Appeal from the PCRA Order February 28, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0201371-2003
BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.
Appellant, Allen Thompkins, appeals pro se from the order entered in the Philadelphia County Court of Common Pleas, which denied and dismissed his first petition filed under the Post Conviction Relief Act ("PCRA"). We affirm.
The relevant facts and procedural history of this case are as follows. On August 8, 2003, a jury convicted Appellant of first-degree murder, possessing instruments of crime, and recklessly endangering another person, in connection with the shooting death of the Victim. On August 11, 2003, the court sentenced Appellant to an aggregate term of life imprisonment. This Court affirmed Appellant's judgment of sentence on September 14, 2004, and our Supreme Court denied allowance of appeal on December 13, 2007. See Commonwealth v. Thompkins, 863 A.2d 1232 (Pa.Super. 2004) (unpublished memorandum), appeal denied, 595 Pa. 707, 938 A.2d 1053 (2007).
On September 8, 2008, Appellant timely filed a pro se PCRA petition. The court subsequently appointed counsel, who filed an amended PCRA petition alleging trial counsel was ineffective for failing to request a Kloiberinstruction and/or appellate counsel was ineffective for failing to challenge the court's decision to deny a Kloiber instruction. Following appropriate notice per Pa.R.Crim.P. 907, and a pro se response from Appellant, the court denied Appellant's PCRA petition on February 28, 2011.
Counsel timely filed a notice of appeal on Appellant's behalf on March 23, 2011. Appellant subsequently filed a pro se request to proceed without counsel on appeal. On July 11, 2011, this Court remanded for a Grazierhearing. On August 15, 2011, following a Grazier hearing, the PCRA court granted Appellant's request to proceed pro se and permitted counsel to withdraw from the case. On September 6, 2011, Appellant filed a voluntary concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his statement, Appellant alleged PCRA counsel was ineffective for failing to raise the following issues presented in Appellant's pro se PCRA petition: (1) trial counsel was ineffective for failing to file a motion to suppress certain hearsay statements; (2) trial counsel was ineffective for failing to file a motion to suppress photographic identifications of Appellant; and (3) Appellant's right to a fair trial was violated where Victim's family and friends wore t-shirts with pictures of Victim and one individual held up an 8x10 photo of Victim, which prejudiced Appellant's case.
Appellant raises two issues for our review:
WHETHER TRIAL/APPELLATE COUNSEL [WAS] INEFFECTIVE FOR FAILURE TO CHALLENGE THE TRIAL COURT'S DECISION NOT TO GIVE A KLOIBER JURY INSTRUCTION AND/OR FAILURE TO REQUEST THE TRIAL COURT TO PROVIDE ANY INSTRUCTION CONCERNING THE IDENTIFICATION OF APPELLANT?
WHETHER PCRA COUNSEL WAS INEFFECTIVE FOR FAILURE TO RAISE ISSUES AS STATED IN [APPELLANT'S] INITIAL PRO SE PCRA PETITION?
(Appellant's Brief at 3).
Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251, 1252 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). A petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Hardcastle, 549 Pa. 450, 454, 701 A.2d 541, 542 (1997).
Preliminarily, we observe, "to preserve their claims for appellate review, appellants must comply whenever the [PCRA] court orders them to file a Statement of Matters Complained of on Appeal pursuant to [Rule] 1925. Any issues not raised in a [Rule] 1925(b) statement will be deemed waived." Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)). Where the court does not order an appellant to file a Rule 1925(b) statement, and an appellant files one on his own accord, he is limited on appeal to raising only those issues he presented in his voluntary Rule 1925(b) statement. See Commonwealth v. Nobles, 941 A.2d 50 (Pa.Super. 2008); Commonwealth v. Snyder, 870 A.2d 336 (Pa.Super. 2005).
Instantly, Appellant voluntarily filed a Rule 1925(b) statement on September 6, 2011. In his concise statement, Appellant alleged PCRA counsel was ineffective for failing to raise the following issues presented in Appellant's pro se PCRA petition: (1) trial counsel was ineffective for failing to file a motion to suppress certain hearsay statements; (2) trial counsel was ineffective for failing to file a motion to suppress photographic identifications of Appellant; and (3) Appellant's right to a fair trial was violated where Victim's family and friends wore t-shirts with pictures of Victim and one individual held up an 8x10 photo of Victim, which prejudiced Appellant's case. Significantly, however, Appellant did not raise in his concise statement his first issue on appeal concerning trial counsel's failure to request, or appellate counsel's failure to challenge the court's denial of, a cautionary Kloiber instruction. Consequently, Appellant's claim is waived for our review. See Nobles, supra; Snyder, supra.
Moreover, the PCRA court explained its rationale for denying Appellant's PCRA petition, as follows:
[Appellant's] claim is without merit because the Kloiber charge was inapplicable to this situation.
The Pennsylvania Supreme Court in Kloiber required the [t]rial [c]ourt to warn jurors that certain identification evidence should be viewed with caution because a particular witness did not have an adequate opportunity to observe, had an obstructed view or other conditions that made accurate identification improbable.
This issue was not overlooked in this case, in fact, counsel and the [c]ourt discussed the appropriateness of such a charge on the record. The [c]ourt rejected the charge because there was no history of misidentification by either eyewitness and there were no in [c]ourt identifications for the jury to view with caution.
The day after the shooting both witnesses in this case gave statements and detailed descriptions of [Appellant]. They had observed him at close range as he argued with and shot their friend. Although [Appellant] avoided apprehension for two (2) years, when his picture was included in [a] photo spread two (2) years after the incident both witnesses identif[ied] his photo, circled it and signed underneath that they were sure he was the shooter. For whatever reason[, ] these same ...