See id., at 118. Lieutenant Scirotto ordered Parks to stop,
but Parks did not comply. See id. Parks again ran into a wooded area.
See id., at 119.
Lieutenant Scirotto ultimately found Parks next to an abandoned house
in the woods. See id., at 120. Parks had hidden himself under a piece of
plywood behind the house. See id. When asked to come out from under
the plywood, Parks refused. See id., at 121. After a K-9 unit was deployed,
Parks complied and showed himself. See id. After Parks was apprehended,
three 20 dollar bills were found next to him on the ground, and “a pile of
money” was found inside a pipe within an arm’s reach. See id., at 135-136.
Furthermore, money was found in Parks’s pockets in the amount of $1,214.
See id., at 138-139.
Based upon these circumstances, we cannot conclude that the absence
of the Kloiber instruction prejudiced Parks. Trial counsel made Backus’s
credibility a central issue of the case, and substantial circumstantial evidence
pointed towards Parks’s guilt. We are convinced that a Kloiber instruction
would not have changed the outcome of the trial. We therefore conclude
that neither of Parks’s issues on appeal merit relief.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2015
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