February 11, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
ALLEN THOMPKINS Appellant
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 See Commonwealth v. Thompkins, 863 A.2d 1232 (Pa.Super. 2004) (unpublished memorandum), appeal denied, 595 Pa. 707, 938 A.2d 1053 (2007).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 witnesses claimed to have forgotten their statements to police and denied having information about the shooting at trial.
The jury evaluated the two witnesses' recantations by exercising its instructed function as the exclusive judges of credibility. Prior to their recantations[, ] the identifications [by the eyewitnesses] were positive. They had adequate unobstructed opportunities to observe [Appellant] when he accosted and shot [V]ictim.
The jury was free to evaluate their credibility in light of their recantations and nonetheless was convinced beyond a reasonable doubt that they saw [Appellant] shoot their friend.
(Opinion in Support of Denial of PCRA Petition, filed July 21, 2011, at 2-3). We see no reason to disrupt the court's decision to deny and dismiss Appellant's amended PCRA petition on this ground. See Ford, supra. Therefore, even if Appellant had properly preserved this issue, it would merit no relief.
With respect to Appellant's next issue, we observe: to demonstrate a "layered" claim of current counsel's ineffectiveness has arguable merit, the petitioner must develop all three prongs of the test as to the ineffectiveness of prior counsel. Commonwealth v. Brown, 582 Pa. 461, 474, 872 A.2d 1139, 1146 (2005). "Stated differently, if the petitioner fails to develop any of the three…prongs regarding the underlying issue of [prior counsel's] ineffectiveness, he…will have failed to establish the arguable merit prong of the claim of [subsequent] counsel's ineffectiveness." Id. "Only when the petitioner has adequately pled and presented the ineffectiveness of [prior] counsel pursuant to the [three prong] test will this Court proceed to review the layered claim to determine whether he…has proven [subsequent] counsel's ineffectiveness." Id. (emphasis in original).
After a thorough review of the record, the briefs of the parties, the applicable law, and the comprehensive opinion of the Honorable Gregory E. Smith, we conclude this issue merits no relief. The PCRA court opinion discusses and properly disposes of the question presented. (See PCRA Court Opinion, filed June 25, 2013, at 4-9) (finding: questions of admissibility, hearsay, and rules of evidence are not proper bases for suppression motion; PCRA counsel was not ineffective for failing to advance meritless claim; witness made statement to police during ongoing criminal investigation; police appropriately used information to help them identify shooter; under totality of circumstances, photo identifications were not impermissibly suggestive or so unreliable as to warrant suppression; one day after shooting, eyewitnesses gave statements to police and detailed descriptions of Appellant, whom witnesses had observed shoot their friend at close range; when police later showed eyewitnesses photo array including picture of Appellant, both witnesses identified Appellant, circled his picture, and signed underneath that they were certain Appellant was shooter; jury was free to evaluate witnesses' credibility in light of their subsequent testimony at trial that they had forgotten their statements to police and their denial of knowledge about shooting; Appellant failed to establish court would have granted motion to suppress photo identifications; because Appellant cannot satisfy each ineffectiveness prong as to trial counsel, PCRA counsel was not ineffective for declining to advance these claims in Appellant's amended PCRA petition; finally, trial counsel notified court about t-shirts and 8x10 photo of Victim, and court took prompt action to prevent any undue prejudice to Appellant). Accordingly, as to Appellant's second issue on appeal, we affirm on the basis of the PCRA court's opinion.
Order affirmed. Judgment Entered.
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
FEBRUARY TERM, 2003
GREGORY E. SMITH, J.
The Defendant was convicted of First Degree Murder before this Court sitting with a jury on August 8, 2003. On August 11, 2003 the Court sentenced the Defendant to life imprisonment on the Murder charge a concurrent two and one half (21/2) to five (5) years on weapons charges and a consecutive term of two and one half (21/2) to five (5) years on the charge of Recklessly Endangering Another Person. The judgment of sentence was affirmed by the Pennsylvania Superior Court. A Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on December 13, 2007.
Defendant filed a timely pro se PCRA Petition. On August 23, 2010 appointed counsel filed an Amended PCRA Petition. On December 1, 2010 this Court issued a Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907 advising the Defendant of the Court's intention to dismiss the PCRA Petition because the issues raised in the PCRA Petition filed by the Defendant's attorney were without merit. On December 9, 2010, the Defendant provided the PCRA court with a Pro Se Objection to the PCRA Court's Notice of Intention to Dismiss without a Hearing. The PCRA Petition was dismissed on February 28, 2011.
The Defendant timely appealed the Order dismissing the PCRA Petition. The PCRA Court issued an Opinion on July 21, 20 ll. On motion, a Grazier Hearing was held on August 15, 2011 and the waiver of counsel was granted. The Defendant filed a pro se Statement of Matters pursuant to Pa.R.A.P. 1925(b) on September 6, 2011. On December 6, 2011, the Superior Court remanded the matter to the PCRA Court to issue a supplemental Opinion to address the matters complained of in the pro se Rule 1925(b) Statement. The following Opinion is in Supplement to the July 21, 2011 Opinion.
On July 24, 1999 the Defendant and two others shot Void Sampson and killed him during the "Greek Picnic Weekend" in the area of N. 23rd Street and W. Allegheny Avenue in Philadelphia. While congregating in front of a gas station at Broad Street and Allegheny Avenue, Sampson allowed a young woman to rub his bare chest. The Defendant observed the event and issued an insult to Sampson. Sampson confronted the Defendant. Defendant revealed to Sampson that he was carrying a gun, and Sampson and his friends left. As Sampson walked down a street nearby, the Defendant and two others shot at Sampson and he was killed. As the victim's friends fled the scene one of the Defendant's accomplices yelled "we're from Erie Avenue. Don't forget it."
No arrests were made at that time. However, interviews of eyewitnesses, Tony Thompson, Hasan Valentine, Rashan Jones and Rasheed Davis, were conducted and those individuals gave statements in which they described the defendant.
On April 12, 2001, Percel Harden told police that while he was in prison in 2000, his sister, Sharon Hopkins, had written him a letter stating that Mr. Thompkins had shot and killed a man. Six months later Harden was released from prison and he had a conversation with the Defendant in which he learned that during the Greek Picnic the Defendant shot and killed a man at Broad and Allegheny following an argument with the victim. At trial, Percel Harden recanted his statement.
During the summer of 2002, Detective Charles Boyle re-interviewed Thompson and Davis who gave statements consistent with their previous statements. They identified the Defendant in photo arrays. Based on these identifications, the police issued a warrant for Defendant's arrest on September 24, 2002. Defendant was apprehended on November 11, 2002. Thompson's August 13, 2002 photo array interview was transcribed verbatim. He identified photo number 3 out of the array. He told detectives that the individual in photo 3 was "the one I remember puling the gun out on... Void Sampson, at Broad and Glenwood Streets and the shooting at us when we were on the little street between Park Avenue and 13th Street when Boo got shot." At trial, Thompson recanted and testified that during the photo identification the detectives told Thompson to "focus on [photo] number 3." 
Rasheed Davis made a statement to detectives on August 21, 2002. He said that he recalled the shooting death of Void Sampson "like it was yesterday." Davis gave a description of the shooter, and told the detectives that he would recognize the assailant if he saw him again. During the photo array identification, Davis told the detectives that photo "[n]umber 3 [wa]s the one that had the gun at the Hess station and followed us. He was in the front on Sedgley Street with the other two guys and he started shooting at us." Davis recanted his previous statement and identification at trial by testifying that the detectives suggested which photo to choose.
During a break in which the jury was not present, defense counsel notified the Court that friends and family of the deceased victim were wearing tee-shirts with the deceased's photos on them, and one individual had an 8x10 photo of the deceased. The Court instructed the friends and family of the victim to cover up their tee-shirts and instructed the individual with the 8x10 photo not to hold up the photo or show it to the jury.
In Defendant's 1925(b) Statement of Matters Complained of on Appeal, the Defendant asserts that PCRA Counsel was ineffective for failure to raise claims in the Amended PCRA that were raised in his initial pro se PCRA Petition. Defendant also argues that he was deprived of a fair trial because the victim's family wore tee-shirts bearing a photo of the victim during the trial and one individual had an 8x10 photo of the victim. A discussion follows.
I. Ineffectiveness of PCRA Counsel Claims
PCRA relief is available only when the Petitioner can show "by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated defects found in 42 Pa.C.S. § 9543(a)(2)"Ineffective Assistance of Counsel is one of the enumerated grounds for relief under the PCRA. There is an "enforceable right to effective post-conviction counsel." To show ineffectiveness of counsel a Defendant is required to demonstrate that:
(1) "[T]he underlying claim is of arguable merit... (2) [T]hat counsel's act of omission or Commission had no reasonable basis directed at effectuating his client's interests"; and (3) [T]hat "Counsel's action or inaction...resulted in prejudice."
There is a presumption that a defendant's attorney is effective, and "a defendant bears the burden of proving otherwise." PCRA "counsel possesses the prerogative of declining to litigate a meritless petition." In deciding the reasonableness of counsel's actions, the Court does "not question whether there were other more logical courses of action which counsel could have pursued." Instead, the inquiry is simply "whether counsel's decisions had any reasonable basis." A defendant must show prejudice by proving that "but for the act or omission in question" the verdict would have been different. Finally, "a petitioner must set forth and individually discuss substantively each prong of the Pierce test."
The Superior Court addressed recent Pennsylvania State Supreme Court holdings and noted that "a majority of the Supreme Court agrees that issues of PCRA counsel effectiveness must be raised in a serial PCRA petition or in response to a notice of dismissal before the PCRA court." Here, in his pro se 1925(b) Statement, the Defendant raises the issue of PCRA counsel's ineffectiveness. He previously raised the same issue in his Objection to the PCRA Court's Notice of Intention to Dismiss without a Hearing. Therefore, he has not raised the issue for the first time on appeal. The issues of PCRA counsel's ineffectiveness are addressed by discussing the merits of the underlying claims.
a. PCRA Attorney's Ineffectiveness for Failure to Raise Issue of whether Trial Counsel was Ineffective for failing to file Motion to Suppress Hearsay Evidence
To determine whether PCRA counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness, it is necessary to determine whether the underlying claim of trial counsel ineffectiveness had any merit. Under Pennsylvania Rule of Criminal Procedure, 581(A), "[t]e defendant's attorney, or the defendant if unrepresented, may make a motion to the court to suppress any evidence alleged to have been obtained in violation of the defendant's rights." Motions to suppress must be based on evidence illegally obtained (or seized) in violation of the Defendant's Constitutional rights (such as a violation of the Defendant's Fourth Amendment Rights). Objections to the admissibility of evidence presented against the Defendant on other grounds are not a proper subject for a Motion to Suppress.
The Defendant averred that his trial counsel should have moved to suppress hearsay statements contained in the letter that Percel Harden's sister wrote to Percel Harden while he was in prison stating that Mr. Thompkins had shot and killed a man. Defendant argued that by not seeking to suppress the letter, trial counsel allowed the Commonwealth to use an inadmissible hearsay statement to communicate prejudicial information to the jury. He averred that the Motion to Suppress would have likely been granted.
The Defendant's has failed to prove each prong of trial counsel ineffectiveness, and therefore, he has failed to make out the arguable merit prong in his claim of PCRA counsel's ineffectiveness. The underlying issue of whether the statements in the letter constituted hearsay and whether they were prejudicial under the rules of evidence were not proper subjects for a Motion to Suppress. Therefore, trial counsel had a reasonable basis not to move for suppression of this evidence. There is no proof that a motion to suppress would have likely been granted. Because the claim lacked merit, PCRA counsel also had a reasonable basis to exclude the issue of trial counsel's ineffectiveness in the Amended PCRA petition.
b. PCRA Attorney's Ineffectiveness for Failure to Raise Issue of whether Trial Counsel was Ineffective for failing to file Motion to Suppress two photographic identifications.
Defendant averred that trial counsel was ineffective for failing to move to suppress the photo array evidence (and that PCRA counsel was ineffective for failing to include that allegation in the Amended PCRA petition). The Courts have noted that "[identification evidence will not be suppressed "unless the facts demonstrate that the identification procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"
First, the Defendant averred trial counsel should have moved to suppress the statement given by Percel Harden because it was hearsay. He argued that the photo array including the Defendant's photo was shown to Thompson and Davis only because of Harden's hearsay statement. The Defendant's argument misunderstands the hearsay rule. When Harden made a statement to the detectives it was not subject to hearsay rules because it was not an out of court statement made by someone other than the declarant while testifying at trial or hearing. Rather it was a statement made to the police during an ongoing homicide investigation. Thus, it was appropriate for the detectives to use the information Harden provided to them to seek the identity of the shooter by re-interviewing Thompson and Davis and by presenting them with a photo array including the Defendant. This argument lacks merit.
Second, the Defendant argued that his trial attorney should have moved to suppress the photo array identifications because the "witnesses testified in-court that the detective suggested who they should pick."However, looking at the totality of the circumstances, the identifications were not impermissibly suggestive or unreliable and trial counsel had a reasonable basis for choosing not to file a Motion to Suppress. One day after the shooting Thompson and Davis gave statements and detailed descriptions of the Defendant. They had observed him at close range as he argued with and shot their friend. Subsequently, when his picture was included in the photo spread, both witnesses identified his photo, circled it and signed underneath that they were sure he was the shooter. The identification interviews were transcribed verbatim. They had the opportunity to read, review, and make corrections to the identifications. Their identifications were positive. There was nothing to indicate that the police had any motivation to suggest that the photo of the defendant should be picked by the witnesses. The Defendant has also failed to prove that a Motion to Suppress would have been granted or that it would have changed the outcome of the verdict.
Furthermore, as noted in this Court's prior Opinion, Thompson and Davis claimed to have forgotten their statements to the police and denied having information about the shooting at trial. Trial counsel was able to cross-examine these witnesses at trial. The jury was able to properly make a credibility determination in light of their recanting testimony, and found that the Defendant was guilty beyond a reasonable doubt.
The Defendant has failed to prove each prong of trial counsel ineffectiveness, and therefore, he has failed to make out the arguable merit prong in his claim of PCRA counsel's ineffectiveness.
c. PCRA Counsel's Ineffectiveness for Failing to Raise and Litigation Issue of Whether the Defendant's Right to a Fair Jury Trial was Violated.
In his pro se PCRA Petition, the Defendant argued that he was deprived the right to a fair jury trial because family and friends of the victim wore tee-shirts bearing photos of the deceased victim, which ran the "risk of improper consideration." He now alleges that PCRA counsel was ineffective for failing to raise and litigate the claim.
First, "an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." Second, "a PCRA petitioner's waiver will only be excused upon a demonstration of ineffectiveness of counsel in waiving the issue." In Com. v. Sweitzer, 261 Pa.Super. 395 A.2d 1376, 1378 (Pa.Super. 1978), on appeal from a denial of his PCHA Petition, "Appellant... claim[ed] that he was denied fair trials on two armed robbery charges because the juries could see him handcuffed and behind bars." The Superior Court found that "[b]ecause he d[id] not claim that his trial counsel was ineffective for not objecting to or not appealing that issue and does not allege any other extraordinary circumstance for his failure to bring that issue up on direct appeal, he has waived it."
The issue of whether the Petitioner was denied a fair trial because the family and friends of the victim had an 8x10 photo and wore tee-shirts bearing photos of the victim is an issue that should have been raised on direct appeal. The Petitioner did not raise this issue on direct appeal. He also did not aver in his initial pro se PCRA Petition, in his Objection to the Court's Notice of Intent to Dismiss, or in his most recent 1925(b) Statement that trial counsel was ineffective for failing to notify the court, or for waiving said issue on direct appeal. Because the Defendant does not allege any circumstance for his failure to raise this issue on direct appeal he waived it. Now, he does not argue that PCRA counsel was ineffective for failing to raise a claim of trial counsel's ineffectiveness in waiving the issue. Furthermore, even if the issue was not waived, there was no evidence of prejudice to the Defendant, Other than the Defendant's bald assertions there is no indication that these individuals were wearing such tee-shirts or holding photos of the victim prior to the time when his trial attorney addressed the issue to the Court. As soon as defense counsel became aware of the potential problem, the Court was notified. The Court took prompt action to insure that the victim's friends and family were not engaging in this conduct in order to prevent prejudice.
He now argues that PCRA counsel was ineffective for failing to raise the issue of whether he was denied a fair trial in the Amended PCRA Petition. He does not argue that PCRA counsel was ineffective for failing to raise a claim of trial counsel's ineffectiveness in waiving the issue. PCRA counsel properly exercised her discretion in declining to address the meritless issue in the Amended Petition. PCRA counsel, therefore, had a reasonable basis upon which to exclude the claim from the Amended PCRA Petition.
This Court respectfully requests that the Superior Court affirm this Court's decisions.