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Commonwealth v. Reid

Supreme Court of Pennsylvania

August 20, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ANTHONY REID, Appellant

 Submitted June 20, 2012

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Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, entered on November 16, 2007 denying PCRA relief in the CCP, at No. CP-51-CR-0602521-1989. Trial Court Judge: William J. Mazzola, Judge.

For Anthony Reid, Appellant: Daniel Silverman, Esq.

For Commonwealth of Pennsylvania, Appellee: Hugh J. Burns, Esq., Suzan Elena Willcox, Esq., Philadelphia District Attorney's Office; Amy Zapp, Esq., PA Office of Attorney General.

BEFORE: MADAME JUSTICE TODD. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Mr. Chief Justice Castille and Messrs. Justice Eakin, McCaffery and Stevens join the opinion. Mr. Justice Baer files a concurring opinion. Mr. Justice Saylor files a dissenting opinion.

OPINION

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MADAME TODD, JUSTICE

This is a capital appeal from the order of the Court of Common Pleas of Philadelphia County denying Appellant Anthony Reid's petition for relief under the Post Conviction Relief Act (" PCRA" ), 42 Pa.C.S.A. § § 9541-9546.[1] For the reasons that follow, we affirm.

I. Background

In the early evening of March 7, 1989, a group of boys was throwing snowballs at passing cars in a Philadelphia neighborhood. One of the snowballs struck a vehicle driven bye Appellant, who was also known as " Tone" or " Tone-Bey." PCRA Court Supplemental Rule 1925(a) Opinion, 2/14/11 (" PCRA Court Opinion" ), at 1. Appellant stopped his vehicle, and he and his two passengers exited the car. The boys scattered, and Appellant asked two bystanders,

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Daniel McKay and Scott Keenan, if they were involved in throwing the snowballs. The bystanders denied involvement, and, as Appellant reached his hand inside his jacket, he replied " You better hope none was your family." PCRA Court Opinion at 7. Appellant then said to his passengers, " Well, let's at least get one of them." Id. A third bystander, Walter Coggins, not realizing what Appellant meant by that statement, suggested Appellant drive around the corner to " get one." According to Coggins, his discussion with Appellant lasted approximately 2 to 3 minutes. N.T. Trial, 8/7/90, at 808. As Appellant and his passengers drove around the block, some of the boys who had been throwing snowballs pulled a stop sign into the middle of the street on which Appellant was driving. When Appellant reached the stop sign, he drove the car onto the sidewalk and gunfire erupted from the passenger side of the vehicle. Michael Waters, who was sixteen years old, was fatally wounded when a bullet struck him in the back and exited his chest. Appellant and his passengers then drove away. Two 10-millimeter shell casings were found at the scene, and one deformed .38 caliber bullet was recovered from a nearby window frame. At the hospital, another .38 caliber bullet, which was undamaged and apparently had not entered Waters' body, fell from Waters' jacket.

Six days later, in a separate incident, Appellant used a 10-millimeter handgun to kill Neal Wilkinson. In this incident, Appellant and a companion, Kevin Bowman, asked Wilkinson and Darryl Woods to accompany them to collect a debt. When Wilkinson and Woods ascended the stairs to the residence of the alleged debtor, Bowman shot them both with a shotgun, and Appellant then shot both men with a handgun. Woods survived and gave police a statement naming Appellant as one of the two shooters. Ten-millimeter shell casings found at the scene of the Wilkinson murder were determined to have been fired from the same gun that was used in the Waters murder six days earlier.

In August 1990, Appellant was tried for the Waters murder before the Honorable Albert F. Sabo, and was represented by James Bruno, Esquire.[2] At trial, the Commonwealth introduced ballistics evidence from both the Waters and Wilkinson murders in an attempt to establish that the same weapon was used to fire shots in both incidents. Appellant raised a defense of misidentification, but the jury convicted Appellant of first-degree murder, criminal conspiracy, possession of an instrument of crime, and carrying a firearm without a license. Following the penalty phase, the jury found two aggravating circumstances -- specifically, that Appellant created a grave risk of death to individuals other than the victim, 42 Pa.C.S.A. § 9711(d)(7), and Appellant had a significant history of violent felonies, 42 Pa.C.S.A. § 9711(d)(9). The jury found no mitigating circumstances,[3] and so was required to return a sentence of death. On December 6, 1990, the trial court formally imposed a death sentence on the murder conviction, and a consecutive aggregate sentence of 10-20 years imprisonment on

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the remaining offenses.[4] On direct appeal, Appellant was represented by F. Emmett Fitzpatrick, Esquire.[5] On May 27, 1993, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Reid, 533 Pa. 508, 626 A.2d 118 (Pa. 1993).

On December 12, 1996, Appellant filed a timely pro se PCRA petition in this case and in a separate case in which Appellant was charged with conspiracy to murder Mark Lisby.[6] [7] Both matters were assigned to the Honorable James Lineberger. Current counsel, Daniel Silverman, Esquire, was appointed to represent Appellant, and counsel filed a series of amended petitions in this case, including: an " Amended PCRA Petition" and reproduced record in January 1999; a " Supplemental Amended PCRA Petition" in April 1999; [8] a supplemental reproduced record in April 1999; a second supplemental reproduced record in May 1999; a " Second Supplemental Amended PCRA Petition" in July 2000; and a third supplemental amended PCRA petition in February 2001.[9] On November 21, 2001, the Commonwealth filed a motion to dismiss, following which Appellant filed a " Fourth Supplemental PCRA Petition" in July 2002. Thereafter, Appellant filed a variety of additional pleadings, including a motion to search police archives and a motion for funds to hire experts. On May 6, 2005, the PCRA court issued a notice of intent to dismiss Appellant's PCRA petition in this case, and in the Lisby case. Appellant objected, and, ultimately, the Commonwealth

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indicated that it did " not object" to an evidentiary hearing on certain issues, including Appellant's Batson[10] claim and the issue of trial counsel's failure to introduce mitigation testimony by a doctor and Appellant's family members at the penalty phase of his trial. Letter from Assistant District Attorney (" ADA" ) Michelle Seidner to Judge Lineberger, 7/8/05. The PCRA court scheduled evidentiary hearings on a number of occasions; however, Appellant continuously objected to the hearings and, ultimately, no hearing was conducted. In December 2005, following Judge Lineberger's retirement, the cases were reassigned to the Honorable William Mazzola. Appellant filed additional motions seeking, inter alia, discovery in connection with new Batson claims and funds to hire an expert. In August 2007, the Commonwealth filed another motion to dismiss. On October 17, 2007, Judge Mazzola denied Appellant's motions and issued a notice of intent to dismiss Appellant's Amended PCRA petition; he formally dismissed Appellant's Amended PCRA Petition on November 16, 2007. This appeal followed.[11]

II. Analysis

In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is " supported by the record and free of legal error." Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007). To be entitled to PCRA relief, an appellant must establish, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S.A. § 9543(a)(2); his claims have not been previously litigated or waived, id. § 9543(a)(3); and the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel. Id. § 9543(a)(4). An issue is previously litigated if " the highest appellate court in which [the appellant] could have had review as a matter of right has ruled on the merits of the issue." Id. § 9544(a)(2). An issue is waived if appellant " could have raised it but failed to do so before trial, at trial, . . . on appeal or in a prior state postconviction proceeding." Id. § 9544(b).

In order to obtain relief on a claim of counsel ineffectiveness, a PCRA petitioner must satisfy the performance and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Pennsylvania, we have applied the Strickland test by requiring that a petitioner establish that (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. Commonwealth v. Pierce, 567 Pa. 186, 786 A.2d 203, 213 (Pa. 2001). Counsel is presumed to have rendered effective assistance, and, if a claim fails under any required element of the Strickland test, the court may dismiss the claim on that basis. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 291 (Pa. 2010).

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Finally, at the time Appellant filed his direct appeal, in 1993, the prevailing law required that an appellant raise claims of ineffectiveness of trial counsel at the first opportunity of new counsel, on pain of waiver. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (Pa. 1977), abrogated by Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726, 738 (Pa. 2002). Accordingly, where a PCRA petitioner such as Appellant was represented by new counsel on a pre-Grant direct appeal, in order to secure relief on a claim deriving from trial counsel effectiveness, he must demonstrate not only that trial counsel was ineffective, but also that appellate counsel was ineffective for either failing to litigate the claim at all, or was ineffective in the manner in which he litigated the claim of trial counsel's ineffectiveness on direct appeal. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1128 (Pa. 2011); Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (Pa. 2003). As we explained in McGill:

Succinctly stated, a petitioner must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that counsel who preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument, in briefs or other court memoranda, on the three prongs of the Pierce test as to each relevant layer of representation. . . . If any one of the prongs as to trial counsel's ineffectiveness is not established, then necessarily the claim of appellate counsel's ineffectiveness fails. Only if all three prongs as to the claim of trial counsel's ineffectiveness are established, do prongs 2 and 3 of the Pierce test as to the claim of appellate counsel's ineffectiveness have relevance, requiring a determination as to whether appellate counsel had a reasonable basis for his course of conduct in failing to raise a meritorious claim of trial counsel's ineffectiveness (prong 2) and whether petitioner was prejudiced by appellate counsel's course of conduct in not raising the meritorious claim of trial counsel's ineffectiveness (prong 3).

832 A.2d at 1023.

As a preliminary matter, we note that, throughout its brief, the Commonwealth contends that Appellant has waived many of his ineffectiveness claims by failing to properly develop in his Amended PCRA Petition his claims of appellate counsel's ineffectiveness, by relying on boilerplate language, with little or no discussion of the applicable standard, or by simply appending a statement alleging appellate counsel's ineffectiveness to the caption of his argument. However, for the following reasons, we decline to hold Appellant's claims waived on this basis where he attempted to assert appellate counsel's ineffectiveness in his Amended PCRA Petition.

With regard to nearly all of his claims, Appellant asserted in his Amended PCRA Petition a claim, albeit in some instances a cursory one, that appellate counsel was ineffective. Appellant elaborated upon many of those claims in his brief to this Court. In Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1 (Pa. 2011), we recognized the continuing confusion as to the requirements and impact of McGill, particularly where, as here, the appellant's PCRA petition was filed prior to McGill, but the appellate briefs were filed after McGill. We also noted the existence of post-McGill cases where the PCRA court failed to allow for an amendment of a PCRA petition, an important safeguard contemplated in the Rules of Criminal Procedure and emphasized in McGill. See McGill, 832 A.2d at 1024 (Pa.R.Crim.P. 905 " indicates the desire of this Court to provide PCRA petitioners with a legitimate opportunity to

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present their claims to the PCRA court in a manner sufficient to avoid dismissal due to a correctable defect in claim pleading or presentation." ). Thus, we stated in Walker:

Given the complexities posed by these layered ineffectiveness claims, we now conclude the better practice is not to reject claims of appellate counsel's ineffectiveness on the grounds of inadequate development in the appellate brief if the deficiencies in the brief mirror those in the PCRA pleadings, unless the PCRA court invoked these deficiencies as the basis for its decision and afforded an opportunity to amend.

Walker, 36 A.3d at 8-9 (emphasis omitted).

In the instant case, the PCRA court did not reject wholesale Appellant's ineffectiveness claims based on inadequate development of the same in his PCRA petition, and Appellant was not afforded an opportunity to amend his claims. Accordingly, where the Commonwealth's waiver objection is based solely on the inadequacy of Appellant's presentation of his claim of appellate counsel's ineffectiveness in his Amended PCRA Petition, we will address the claims on the merits, where appropriate.[12] Where, however, the Commonwealth asserts waiver on some other basis, such as Appellant's complete omission of a claim from his PCRA petition, or for some other reason, we will address the Commonwealth's specific argument.

Furthermore, as noted above, Appellant has filed a series of supplemental PCRA petitions. The Commonwealth asserts that Appellant " never sought or received permission to file the serial amended and supplemental petitions and 'records,'" and, therefore, that the claims contained therein are waived. Commonwealth's Brief at 6. Under our Rules of Criminal Procedure, " [t]he judge may grant leave to amend or withdraw a petition for post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A).

In its opinion, the PCRA court recognized the plethora of supplements filed in this case, and observed:

[I]n no case is there any indication of a court being requested to grant or otherwise granting permission to file late petitions or to submit amended ones, let alone establishing a time frame within which to do so. It should therefore be incumbent upon the defendant to explain why any of his various submissions should be considered in the first place. We realize of course that there have been several status listings of both cases, the proceedings and outcome of most of which do not appear of record. It is possible that the court may have entertained and extended off-the-record accommodations, but, if that were the case, the defendant should have clarified those omissions by utilizing the procedures for establishing a reconstructed record. Not having done so, the black letter law would seem to require an outright dismissal of the petitions at issue. Again, however, recalling the Court's inclination to liberality in these proceedings, this court will, of course, address all of the issues raised by the submissions, limited to those particular

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issues addressed by the defendant's statements of matters complained of on appeal.

PCRA Court Opinion at 17.

Notwithstanding the PCRA court's indulgence in addressing all of Appellant's claims, we agree that it was incumbent upon Appellant to identify where in the record the supplemental petitions were authorized and/or to reconstruct the record if such authorization was provided off the record. Appellant has not done so. This Court has condemned the unauthorized filing of supplements and amendments to PCRA petitions, and held that claims raised in such supplements are subject to waiver. See Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013); Commonwealth v. Roney, 79 A.3d 595, 615-16 (Pa. 2013); Commonwealth v. Porter, 613 Pa. 510, 35 A.3d 4, 12 (Pa. 2012). Accordingly, although the majority of Appellant's claims were, in fact, raised in his Amended PCRA petition, several of his claims, which are discussed further below, were raised for the first time in apparently unauthorized supplemental petitions; therefore, we find those claims to be waived.

We now consider Appellant's claims, which we have divided into guilt- and penalty-phase claims, and, in some instances, reordered for ease of disposition.

A. Guilt Phase

1. Batson claim

Appellant first argues that the PCRA court erred in denying his motion for relief based on his claim that the prosecution exercised its peremptory strikes on the basis of race and gender in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and, further, that prior counsel were ineffective for failing to raise and litigate this claim. Appellant's Brief at 9.[13] Appellant further contends the PCRA court improperly denied his motion for discovery, his motion for funds to hire an expert, and his motion for an evidentiary hearing, which would have allowed him to further develop his Batson claim.

In Batson, the United States Supreme Court held that a prosecutor's challenge to potential jurors solely on the basis of race violates the Equal Protection Clause of the United States Constitution. 476 U.S. at 89. In order to demonstrate a Batson violation, an appellant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id. at 96. If the appellant succeeds, the burden shifts to the prosecutor to articulate a race-neutral explanation for the peremptory challenges. Id. at 97. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. at 98.

Where, as here, a Batson claim arises only in the context of an allegation of ineffectiveness of counsel, an appellant is not entitled to the benefit of the burden of persuasion as to whether there is a race-neutral explanation for the prosecutor's use of peremptory challenges. Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 86 (Pa. 2004). Rather, the appellant bears the burden throughout the inquiry and must demonstrate " actual, purposeful discrimination by a preponderance of the evidence," as well as meeting the " performance and prejudice" standard for demonstrating counsel's ineffectiveness discussed above. Id. at 87. To satisfy his burden, an appellant raising a Batson claim must make a record specifically

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identifying the race of all the venirepersons removed by the prosecution, the race of the jurors who served, and the race of the jurors acceptable to the Commonwealth who were stricken by the defense. Commonwealth v. Sepulveda, 618 Pa. 262, 55 A.3d 1108, 1132 n.23 (Pa. 2012).

As noted above, in the instant case, Appellant did not raise a Batson claim at trial or on direct appeal. However, according to Appellant, during voir dire in the instant case, his counsel challenged the prosecutor's exercise of seven of the prosecution's first eight peremptory strikes against African Americans. Appellant notes that, as a result of the objection, a record was made of the race of some of the jurors struck by the prosecution. Appellant further argues that he attempted to establish the race of the remaining jurors during the PCRA proceeding, but that the PCRA court erroneously denied his motion for discovery relating to juror race. Nevertheless, Appellant asserts he was able to determine the race of many of the jurors by using voter registration records and obtaining affidavits from certain jurors, which enabled him to make the following proffer:

Leaving aside those jurors struck for cause or struck by the defense before the Commonwealth made a choice whether to accept or strike the juror, there were forty-five (45) potential jurors available for peremptory strikes by the prosecutor. Of these 45 people whom the prosecutor had an opportunity to strike, 21 were black, 22 were white, and 2 were Hispanic or other. Of that almost evenly balanced pool, the prosecutor struck 15 blacks, 4 whites, and 1 Hispanic. By the contrast, the prosecutor accepted 6 blacks, 18 whites, and 1 juror whose race is listed as other.

Appellant's Brief at 10 (quoting Appellant's Response to Commonwealth's Motion to Dismiss, 6/12/02, at 14).[14] Appellant contends that the " pattern of strikes is grossly disproportionate," and, in his brief to this Court, he alleges that, following his proffer, " the Commonwealth conceded that Appellant was entitled to an evidentiary hearing on his Batson claim." Id. at 11 (emphasis original) (referencing letter dated July 9, 2005 from ADA Michelle Seidner to Judge Lineberger).

Upon review, we find no error in the PCRA court's denial of Appellant's request for discovery, funds, an evidentiary hearing, and relief based on his Batson claim. With respect to Appellant's request for an evidentiary hearing, the decision whether to grant an evidentiary hearing is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion. Sepulveda, 55 A.3d at 1133-34. As discussed above, after the Commonwealth filed its initial motion to dismiss, Appellant responded that he was entitled to an evidentiary hearing on, inter alia, his Batson claim. See Appellant's Consolidated Response to Commonwealth's Motion to Dismiss, 7/12/02. On May 6, 2005, in response to a motion by the Commonwealth, the PCRA court issued notice of its intent to dismiss Appellant's Amended PCRA petition without a hearing. On June 3, 2005, however, the Commonwealth advised Appellant and the court that it would not object to an evidentiary hearing on certain limited issues, including Appellant's Batson claim, in light of the fact that this Court had recently

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remanded several capital cases for evidentiary hearings.

Accordingly, the PCRA court scheduled an evidentiary hearing on Appellant's Batson claim for June 15, 2005. However, on June 8, 2005, defense counsel advised the court by letter that (1) he was unable to attend the scheduled hearing; (2) he did not believe it was necessary for him to attend the hearing if the court simply intended to dismiss the Appellant's Amended PCRA petition; and (3) if the court did not intend to dismiss the petition, he was requesting the matters be relisted so that he could appear. Accordingly, the PCRA court relisted the matter for July 13, 2005. In a letter dated June 21, 2005, however, defense counsel objected to the hearing, suggesting, inter alia, that it was unfair for the Commonwealth to agree to an evidentiary hearing when it previously maintained that no hearing was warranted, and that, if the court intended to conduct an evidentiary hearing, the judge should recuse himself. Counsel further averred:

If the Court does anything other than dismiss these cases, we will need the Court to set aside no fewer than three consecutive weeks for these protracted hearings. In addition, I will need to request substantial expert funds and file various motions, including additional discovery motions, in order to properly present our case.
Fifth, if the Court is inclined to accede to the Commonwealth's new position, then we intend to file a formal motion for sanctions to address its unprofessional conduct. These should include an Order precluding the Commonwealth from cross-examining any defense witnesses, from presenting any witnesses, and from making any written or oral argument.
. . . [W]e continue to maintain our long-held position that the issues we raised deserve an evidentiary hearing, but we only want an evidentiary hearing if it can be fair.

Letter from Daniel Silverman to Judge Lineberger, 6/21/05, at 3.

On August 19, 2005, the PCRA court issued an order denying Appellant's motion for recusal, and scheduling a hearing for September 15, 2005, on the issues of, inter alia, Appellant's Batson claim and his claim that trial counsel was ineffective for failing to present mitigation testimony from Appellant's doctor and family members at the penalty phase of Appellant's trial. On August 31, 2005, Appellant's counsel filed another motion for continuance seeking to have the hearing rescheduled. Before acting on the motion, Judge Lineberger retired, and, in December 2005, the instant case, along with the Lisby case, was assigned to the Honorable William Mazzola, following which time Appellant filed additional motions for discovery and expert funds, and alleging newly discovered Batson claims, all of which Judge Mazzola denied.

We set forth the above procedural history to demonstrate that Appellant was offered an evidentiary hearing on his Batson claim, but repeatedly frustrated the PCRA court's attempt to conduct the hearing. Accordingly, we find he cannot now complain that he improperly was denied a hearing. Thus, we find no merit to Appellant's claim that the PCRA court improperly denied him an evidentiary hearing.

Likewise, we reject Appellant's claim that the PCRA court improperly denied his request for discovery. Discovery in death penalty collateral proceedings is permissible only upon leave of court, and only for good cause shown. Pa.R.Crim.P. 902(E)(2). We review a PCRA court's denial of discovery for an abuse of discretion. Commonwealth v. Sattazahn, 597 Pa. 648,

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952 A.2d 640, 662 (Pa. 2008). In his discovery request, Appellant sought documents produced in a civil suit filed by Bruce Sagel against Philadelphia Magazine in June 1997 after the magazine published comments Sagel was alleged to have made during his 1990 lecture on jury selection, wherein he purportedly advocated the use of racial stereotypes in jury selection. In the lawsuit, which was withdrawn in December 1997, Sagel claimed that the magazine's publication of the comments he was alleged to have made defamed him. Appellant requested copies of Sagel's Answers to Interrogatories and Request for Production of Documents, as well as Sagel's deposition transcript, pertaining to the lawsuit. In addition, Appellant sought copies of Sagel's lecture notes. See Appellant's Motion for Discovery, 2/21/06. According to Appellant, the documents he sought were necessary to enable him to meet his burden of establishing a prima facie case of discrimination under Batson. However, this Court has determined that information relating to the Sagel lecture notes is insufficient to establish the required purposeful discrimination. Commonwealth v. Ligons, 601 Pa. 103, 971 A.2d 1125, 1145 n.19 (Pa. 2009). Thus, Appellant's motion for discovery was unsupported by good cause, and the PCRA court did not err in denying Appellant's motion.

For the same reason, the PCRA court's denial of Appellant's request for funds to retain experts, including Professor David Baldus, who conducted a study regarding the practice of racially discriminatory jury selection in Philadelphia from the 1980's into the 1990's, to testify in support of his Batson claim was not erroneous.

Finally, with regard to the merits of Appellant's Batson claim, we hold that he is not entitled to relief. As noted above, Appellant contends that the prosecutor struck 15 of 21 potential African American jurors, but struck only 4 of 22 potential Caucasian jurors, and 1 Hispanic juror, resulting in a " grossly disproportionate" pattern of strikes. Appellant's Brief at 11. Initially, the Commonwealth contends that, by failing to make a record of the race of potential jurors who were acceptable to the Commonwealth, but excluded by the defense, Appellant is unable to establish even a prima facie case of discrimination. The fact that the prosecutor struck more African Americans than Caucasians, in and of itself, is insufficient to demonstrate purposeful discrimination when considering the totality of the circumstances. Ligons, 971 A.2d at 1144. Moreover, as Appellant fails to identify the racial composition of his jury, we lack an adequate record upon which to evaluate his Batson claim. See Sepulveda, 55 A.3d at 1132 n.23 (noting that we have required information about race of potential jurors peremptorily challenged by the Commonwealth, the race of potential jurors acceptable to the Commonwealth but peremptorily challenged by the defense, and the composition of the jury selected). Accordingly, we conclude Appellant has failed to establish purposeful discrimination based on the prosecutor's use of preemptory strikes.

Nevertheless, Appellant, in further support of his contention that the prosecution engaged in purposeful discrimination, makes an oft-asserted claim of a culture of discrimination in the Philadelphia District Attorney's Office between 1980 and 1996. Specifically, Appellant asserts that an analysis by Professor Baldus demonstrates that Roger King, the prosecutor in Appellant's case, was " over two times more likely to strike a black venire person compared to one who was not black." Appellant's Brief at 12-13 (emphasis original). Appellant also contends that a study by Professor Baldus documents a pattern

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of racial discrimination in jury selection during the years 1981 through 1997. Appellant further argues that the now infamous 1987 training tape on jury selection prepared by former Philadelphia Assistant District Attorney Jack McMahon " supports an inference" that the Philadelphia District Attorneys' Office engaged in purposeful discrimination, as do lecture notes taken during a training lecture for prosecutors delivered by Bruce Sagel in 1990. Id. at 13-14.

This Court previously has held that evidence that a prosecutor was found to have violated Batson in a prior case is insufficient to demonstrate that the prosecutor impermissibly struck jurors in a later case. Ligons, 971 A.2d at 1145. As we have held that a finding of a prior Batson violation is insufficient to establish purposeful discrimination in a subsequent case, a study showing that the prosecutor in his case " was over two times more likely" to strike an African American juror than a Caucasian juror in other cases cannot support Appellant's claim of purposeful discrimination in this case.

With regard to the McMahon training tape, we have repeatedly emphasized that the tape is not sufficient to establish a Batson violation in a particular case, particularly where, as here, " the prosecutor at an appellant's trial was someone other than McMahon, and the time of the appellant's trial was temporally remote from the creation of the videotape." Commonwealth v. Jones, 597 Pa. 286, 951 A.2d 294, 305 (Pa. 2008). We likewise have determined that the Baldus study and the Sagel lecture notes are insufficient to establish purposeful discrimination in a given case. Ligons, 971 A.2d at 1145 n.19. Thus, as Appellant has failed to demonstrate purposeful discrimination, the PCRA court did not err in denying him relief on his Batson claim.

2. Failure to request a Kloiber instruction

Next, Appellant contends that trial counsel was ineffective for failing to request a Kloiber instruction[15] regarding McKay, Keenan, and Coggins, all of whom testified at trial and identified Appellant as the individual who threatened to " get" one of the boys who had been throwing snowballs. Appellant further alleges that appellate counsel was ineffective for failing to raise this issue on appeal.[16] A Kloiber charge is appropriate where there are particular concerns regarding identification, such as where a witness did not have an opportunity to clearly view the defendant, equivocated on the identification of the defendant, or had a problem making an identification in the past. Commonwealth v. Ali, 608 Pa. 71, 10 A.3d 282, 303 (Pa. 2010). Where an eyewitness has had " protracted and unobstructed views" of the defendant and consistently identified the defendant " throughout the investigation and at trial," there is no need for a Kloiber instruction. Id.

Appellant first contends that trial counsel was ineffective for failing to request a Kloiber charge with respect to the identification testimony of McKay because McKay viewed a series of photo arrays after the shooting, and " [n]ot only did he fail to identify Appellant, he identified someone else." Appellant's Brief at 20 (citing N.T. Trial, 8/6/90, at 686-87). The Commonwealth emphasizes that McKay denied identifying someone other than Appellant as the person who exited the car and threatened to get one of the snowball throwers; rather, when viewing the photo

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array, McKay simply stated that one of the photographs " looked something like the man but it wasn't him." Commonwealth's Brief at 21. The Commonwealth further notes that McKay's statement that one of the photographs " looked something" like the driver was corroborated by a detective who was present when McKay made the statement. Id.

The PCRA court, in rejecting Appellant's argument that trial counsel was ineffective for failing to request a Kloiber instruction regarding McKay's testimony, noted that Appellant's allegation that McKay not only failed to identify Appellant, but identified someone else, " is a mischaracterization," in that (1) Appellant's photograph was not included in the photo array shown to McKay on March 21, 1989; and (2) McKay, when viewing the photo array, did not identify anyone as the perpetrator, but rather stated that one individual " looked something like the man but it wasn't him." PCRA Court Opinion at 37.

The record supports the PCRA court's conclusions. McKay testified at trial that he was shown a photo array on March 8, 1989 (the day after the shooting); several additional photo arrays on March 21, 1989; and another photo array in May 1989. N.T. Trial, 8/6/90, at 682-87. McKay acknowledged that he did not identify Appellant from the photos he was shown on March 8 or March 21, but first identified Appellant's photograph from the photo array he was shown in May 1989. Id. at 682-83, 687.[17] Notably, however, the assistant district attorney advised the trial court that Appellant's photograph was contained in only one of the photo arrays shown to the witnesses. Id. at 687. In addition, Detective Paul Raley testified that Appellant's photograph was " never" included in any of the photo arrays shown to witnesses prior to the time Appellant became a suspect in another murder, which was in the early part of April 1989. N.T. Trial, 8/7/90, at 854-855. Thus, the evidence demonstrates that Appellant's photograph was not contained in the March 21 photo arrays, or in any photo arrays prior thereto.[18]

Additionally, with regard to McKay's purported identification of Appellant from the March 21 photo arrays, McKay testified that he " didn't pick him out. I said [one photograph] looked something like the man but it wasn't him." Id. at 686. Detective Raley corroborated McKay's testimony; when asked on cross-examination whether McKay picked Appellant's photo from the photo arrays he was shown on

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March 21, 1989, Detective Raley replied " No, not entirely right, no. What [he] did was [he] looked at a photographs and said this looks something like the guy that was involved that night." N.T. Trial, 8/7/90, at 828-29. Thus, there was no basis for a Kloiber instruction regarding McKay, and trial counsel cannot be deemed ineffective for failing to request one.

Appellant next contends that trial counsel was ineffective for failing to request a Kloiber instruction regarding Coggins because Coggins failed to identify Appellant from a photo array he was shown by Detective Raley. Coggins testified that he was first interviewed approximately one week after the incident, and that he was shown some photographs at that time,[19] but that he didn't identify Appellant from photographs at that time, or at any time thereafter. Id. at 811-12. Coggins did, however, identify Appellant at a hearing and again at trial.

The Commonwealth acknowledges that Coggins failed to identify Appellant's photograph " from the hundreds he was shown. He did however, identify him in court." Commonwealth's Brief at 22. The Commonwealth further offers that, in light of the fact that counsel at trial " effectively highlighted the weakness" in Coggins' identification of Appellant, and, because of the unequivocal testimony of McKay and Keenan that Appellant was the individual who stepped out of the car and shouted at the group throwing snowballs, any failure to give a Kloiber instruction regarding Coggins was " meaningless." Id. at 23.

The PCRA court acknowledged that Coggins failed to identify Appellant from a photo array, but noted that the record did not indicate whether Appellant's picture was, in fact, included in the group of photographs Coggins was shown. PCRA Court Opinion at 38. The PCRA court thus concluded Appellant " failed to establish any real inconsistencies in the witnesses' testimony, let [alone] any that could be considered to be inconsistent to the degree that would require a cautionary instruction." Id. We conclude the PCRA court did not err in rejecting Appellant's ineffectiveness claim regarding Coggins, albeit for slightly different reasons.

Detective Raley testified that, " at one point," around the early part of April 1989, Coggins was, in fact, shown a photo array containing Appellant's photograph. N.T. Trial, 8/7/90, at 855. On cross-examination, Coggins candidly admitted that, although the police showed him " a few pictures," he told police he " wasn't sure if it was him or not, I wouldn't want to pick the wrong person." Id. at 815.[20] Coggins further testified, however, that he was certain of his identification of Appellant at trial and during a prior hearing because he " held a conversation [with Appellant]. I didn't hold a conversation with a picture." Id. Indeed, at trial, the assistant district attorney asked Detective Raley " what if anything did Mr. Coggins say that he had to see or do before he could make an identification," and the detective replied: " Each time he was shown a photo spread he said I couldn't make --he couldn't make an identification. He kept insisting 'I got to see him in person.'" Id. at 838-39; 856 (" Mr. Coggins indicated that, after every time I showed him photographs, he wanted to see him in person." ).

Our case law makes clear that the need for a Kloiber instruction focuses on the

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ability of a witness to identify the defendant. See Commonwealth v. Fisher, 572 Pa. 105, 813 A.2d 761, 770-71 (Pa. 2002) (opinion announcing the judgment of the court) (providing no relief to PCRA petitioner based on conclusions Kloiber instruction litigated on direct appeal where witness, who knew defendant prior to shooting, failed to identify defendant at pre-trial line-up due to fear that identifying him would endanger her and her family); Commonwealth v. Lee, 401 Pa.Super. 591, 585 A.2d 1084, 1087 (Pa. Super. 1991) (finding Kloiber instruction inappropriate where fear of identifying defendant cannot be equated to failure to make identification); Ali, 10 A.3d at 304 (" Any perceived weaknesses in N.M's testimony attributable to her tender years, the circumstances of the horrific experience, the subject matter, and her ability to recall details were matters of credibility for the jury as factfinder to decide; but those issues did not undermine N.M.'s actual physical ability to identify appellant at the time and place of the murder, so as to trigger the special identification testimony concerns underlying the Kloiber line of decisions." ).

Based on the above-recounted testimony of Coggins and Detective Raley, we conclude Coggins' failure to pick Appellant's photo from the photo array he was shown was not based on his inability to do so, but, rather, his unwillingness to identify Appellant from a photo array for fear of making a mistake and his preference for an in-person identification. Accordingly, there was no basis for a Kloiber instruction with respect to Coggins, and trial counsel cannot be deemed ineffective for having failed to request one.

Finally, Appellant alleges trial counsel was ineffective for failing to request a Kloiber instruction concerning Keenan because " Keenan testified at trial that it was Appellant who got out of the car and threatened to kill someone," but " Keenan identified someone other than Appellant at the line-up identification procedure held in this case, in which Appellant participated" and that " Keenan also identified someone other than Appellant when he viewed the photographic arrays." Appellant's Brief at 20.

The Commonwealth, however, emphasizes that " Keenan repeatedly identified [Appellant], helped prepare a composite sketch, picked out [Appellant's] photograph (after viewing approximately 3000 photos that did not include [Appellant]), told the detective that he was 100% sure of his identification, identified [Appellant] at a lineup, and testified at trial that he was absolutely positive that [Appellant] was the man he had seen." Commonwealth's Brief at 22. The Commonwealth further explains that Keenan testified he immediately recognized Appellant in the lineup, but " momentarily forgot what number [Appellant] was holding. He told the detective that he believed that the person he recognized was closest to the end, and then recalled the number, correctly identifying [Appellant]; the detective corroborated this testimony." Id.[21] The Commonwealth

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also disputes Appellant's assertion that Keenan identified someone else's photograph, noting that Keenan " merely stated [that] one photo in a[n] array that did not include [Appellant] was 'similar' to the perpetrator." Id.

In rejecting Appellant's claim that trial counsel was ineffective for failing to request a Kloiber instruction as to Keenan, the PCRA court observed that Keenan " testified that he recognized the defendant in the lineup, but he simply, out of nervousness, gave the police the wrong number of the person, and actually testified that he didn't recognize anyone in the photos." PCRA Court Opinion at 38. The PCRA court further noted the trial court had instructed the jury that, where a witness gave testimony at trial that was inconsistent with a prior statement or testimony given to police, it was for the jury to determine which, if any statement, to accept as true. Id. at 39. In convicting Appellant of first-degree murder, the jury obviously credited the witnesses' statements, including Keenan's, that Appellant was the shooter. Appellant maintains, however, that a general jury instruction on credibility does not satisfy the requirements of Kloiber.

Upon review, we agree with the PCRA court's determination that no Kloiber instruction was warranted with regard to Keenan. Keenan testified at trial that he was shown photo arrays the day after the shooting; on March 21; and on April 29. Keenan confirmed that he first identified Appellant's photo from the photo arrays he was shown on April 29, 1989. Id. at 801. As discussed above with regard to McKay, the evidence demonstrates that Appellant's photograph was not included in the March 8 or March 21 photo arrays. Furthermore, as with McKay, Detective Raley testified that Keenan did not identify Appellant from the March 21 photo array, but simply indicated that one individual resembled the person Keenan saw exit his vehicle on the night of the incident. See N.T. Trial, 8/7/90, at 828-29.

Moreover, although Keenan may have had difficulty recalling Appellant's placement in the lineup, we cannot conclude that Keenan had difficulty identifying Appellant as the driver of the vehicle who threatened to get one of the boys who were throwing snowballs. See Kloiber, supra. We acknowledge that, in rejecting Appellant's Kloiber claim as to Keenan's error in identifying Appellant during the lineup, the PCRA court necessarily accepted Keenan's explanation for the discrepancy in his identification without holding a hearing on Keenan's credibility. Generally, credibility determinations are reserved for the trial court, or the PCRA court following a hearing. Thus, we could remand the matter to the PCRA court for a hearing expressly regarding Keenan's credibility. In the instant case, however, we are satisfied that a remand is unnecessary. This Court has sanctioned the dismissal of claims which involve credibility " in light of implausability and based on conclusions drawn from the existing record." Commonwealth v. Gibson, 597 Pa. 402,

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951 A.2d 1110, 1139 n.20 (Pa. 2008). See also Commonwealth v. Small, 602 Pa. 425, 980 A.2d 549, 559-61 (Pa. 2009).

As noted by the Commonwealth, Keenan observed Appellant get out of his car from a few feet away. Keenan helped the police prepare a composite sketch, and picked out Appellant's photograph from the sole photo array that contained Appellant's photograph, stating he was 100% sure of his identification. Moreover, Keenan was thoroughly cross-examined regarding his mistake in identifying Appellant by the wrong number during the lineup. Thus, in this case, we conclude a remand for an express credibility determination by the PCRA court is not necessary, and we hold Appellant's ineffectiveness claim regarding the absence of a Kloiber instruction as to Keenan fails.

3. Admission of statements made by Woods

Appellant next argues that the trial court erred in allowing the Commonwealth, over an objection by defense counsel, to introduce at trial statements made by Woods, the surviving victim during the shooting in which Wilkinson was killed, while Woods was in the hospital, and that appellate counsel was ineffective for failing to properly litigate the issue on direct appeal. According to Appellant, in one of the statements, Woods told police that " Appellant was involved in shooting him with a .357 caliber pistol." Appellant's Brief at 24. Appellant contends that, in another statement, Woods " purportedly told police that Wilkinson was the individual who brought the guns to the murder scene prior to his death and that he handed them to Kevin Bowman and Appellant." Id. at 24-25.

The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. Commonwealth v. Travaglia, 611 Pa. 481, 28 A.3d 868, 873 (Pa. 2011). The trial court allowed the Commonwealth to introduce the above statements when Woods testified at trial that Appellant " did not shoot him, did not possess a ten millimeter handgun and that he had never made any such statement." Appellant's Brief at 25 (citing N.T. Trial, 8/8/90, at 917, 936-37, 941). According to Appellant, the trial court erred in allowing the Commonwealth to confront Woods with his prior statements " both to impeach his . . . testimony and as substantive evidence under Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (Pa. 1986)." Appellant's Brief at 25.

The Commonwealth responds that this issue has been finally litigated, as this Court held on direct appeal that the statements were contemporaneously recorded verbatim statements within the meaning of Commonwealth v. Brady. In Commonwealth v. Brady, this Court held that a prior inconsistent statement may be introduced as substantive evidence as long as (1) the statement was made under highly reliable circumstances, and (2) the declarant is available for cross-examination at trial. 507 A.2d at 71. The Commonwealth further contends that Appellant waived this claim by raising it for the first time in his supplemental Pa.R.A.P. 1925(b) statement. Finally, the Commonwealth maintains that Appellant's claim is without merit because Woods' statements were properly admitted in accordance with Commonwealth v. Brady.

Appellant concedes that appellate counsel challenged the propriety of the trial court's admission of Woods' statement on direct appeal, and he acknowledges that this Court upheld the admissibility of the statements on the basis that they constituted " contemporaneously recorded verbatim

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statements." Appellant's Brief at 25 (quoting Reid, 626 A.2d at 121). However, Appellant now argues that this Court " did not address the fact that Woods' statements were neither audiotaped nor videotaped, and thus were not actually contemporaneously recorded verbatim statements." Appellant's Brief at 25. Appellant relies on this Court's decision in Commonwealth v. Wilson, 550 Pa. 518, 707 A.2d 1114 (Pa. 1998), for the proposition that " a contemporaneously recorded, verbatim statement must be audio or videotaped to be sufficiently reliable for admission as substantive evidence." Appellant's Brief at 25.

Appellant never raised this claim in any PCRA petition, and first raised it in a supplemental 1925(b) statement; accordingly, Appellant has waived this argument. See Commonwealth v. Santiago, 579 Pa. 46, 855 A.2d 682, 691 (Pa. 2004) ( claim not raised in PCRA petition cannot be raised for the first time on appeal, and is " indisputably waived" ). Nevertheless, even if preserved, Appellant's claim that the trial court erred in allowing the Commonwealth to confront Woods with his prior statements is without merit. Wilson was not decided until 1998, approximately eight years after Appellant's trial. Thus, there was no requirement at the time of Appellant's trial that Woods' statement be audio- or ...


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