Com. v. Myatt, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KYLIL MYATT
Appellant No. 3568 EDA 2013
Appeal from the PCRA Order November 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002114-2008
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 14, 2014
Kylil Myatt appeals from an order dated November 13, 2013 dismissing
his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §
9541, et seq., without a hearing. We affirm.
A jury found Myatt guilty of second degree murder1, robbery2 and
conspiracy3. The trial court sentenced him to life imprisonment for second
degree murder with concurrent terms of 10-20 years’ imprisonment for
robbery and conspiracy, respectively. This Court affirmed Myatt’s judgment
of sentence, and the Supreme Court denied his petition for allowance of
appeal.
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1
18 Pa.C.S. § 2502.
2
18 Pa.C.S. § 3701.
3
18 Pa.C.S. § 903.
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Myatt filed a timely PCRA petition. The trial court appointed counsel,
who filed a Finley/Turner letter4 explaining that there were no meritorious
issues and requesting leave to withdraw as counsel. On September 16,
2013, the trial court issued a notice of intent to dismiss the PCRA petition
without a hearing in twenty days. On November 13, 2013, the trial court
entered an order dismissing the PCRA petition and granting counsel leave to
withdraw. Thereafter, Myatt proceeded pro se.
On December 10, 2013, Myatt filed a timely notice of appeal to this
Court. Both Myatt and the trial court complied with Pa.R.A.P. 1925.
The trial court accurately summarized the evidence adduced during
trial as follows:
The salient findings are that Myatt gave a statement
to Gregory Gross, a civilian, that he had witnessed
the shooting of Troy Moore. Id. at 85. Mr. Gross
called a friend of his, Philadelphia Police Officer Tony
Jones, who arrived in full uniform. Id. Myatt told
Officer Jones that he, his cousin Khalil Myatt a/k/a
Yanni, and James Felder a/k/a Sonny had planned to
rob the decedent and that Yanni had done the
shooting. N.T. MOTION (1/6/09) at 86. At this time,
Myatt was standing outside, was not in police
custody, and was not forced in any way to give a
statement. Id. Thereafter, Myatt was taken to the
police homicide unit where he was given his Miranda
rights, an opportunity to use the restroom, eat,
drink, and produced a signed six-page statement. Id.
at 87-88.
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4
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).
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The testimony at trial was that on September 25,
2007 at approximately 1:00 a.m., Sonny and Yanni
approached Myatt and asked him to take a walk with
them. N.T. TRIAL (1/7/09) at 84. Shortly thereafter,
Myatt, Sonny, and Yanni approached the home of
Troy Moore (‘Moore’) at 6013 Baltimore Ave.
Philadelphia, PA. Id. at 85. After a couple of minutes,
Moore rode up on his motorcycle and Yanni pulled
out a gun and starting shooting at Moore. Id. As
soon as the shooting started, everyone fled in
separate directions. Id. Nothing was taken from the
victim. Id. Asa Webster, a neighbor, heard the
gunshots and ran to assist Moore until the police
arrived. Id. at 60-62. Police officers arrived at 2:07
a.m. and found Moore lying on the ground suffering
from multiple gunshot wounds. N.T. TRIAL (1/7/09)
at 57. He was taken to University Hospital where he
later died. Id. The police secured the area and found
seven .357 caliber cartridge casings, which were
analyzed by a ballistics expert and found to exhibit
similar firing characteristics. Id. at 37-43.
According to Myatt's confession, he knew Yanni and
Sonny were planning to rob Moore. N.T. TRIAL
(1/7/09) at 85. About a week earlier, Yanni and
Sonny were joking about robbing Moore, but Myatt
did not take them seriously because they were
intoxicated at the time. Id. at 86-87. As they
approached Moore's home, Myatt beg[a]n to suspect
the robbery was about to take place. Id. at 86. Myatt
thought about the conversation Yanni and Sonny had
earlier about Moore and knew the robbery was about
to take place. Id. at 87. Myatt stated in his
confession, ‘when we stopped at Troy's house, I
knew that it was going to be a robbery.’ Id. at 86.
Dr. Gregory McDonald performed Moore's autopsy,
which confirmed that he had died on October 8,
2007 at 3:15 a.m. due to complications from four
bullets recovered from Moore's abdomen. N.T. TRIAL
(1/7/09) at 12-15. His cause of death was multiple
gunshot wounds and the manner was ruled
homicide. Id. at 15.
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Trial Court Opinion, pp. 3-4.
Myatt raises the following issues in his Pa.R.A.P. 1925(b) statement:
1. The trial court erred by allowing photographs to
come into evidence when the prosecution witness did
not know the source.
2. Trial counsel was ineffective for not requesting a
jury instruction per Pa.R.Crim.P. 647(a) or objecting
per Rule 647(b) when definitions for critical legal
terms were never given.
3. Trial counsel was ineffective by not calling a
reciprocal expert ballistics witness to testify.
4. Trial counsel was ineffective for allowing a
testimonial statement into evidence without
confrontation of the person who made the
statement. A statement originally made by P.O.
Clyde Frasier was presented by Louis Grandizio.
5. Trial counsel was ineffective for not compelling the
Court to provide all transcripts in accordance with
Pa.R.A.P 1922.
6. Trial counsel was ineffective for not demanding
that the trial court comply with 1931(b). The court
reporter failed in his/her duty to lodge a correctable
set of transcripts with the Clerk of Courts.
7. The trial court erred by not allowing eyewitnesses
to testify at trial about events surrounding this case.
8. Trial and appellate counsel's many errors should
be considered cumulatively.
9. Trial and appellate counsel provided ineffective
assistance of counsel in violation of the United States
and Pennsylvania Constitutions.
10. Trial counsel was ineffective for not requesting a
bill of particulars pursuant to Pa.R.Crim.P. 572.
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11. Trial counsel was ineffective for not filing a
motion for discovery pursuant to Pa.R.Crim.P. 573.
12. Trial counsel was ineffective for overstepping his
authority by agreeing to stipulations at trial.
We will re-order discussion of these issues for ease of disposition.
We first address Myatt’s argument that the trial court erred by
allowing unauthenticated photographs into evidence depicting him on the
night of his arrest5. Myatt waived this claim by failing to raise it in his PCRA
petition. See, e.g., Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.
2004) (claim not raised in a PCRA petition cannot be raised for the first time
on appeal); Commonwealth v. Albrecht, 720 A.2d 693, 706 (Pa. 1998)
("[defendant's] claims were not raised in the amended PCRA petition, and
are therefore waived" on appeal).
Even if Myatt preserved this issue for appeal, it lacks merit. The
Commonwealth properly introduced the photographs pursuant to a
stipulation by and between counsel. Even if counsel had not agreed to such
a stipulation, the Commonwealth presented sufficient evidence to establish
the photographs’ authenticity. To introduce a photograph at trial, the
proponent must demonstrate that the photograph "is what it purports to be."
Commonwealth v. Koch, 39 A.3d 996, 1002 (Pa. Super. 2011). A
photograph may be authenticated where a witness who is "familiar with the
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5
Pa.R.A.P. 1925(b) statement, Issue 1; Brief For Appellant, p. 5.
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items photographed" testifies "that they are accurately depicted therein."
Commonwealth v. Wiltrout, 457 A.2d 520, 523 (Pa. Super. 1983); accord
Pa.R.E. 901(b)(1).
Here, the Commonwealth introduced photographs depicting Myatt at
police headquarters on the day that he gave his statement. N.T. 1/7/09, pp.
103-06. In order to authentic those photographs, the Commonwealth
presented Detective Joseph Bamberski, who had interviewed defendant and
taken his statement only hours before defendant was photographed. When
asked whether the photographs "fairly and accurately depict[ed]" defendant
on the night he gave his statement, Detective Bamberski stated: "Yes." N.T.
1/7/09, p. 93. The fact that he was not "sure" specifically who took the
photographs, more than one year after the incident, goes to the weight of
his testimony, not the admissibility of the photographs, and is therefore
irrelevant to defendant's claim. N.T. 1/7/09, p. 104. Accordingly, the trial
court properly permitted the Commonwealth to introduce the photographs,
because Detective Bamberski's testimony was sufficient to establish their
authenticity. Commonwealth v. Nauman, 498 A.2d 913, 914 (Pa. Super.
1985) (court properly admitted victim’s photograph where Commonwealth
presented evidence that her appearance in the photograph "was the same as
it was on the day" of the crime); see also Commonwealth v. Reid, 811
A.2d 530, 552 (Pa. 2002) (Commonwealth adequately authenticated
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photograph through witness’ testimony that it depicted the gun she had
identified to police).
In a related argument6, Myatt contends that trial counsel was
ineffective for stipulating to the admission of the photographs. To prove
ineffective assistance of counsel under the PCRA, the petitioner must prove
that: (1) the underlying issue is of arguable merit; (2) counsel's actions
lacked an objective reasonable basis; and (3) the petitioner suffered
prejudice by counsel's act or omission. Commonwealth v. Koehler, 36
A.3d 121, 132 (Pa. 2012). For a claim to have arguable merit, a petitioner
must prove "that the underlying legal claim has arguable merit."
Commonwealth v. Steele, 961 A.2d 786, 821 (Pa. 2008). With regard to
prejudice, the petitioner must demonstrate that “there is a reasonable
probability that, but for counsel's error or omission, the result of the
proceeding would have been different." Koehler, 36 A.2d at 132. The
failure to prove any prong of this test causes the entire ineffective assistance
claim to fail. Id. at 132. Furthermore, counsel is presumed to be effective;
the petitioner has the burden of proving otherwise. Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008).
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6
Pa.R.A.P. 1925(b) statement, Issue 12; Brief For Appellant, p. 5.
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Here, as discussed above, the evidence demonstrates that the
photographs were properly authenticated. Thus, Myatt’s claim of
ineffectiveness lacks arguable merit.
Defendant next argues that counsel was ineffective for not asking the
trial court to define the terms "intentionally" and "knowingly" for the jury7.
This claim lacks arguable merit. A trial court has broad discretion in
phrasing its jury instructions "so long as the law is clearly, adequately, and
accurately set forth." Commonwealth v. Rizzuto, 777 A.2d 1069, 1088
(Pa. 2001), abrogated on other grounds, Commonwealth v. Freeman,
827 A.2d 385 (Pa. 2003). When considering a challenge to the propriety of
a jury instruction, an appellate court reviews the instruction in its entirety
and "not simply isolated portions." Commonwealth v. Charleston, 94 A.3d
1012, 1021 (Pa. Super. 2014).
The trial court’s reference to “intent” was proper. The court stated
that first degree murder requires “intent to kill” but then explained that
Myatt was not charged with first degree murder. N.T. 1/7/09, p. 7. The
court did not define intent further because it would have been improper to
do so. Myatt was only charged with second and third degree murder,
neither of which requires specific intent to kill. The court only made passing
____________________________________________
7
Pa.R.A.P. 1925(b) statement, Issue 2; Brief For Appellant, p. 5.
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mention of first degree murder and intent to demonstrate what was not at
issue in this case.
The court’s reference to “knowingly’”, which occurred during the
court’s charge on third degree murder, was proper as well. Third-degree
murder occurs when a person commits a killing which is neither intentional
nor committed during the perpetration of a felony, but contains the requisite
malice. Commonwealth v. Morris, 958 A.2d 569, 576 (Pa. Super. 2008).
“Malice is not merely ill will but, rather, wickedness of disposition, hardness
of heart, recklessness of consequences, and a mind regardless of social
duty.” Id. To prove malice, “it must be shown that the defendant
consciously disregarded an unjustified and extremely high risk that his
actions might cause death or serious bodily harm.” Commonwealth v.
Kling, 731 A.2d 145, 148 (Pa. Super. 1999). The trial court gave the
following instruction for third degree murder:
Killing is with malice if the perpetrator's actions show
that his wanton or willful disregard of an unjustified
or extremely high risk that his conduct would result
in death or serious bodily injury to another. In this
form of malice, the Commonwealth need not prove
that the perpetrator specifically intended to kill
another. The Commonwealth must prove, however,
that he took action while consciously, that is,
knowingly disregarding the most high risk he was
creating and that by his disregard of that risk, he
demonstrated his extreme indifference to the value
of human life.
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N.T. 1/9/09, pp. 8, 13-14. The court equated “knowingly” with
“consciously”, a term frequently employed in judicial definitions of malice,
Kling, supra, and the court properly used “consciously” to convey the
essence of malice, i.e., conscious disregard of an extreme risk that the
actions in question might cause death or serious bodily harm. Thus, the use
of “knowingly” does not provide Myatt with any basis for relief.
Commonwealth v. Fisher, 813 A.2d 761, 770 (Pa. 2002) (counsel not
ineffective for failing to object to jury instruction that clearly and accurately
stated the law).
Myatt next argues that trial counsel was ineffective for not presenting
a reciprocal ballistics expert to discredit the testimony of the
Commonwealth’s ballistics expert, Officer Louis Grandizio8. The trial court
properly rejected this claim because Myatt failed to show that such a witness
existed or that he was prejudiced by the witness' absence.
To prevail on a claim that counsel failed to obtain an expert, "the
defendant must articulate what evidence was available and identify the
witness who was willing to offer such evidence." Commonwealth v.
Bryant, 855 A.2d 726, 745 (Pa. 2004); Commonwealth v. Luster, 71
A.3d 1029, 1047 (Pa. Super. 2013). The defendant must also demonstrate
that the witness' proposed testimony "was necessary in order to avoid
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8
Pa.R.A.P. 1925(b) statement, Issue 3; Brief For Appellant, p. 6.
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prejudice" to him. Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa.
2012). Here, defendant failed to even identify his expert witness or provide
an affidavit that this expert was available to testify on his behalf. This,
alone, is fatal to his claim. Without evidence of an available witness, the
PCRA court had no reason to believe that any expert would have testified in
the manner that defendant wishes. Commonwealth v. Keaton, 45 A.3d
1050, 1071 (Pa. 2012) (rejecting bald assertion that counsel should have
hired an expert witness); Luster, supra, 71 A.3d at 1047 (counsel not
ineffective for not presenting expert witness where Luster "failed to identify
any forensics expert who would have provided [the desired] testimony").
Even if an expert witness existed, Myatt failed to prove that his proposed
testimony would have helped his case. According to Myatt, a ballistics
expert could have testified to an alternative method for determining a
bullet's caliber, "which may have revealed" that the bullets recovered from
the crime scene were fired from more than one gun. PCRA Petition, p. 6.
However, the identity of the shooter was not at issue in this case, for as the
PCRA court explained, Myatt could have "just as easily been present at the
scene while two people shot and killed the victim." Trial Court Opinion, p.
10.
Furthermore, Myatt fails to establish prejudice, since his PCRA petition
merely asserts in boilerplate fashion that expert testimony "could have
changed the outcome of the trial.” Commonwealth v. Paddy, 15 A.3d
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431, 444 (Pa. 2011) (boilerplate allegations and bald assertions of prejudice
cannot satisfy petitioner's burden).
Finally, even if Myatt had discredited Officer Grandizio's testimony, the
verdict would have remained the same because the evidence against Myatt
was overwhelming. The victim obviously died due to gunshot wounds and
not of natural causes. Myatt confessed that he attempted to rob the victim,
and that his co-conspirator shot and killed the victim during the robbery.
Myatt also admitted that he and his cohorts had been planning the robbery
for two weeks. After telling the victim's family, Myatt repeated his
confession to Officer Anthony Jones and gave a signed statement to police.
N.T. 1/6/09, pp. 137-45, 166-77, 206-13; N.T. 1/7/09, pp. 82-91. See
Commonwealth v. Philistin, 53 A.3d 1, 32 (Pa. 2012) (rejecting
ineffectiveness claim where defendant could not prove that jury would have
acquitted him, where evidence against him was overwhelming).
Next, Myatt argues that counsel was ineffective for permitting Officer
Grandizio to testify to a property receipt prepared by Officer Clyde Frasier in
violation of the Confrontation Clause9. Myatt waived this claim by failing to
discuss in his brief why counsel's actions lacked a reasonable basis or how
he suffered prejudice from this alleged error. Commonwealth v. Rykard,
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9
Pa.R.A.P. 1925(b) Statement, Issue 4; Brief For Appellant, pp. 6-7.
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55 A.3d 1177, 1190 (Pa. Super. 2012) (appellant waived issue by neglecting
to present appropriate argument and citation on appeal).
In any event, this claim lacks arguable merit. The Confrontation
Clause entitles a defendant to confront witnesses who testify against him.
Commonwealth v. Yohe, 79 A.3d 520, 531 (Pa. 2013). An out-of-court
statement may nevertheless be admitted where the declarant is unavailable
or the defendant had a prior opportunity to cross-examine him.
Commonwealth v. Mollett, 5 A.3d 291, 307 (Pa. Super. 2010).
There was no Confrontation Clause error here because Officer Frasier
in fact testified at trial about the location and collection of the ballistics
evidence. He explained that he recovered seven fired cartridge casings from
the crime scene and had documented that information on a property receipt.
N.T. 1/7/09, pp. 19-34. Since Myatt had ample opportunity to cross-
examine Officer Frasier regarding that property receipt, no basis existed for
a Confrontation Clause objection. Commonwealth v. Fears, 86 A.3d 795,
804 (Pa.2014) ("counsel cannot be deemed ineffective for failing to raise a
meritless claim"); see also Crawford v. Washington, 541 U.S. 36, 60
(2004) ("when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior
testimonial statements").
Myatt next argues that trial counsel was ineffective for failing to
compel the court reporter to file all transcripts or to ensure that the reporter
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properly prepared them10. Myatt is incorrect. The court reporter provided
the transcript to defense counsel, Trial Court opinion, p. 11, and the trial
court cited to the transcript in its opinion. Myatt also seems to argue that
the trial court failed to ensure that the transcript was accurate. We find no
prejudice, since Myatt fails to pinpoint a single error in the transcript or any
harm resulting therefrom.
Myatt contends that the trial court erred by not permitting alleged
eyewitnesses Latoya Brown and Rolanda Danyelle Tucker to testify at trial 11.
Brief for Appellant, p. 10. Myatt waived this claim by failing to present it in
his PCRA petition. Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.
2004) (claim not raised in PCRA petition cannot be raised for the first time
on appeal). Moreover, this claim lacks merit. Myatt contends that these
eyewitnesses exonerate him because they failed to identify him as a
perpetrator. As explained above, however, Myatt twice admitted to
participating in the robbery, once to the victim’s family and again to police in
a signed statement. Given his damning confessions, the eyewitnesses’
failure to identify him is of no moment.
Myatt contends that trial counsel was ineffective for failing to request a
bill of particulars12 or seek discovery13. These claims lack arguable merit.
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10
Pa.R.A.P. 1925(b) Statement, Issues 5-6; Brief For Appellant, p. 7.
11
Pa.R.A.P. 1925(b) Statement, Issue 7; Brief For Appellant, p. 10.
12
Pa.R.A.P. 1925(b) Statement, Issue 10; Brief For Appellant, p. 8.
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"The purpose of a bill of particulars is to give notice to the defendant
of the nature of offenses charged so that he may prepare a proper defense
and avoid surprise." Commonwealth v. Judd, 897 A.2d 1224, 1230 (Pa.
Super. 2006). To request a bill of particulars, a defendant must specify the
information sought and explain why it is being requested. Pa.R.Crim.P. 572.
Myatt fails to specify what information counsel should have requested
in the bill of particulars, how this information would have assisted his
defense, or how the absence of this information prejudiced him. Nor does
Myatt explain what discovery counsel should have demanded or how the
absence of discovery prejudiced him. Courts do not presume prejudice from
the absence of discovery. Commonwealth v. Manhart, 503 A.2d 986, 990
(Pa. Super. 1986) (defendant must show prejudice arising from counsel’s
failure to request discovery).
Finally, Myatt argues that the cumulative effect of the foregoing errors
entitles him to relief14 and adds a boilerplate claim of global ineffective
assistance15. Since we conclude that there were no errors, these claims fail.
Order denying PCRA relief affirmed.
_______________________
(Footnote Continued)
13
Pa.R.A.P. 1925(b) Statement, Issue 11; Brief For Appellant, p. 9.
14
Pa.R.A.P. 1925(b) Statement, Issue 8; Brief For Appellant, p. 8.
15
Pa.R.A.P. 1925(b) Statement, Issue 9; Brief For Appellant, p. 8.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2014
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