Com. v. Burton, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN BURTON :
:
Appellant : No. 263 EDA 2022
Appeal from the PCRA Order Entered November 22, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007764-2015
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 21, 2023
Steven Burton (Appellant) appeals nunc pro tunc from the November
22, 2019, order entered in the Philadelphia County Court of Common Pleas,
denying without a hearing his first Post Conviction Relief Act1 (PCRA) petition.
Appellant seeks relief from the judgment of sentence of 10 to 20 years’
imprisonment, imposed following his jury convictions of aggravated assault2
and firearms offenses. His attorney, James Lloyd, Esquire (Counsel), has filed
a brief and petition to withdraw from representation, purportedly pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
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1 42 Pa.C.S. §§ 9541-9545.
2 18 Pa.C.S. § 2702(a)(1).
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Santiago, 978 A.2d 349 (Pa. 2009).3 Counsel presents issues of: (1)
sentencing merger, for aggravated assault and carrying a firearm without a
license;4 (2) trial counsel’s ineffectiveness for not filing a post-sentence
motion to challenge the discretionary aspects of his sentence; and (3) trial
counsel’s ineffectiveness for not objecting to a jury instruction on the
witnesses’ identification of Appellant. We conclude no relief is due, grant
Counsel’s petition to withdraw, and affirm the PCRA dismissal order.
I. Trial & Sentencing
Appellant was charged with the attempted murder5 of Donovan Love
(the Victim), aggravated assault, and several firearms offenses. This matter
proceeded to a jury trial on January 5, 2016. In an opinion previously
prepared for direct appeal, the trial court summarized the trial evidence as
follows. See Trial Ct. Op., 9/5/18, at 2-6. The Victim and his wife, Elaine
Boone (Wife) lived with Wife’s cousin, Ayonna, as well as Ayonna’s children.6
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3As we discuss infra, the proper framework for counsel to withdraw in a PCRA
proceeding and appeal is set forth by Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
4 18 Pa.C.S. § 6106(a)(1).
5 18 Pa.C.S. §§ 901(a), 2502.
6 Although the trial court opinion stated Ayonna was Wife’s daughter, Wife
stated at trial that they were cousins. See Trial Ct. Op. at 3; N.T. Trial Vol.
2, 1/6/16, at 100-01.
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Appellant was the father of two of these children and frequently visited the
home.
On April 7, 2015, the date of the underlying shooting, Wife told a
detective the following. That morning, she and the Victim had an argument
on the ground floor of their home. Appellant, who was present, intervened
but the Victim told him to “mind his business.” Trial Ct. Op. at 3. Appellant
went upstairs while the Victim left. Appellant returned downstairs, pointed a
gun at Wife’s face, and said, “Where is your fucking dude at?” Id. Wife ran
outside and called the Victim, explaining what just occurred and telling him
not to return. Wife ran to meet him, but the Victim was running back toward
the house. Id. “Shortly thereafter, [Wife] heard a gunshot and . . . ran
back . . . home, where she discovered [the Victim] laying on the sidewalk[,]
bleeding.” Id. The Victim was shot five times — in both thighs and in his
arm. Id. at 2. Wife was shown a photo array and identified Appellant.
On direct examination at trial, however, Wife testified she did not recall:
“providing the majority of her statement” to the detective; stating that
Appellant pointed a gun at her; nor identifying Appellant in a photo array.
Trial Ct. Op. at 4. Wife also did not recognize Appellant in the courtroom. She
stated “she was afraid to testify ‘[b]ecause of . . . several threats’ she received
. . . about ‘what happened to [her] husband.’” Id. Wife’s prior statement,
made to the detective, was read into the record. Id. at 3.
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Meanwhile, the Victim gave a statement to a detective the day after the
shooting. He stated the shooter was “Steve” (Appellant’s name) and
“Ayonna’s baby father.” Trial Ct. Op. at 4. The Victim also identified Appellant
in a photo array, although he “refused to sign below Appellant’s photo.” Id.
at 5. At trial, however, the Victim testified he had no recollection of being
shown a photo array nor of identifying Appellant as the shooter. He also stated
“he did not want to testify but had to come to the trial only because he ‘got
shot’ and was persuaded by the Commonwealth to appear.” Id.
Finally, Philadelphia Police Officer Emmanuel Folly testified at trial to the
following. He was off-duty, on the same block as the shooting, when he was
woken by the sound of a gunshot. The officer looked out a second-floor
window and saw Appellant “chasing another black male down the street,”
pointing his gun at the Victim, and firing multiple times. Trial Ct. Op. at 5.
The officer called 911, and later identified Appellant in a photo array. Officer
Folly also identified Appellant at trial. N.T., 1/6/16, at 49.
Appellant did not testify, but presented a witness, Tanja Carter, who
owned or rented the home, but denied that the Victim or Wife lived there.
See N.T. Trial Vol. 3, 1/7/16, at 30, 51; Trial Ct. Op. at 3. Carter stated
Appellant was at the house “early in the morning” and left. Trial Ct. Op. at 6.
Subsequently, the Victim and Wife had an argument and the Victim
physically attacked Wife. Id. at 6. The Victim left, but Wife called him “and
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told him that Appellant ‘put a gun in her face,’ and a ‘little while after[,’] Carter
heard gunshots outside[.]” Id.
The jury found Appellant not guilty of attempted murder, but guilty of
aggravated assault, firearms not to be carried without a license, carrying
firearms on public streets or public property in Philadelphia, and possessing
instruments of crime (PIC).7
On March 14, 2016, the trial court imposed the following sentences: (1)
eight to 16 years’ imprisonment for aggravated assault; (2) a consecutive two
to four years for firearms not to be carried without a license; and (3) no further
penalty for PIC and carrying firearms in public in Philadelphia. The aggregate
sentence was thus 10 to 20 years.
Appellant did not file a post-sentence motion, but filed a timely,
counseled notice of appeal. On June 10, 2016, however, this Court dismissed
the appeal, docketed in this Court at 1141 EDA 2016, for trial counsel’s failure
to file a docketing statement.8
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7 18 Pa.C.S. §§ 6108, 907(a), respectively.
The trial court separately found Appellant guilty of a bifurcated charge
of persons not to possess firearms, 18 Pa.C.S. § 6105. N.T. Trial Vol 4,
1/8/16, at 11. However, at the sentencing hearing, the Commonwealth
moved to nol pros that charge, as Appellant in fact “didn’t qualify . . . for” it.
See N.T. Sentencing, 3/14/16, at 3-4.
8Appellant was represented at trial, sentencing, and this appeal by Richard
Bobbe, III, Esquire.
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On May 31, 2017, Appellant filed a timely pro se PCRA petition,9 and
John Cotter, Esquire, was appointed to represent him. Attorney Cotter filed
an amended PCRA petition, seeking leave to file nunc pro tunc both a post-
sentence motion and direct appeal. The trial court granted relief as to a direct
appeal, but denied leave to file a post-sentence motion. Appellant thus filed
a counseled notice of appeal, as well as a counseled appellate brief at this
Court’s Docket 3831 EDA 2017. On April 8, 2019, however, Appellant
withdrew the appeal, without providing a reason.
II. PCRA Petition
Three days later, on April 11, 2019, Appellant filed the underlying,
timely PCRA petition, pro se.10 He raised two claims — first, that the trial
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9 At this point in the proceedings, Appellant’s judgment of sentence became
final, for PCRA purposes, at the expiration of the 30-day period for filing a
petition for allowance of appeal with our Supreme Court — Monday, July 11,
2016. See 1 Pa.C.S. § 1908; 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a).
Appellant then generally had one year, or until July 11, 2017, to file a PCRA
petition. 42 Pa.C.S. § 9545(b)(1).
10 Because Appellant’s prior PCRA petition resulted in the reinstatement of his
direct appeal rights, we consider the April 11, 2019, petition to be his first
PCRA petition for timeliness purposes. See Commonwealth v. Turner, 73
A.3d 1283, 1286 (Pa. Super. 2013).
Furthermore, we note the petition was timely filed. Appellant’s
judgment of sentence became final when he voluntarily discontinued his direct
appeal on April 8, 2019. See Commonwealth v. McKeever, 947 A.2d 782,
785 (Pa. Super. 2008). The filing of the petition, three days later, satisfied
the general one-year filing deadline of the PCRA. See 42 Pa.C.S.
§ 9545(b)(1).
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court’s jury instruction, regarding the witnesses’ identification of Appellant,
“improperly vouched for” those witnesses’ credibility. Appellant’s Petition for
Post Conviction Relief, 4/11/19, at 4. Second, Appellant asserted trial counsel
was ineffective for not objecting to this jury instruction.
The PCRA court appointed Judge Hall, Esquire, to represent Appellant,
and he subsequently filed a Turner/Finley letter, averring there were no
issues of arguable merit. The PCRA court issued Pa.R.Crim.P. 907 notice of
its intent to dismiss the PCRA petition without a hearing. Nevertheless, it
conducted a brief hearing on November 22, 2019, where it orally granted
Attorney Hall’s request to withdraw and dismissed Appellant’s PCRA petition.
A written order, which set forth only the dismissal of the petition, was issued
the same day. Following the reinstatement of Appellant’s right to appeal from
this dismissal order, Appellant filed the instant appeal by present appointed
counsel, Attorney Lloyd.
III. Reinstatement of PCRA Appeal Rights
Although the convoluted, intervening procedural history does not affect
our review of the issues raised on appeal, we briefly review it, as it includes
two appeals to this Court and a second PCRA petition.
First, we note that while the PCRA court orally granted leave for Attorney
Hall to withdraw, it did not issue a written order, and thus the attorney
remained counsel of record. Meanwhile, the written order dismissing the PCRA
petition did not advise Appellant of his appeal rights, nor indicate that service
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was made on him. On February 5, 2020, Appellant filed a pro se notice of
appeal. On June 4, 2020, this Court sua sponte quashed the appeal, docketed
at 701 EDA 2020, as untimely filed.
Next, Appellant filed, on November 4, 2020, a pro se, 13-page “notice
of appeal,” which raised multiple claims of PCRA court error. On January 12,
2021, Attorney Hall filed a motion to withdraw, which the PCRA court formally
granted one day later. Present counsel, Attorney Lloyd, was appointed, and
on July 15, 2021, he filed a praecipe to discontinue the appeal that was
pending in this Court at 53 EDA 2021.
On August 18, 2021, Attorney Lloyd then filed a petition to reinstate
nunc pro tunc Appellant’s right to appeal from the November 22, 2019, PCRA
dismissal order. We construe this filing to be a second PCRA petition, which
must comply with the PCRA’s timeliness requirements. See Commonwealth
v. Fairiror, 809 A.2d 396-98 (Pa. Super. 2002) (a petition for reinstatement
of PCRA appellate rights nunc pro tunc must be considered a second PCRA
petition, and PCRA court has no jurisdiction to hear an untimely petition). The
petition invoked the governmental interference timeliness exception, and
argued that neither the PCRA court nor Attorney Hall properly advised
Appellant of his appeal rights. Appellant’s Petition Under Post Conviction Relief
Act, 8/18/21, at ¶¶ 26-27, 46, 48; see also 42 Pa.C.S. § 9545(b)(1)(i);
Commonwealth v. Smith, 181 A.3d 1168, 1173 n.2 (Pa. Super. 2018)
(finding no error in PCRA court’s granting relief on a claim that clerk of court’s
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failure to serve a PCRA dismissal order on defendant and his attorney was
governmental interference). Appellant further averred he first learned of the
court’s and counsel’s failings on June 4, 2020, when the Superior Court
quashed his first appeal, but he could not file a PCRA petition until his second
appeal was discontinued. See Commonwealth v. Montgomery, 181 A.3d
359, 364 (Pa. Super. 2018) (en banc) (subsequent PCRA petition may not be
considered while appeal from prior PCRA order is pending).
The Commonwealth did not oppose the petition. See Commonwealth’s
Letter, 1/21/22, at 1, 4-5 (unpaginated). On April 4, 2022, the PCRA court
reinstated Appellant’s right to appeal nunc pro tunc from the PCRA dismissal
order. Following the new notice of appeal, the court directed Appellant to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In
response, however, Counsel filed a notice of intent to file an
“Anders/McClendon Brief.” The PCRA court did not file an opinion; however,
as noted above, it had previously filed an opinion on September 5, 2018, in
preparation for Appellant’s direct appeal.
IV. Anders Brief & Petition to Withdraw
As stated above, Counsel has filed an Anders/McClendon brief with
this Court. We remind Counsel that Turner/Finley is the proper framework
for withdrawing from PCRA representation, which — while a “close
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cousin[ ]” — is distinct from Anders.11 See Commonwealth v. Wrecks,
931 A.2d 717, 721-22 (Pa. Super. 2007). Nevertheless, “because an Anders
brief provides greater protection to the defendant, we may accept an Anders
brief in lieu of a Turner/Finley letter.” Commonwealth v. Fusselman, 866
A.2d 1109, 1111 n.3 (Pa. Super. 2004). See also Wrecks, 931 A.2d at 721-
22 (explaining similarities and differences between Anders and Turner/
Finley requirements). For ease of review, we cite Counsel’s brief with the
title that appear on its face and on our docket — “Anders Brief.”
This Court has explained:
Counsel petitioning to withdraw from PCRA representation must
proceed . . . under [Turner and Finley and] . . . review the case
zealously. [C]ounsel must then submit a “no-merit” . . . brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which petitioner
wants to have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted). If we determine counsel has satisfied these technical requirements,
this Court “must then conduct [our] own review of the merits of the case. If
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11Counsel also incorrectly refers to this appeal as “a direct appeal.” See
Anders Brief at 14. A direct appeal lies from the judgment of sentence.
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super. 2007).
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[we] agree[ ] with counsel that the claims are without merit, [we] will permit
counsel to withdraw and deny relief.” Id. (citation omitted).
Here, Counsel has filed a petition to withdraw, which states he has:
“independently and conscientiously reviewed the record . . . with an eye to
uncovering appealable error[;]” communicated with Appellant about this
appeal; conducted legal research; and concluded that “all possible issues to
be raised [are] frivolous.” Counsel’s Petition to Withdraw, 10/9/22, at 2
(unpaginated). Counsel further avers he sent a copy of the Anders brief and
petition to withdraw to Appellant, and attaches a copy of a letter he sent to
Appellant, which advises him of his right to retain new counsel or proceed pro
se to raise any additional points.
In light of the foregoing, we determine Counsel has complied with the
technical requirements of Turner and Finley, and thus we conduct our own
review of the merits of the issues raised. See Doty, 48 A.3d at 454. In
addition to the jury instruction issue raised in Appellant’s pro se PCRA petition,
Counsel addresses two claims Appellant has raised in their communications:
the legality of the consecutive sentences and trial counsel’s alleged
ineffectiveness for not filing a post-sentence motion to challenge the
discretionary aspects of his sentence. Anders Brief at 34.
V. Sentencing Merger
First, Counsel explains that Appellant wishes to present a claim that
“illegal consecutive sentences were imposed upon him.” Anders Brief at 38.
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Here, Appellant received sentences of eight to 16 years’ imprisonment of
aggravated assault and two to four years for carrying a firearm without a
license, to be served consecutively. Counsel correctly points out a trial court
has discretion to impose sentences concurrently or consecutively. See id.,citing Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013).
Counsel then states that if two sentences merge, a court would be precluded
from imposing consecutive sentences. Anders Brief at 38. Counsel
concludes, however, the two offenses above do not merge because each
includes a statutory element not present in the other. Id. at 39. We agree.
“A claim that the trial court imposed an illegal sentence by failing to
merge sentences is a question of law. Accordingly, our standard of review is
plenary.” Commonwealth v. Golphin, 161 A.3d 1009, 1028 (Pa. Super.
2017) (citation omitted). Our merger statute, 42 Pa.C.S. § 9765, “prohibits
merger unless two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Golphin, 161 A.3d at 1029(citation omitted).
Appellant was found guilty of aggravated assault under Subsection
2702(a)(1), which is defined as attempting to cause or intentionally,
knowingly or recklessly causing bodily injury to another.” See 18 Pa.C.S.
§ 2702(a)(1). Carrying a firearm is defined, in pertinent part, as carrying “a
firearm concealed on or about [one’s] person, except in his place of abode or
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fixed place of business, without a valid and lawfully issued license[.]” 18
Pa.C.S. § 6106(a)(1).
We conclude that no element of either offense appears in the other. See
Golphin, 161 A.3d at 1029. The offense of aggravated assault does not
contemplate carrying a firearm nor possessing a valid firearm license.
Meanwhile, carrying a firearm without a license does not require any causing,
or attempting to cause, serious bodily injury to another. Accordingly, we
agree with Counsel that the imposition of separate or consecutive sentences
on these two counts was legal. See Anders Brief at 38-39. Our independent
review of the record reveals no other potential, meritorious challenge to the
legality of Appellant’s sentence.
VI. Trial Counsel’s Ineffectiveness for not
Challenging Discretionary Aspects of Sentence
Next, Counsel raises the issue of whether trial counsel was ineffective
for not filing a post-sentence motion and challenging the discretionary aspects
of sentencing. Anders Brief at 47. Counsel explained Appellant raised a
discretionary aspect of sentencing challenge in his direct appeal in 2018, which
he subsequently discontinued. Meanwhile, the trial court’s opinion quotes
Appellant’s then-Rule 1925(b) statement as arguing the trial court: (1)
sentenced him “outside the sentencing guidelines[;]” (2) “did not take into
consideration [his] age, family history, medical condition and rehabilitative
needs[;]” (3) “only considered [his] criminal history in imposing
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punishment[;]” and (4) imposed an excessive sentence “under the
circumstances of the case.” Trial Ct. Op. at 7.
In the Anders brief, Counsel points out the trial court considered the
presentence investigation report (PSI), as well as Appellant’s juvenile and
adult criminal history, prior violations “of his multiple probations/paroles,”
“persistent refusal to rehabilitate,” substance abuse, “dishonesty to the
presentence investigator,” employment and education history, family
circumstances, and “abhorrent crimes in this case.” Anders Brief at 49,
quoting Trial Ct. Op. at 12. Counsel emphasizes that sentencing is vested in
the sound discretion of the trial court, and contends that had trial counsel filed
a sentence motion, the court would have denied relief. Anders Brief at 50-
51, citing, inter alia, Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.
Super. 2014) (standard of review for discretionary aspects of sentencing).
Counsel thus concludes that any filing “of a timely motion for reconsideration
of sentence would not have resulted in a different outcome.” Anders Brief at
51. We agree that no relief is due on this ineffectiveness claim.
This Court has explained:
To prevail on an ineffectiveness claim, the petitioner has the
burden to prove that (1) the underlying substantive claim has
arguable merit; (2) counsel whose effectiveness is being
challenged did not have a reasonable basis for his or her actions
or failure to act; and (3) the petitioner suffered prejudice as a
result of counsel’s deficient performance. The failure to satisfy
any one of the prongs will cause the entire claim to fail.
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Smith, 181 A.3d at 1174-75 (citation omitted). “[C]ounsel is presumed
effective, and to rebut that presumption, the PCRA petitioner must
demonstrate that counsel’s performance was deficient and that such
deficiency prejudiced him.” Id. at 1174 (citation omitted).
With respect to sentencing, we note: “Sentencing is a matter vested in
the sound discretion of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of discretion.” Antidormi, 84
A.3d at 760 (citation omitted). “The sentencing guidelines are not mandatory,
and sentencing courts retain ‘broad discretion in sentencing matters, and
therefore, may sentence defendants outside the [g]uidelines.’” Id. (citation
omitted). Furthermore:
“[w]hen imposing sentence, a court is required to consider ‘the
particular circumstances of the offense and the character of the
defendant.’” “In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.” “Where pre-
sentence reports exist, we shall . . . presume that the sentencing
judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along
with mitigating statutory factors. . . .
Id. at 761 (citations omitted).
In addition to Counsel’s above discussion, we consider this portion of
the trial court’s opinion:
[T]he sentencing guidelines recommended a term of [66] to [84]
months’ incarceration (+/- 12 months) on Appellant’s conviction
for aggravated assault. This Court sentenced Appellant to 8 to 16
years’ incarceration on this charge, which is within the aggravated
guideline range.
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This Court further sentenced Appellant to 2 to 4 years’
incarceration on his conviction of carrying a firearm without a
license. This Court imposed no sentences on Appellant’s
remaining convictions for carrying an unlicensed firearm on the
public streets of Philadelphia and [PIC].
See Trial Ct. Op. at 12 (paragraph break added). The court further opined:
With an already extensive criminal history that included [12]
arrests, five convictions, and four commitments, [in this case]
Appellant pulled the trigger multiple times at close range and shot
[the Victim] 5 times. This Court can attest that absent some
compelling fact or circumstance that was unknown to the Court at
the time of sentencing, there was zero chance that Appellant
would have prevailed in any post-sentence motion requesting a
sentence more lenient than 10 to 20 years’ incarceration. . . .
Id. at 9 (emphasis in original).
In light of the trial court’s reasoning, which is supported by the record,
Appellant could not show the trial court abused its discretion in imposing
sentence. See Antidormi, 84 A.3d at 760. Accordingly, he cannot establish,
in his ineffectiveness claim, that his underlying challenge to the discretionary
aspects of his sentence, has arguable merit. See Smith, 181 A.3d at 1174-
75. Accordingly, we agree with Counsel that this issue has no merit. See
Doty, 48 A.3d at 454.
VII. Ineffective Assistance of Trial Counsel for not
Challenging Jury Instruction on Witnesses’ Identification
The final issue raised in the Anders brief is whether trial counsel was
ineffective for not objecting to the trial court’s jury instruction regarding
witness identification. At this juncture, we note the relevant standard of
review for the underlying claim:
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[W]hen evaluating the propriety of jury instructions, [an appellate
court] will look to the instructions as a whole, and not simply
isolated portions, to determine if the instructions were improper.
A 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. Only where there is an abuse of discretion or an
inaccurate statement of the law is there reversible error.
Antidormi, 84 A.3d at 754 (citation omitted).
The jury instruction at issue concerned the Victim’s, Wife’s, and Officer
Folly’s identification of Appellant. The court stated:
. . . In their testimony, [the Victim, Wife, and Officer Folly]
identified [Appellant] as the person who committed the crime
here. In evaluating their testimony, in addition to all the other
instructions that I’m providing to you about judging the testimony
of witnesses, in considering identification testimony, there are
additional factors that you should consider when you decide
whether or not to believe the identification testimony that they
gave in regard to [Appellant]:
No. 1, did the witness have a good opportunity to observe the
perpetrator of this offense? No. 2, was there sufficient lighting for
the witness to make their observations? No. 3, was the witness
close enough to the individual to note facial and other physical
characteristics, as well as any clothing the person was wearing?
No. 4, has that witness ever made a prior identification of
[Appellant] as the perpetrator of this crime at any other
proceeding? No. 5, was the witness’ identification positive or was
it qualified by any inconsistency? And finally No. 6, during the
course of this case, did the witness ever identify anybody else as
being the perpetrator of this crime?
In considering whether or not to accept the testimony of [the
Victim, Wife,] or Officer Folly, you should consider all of the
circumstances under which those identifications were made.
Furthermore, you should consider all of the evidence relative to
the question of who committed this crime, including the testimony
of any witness from which identity or non[-]identity of the
perpetrator of this crime may be inferred.
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You cannot find [Appellant] guilty unless you are satisfied beyond
a reasonable doubt by all of the evidence, direct and
circumstantial, not only that the crime was committed, but that it
was [Appellant] who committed it.
N.T., 1/7/16, at 113-14 (paragraph breaks added).
In his pro se PCRA petition, Appellant asserted this instruction was an
improper “presumption of truthfulness instruction” pursuant to Turner v.
United States, 396 U.S. 398 (1970), and the instruction “improperly vouched
for” the witnesses. Appellant’s Petition for Post Conviction Relief, 4/11/19, at
4, 5. Appellant contended the court “directed the jury to find that the
prosecution’s witnesses had identified [him] as the person who committed the
crime, unless the presumption of truthfulness [was] overcome by” the six
factors set forth in the instruction. Id. at 5. In other words, Appellant
reasoned, “the court’s instruction clearly required the jury to believe a witness’
testimony until his or her untruthfulness [was] demonstrated by evidence
making it appear as likely as not that the testimony was false.” Id. at 6.
In the Anders brief, Counsel states the jury instruction utilized the
language of then-Pennsylvania Suggested Standard Criminal Jury Instruction
4.07A (“Identification Testimony”). See Anders Brief at 46. Counsel denies
the instruction directed the jury to “presume that the identifications were
accurate,” and contends the instruction included “a complete and accurate
statement of the applicable legal principles.” Id. at 46, 47. Again, we agree
that no relief is due.
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First, Appellant misconstrues the United States Supreme Court’s 1970
decision in Turner. In Turner, the defendant was charged under federal drug
trafficking laws of, inter alia, receiving, concealing or transporting heroin or
cocaine that he knew was illegally imported. Turner, 396 U.S. at 400. “[T]he
trial judge charged the jury in accord with the statute that the jury could infer
from [the defendant’s] unexplained possession of the heroin and cocaine
that [he] knew that the drugs . . . had been unlawfully imported.” Id.(emphasis added).
At that time, “the inference authorized by the [statute and] the
prevailing judicial view [was] that heroin is not made in this country but
rather is imported from abroad.” Turner, 396 U.S at 409 (emphasis added).
See also id. at 416 (“To possess heroin is to possess imported heroin.”)
(emphasis in original). The High Court thus did not disturb the jury instruction
as to the possession of heroin. See id. at 417-18.
With respect to cocaine, however, the Court considered that “much more
cocaine is lawfully produced in this country than is smuggled into this country.”
Turner, 396 U.S at 418 (footnote omitted). The Court thus held the jury
instruction, allowing a presumption that the defendant knew the cocaine was
illegally imported, could not stand. Id. at 423.
Appellant’s PCRA petition did not address any of the above facts, or even
the holding, in Turner. We emphasize the Turner decision did not address
witness identification or even credibility, but instead a 1970 federal statutory
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presumption concerning the illegal importing of heroin and cocaine.
Accordingly, Turner does not afford Appellant any relief.
Furthermore, we conclude the particular instruction at issue did not
direct the jury to presume any witness’ identification was accurate or any
witness’ testimony was credible. See Antidormi, 84 A.3d at 754. Instead,
the instruction properly charged the jury to consider certain “additional
factors,” along with “all of the evidence relative to the question of who
committed this crime,” when deciding whether to believe those witnesses’
identification of Appellant. See N.T., 1/7/16, at 113-14. As Appellant’s
underlying claim lacks merit, he cannot establish the ineffective assistance of
trial counsel for not objecting to this instruction. See Smith, 181 A.3d at
1174-75.
VII. Conclusion
After independent review of the record, we conclude none of Appellant’s
desired claims have merit. Accordingly, we grant Attorney Lloyd’s petition to
withdraw from representation, and we affirm the November 22, 2019, order
dismissing Appellant’s PCRA petition.
Order affirmed. Application to withdraw granted.
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J-S03022-23
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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