J-S29010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DOUGLAS PARKS Appellant No. 1137 WDA 2014

Appeal from the PCRA Order June 18, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012812-2008
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J

. * MEMORANDUM BY PANELLA, J. FILED JULY 16, 2015 Appellant, Douglas Parks, appeals from the order d enying him relief on his petition pursuant to the Post Conviction Relief Act (“PCRA”). Parks argues that the PCRA court erred in finding that tr ial counsel was not ineffective for failing to ask the trial court to p rovide a Kloiber 1 instruction to the jury. We affirm. A previous panel of this Court, in reviewing Parks ’s direct appeal, summarized the pertinent facts as follows. Appellant was arrested and, on October 20, 2010, re presented by counsel, he proceeded to a jury trial at which t he victim and numerous police officers testified. Specifically, the victim, Jeffrey Backus, testified he owns a small used-car dealership in a

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* Retired Senior Judge assigned to the Superior Cour t. 1 Commonwealth v. Kloiber , 106 A.2d 820 (Pa. 1954).J-S29010-15

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poverty stricken part of Pittsburgh, and prior to t he incident at issue, he was “familiar with” Appellant. Specifica lly, starting approximately twelve to fourteen years ago, Appella nt bought cars from Mr. Backus’ dealership, and therefore, Ap pellant was familiar with Mr. Backus’ business practices, which included Mr. Backus making only cash sales and openly stuffing t he cash into his socks after the sales. On August 9, 2008, at 5:15 p.m., as he was closing the dealership for the evening, Mr. Backus went inside of the dealership’s trailer to put away keys when he disco vered someone wearing a skeleton mask and a hooded sweats hirt standing near the refrigerator. Poking Mr. Backus in the face several times with a BB gun, the person told Mr. Ba ckus to lie down on the floor; however, Mr. Backus refused to d o so, resulting in the pair wrestling. While the pair wr estled, the attacker’s mask and hooded sweatshirt fell off, and when Mr. Backus would not succumb, the person hit Mr. Backus in the forehead with a floor jack, threatening to shoot hi m. Mr. Backus begged for his life and finally relinquished some o f the money from his socks. Mr. Backus estimated that, prior t o the robbery, he had a total of $10,000 tucked into both of his s ocks, and the robber left with approximately $7,000. As the robber, who appeared to be the same height o r a little taller than Mr. Backus, fled down the left side of Route 51 toward the Liberty Tunnels, Mr. Backus looked out of the t railer and observed the following: He was wearing blue jeans and a white sleeveless T- shirt, and it was a black male, and it was someone that ha d reach on me, especially with the help of a gun, but also he had long arms, and that’s pretty much it.

... [Police arrested Parks near the scene of the crime shortly thereafter. Backus was brought in to identify Park s.] [O]n direct examination, Mr. Backus testified, in releva nt part, as follows: Q:And what did you see when you arrived? A: I saw the perpetrator leaned up against the poli ce car in handcuffs.J-S29010-15

- 3 - Q:Did you get a good look at his face? A: Yes. Q:Did you recognize the individual? A:At that time, I did not, no. It had been years s ince I had seen that person. Q:And “that person” is [Appellant]. Correct? A:Yes. Q:Okay. When you saw him, what condition was he in and what was he wearing? A:He was wearing a white sleeveless T-shirt and blu e jeans and he was in handcuffs.

... Q:So when you saw [Appellant] in custody, did you believe that he was the perpetrator of the robbery? A:Yes. Q:Why? A:Because of his build, because of what he was wear ing, and then the rest of it is circumstantial evidence that you’re going to present.

... Q:Did the clothes match the description of the robb er that you gave? A:Yes. Q:Did the body structure of [Appellant] match the description of the robber that you gave? A:Yes. Q:And the jeans and the shirt were collected togeth er. Is there any doubt in your mind that [Appellant] is th e person that robbed you? A:No. Q:Are you sure? A:I’m sure. On cross-examination ... Mr. Backus indicated that, a fter the police arrested Appellant, he went to the scene and identified Appellant as his attacker based primarily on his bo dy structure and clothes. Mr. Backus admitted he did not see th e robber’s face during the incident; however, based on the fac t he and the robber wrestled for three to five minutes, and Mr. Backus watched him flee, Mr. Backus knew his robber’s “bod y structure exactly,” and the body structure of Appellant was “ exactly the same” as the robber’s structure.J-S29010-15

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Commonwealth v. Parks , No. 103 WDA 2011, unpublished memorandum at 2-5 (Pa. Super. filed 11/15/12). A jury convict ed Parks on charges of robbery, serious bodily injury and criminal trespas s. This Court affirmed Parks’s judgment of sentence, and the Supreme Court of Pennsylvania denied his petition for allowance of review. Parks subsequently filed a timely pro se PCRA petition. The PCRA court appointed counsel to Parks, and counsel filed an amended PCRA petition. After providing Parks with a notice of i ntent to dismiss, the PCRA court denied Parks’s petition. This timely appeal followed. On appeal, Parks raises two issues for our review. Both issues are based upon Parks’s contention that trial counsel wa s ineffective for failing to request a Kloiber instruction. Our standard of review of a PCRA court’s denial of a petition for postconviction relief is well-settled. We must examine whether the record supports the PCRA court’s determination and whether the PCRA court’s determination is free of legal error. See Commonwealth v. Hall , 867 A.2d 619, 628 (Pa. Super. 2005). The PCRA court’s findi ngs will not be disturbed unless there is no support for the findings in the certified record. See Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa. Super. 2001). Our scope of review is limited by the parameters of the PCRA. See Commonwealth v. Heilman , 867 A.2d 542, 544 (Pa. Super. 2005).J-S29010-15

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Parks’s arguments both assert the ineffectiveness of trial counsel as a basis for relief. We presume that counsel was effe ctive and an appellant bears the burden of proving otherwise. See Commonwealth v. Steele , 961 A.2d 215, 223 (Pa. 2007). To prevail on his ineffectiveness claims, Appellant must plead and prove, by a preponderance of the evidence, thre e elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) Appellant suffered prejudice because of counsel’s a ction or inaction. Commonwealth v. Spotz , 18 A.3d 244, 260 (Pa. 2011) (citations omitted). “A failure to satisfy any prong of the test for ine ffectiveness will require rejection of the claim.” Commonwealth v. Morrison , 878 A.2d 102, 105 (Pa. Super. 2005) (citation omitted). Counsel canno t be deemed ineffective for failing to raise a meritless claim. See Commonwealth v. Fears , 86 A.3d 795, 803 (Pa. 2014). “A Kloiber

instruction informs the jury that an eyewitness identification should be viewed with caution when e ither the witness did not have an opportunity to view the defendant clearly, equivocated on the identification of the defendant, or has had difficu lties identifying the defendant on prior occasions.” Commonwealth v. Sanders , 42 A.3d 325, 332 (Pa. Super. 2012). When these circumstances ex ist, “the Court should warn the jury that the testimony as to identity mus t be received with caution.” Kloiber , 106 A.2d at 826-827.J-S29010-15

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Parks contends that since Backus did not see the r obber’s face, a Kloiber instruction was called for, and thus, trial counsel ’s failure to request one constituted ineffective assistance of counsel. The Commonwealth and the PCRA court argue that a Kloiber instruction was not appropriate, as Backus’s identification of Parks was consistent and positive. However, it is “well-established that where there is evidence of r ecord upon which a jury could find that the opportunity for positive identi fication was not good, a defendant is entitled to a Kloiber instruction.” Commonwealth v. McKnight , 453 A.2d 1, 3 (Pa. Super. 1982).
In McKnight , an eyewitness testified that he observed the defe ndant and two other men backing out of the victim’s bar, carrying a shotgun and pulling off their masks. See id ., at 2. It was broad daylight, and he saw them from behind and from a distance of approximate ly 20 feet. See id

. He testified that he never saw more than a profile of any of the men. See id . Although the eyewitness testified that he recogn ized the three men and knew the nicknames of two of them, he did not initi ally supply their names to the police. See id ., at fn. 1.
In McKnight , as in the present case, the Commonwealth argued t hat

a Kloiber

instruction is only necessary where “a witness has equivocated in his identification or has previously failed to iden tify the defendant.” Id ., at 3 (quotation marks and citation omitted). Responding to the Commonwealth’s argument in McKnight , we observed that it omitted the “primary prong” o fJ-S29010-15

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the Kloiber

test: “where the witness is not in a position to clearly observe the [robbers.]” Id . (citation omitted). Applying the test, we conclu ded that the eyewitness’s “opportunity to identify the three men was far from optimal” and reversed for a new trial. In the present appeal, it is undisputed that Ba ckus never had an opportunity to view the robber’s face. Furthermore , it is undisputed that Backus did not initially reveal that he knew Parks when he was brought in to identify Parks. During cross-examination, Backus a dmitted that his identification of Parks, while positive, was not ba sed upon purely unique characteristics: Q: ... So if there were four strong, lean black men, six foot to six foot two, wearing a white T-shirt and blue jeans, t hen you wouldn’t know which of the four it was because they all shared the common characteristics that you told this jury you used to determine it was him. Isn’t that right, sir? A: There’s some truth to what you’re saying, yes. N.T., Trial, 10/20-21/10, at 87. Thus, pursuant to McKnight , a Kloiber instruction was justified, and there is arguable me rit to Parks’s assertion of ineffectiveness. The PCRA court did not hold a hearing on the petit ion, so we have no basis to evaluate the propriety of trial counsel’s strategic concerns, if any, motivating the decision not to request a Kloiber instruction. See, e.g. , Commonwealth v. Spotz , 870 A.2d 822, 833 (Pa. 2005) (“[A]s a general principle, counsel should have a chance to be heard before being declaredJ-S29010-15

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ineffective.”) Before remanding for such a hearing , we must determine whether Parks has established that he suffered prej udice from this failure. Parks argues that if the jury had received a Kloiber instruction, “it is possible that the jury would have concluded that th e victim misidentified Mr. Parks.” Appellant’s Brief, at 16. After reviewing the testimony and the closing arguments presented by trial counsel, we ca nnot agree. Furthermore, the evidence established that Parks w as found walking towards Liberty Tunnels away from the scene of the crime. See id ., at 109. Backus testified that he saw the assailant flee tow ards Liberty Tunnels. See id ., at 60. Detective Brian Nicholas testified that when he received the report of a robber fleeing on foot in his direction , he immediately suspected the robber would use a nearby creek bed to avoid de tection. See id ., at 105. The creek bed is at the bottom of a steep hil lside that varies in height from approximately 8 feet to 15 feet. See id

. As he checked the creek bed, Detective Nicholas ob served a black man in jeans and a white T-shirt attempting to climb ou t from the bottom. See id ., at 106-107. When the man noticed Detective Nich olas, he began to run
away. See id ., at 109. Detective Nicholas lost sight of the ma n when he entered nearby woods, but with the assistance of ot her units, maintained a perimeter. See id ., at 109-110. Lieutenant Larry Scirotto was maintaining the peri meter in the direction Detective Nicholas had seen suspect run. See id ., at 117. He sawJ-S29010-15

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Parks running at a full sprint away from Detective Nicholas’s position along railroad tracks. See id ., at 118. Lieutenant Scirotto ordered Parks to st op, but Parks did not comply. See id . Parks again ran into a wooded area. See id ., at 119. Lieutenant Scirotto ultimately found Parks next to an abandoned house in the woods. See id ., at 120. Parks had hidden himself under a piece of plywood behind the house. See id . When asked to come out from under the plywood, Parks refused. See id ., at 121. After a K-9 unit was deployed, Parks complied and showed himself. See id . After Parks was apprehended, three 20 dollar bills were found next to him on the ground, and “a pile of money” was found inside a pipe within an arm’s reac h. See id ., at 135-136. Furthermore, money was found in Parks’s pockets in the amount of $1,214. See id ., at 138-139. Based upon these circumstances, we cannot conclude that the absence of the Kloiber instruction prejudiced Parks. Trial counsel made B ackus’s credibility a central issue of the case, and substa ntial circumstantial evidence pointed towards Parks’s guilt. We are convinced th at a Kloiber instruction would not have changed the outcome of the trial. W e therefore conclude that neither of Parks’s issues on appeal merit reli ef. Order affirmed. Jurisdiction relinquished.

Judgment Entered.J-S29010-15

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Joseph D. Seletyn, Esq. Prothonotary

Date: 7/16/2015