Com. v. Whitfield, D.

J-S11030-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DERRICK WHITFIELD
Appellant No. 2918 EDA 2014
Appeal from the PCRA Order September 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007859-2008
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MAY 03, 2016
Derrick Whitfield appeals from the order entered September 18, 2014,
in the Court of Common Pleas of Philadelphia County, dismissing, without a
hearing, his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9541 et seq.1 In this timely appeal, Whitfield raises
two issues: (1) trial counsel was ineffective in four ways, and (2) as a result
of the ineffective assistance of counsel, he was effectively denied counsel in
violation of both the United States and Pennsylvania Constitutions. After a
thorough review of the submissions by the parties, relevant law, and the
certified record, we affirm.
____________________________________________
1
This petition was timely filed and there has been no challenge to the
timeliness of the petition. Accordingly we see no need to recite the familiar
timeliness standards of the PCRA.
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In February, 2009, Whitfield was convicted by jury of aggravated
assault and firearms not to be carried without a license. 2 In April, 2009 he
was sentenced to an aggregate term of 8 to 16 years’ incarceration. His
direct appeal afforded him no relief.3 On December 1, 2011, four months
after his judgment of sentence became final, he filed the instant PCRA
petition. Counsel was appointed and an amended PCRA petition was filed in
December 2013. After proper notice, the petition was dismissed in open
court on September 18, 2014. This timely appeal follows.
Whitfield now claims four instances of ineffective assistance of trial
counsel; they are: (1) failure to call Whitfield’s father as an alibi witness, (2)
failure to seek a line-up prior to the preliminary hearing, (3) failure to
challenge the in court identifications prior to trial, and (4) failure to seek a
Kloiber4 charge.
Initially, we note
Our standard of review is limited to examining whether the PCRA
court's findings of fact are supported by the record, and whether
its conclusions of law are free from legal error. Commonwealth
v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010). Our scope of
review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the
party who prevailed in the PCRA court proceeding. Id.____________________________________________
2
18 Pa.C.S. §§ 2702(a) and 6106(a)(1), respectively.
3
See Commonwealth v. Whitfield, 32 A.3d 258 (Pa. Super. 2011)
(unpublished memorandum).
4
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012).
Regarding the claims of ineffective assistance of counsel,
Our standard of review when faced with a claim of ineffective
assistance of counsel is well settled. First, we note that counsel
is presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.
***
A petitioner must show (1) that the underlying claim has
merit; (2) counsel had no reasonable strategic basis for his
or her action or inaction; and (3) but for the errors or
omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different.
The failure to prove any one of the three prongs results in
the failure of petitioner's claim.
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011)
(citations omitted).
Because the facts underlying Whitfield’s conviction are relevant to the
determination of the instant appeal, we quote the facts as related by a panel
of our Court in the direct appeal, Commonwealth v. Whitfield, supra.In February 2009, [Appellant] appeared for trial, pled not guilty,
and elected to be tried by a jury. (N.T. 2/19/2009) at 5-7. The
victim, Edward Schwarz, testified that, on the night of April 25,
2008, he was at a bar with his friends and his girlfriend. Id. at
22-23. Schwarz admitted that he was drunk during the relevant
time period. Id. at 30. Schwarz testified that, during the night,
he and [Appellant] had an argument and afterward he instigated
a fistfight with [Appellant]. Id. at 22-25. Shortly after the
fistfight, Schwarz’s friend Glenn walked him outside to his car.
Id. at 31-32. Schwarz stated that, as he was walking to the car,
he heard somebody say something, turned around and saw
[Appellant] standing about 10-20 feet away from him holding a
gun. Id. at 33-34. Schwarz testified that [Appellant] pointed the
gun at him and Schwarz threw up his hands. [Appellant] started
shooting; Schwarz was struck by the gunfire and fell to the
ground. Id. Schwarz stated that, immediately afterward, his
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friends and his girlfriends ran up to him. Id. at 35-36. An
ambulance arrived and Schwarz was taken to the hospital. Id.
Schwarz further testified that he was in the hospital for three
days and had one surgery. Id. at 36. In particular, Schwarz
stated: “I had an eight-screw plate, in my arm and a bone graft
to fix my arm. I still have to get more surgery on my hand and
my arm and possibly on my knee.” Id. Schwarz asserted that,
since the shooting, he had been in pain every day. Id. at 36.
Medical records were later read into evidence, confirming the
surgery, stating that Schwartz had a total of 14 entry and exit
wounds, and showing that he was wounded in all four limbs.
(N.T. 2/25/2009) at 117-19.
Schwarz asserted that there was no question in his mind that
[Appellant] was the man who shot him. (N.T., 2/19/2009) at 39.
Moreover, Schwarz testified that he had identified [Appellant] as
the shooter at the preliminary hearing. Id. at 38. Defense
counsel cross-examined Schwarz about the lighting conditions,
and Schwarz stated that it was dark but there was sufficient light
to identify his attacker. Id. at 76, 79. Schwarz explained that the
scene was lit by street lights, house lights, and light from a gas
station across the street. Id. at 72, 76, 79, 83.
David Firth, Schwarz’s friend, corroborated Schwarz’s testimony,
stating that he saw [Appellant] standing over Schwarz and
shooting him repeatedly as Schwarz lay on the sidewalk. (N.T.
2/20/2009) at 39. Firth stated that, after shooting Schwarz,
[Appellant] jumped into the driver’s side door of a black four-
door car and drove away. Id. at 39-40. Firth admitted that he
was intoxicated during the shooting and that he had originally
told the police that [Appellant] had gotten in the back seat of the
car and a white female had driven the get-away car. Id. at 40-
46.
Maria Cardenas-Spicer was in the bar with a friend on the night
of the shooting. Id. at 140. Spicer stated that she saw
[Appellant] in the bar and spoke with him while smoking outside
the bar. Id. at 142. Spicer testified that, later in the evening, she
was smoking outside the bar with her friend when she heard
loud pops. Id. at 144-45. Spicer looked down the street and saw
[Appellant] shooting Schwarz. Id. Spicer further testified that,
after the shooting, [Appellant] got into the driver’s side door of a
black car and drove away. Id. at 146-47. Spicer asserted that
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the license plate number on the car containing [Appellant] was
GPG2327. Id. at 147-48.
Kevin Clayton provided further corroboration testimony. (N.T.
2/23/2009. p. 39)[.] Clayton confirmed that [Appellant] was the
man who shot the defendant [sic] and that [Appellant] escaped
by getting in the driver’s side door of a black Maxima with the
license plate number GPG2327. Id. 47-54. Clayton further
testified that, after the shooting, he called the police and gave
them the license plate number of the getaway car. Id. at 51.
Between 30 and 40 minutes later the police asked him to look at
a car they had stopped several blocks away. Id. at 53-55.
Clayton asserted that the car the police showed him was the
getaway car. Id. Clayton further testified that the car was being
driven by a man who was not [Appellant] and that the passenger
was a girl he thought he might have seen in the bar. Id. at 54.
Furthermore, Clayton stated that he later picked [Appellant]’s
photograph out of an array. Id. at 61.
Police officer Joseph Corrigan testified that he was informed of
the shooting over the police radio and told that a vehicle with
plate number GPG2327 was involved. (N.T. 2/25/2009 pp 38,
48). Around 2 AM on April 26, Detective Kelly stopped a black
Chevrolet Malibu car with license plate number GPG2327. Id. at
43. Officer Corrigan stated that Derrick Whitfield Sr.-
[Appellant]’s father- was driving the car and that Regina
Whitfield was in the passenger seat. Id. [at] 48. Officer Corrigan
further asserted that the car and its passengers were shown to a
number of witnesses to the shooting and none of these
witnesses identified Derrick Whitfield Sr. as the shooter. Id. at
50. Furthermore, Officer Corrigan testified that Derrick Whitfield
Sr. was the owner of the Black Malibu and the [sic] he lived at
4511 Aberdale in Philadelphia where the car was registered. Id.
at 65-66. A search warrant was executed on a vehicle with the
license plate number GPG2327. (N.T. 2/23/2009 p 154). No gun
was found. Id. at 153-54. Detective Brian Kelly testified,
however, that a search warrant was also executed for 4511
Aberdale. Id. at 139. This search recovered mail sent to
[Appellant] at that address.
Commonwealth v. Whitfield, supra, at 2-5.
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Whitfield first argues trial counsel was ineffective for failing to call his
father to testify that Whitfield returned to his father’s home immediately
after the fight in the bar, and that Whitfield’s father subsequently left the
house to pick up Whitfield’s wife, who was apparently walking home from
the bar on her own. Without addressing the substance of this claim, we note
that during trial, Whitfield was duly sworn and participated in an oral
colloquy regarding whether he wanted to testify on his own behalf or wanted
to present any other witnesses on his behalf. Whitfield asserted he had
discussed the presentation of evidence with his counsel and did not want to
present any witnesses. See N.T. Trial 2/25/2009, at 89-92. Accordingly, he
cannot now argue counsel was ineffective for failing to call a witness. See
Commonwealth v. Muhammad, 794 A.2d 378, 384 (defendant cannot
contradict statements made under oath during colloquy).5 Further, we note
that the Commonwealth attempted to subpoena Whitfield, Sr., but Whitfield
objected, claiming any testimony from his father would be irrelevant. Id. at
9. Having objected to having his father testify at trial, as well as confirming
he was not going to present any witnesses on his behalf, the instant claim
____________________________________________
5
Muhammad addressed statements made under oath during a guilty plea
colloquy. Instantly, Whitfield was also under oath when he was under
colloquy regarding presentation of witnesses. We see no reason why a
defendant, under oath, should not be bound by his or her statements in that
circumstance. Accordingly, we believe Muhammad is applicable to this
matter.
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that counsel was ineffective for failing to call Whitfield’s father as a witness
is clearly frivolous.
Whitfield’s next three arguments all address different aspects of his
identification. First, he claims trial counsel was ineffective for failing to
request a line-up prior to the preliminary hearing. The PCRA court found
that the counsel’s failure to request a pre-trial line-up was “reasonable under
the law and facts of this case.” See Trial Court Opinion, 7/21/2015, at 8-9.
The PCRA court noted there is no constitutional right to line-up. See
Commonwealth v. Edwards, 762 A.2d 382, 391 (Pa. Super. 2000).
Further, the totality of the circumstances, including multiple identifications
from independent witnesses, who all claimed they had ample opportunity to
view Whitfield either in the bar, or in the act of shooting Schwarz and fleeing
in Whitfield’s father’s car, as well as testifying as to the sufficiency of
ambient light outside at the shooting scene led to a strong indicia of
reliability of the identification of Whitfield without a line-up. Id. (applying
totality of circumstances analysis to determine prejudice for lack of line-up).
Next, Whitfield claims trial counsel was ineffective for failing to file a
motion to suppress the pre-trial identifications by the witnesses. Whitfield
argues because the witnesses collectively identified the get-away vehicle,
and were collectively transported to the police station and waited to be
interviewed in the same room, the identification process was subject to
impermissible taint. This claim is unavailing.
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The PCRA court noted that the witnesses were interviewed separately
and independently identified Whitfield from the photo array. Moreover, all
the witnesses testified they did not discuss the identity of the assailant while
being transported or while awaiting interview. Even though the witnesses
may have identified the vehicle in the presence of each other, that fact alone
does not render the identification improper. See Commonwealth v. Moye,
836 A.2d 973, 976 (Pa. Super. 2003) (absent some special element of
unfairness, instantly similar identification process not tainted). 6 The lack of
taint regarding the identification of the vehicle is further supported by the
fact that two witnesses, before they knew who the assailant was, gave the
license plate number of the get-away vehicle to the police and that license
plate belonged to Whitfield’s father.
In light of the above, the PCRA court determined trial counsel was not
ineffective for failing to litigate an unsupportable motion. Our review
confirms that determination. See Commonwealth v. Fears, 86 A.3d 795,
811 (Pa. 2014) (counsel cannot be deemed ineffective for failing to raise an
unsupportable issue).
Whitfield’s final claim of ineffective assistance of counsel is that trial
counsel failed to request a Kloiber charge. The PCRA Court properly noted
____________________________________________
6
We are aware that Moye involves the identification of the defendant,
rather than a vehicle. However, we see no reason why the standard would
change due to that fact.
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that 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.’” PCRA Court Opinion, 7/21/15, at 10,
citing Commonwealth v. Reid, 99 A.3d 427, 448 (Pa. Super. 2014)
(interior quotation marks omitted). In response to Whitfield’s claim, the
PCRA court stated:
Here, a Kloiber charge was not warranted. No witness
failed to identify [Whitfield] prior to trial and all were in positions
to clearly observe him during the incident. Maria Cardenas-
Spicer spoke with [Whitfield] outside of the bar before the
shooting and knew him by name.[7] Kevin Clayton bumped into
[Whitfield] inside the bar and saw him outside from thirty feet
away with an unobstructed view. Edward Schwarz recognized
[Whitfield] from the fight inside the bar and testified he saw
[Whitfield] clearly when he stood over him and shot him multiple
times.
All three witnesses unequivocally identified [Whitfield] as
the shooter. All three recognized him from prior interactions
that evening. A Kloiber charge would not have been granted.
PCRA Court Opinion, 7/21/2016, at 11.
The certified record supports the PCRA court’s determinations and we
find no error or abuse of discretion therein. Accordingly, trial counsel cannot
have been ineffective for failing to raise a non-meritorious issue. See
Commonwealth v. Fears, supra.
____________________________________________
7
To clarify, although Cardenas-Spicer and Whitfield met for the first time
that night, the evidence showed they spent enough time together that
evening for Cardenas-Spicer to learn Whitfield’s name.
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Finally, Whitfield argues that in light of the errors committed by trial
counsel, he was effectively abandoned by counsel during his trial. This is
essentially a claim of cumulative error. This claim warrants no relief.
We have held that no number of failed ineffectiveness claims
may warrant relief collectively if they fail to do so individually.
Commonwealth v. Elliott, 622 Pa. 236, 80 A.3d 415, 450
(2013). As we have found no merit to any individual claim of
ineffectiveness, there is no prejudice for this Court to consider in
the aggregate.
Commonwealth v. Staton, 120 A.3d 272, 295 (Pa. 2015).
Accordingly, Whitfield’s final claim also fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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