Com. v. Johnson, D.

J-S06008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DENNIS B. JOHNSON,
Appellant No. 2706 EDA 2013
Appeal from the PCRA Order Entered September 9, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007319-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 23, 2015
Appellant, Dennis B. Johnson, appeals from the post-conviction court's
September 9, 2013 order denying, without a hearing, his first petition for
relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.
Appellant is currently serving a life sentence for his conviction of second
degree murder, robbery, and a violation of the Uniform Firearms Act.
Appellant raises four claims asserting the ineffective assistance of his trial
counsel. After careful review, we affirm.
The following facts were adduced at Appellant’s trial. On August 27,
2007, Appellant, Curtis Smith (Curtis), and Amin Vicks were at a
convenience store located at 30th Street and Lehigh Avenue in Philadelphia,
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*
Former Justice specially assigned to the Superior Court.
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where Ozzie Clark (Clark) was working as the sole clerk. At the time Curtis
arrived, the doors to the store were locked, and business was being
conducted through a window on the side of the store.
Curtis identified Appellant in court, and testified that he knew
Appellant all of his life. N.T., 9/28/10, at 112-14. While Curtis was at the
window completing his purchase of cigars, he heard a commotion. Curtis
turned to see Appellant “with a gun out[,]” and pointed at the chest of the
victim, Kenyatta Smith (Kenyatta or “the victim”). Id. at 126, 136. Curtis
also heard Appellant say to the victim, “Put everything on the steps or
something like that.” Id. at 128. He then observed Kenyatta place his
personal effects, including a phone, on the steps. He also heard Appellant
instruct the victim not to touch the items. When he observed what was
going on, Curtis asked Appellant, “Yo, what [are] you doing, Dog?” Id. at
126. Soon thereafter, Curtis heard gunshots.1 Id. He immediately ran
away, explaining that “When somebody is shooting a gun, I’m moving out of
the way so I don’t get hit.” Id. at 160.
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1
There does not appear to be any dispute that Curtis also testified that he
saw Appellant shoot the victim. However, the relevant portion of the
transcript in which this testimony occurred is missing from the certified
record. Nevertheless, during cross-examination, Appellant’s counsel clearly
alludes to this testimony, asking Curtis, “But then you testified that you saw
it. My question is, how could you see it if … you were around the corner
hearing it?” N.T., 9/28/10, at 161-62. Curtis explained that he was
standing at the corner of the store, that his view was not obstructed by the
building, and that he had no difficulty observing the shooting and the events
that immediately preceded it. Id. at 163-64.
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Clark also testified for the Commonwealth. He had worked at his
parents’ business, the convenience store located at 30th Street and Lehigh
Avenue, since he was a child. Clark identified Appellant in court, indicating
that he had known him for 5 or 6 six years at the time of the shooting. N.T.,
9/29/10, at 41. Appellant would frequent the convenience store about once
or twice a week as a customer. Clark knew Kenyatta as a frequent customer
at the store as well, and further recalled that Kenyatta was a nighttime
security guard at a local pool. Clark also indicated that he knew Amin Vicks
and Curtis, as they were also regular customers.
Clark was working alone the evening of the shooting. He saw Curtis,
Amin Vicks, and Appellant approach the store. Kenyatta arrived at nearly
the same time on a bicycle. Kenyatta purchased a few items first. While he
was taking an order for Amin Vicks or Curtis, Clark noticed Appellant holding
Kenyatta at gunpoint with a chrome revolver, and rifling through the victim’s
pockets. Clark heard Appellant say something like, “you want to get
popped, Oldhead?” Id. at 54. Clark believed that Appellant said this when
Kenyatta resisted giving up his phone. Id. at 61. Immediately thereafter,
Clark heard a gunshot ring out, and saw everyone run away, including
Kenyatta, who only ran for a short time before collapsing. Clark indicated
that he was only about eleven feet from where the shooting took place, and
that he heard only one shot. Immediately after the shooting, Clark called
the police and then tried to attend to Kenyatta, who was “[b]arely
breathing.” Id. at 66.
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Police Officer Lewis Grandizio, a firearms expert, testified that he
analyzed the bullet taken from Kenyatta’s body. It was consistent with
being fired from a .32 caliber revolver. Dr. Gary Collins, an assistant
medical examiner for the Philadelphia Medical Examiner’s Office, reviewed
the report of the autopsy that had been performed by Dr. Gregory
McDonald.2 Dr. Collins concluded that Kenyatta died of a single gunshot
wound to the right side of his chest under the armpit, and that the manner
of death was homicide. The single bullet had penetrated the victim’s liver,
heart, and left lung.
On September 30, 2009, Appellant was convicted by a jury of the
above-listed offenses. On November 2, 2010, the trial court sentenced
Appellant to life imprisonment for second degree murder, and concurrent
terms of 5-10 years’ and 3½-7 years’ imprisonment for robbery and the
firearms violation, respectively. Appellant filed a direct appeal, but that
appeal was ultimately discontinued on September 9, 2009, before a brief
was filed with this Court.
Appellant filed a counseled PCRA petition, his first, on July 20, 2012.3
The Commonwealth filed a motion to dismiss on February 2, 2013.
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2
Dr. McDonald was no longer employed with the Philadelphia Medical
Examiner’s Office at the time of Appellant’s trial.
3
This petition was titled “Amended [PCRA] Petition,” however, the lower
court docket does not indicate that any prior PCRA petition was filed by
Appellant.
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Appellant filed a response to the Commonwealth’s motion to dismiss on
March 5, 2013. Subsequently, on July 9, 2013, the PCRA court issued notice
of its intent to dismiss Appellant’s PCRA petition without a hearing pursuant
to Pa.R.Crim.P. 907. Appellant’s petition was susequently dismissed by the
court by order dated September 9, 2013.
Appellant filed a timely notice of appeal to this Court from that order
on October 4, 2013. He also filed a timely Pa.R.A.P. 1925(b) statement with
the PCRA court, which then filed its Rule 1925(a) opinion on July 15, 2014.
Appellant now presents the following questions for our review:
I. Was trial counsel ineffective because he failed to object to
the charge of the court which failed to define robbery and
its intent elements, robbery being the statutorily
enumerated felony on which Appellant’s second degree
murder conviction was predicated?
II. Was trial counsel ineffective because he failed to object on
confrontation clause grounds and on hearsay grounds to
detective McDermott’s testimony that Amin Vicks, who did
not testify, when reinterviewed informed detectives “that
Curtis Smith was there, Dennis Johnson [Appellant] was
the shooter…”?
III. Was trial counsel ineffective because he failed to object to
the introduction of testimony from a medical examiner who
did not perform the autopsy and who was substituting for
the medical examiner who did perform the autopsy?
IV. Was trial counsel ineffective because he failed to ask for a
cautionary Kloiber[4] instruction because the
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4
Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa. 1954) (holding
that “where the witness is not in a position to clearly observe the assailant,
or he is not positive as to identity, or his positive statements as to identity
are weakened by qualification or by failure to identify defendant on one or
(Footnote Continued Next Page)
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Commonwealth’s case rested entirely on the identifications
[of Appellant] made by Curtis Smith and Ozzie Clark, when
each of them had not identified Appellant to the police
when interviewed after the crime and at other times?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court's ruling if it
is supported by evidence of record and is free of legal error.
This Court may affirm a PCRA court's decision on any grounds if
the record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review [is] plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal
citations omitted).
Appellant presents four ineffective assistance of counsel (IAC) claims.
In reviewing such claims:
We begin with the presumption that counsel rendered effective
assistance. To obtain relief on a claim of ineffective assistance
of counsel, a petitioner must rebut that presumption and
demonstrate that counsel's performance was deficient, and that
such performance prejudiced him. Strickland v. Washington,
466 U.S. 668, 687–91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In our Commonwealth, we have rearticulated the Strickland
Court's performance and prejudice inquiry as a three-prong test.
Specifically, a petitioner must show: (1) the underlying claim is
of arguable merit; (2) no reasonable basis existed for counsel's
_______________________
(Footnote Continued)
more prior occasions, the accuracy of the identification is so doubtful that
the Court should warn the jury that the testimony as to identity must be
received with caution”).
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action or inaction; and (3) counsel's error caused prejudice such
that there is a reasonable probability that the result of the
proceeding would have been different absent such error.
Commonwealth v. Pierce, 515 Pa. 153, 158–59, 527 A.2d
973, 975 (1987).
Commonwealth v. Dennis, 17 A.3d 297, 301 (Pa. 2011) (some internal
citations omitted).
I.
Appellant’s first claim concerns the trial court’s jury instructions
regarding the definition of robbery, the predicate offense for Appellant’s
second degree murder conviction.5 “For a verdict to be founded on second
degree murder, the jury must be instructed as to the elements of the alleged
felonies.” Commonwealth v. May, 656 A.2d 1335, 1343 (Pa. 1995).
Here, Appellant asserts that the trial court failed to instruct the jury on the
elements of robbery, and that trial counsel was ineffective for failing to
object to the jury instructions on that basis. He contends that he was
prejudiced by this error because the jury might have convicted him under an
incorrect definition of robbery, which would also undermine Appellant’s
conviction for second degree murder. Id. Specifically, Appellant contends
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5
“A criminal homicide constitutes murder of the second degree when it is
committed while defendant was engaged as a principal or an accomplice in
the perpetration of a felony.” 18 Pa.C.S. § 2502(b). The statute further
explains the phrase “perpetration of a felony” as follows: “The act of the
defendant in engaging in or being an accomplice in the commission of, or an
attempt to commit, or flight after committing, or attempting to commit
robbery, rape, or deviate sexual intercourse by force or threat of force,
arson, burglary or kidnapping.” 18 Pa.C.S. § 2502(d) (emphasis added).
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that the “trial court never defined robbery in terms of the element of intent
and never required the jury to find, beyond a reasonable doubt, Appellant
harbored an intent to rob.” Appellant’s Brief at 12.
In considering the underlying merits of this IAC claim, we consider the
following standards:
When reviewing a challenge to jury instructions, the
reviewing court must consider the charge as a whole to
determine if the charge was inadequate, erroneous, or
prejudicial. “The trial court has broad discretion in phrasing its
instructions, and may choose its own wording so long as the law
is clearly, adequately, and accurately presented to the jury for
its consideration.” Commonwealth v. Prosdocimo, 525 Pa.
147, 578 A.2d 1273, 1274 (1990). A new trial is required on
account of an erroneous jury instruction only if the instruction
under review contained fundamental error, misled, or confused
the jury.
Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009) (some internal
citations omitted).
In the instant case, the trial court instructed the jury, in pertinent
part, as follows:
The Defendant has been charged with robbery. To find the
Defendant guilty of this offense[,] you must find that the
following two elements have been proven beyond a reasonable
doubt: that the Defendant killed Kenyatta Smith. Second, that
the defendant did this during the course of a theft.
During the course of committing means that you could find
the Defendant guilty if you find beyond a reasonable doubt that
he did these things either – and that refers to the killing. Either
while – I’m sorry. That he did these things either while actually
committing a theft, attempting to commit a theft, or while
fleeing after either committing or attempting to commit a theft.
A theft[,] of course[,] means taking unlawful control of or
exercising unlawful control over someone else’s property and
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intending not to give it back. The Defendant is charged with
second degree murder. I will start [with] some terminology and
basic principles. The more serious types of crimes are called
felonies. For example, robbery is a felony.
Second degree murder is called felony murder because it’s
a killing connected with a felony. The felon need [] not intend to
kill anyone or anticipate that anyone be killed.
The Defendant has been charged with second degree
murder, that is[,] felony murder. To find the Defendant guilty of
this offense[,] you must find that the following three elements
have been proven beyond a reasonable doubt:
First, that the Defendant killed Kenyatta Smith. Second, that
the Defendant did so while committing a robbery. Third, that
the Defendant was acting with malice.
You may find that the Defendant acted with malice if you
are satisfied beyond a reasonable doubt that he committed the
robbery. Because robbery is a crime inherently dangerous to
human life[,] there does not have to be any other proof of
malice. And[,] I have already defined robbery for you.
N.T., 9/30/10, at 103-05.
Appellant contends that the court failed to instruct the jury that it was
required to find, beyond a reasonable doubt, that Appellant intended to rob
the victim to sustain a conviction for robbery. We disagree. No such intent
element is required by the statute defining the offense. Section 3701 of the
Crimes Code defines robbery as follows:
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon another;
18 Pa.C.S. § 3701(a).
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The trial court’s instructions mirror the statutory definition of robbery
with a single caveat: the trial court replaced the infliction-of-serious-bodily-
injury element with “the Defendant killed Kenyatta Smith.” N.T., 9/30/10,
at 103. Clearly, however, a conclusion that Appellant killed the victim would
satisfy the infliction-of-serious-bodily-injury element of robbery. Indeed, the
trial court’s instruction narrowed the range of conduct for which Appellant
was culpable for robbery and, thus, he suffered no prejudice as a result of
the court’s modification in this regard.
The court did not directly define the mens rea, or intent element, of
robbery. Notably, no such element appears in the statute. Instead, the
court instructed the jury that a robbery occurs when a killing occurs during
the course of a theft. The court then defined theft as “taking unlawful
control of or exercising unlawful control over someone else’s property and
intending not to give it back.” Id. at 104 (emphasis added). Thus, the
court included an intent element in its definition of robbery by incorporating
the ‘intent to steal’ element of theft. Consequently, Appellant’s contention
that the trial court failed to define the intent element of robbery at all is
meritless. The trial court’s instructions required, at a minimum, that the
jury find that Appellant intended to keep the items stolen during the course
of the robbery.
Appellant argues, however, that this invited the jury to convict
Appellant of second degree murder if the Appellant killed the victim during
the course of a theft rather than during a robbery. Theft is not an offense
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enumerated in 18 Pa.C.S. § 2502(d) and, therefore, Appellant is correct that
a conviction for theft cannot sustain a conviction for second degree murder.
Moreover, it is true that our Supreme Court has previously held that robbery
consists of two elements: “(1) The felonious intent to take money or goods
from the person, presence or control of another; and, (2) the
accomplishment of that end by violence or putting in fear.”
Commonwealth v. Simpson, 260 A.2d 751, 754 (Pa. 1970) (emphasis
added). Appellant contends that “the intent to rob is markedly different
from the intent to commit a theft.” Appellant’s Brief at 12.
However, we view the difference between “intending not to give it
back” and “felonious intent to take money or goods from the person” to be,
at best, illusory. The Simpson Court’s definition predates the substantial
adoption of the Model Penal Code as our Crimes Code, which did not occur
until 1973. Indeed, “felonious intent” is not used to describe any offenses
defined by our Crimes Code. See generally 18 Pa.C.S. § 302 (General
requirements of culpability). Thus, the Simpson Court’s definition of the
intent element of robbery was superseded by the adoption of the Crimes
Code in 1973. Moreover, we see no reason why, under the current Crimes
Code, the specific intent to steal, when accompanied by the use of force or
the threat of the use of force, would not be sufficient to demonstrate the
mens rea element of robbery under the current statute governing that
offense. The difference between the offense of robbery and theft is not, or is
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no longer, a difference of intent. It is a difference in the manner in which
the intended act is accomplished.
Appellant does draw our attention to Commonwealth v.
Prosdocimo, 578 A.2d 1273 (Pa. 1990), a case that occurred after the
adoption of the Crimes Code. Appellant concedes that Prosdocimo is
adverse to his position, but claims that his case is distinguishable. We agree
that Prosdocimo is adverse to Appellant’s position, but we disagree that his
case is distinguishable.
In Prosdocimo, our Supreme Court reversed the decision of this
Court granting Prosdocimo a new trial because of a “confusing and incorrect
jury instructions on felony-murder and robbery….” Id. at 1274. As our
Supreme Court explained:
The crux of the Superior Court holding is that the trial judge's
instructions interchanged the legal definitions of robbery and
theft in such a way as to confuse the jury and permit the jury to
convict Prosdocimo of felony-murder if he participated in a theft,
whereas the law requires that felony-murder be predicated on
one of several enumerated felonies, including robbery but
excluding theft. The Commonwealth, as appellant, challenges
this holding, claiming instead that the jury instructions were not
incorrect or misleading, and that they were no more complicated
than necessary in view of the complexity of the law of felony-
murder.
Id.
Appellant adopts a similar argument to the one addressed in
Prosdocimo – that the jury may have been permitted to convict Appellant
of second degree murder due to his participation in a theft. However, our
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Supreme Court criticized the Superior Court’s decision in Prosdocimo for
failing to “examine the charge in its entirety.” Id. at 1276. Our Supreme
Court noted that “[t]he trial court instructed the jury four times during its
charge that the underlying felony was robbery and nowhere stated that the
homicide might be felony-murder if it occurred during a theft rather than a
robbery.” Id.
We have the same concern here. Appellant’s evaluation of the trial
court’s jury charge is hypercritical. Although the trial court’s charge could
have been clearer, the court never instructed the jury that it could find
Appellant guilty of second degree murder based upon the commission of a
theft, rather than a robbery. To the contrary, the trial court specifically
instructed the jury that it must find that Appellant committed a robbery to
convict him of second degree murder. Moreover, because we are not
convinced that the court was required to instruct the jury that Appellant
“intended to rob” rather than “intended to steal,” we conclude that
Appellant’s claim lacks arguable merit.
Nevertheless, even if there were arguable merit to Appellant’s claim,
Appellant cannot possibly demonstrate that he was prejudiced by counsel’s
failure to object to the jury charge under the facts of this case. Had the trial
court explicitly instructed the jury that it was required to find that Appellant
intended to rob the victim, we have no doubt that the jury would have
reached the same result. Two eyewitnesses testified that Appellant
demanded that the victim turn over his personal property at gunpoint, that
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Appellant specifically threatened to shoot the victim if he did not comply with
that demand, and that Appellant did, in fact, shoot the victim during the
encounter. It is simply not plausible that the jury’s decision would have
turned on the question of whether Appellant intended to rob the victim
versus whether he merely intended to steal from him. The facts adduced at
Appellant’s trial demonstrate overwhelmingly that Appellant intended to
commit a robbery. Accordingly, we also conclude that Appellant could not
have been prejudiced by trial counsel’s failure to object.
II.
Appellant also claims that trial counsel ineffectively failed to object on
confrontation and/or hearsay grounds to a Commonwealth witness’s
testimony regarding a statement made by Amin Vicks’ identifying Appellant
as the shooter, where Amin Vicks did not testify at Appellant’s trial. We
agree with the PCRA court that this statement should not have been
admitted, as it was inadmissible on both hearsay and confrontation clause
grounds. However, we also agree with the PCRA court that Appellant cannot
demonstrate prejudice because there is no reasonable probability that the
outcome of his trial would have been different had this statement been
excluded.
The PCRA court determined that Amin Vick’s statement was merely
cumulative of the testimony of eyewitnesses Curtis Smith and Ozzie Clark
and, as such, Appellant could not demonstrate outcome-determinative
prejudice. As our Supreme Court noted in Commonwealth v. Chmiel, 889
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A.2d 501, 521 (Pa. 2005), harmless error exists where “the erroneously
admitted evidence was merely cumulative of other untainted evidence which
was substantially similar to the erroneously admitted evidence[.]” Id. at
521 (citing Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998)).
Here, the erroneously admitted statement, which was not itself an extensive
or detailed statement regarding the shooting, was merely cumulative of the
eyewitness accounts of Curtis Smith and Ozzie Clark, both of whom testified
at length at Appellant’s trial to the same information: that Appellant shot the
victim, Kenyatta Smith. Thus, Appellant could not have been significantly
prejudiced by trial counsel’s failure to object.6
III.
Next, Appellant asserts that trial counsel was ineffective for failing to
object to Dr. Collins’ testimony because Dr. Collins did not perform the
autopsy on the victim, nor did he write the autopsy report referenced in his
testimony. Appellant contends this testimony violated his confrontation
clause rights under Crawford v. Washington, 541 U.S. 36 (2004).
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6
Appellant argues that “the Amin Vick identification was the strongest one
presented by the Commonwealth” because it was the only unimpeached
identification of Appellant as the shooter. Appellant’s Brief at 25. Appellant
does not cite to any portion of the record where this statement was
repeated, nor has he identified where in the record the Commonwealth relied
upon this statement. Indeed, our review of the Commonwealth’s closing
argument reveals that Amin Vick was only mentioned once, in passing, and
that the statement in question was never referenced. Accordingly,
Appellant’s characterization that the Amin Vick’s statement was the
strongest evidence against Appellant is simply belied by the record.
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Appellant argues that Dr. Collins provided the Commonwealth’s only
evidence regarding the victim’s cause of death. Furthermore, Appellant
asserts that the medical examiner who did performed the autopsy, Dr.
Gregory McDonald, was not unavailable to testify merely because he had left
the medical examiner’s office to take a faculty position at the Philadelphia
College of Osteopathic Medicine. The PCRA court rejected this IAC claim
because it found that Dr. Collins had come “to [his] own independent
conclusion” with regard to the victim’s cause of death. N.T., 7/9/13, at 4.
In Commonwealth v. McCloud, 322 A.2d 653 (Pa. 1974), the trial
court permitted the Commonwealth to admit “substantial portions of the
written report of the official, salaried medical examiner who performed an
autopsy on the deceased,” where “[t]he medical examiner was not called to
testify [because,] at the time of trial[,] he was attending a convention.” Id.
at 654. Although it recognized the evidence as hearsay, the trial court
allowed the autopsy report to be admitted under the business records
exception to the hearsay rule. Our Supreme Court ultimately granted
McCloud a new trial because “the Commonwealth could have produced the
maker of the autopsy report, but did not. Its failure to do so clearly was
error of constitutional dimension.” Id. at 657.
However, in Commonwealth v. Mitchell, 570 A.2d 532 (Pa. Super.
1990), this Court reached a different result. In that case, a medical
examiner, Dr. Robert Catherman, testified “as to the manner and cause of
the victim’s death.” Id. at 534. However, Dr. Catherman’s testimony “was
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based on autopsy reports prepared by Dr. Kenneth Carpenter, who was
unavailable for trial because he had moved to Germany.” Id. Yet, the
Mitchell Court rejected the appellant’s confrontation clause claim on the
following grounds:
Experts may offer testimony based on the reports of others.
Commonwealth v. Thomas, 444 Pa. 436, 443, 282 A.2d 693,
698 (1971). In homicide cases, pathologists may base their
opinions on facts from autopsy reports prepared by others.
Commonwealth v. Smith, 480 Pa. 524, 391 A.2d 1009 (1978).
The present case is distinguishable from Commonwealth v.
McCloud, 457 Pa. 310, 322 A.2d 653 (1974), cited by appellant.
In McCloud, the Commonwealth read substantial portions of the
autopsy report, including opinions and conclusions, into the
record. The Commonwealth relied on the business records
exception to the hearsay rule. In the present case, Dr.
Catherman did not read any of Dr. Carpenter's opinions or
conclusions. He read only the facts contained in the report,2 and
based his own opinion on those facts. Furthermore, in McCloud,
the medical examiner who prepared the report was away
temporarily attending a convention. The court emphasized the
fact that the Commonwealth could have produced him. In the
present case, the person who prepared the report moved out of
the country, and was not available to testify.
___
2
The facts upon which Dr. Catherman based his report
were merely Dr. Carpenter's observations of the nature
and location of various injuries and results of various tests.
Dr. Catherman drew his own conclusions as to the cause of
these facts.
Mitchell, 570 A.2d at 534.
The facts of the instant case fall between those present in McCloud
and Mitchell. However, after careful consideration, we conclude that the
operative facts in this case are more analogous to those present in Mitchell.
Here, Dr. Collins utilized the facts presented by the autopsy report prepared
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by Dr. McDonald, but arrived at his own opinion regarding the manner of
death. N.T., 9/29/10, at 32. Thus, the jury was presented with an expert
witness who came to his own conclusions based upon the facts presented in
the autopsy report, and Appellant has not demonstrated that Dr. Collins
relied on opinions contained in the report. There is little or no evidence of
record regarding why Dr. McDonald was unavailable, particularly since there
was testimony that Dr. McDonald was teaching at a school in Philadelphia.
While this latter fact is concerning to us, we do not find it dispositive in this
case. Thus, we conclude that Appellant’s claim lacks merit.
In any event, we also conclude that Appellant cannot demonstrate that
he was prejudiced by trial counsel’s failure to object to Dr. Collins’
testimony, even if that testimony should have been excluded. In this case,
there is no serious dispute regarding the manner of the victim’s death, nor,
for that matter, that the victim did, in fact, die. Appellant has not proffered
any evidence or, indeed, any theory, regarding why there would be any
serious doubt regarding the fact that the victim was dead, and/or that he
died from a gunshot wound.7 Indeed, Kenyatta Smith died at the scene of
the shooting, which had been witnessed by both Curtis Smith and Ozzie
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7
Of course, Appellant did not have a burden of offering such evidence or
theories during his trial. However, it is his burden on appeal, and
particularly in an appeal from a collateral proceeding, to prove that the
underlying error and ineffectiveness of counsel resulted in outcome-
determinative prejudice.
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Clark, as detailed above. Furthermore, Police Officer Lisa Conroy testified
that when she arrived at the scene of the crime, in response to a radio call
that was received at 3:19 a.m., medics were already transporting the victim
to Temple Hospital. N.T., 9/28/10, at 85-87. Officer Conroy immediately
went to the hospital to check on the status of the victim. Id. at 85. When
she arrived, she discovered that the victim had been declared dead at 4:04
a.m. Id. at 85-86. Moreover, Officer Conroy was able to identify the victim
by the contents of his wallet. Id. at 88.
Given these circumstances, this is not a case where expert medical
testimony was necessary to prove the manner of death. Indeed, our
Supreme Court has held, as a general proposition, that “medical testimony is
not required to prove the cause of death.” Commonwealth v. Gilman, 401
A.2d 335, 339 (Pa. 1979) (citing Commonwealth v. Ilgenfritz, 353 A.2d
387 (Pa. 1976)). In Gilman, the High Court determined that a witness’s
“testimony that appellant beat decedent with a blunt instrument and the
subsequent discovery of decedent's body are evidence of the cause of
death.” Id. Similarly, in Ilgenfritz, our Supreme Court stated that “[w]hile
it is true, of course, that the Commonwealth must prove causation, like
every element of a crime, beyond a reasonable doubt, it does not follow that
only medical testimony can prove causation.” Ilgenfritz, 353 A.2d at 390.
There is some authority to the contrary. See Commonwealth v.
Baker, 445 A.2d 544 (Pa. Super. 1982) (holding lay coroner’s opinion
insufficient to prove causation of death in the absence of an autopsy where
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the victim had died following a collision with the intoxicated defendant’s
vehicle); however, two factors lead us to reject Baker as controlling
authority in this instance. First, the instant case is factually distinguishable
from Baker because there were eyewitnesses to the shooting of the victim,
whereas no comparable testimony existed in Baker. Second, the Baker
holding, a decision of the Superior Court, did not distinguish itself from our
Supreme Court’s rulings in Gilman and Ilgenfritz, nor even recognize those
decisions as contrary authorities, on the question of whether expert medical
testimony was necessary to prove the manner of death.
Here, there was ample circumstantial evidence for the jury to have
determined, even without the testimony of Dr. Collins, that Kenyatta Smith
died, and that the manner of his death was homicide by gunshot. The facts
of this case regarding the manner and cause of death are not beyond the
comprehension of a lay juror. Consequently, we conclude that Appellant
cannot demonstrate that there is a reasonable probability that the result of
his trial would have been different had trial counsel successfully convinced
the trial court to exclude the testimony of Dr. Collins. As such, Appellant’s
third IAC claim lacks merit.
IV.
Finally, Appellant claims that trial counsel was ineffective for failing to
ask for a Kloiber jury instruction, because the in-court identifications
provided by Curtis Smith and Ozzie Clark were suspect. Both witnesses had
failed to identify Appellant until long after the shooting occurred. Recently,
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our Supreme Court addressed the applicability of Kloiber charges as
follows:
A Kloiber charge is appropriate where there are special
identification concerns: a witness did not have the opportunity to
clearly view the defendant, equivocated in his identification of a
defendant, or had difficulty making an identification in the past.
Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 448 n.
14 (1999); Commonwealth v. Gibson, 547 Pa. 71, 688 A.2d
1152, 1163 (1997). However, “[w]hen the witness already
knows the defendant, this prior familiarity creates an
independent basis for the witness's in-court identification of the
defendant and weakens ineffectiveness claims based on counsel
failure to seek a Kloiber instruction.” Commonwealth v. Ali,
608 Pa. 71, 10 A.3d 282, 303 (2010) (citations omitted).
Commonwealth v. Reid, 99 A.3d 427, 448 (Pa. 2014).
Here, both Curtis Smith and Ozzie Clark testified that they had known
Appellant for many years. The also both testified that the only reason that
they did not come forward sooner to identify Appellant as the shooter was
because both feared reprisals for cooperating with police, not because of any
difficulty in their ability to observe or identify Appellant at the time of the
shooting. Accordingly, there was no basis for a Kloiber charge to be issued
to the jury, and counsel could not have provided IAC for failing to request it.
Having found no merit to any of Appellant’s IAC claims, we affirm the
order of the PCRA court denying Appellant’s PCRA petition.
Order affirmed.
Judge Lazarus joins the memorandum.
Justice Fitzgerald concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2015
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