Com. v. Crawford, A.

J-S39017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY CRAWFORD :
:
Appellant : No. 2041 EDA 2019
Appeal from the PCRA Order Entered June 24, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-7359-2014
BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 28, 2020
Appellant, Anthony Crawford, appeals from the order entered on June
24, 2019, dismissing his first petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
We briefly summarize this case as follows. On June 3, 2015, a jury
convicted Appellant of aggravated assault, possession of an instrument of
crime (PIC), carrying a firearm without a license, and recklessly endangering
another person (REAP).1 On August 25, 2015, the trial court imposed an
aggregate sentence of 11 to 22 years of imprisonment. This Court affirmed
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a), 907, 6106(a), and 2705, respectively.
J-S39017-20
Appellant’s judgment of sentence on January 12, 2017.2 On July 25, 2017,
the Pennsylvania Supreme Court denied further review. Commonwealth v.
Crawford, 169 A.3d 1063 (Pa. 2017). Appellant filed a timely PCRA petition
on July 24, 2018, raising eight claims of ineffective assistance of counsel. The
PCRA court held an evidentiary hearing on May 17, 2019.3 On June 24, 2019,
the PCRA court entered an order, and accompanying opinion, denying
Appellant relief. This timely appeal resulted.4
On appeal, Appellant presents the following issues5 for our review:
____________________________________________
2 We provide a more detailed factual recitation of the facts in our decision
affirming Appellant’s judgment of sentence. See Commonwealth v.
Crawford, 2017 WL 121078 (Pa. Super. 2017) (unpublished memorandum).
3 The evidentiary hearing was limited to two issues as presented in the PCRA
petition. Neither of those issues are implicated currently in this appeal. Both
of Appellant’s current claims were dismissed without an evidentiary hearing.
4 Appellant filed a notice of appeal on July 16, 2019. On October 29, 2019,
the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) adopting its
prior June 24, 2019 decision.
5 As mentioned, Appellant initially raised eight issues before the PCRA court,
but on appeal only presents two issues for our review. Appellant has
abandoned the other six issues presented below and, therefore, we find them
waived. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(citation omitted) (“[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is waived.”); see
also Commonwealth v. Heggins, 809 A.2d 908, 912 (Pa. Super. 2002) (an
issue identified on appeal but not developed in the appellant's brief is
abandoned and, therefore, waived); see also Pa.R.A.P. 2119(a) (argument
section of appellate brief shall contain discussion of issues raised therein and
citation to pertinent legal authorities). With regard to the remaining two
issues presented on appeal, we have reordered them for ease of discussion.
-2-
J-S39017-20
1. Did the [PCRA] court abuse its discretion in denying [Appellant]
relief on his claim that prior appellate counsel was ineffective
for failing to raise the trial court’s error in declining to give a
[jury] instruction [pursuant to Commonwealth v. Kloiber,
106 A.2d 820 (Pa. 1954)]?
2. Did the [PCRA] court abuse its discretion when it dismissed,
without a hearing, [Appellant’s] claim that [trial] counsel was
ineffective for failing to object to speculative testimony that
violated the best evidence rule?
Appellant’s Brief at 2.
Appellant alleges that trial and direct appeal counsel were
ineffective. Our standard of review is as follows:
Our standard of review from the denial of post-conviction relief is
limited to examining whether the PCRA court's determination is
supported by the evidence of record and whether it is free of legal
error.
* * *
A PCRA petitioner will only prevail on a claim that trial counsel was
ineffective through pleading and proving each of the following: (1)
the underlying legal claim is of arguable merit; (2) counsel's action
or inaction lacked any objectively reasonable basis designed to
effectuate his client's interest; and (3) prejudice, to the effect that
there was a reasonable probability of a different outcome if not
for counsel's error. A failure to plead or prove any prong will
defeat an ineffectiveness claim. Further:
A PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the ineffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place.
Counsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant. Additionally,
counsel is not ineffective for failing to raise a claim that is devoid
of merit.
-3-
J-S39017-20
Commonwealth v. Ligon, 206 A.3d 515, 518–519 (Pa. Super. 2019)
(internal citations, quotations, and brackets omitted).
Moreover,
claims may be cognizable as claims of appellate counsel's
ineffectiveness, so long as appellant has “layered” the claims to
account for both levels of prior representation. Regarding layered
claims, [our Supreme] Court has required appellants to
demonstrate not only that guilt phase counsel was ineffective[,]
but that appellate counsel also was ineffective.
Furthermore, [appellate courts] are not required to analyze the
elements of an ineffectiveness claim in any order; if a claim fails
under any element [,] we may proceed to that element first. In
addition, [the reviewing court] may begin by assessing the merits
of a defaulted underlying claim because, if the claim is deemed
meritless, neither trial nor appellate counsel could be found
ineffective.
Commonwealth v. Rivera, 199 A.3d 365, 374 (Pa. 2018) (internal citations
omitted).
In the first issue we examine, Appellant contends that the PCRA court
erred by denying relief on his claim that “appellate counsel was ineffective for
failing to raise [the] trial court’s failure to give” a jury instruction pursuant to
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). Appellant’s Brief at
21. Appellant claims that “[t]he record reflects that the [trial] witnesses gave
qualified identifications based upon third party information received between
the event and giving their statements to law enforcement.” Id. at 10. More
specifically, Appellant claims that the victim could not recall who shot him,
failed to pick a suspect from a police photo array, conceded that there were
other people near Appellant despite previously presuming he was standing
-4-
J-S39017-20
alone, and relied upon information from others after the incident. Id. at 22-
23. Appellant argues that the PCRA court further erred when it stated that
the victim did not want to pick Appellant out of a photo array. Instead,
Appellant asserts that the record shows that the victim was unable to identify
the person who shot him. Id. at 23. Similarly, Appellant claims that Regina
Fields, a testifying witness, “did not identify [Appellant] as the shooter in her
statement to law enforcement, or even provide a description of him” and she
admitted that she was given Appellant’s name and social media information
by another bystander. Id. at 24.
In Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), our
Supreme Court found:
[W]here 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 more prior occasions, the
accuracy of the identification is so doubtful that the [c]ourt should
warn the jury that the testimony as to identity must be received
with caution.
Kloiber, 106 A.2d at 826–827.
Our Supreme Court has stated:
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. Reid, 99 A.3d 427, 448 (Pa. 2014) (internal citation
omitted). “A Kloiber instruction is not required” when the instruction request
“relate[s] to the credibility of the eyewitness testimony, not to the actual
-5-
J-S39017-20
physical ability of the witnesses to observe.” Commonwealth v. Paolello,
665 A.2d 439, 455 (Pa. 1995).
Here, the PCRA court determined “[t]here was no indication that the
witnesses[’] view of the perpetrator was impaired in any fashion.” PCRA Court
Opinion, 6/24/2019, at 6. The PCRA court noted that the victim did “not
want[] to pick out [Appellant] in a photo array, [but] he knew who did not
shoot him.” Id. The PCRA court also determined that Regina Fields, and her
husband, Jameel6 Fields, “both clearly saw [Appellant] and previously
identified him as the shooter.” Id.We agree with the PCRA court’s assessment. As this Court stated on
direct appeal, “at trial, three eyewitnesses, Jameel Fields, Denise Gardner,
and Regina Fields, identified Appellant as the shooter.” Commonwealth v.
Crawford, 2017 WL 121078, at *5 and *6 (Pa. Super. 2017), citing N.T.,
6/2/2015, at 61, 106, and 149. Initially, we note that Denise Gardner
identified Appellant and testified unequivocally that he was the shooter. She
identified Appellant from a police photo array after the incident, in person in
court, and from video surveillance played at trial. N.T., 6/2/2015, at 99-104.
Gardner stated that she was “maybe 10 feet if that” from the shooting and
“could see fire come out of the gun.” Id. at 103-104. Appellant does not
____________________________________________
6 We note that the record refers to this witness as both “Jamil” and “Jameel.”
We will use the name “Jameel” as used by the trial court and a prior panel of
this Court.
-6-
J-S39017-20
challenge Gardner’s ability to view him. Moreover, she did not equivocate in
her identification of Appellant or have difficulty making an identification
previously. Likewise, Appellant does not challenge Jameel Fields’ unequivocal
trial testimony identifying Appellant as the shooter. Id. at 131-135. Jameel
Fields also testified that he recognized Appellant as the shooter from a police
photo array and saw Appellant earlier inside the bar. Id. at 141. There was
no equivocation by these two witnesses. Therefore, there were no special
identification concerns and a Kloiber instruction was unwarranted.
Furthermore, the victim testified that he was shot from a direction
outside of his field of vision, but he was looking directly at Brian Stokes, who
also had a gun. N.T., 3/17/2015, at 42-43. The victim stated that he knew
that Stokes did not shoot him, but he did not see who did. Id. The victim
never identified Appellant as the shooter at trial. The victim did not identify
Appellant from a police photo array presented to him at the hospital a short
time after the shooting. Id. at 54-55. Because the victim never identified
Appellant as the shooter, there was no reason to warn to jury to receive the
victim’s identity testimony with caution under Kloiber. Accordingly, for all of
the foregoing reasons, there is no merit to Appellant’s ineffective assistance
of counsel claim for failing to request a Kloiber instruction.
Next, Appellant claims that trial counsel was ineffective for failing to
object to the Commonwealth’s introduction of a “poor – nearly worthless –
video recording of the [surveillance] video” of the incident “in violation of the
-7-
J-S39017-20
best evidence rule.” Id. at 14. Appellant argues that the Commonwealth
“inexplicably failed to preserve [the] original video[.]” Id. Instead, Appellant
suggests that the copy of the surveillance video admitted into evidence and
shown to the jury was “overly-pixilated and grainy, people in the video [we]re
unidentifiable, and colors and objects [we]re distorted.” Id. at 15. Appellant
claims that trial counsel should have objected to the introduction of a copy of
the video surveillance and insisted on the original under the best evidence
rule. Appellant claims that the Commonwealth acted in bad faith when it failed
to obtain the original surveillance video.7 Id. at 18. Further, he argues he
was prejudiced because the investigating officer testified that he was able to
identify Appellant after viewing the original surveillance video, which was not
presented at trial. Id. at 19. More specifically, Appellant contends that the
investigating officer testified “regarding the suspect’s tattoo in the original
surveillance video and had [Appellant] show the jury his tattoo, despite the
fact that the tattoo in the video [shown to the jury], if it [were] a tattoo, [was]
too pixilated to discern details.” Id. at 15-16. Appellant maintains that
identity was at issue because “there was another black male present that night
wearing a purple or blue shirt.” Id. at 16. Appellant claims that the video
recording was not corroborated by any other witness testimony, because
____________________________________________
7 On collateral review, we limit our analysis to trial counsel’s stewardship.
The Commonwealth’s alleged bad faith actions/inactions during discovery
were subject to review on direct appeal.
-8-
J-S39017-20
“[t]he four other witnesses were impeached regarding their identifications and
descriptions.” Id. at 20.
On this issue, the PCRA court concluded “the Commonwealth did not
just rely upon Officer Barr’s testimony about the video tape, but also other
witnesses who identified [Appellant] as the shooter, and also showed the jury
the footage in question.” PCRA Court Opinion, 6/24/2019, at 8. Based upon
the witness testimony at trial, as detailed above, we agree. Multiple
eyewitnesses testified that they personally saw Appellant shoot the victim.
Moreover, on direct appeal:
Appellant aver[red] the trial court erred by allowing Officer
Matthew Barr to speculate about actions taken by Appellant at the
scene of the crime [and] complain[ed] it was error to permit
Officer Barr to narrate the course of events transpiring as the jury
watched a surveillance video entered into evidence by the
Commonwealth. More specifically, Appellant claim[ed] that
Officer Barr, who was not qualified as an expert and did not have
personal knowledge of the incident, speculated that the
surveillance video showed Appellant retrieve what the officer
believed was a firearm, from underneath the front seat of a car
prior to the shooting.
Commonwealth v. Crawford, 2017 WL 121078, at *5 (Pa. Super. 2017).
The prior panel determined that
it was not an abuse of discretion to allow a detective to offer his
observations about images depicted in a surveillance video under
Pa.R.E.701, which governs the admission of lay-person testimony.
See Commonwealth v. Brown, 134 A.3d 1097, 1106 (Pa.
Super. 2016). Additionally, we note[d] that after Officer Barr
offered his testimony, the trial court cautioned the jurors to draw
their own conclusions of what the video depicted. N.T.,
6/1/20115, at 112. “The law presumes that the jury will follow the
instructions of the court.” Commonwealth v. Chmiel, 30 A.3d
1111, 1184 (Pa. 2011).
-9-
J-S39017-20
Id.Taken together, Appellant has not demonstrated prejudice or shown a
reasonable probability that the outcome of the proceeding would have been
different had the jury been shown the original surveillance video as opposed
to a copy. As detailed above, three eyewitnesses identified Appellant as the
shooter at trial. Furthermore, the trial court cautioned the jury to draw their
own conclusions of what the surveillance video depicted and, again, we
presume the jury followed that instruction. Hence, Appellant is not entitled to
relief on his ineffective assistance of counsel claim pertaining to the
presentation of the video surveillance evidence.
Finally, Appellant argues that he was entitled to an evidentiary hearing
on both of the issues presented on appeal.8 Appellant’s Brief at 20 and 25.
We have stated:
The right to an evidentiary hearing on a post-conviction petition
is not absolute. It is within the PCRA court's discretion to decline
to hold a hearing if the petitioner's claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.
____________________________________________
8 As previously mentioned, the PCRA court held an evidentiary hearing limited
to other unrelated issues.
- 10 -
J-S39017-20
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations
omitted). Here, having determined that there were no issues of material fact,
we discern no abuse of discretion in denying an evidentiary hearing on the
two PCRA issues presented on appeal herein.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/20
- 11 -