J-S04027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYREL DORN

Appellant No. 1448 EDA 2016

Appeal from the PCRA Order April 25, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003769-2010

BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.: FILED APRIL 18, 2017

Tyrel Dorn appeals from the order entered April 25, 2016, in the Court 

of Common Pleas of Philadelphia County, dismissing his petition filed 

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., 

without a hearing.1 In this timely appeal, Dorn claims the PCRA court erred 

in not finding trial counsel ineffective for failing to challenge the trial court’s 

jury instructions regarding burglary and possession of an instrument of 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Although a mandatory Pa.R.Crim.P. 907 notice to dismiss without a hearing 

is not found in the certified record, notice is docketed. However, Dorn is not 

complaining of a lack of hearing on his petition. Accordingly, we will not 

remand for formal compliance with Pa.R.Crim.P. 907.
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crime.2 After a thorough review of the submissions by the parties, relevant 

law, and the certified record, we affirm.

We quote the underlying facts of this matter from the PCRA court’s 

Pa.R.A.P. 1925(a) opinion.

On January 12, 2010, at approximately 2:00 AM, the first victim 

in this case, Mohammad Sall, was returning home after finishing 

work as a cab driver. As Mr. Sall walked up the front steps of his 

home in Southwest Philadelphia, [Dorn], clad in a black ski 

mask, snuck up behind Mr. Sall, pointed a Glock 9 millimeter 

handgun at his head, and demanded money. Mr. Sall took out 

his wallet and gave [Dorn] several hundred dollars. Not satisfied, 

[Dorn] then forced Mr. Sall at gunpoint into his home, where he 

resided with Mr. Aboubacar Diallo, Mr. Abirahim Diallo and his 

wife Miriama Diallo, and their two young children, who at the 

time were one year and three years old.

Once inside the house, [Dorn] then forced Mr. Sall at gunpoint 

into the bedroom where Aboubacar Diallo was sleeping. [Dorn] 

demanded money from Aboubacar, but since Aboubacar had 

none to give, [Dorn] took Aboubacar's wallet and cell phone. 

[Dorn] then forced both men onto the floor and went in search of 

his next victims. 

Unbeknownst to [Dorn], Abirahim and Miriama Diallo had been 

awakened by the sounds of the unfolding armed robbery in their 

home, and had already called police before [Dorn], still armed 

and masked, forced his way into the room where they had been 

____________________________________________

2 On May 2, 2016, Dorn was directed to file a Pa.R.A.P. 1925(b) concise 

statement within 21 days. Counsel did not file the order until June 11, 

2016. Therefore, the 1925(b) statement was untimely. While the PCRA 

court noted the untimely filing, the PCRA judge nevertheless addressed 

Dorn’s claim. Accordingly, we will also address Dorn’s claims. See 

Commonwealth v. Brown, 145 A.3d 184 (Pa. Super. 2016) (where the 

trial court addresses the issues raised in an untimely Rule 1925(b) 

statement, we need not remand but may address the issues on their 

merits).
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sleeping with their two young children. Terrified, Miriama 

immediately offered [Dorn] her money. [Dorn] then pointed the 

gun at Abirahim and demanded his money as well. After 

receiving approximately $400, [Dorn] was still unsatisfied. He 

pointed his gun at the three year old child and demanded more 

money. Hysterical, Miriama offered [Dorn] her jewelry, but he 

insisted on cash. 

At this point, terrified that [Dorn] was going to kill his child, 

Abirahim lunged at [Dorn] in an attempt to disarm him. In the 

ensuing life and death struggle, both men fell to the ground, and 

[Dorn’s] gun discharged. Abirahim was shot one time in the left 

torso area. As Abirahim tried to return to his feet, [Dorn] once 

again pointed the gun at him, this time at his head, and pulled 

the trigger. In a moment of divine intervention for Abirahim and 

his family, [Dorn’s] gun jammed. 

At this same moment, several uniformed Philadelphia police 

officers had arrived on the scene and observed these dramatic 

events unfolding before their eyes. According to responding 

police officers Tiffany Richardson and Amir Watson, when they 

arrived on location they heard scuffling sounds from the second 

floor. They ran up the steps and observed [Dorn] pointing the 

gun at the victim. [Dorn] turned and looked at the officers and 

pointed his gun in the Officers' direction. The Officers 

immediately fired their own weapons at [Dorn]. Officer 

Richardson fired "five to seven" shots, and Officer Watson fired 

two shots. [Dorn] was hit by one shot, and the gun he was 

holding was also hit by one of the officer's bullets. During the 

trial, the officers' accounts of these minutes are slightly varied. 

However, this is not surprising in light of the chaotic, terrifying, 

crowded, and dangerous conditions that existed during this 

incident. Furthermore, their testimony was consistent on the 

matters relevant to the charges against [Dorn].

After he was shot, [Dorn] put his hands up as if to surrender. As 

Officer Richardson went in to capture [Dorn], [Dorn] suddenly 

kicked the bedroom door shut, shattered open the glass 

bedroom window, jumped out that window onto the roof of the 

house, and tried to flee. [Dorn] managed to jump over the roofs 

of several of the attached row homes before he finally collapsed 

on a neighboring roof top. When the Officers apprehended him 

on the neighboring roof, [Dorn] was bleeding from the gunshot 
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wound and the money from the robbery (some of it bloodied) 

was on his person and strewn about him.

At trial, which commenced on December 13, 2011, [Dorn] 

testified on his own behalf. [Dorn] admitted to the burglary and 

robberies. However, he stated that he did not intend for his gun 

to discharge when he was struggling with Abirahim and that it 

was an accidental discharge. He also denied ever pointing his 

gun at the police officers.

PCRA Opinion, 6/16/2016, at 2-3, quoting Trial Court Opinion, 1/28/13.3

Our standard of review is as follows:

This Court analyzes PCRA appeals in the light most favorable to 

the prevailing party at the PCRA level. Our review is limited to 

the findings of the PCRA court and the evidence of record and we 

do not disturb a PCRA court's ruling if it is supported by evidence 

of record and is free of legal error. Similarly, we grant great 

deference to the factual findings of the PCRA court and will not 

disturb those findings unless they have no support in the record. 

However, we afford no such deference to its legal conclusions. 

Where the petitioner raises questions of law, our standard of 

review is de novo and our scope of review is plenary. Finally, we 

may affirm a PCRA court's decision on any grounds if the record 

supports it.

Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (citation 

omitted).

Further, regarding ineffective assistance of counsel: 

The governing legal standard of review of ineffective assistance

of counsel claims is well-settled:

____________________________________________

3 After the conclusion of testimony, on December 19, 2011, a jury convicted 

Dorn of burglary, robbery, attempted murder, aggravated assault, 

aggravated assault on police, VUFA and PIC. 18 Pa.C.S. §§ 3502, 3701, 

901/2505, 2702, 2702.1, 6106/6108 and 907, respectively. He received an 

aggregate sentence of six to twelve years’ incarceration. He pursued a 

direct appeal that afforded him no relief.
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[C]ounsel is presumed effective, and to rebut that presumption, 

the PCRA petitioner must demonstrate that counsel's 

performance was deficient and that such deficiency prejudiced 

him. This Court has described the Strickland standard as 

tripartite by dividing the performance element into two distinct 

components. Accordingly, to prove counsel ineffective, the 

petitioner must demonstrate that (1) the underlying legal issue 

has arguable merit; (2) counsel's actions lacked an objective 

reasonable basis; and (3) the petitioner was prejudiced by 

counsel's act or omission. A claim of ineffectiveness will be 

denied if the petitioner's evidence fails to satisfy any one of 

these prongs.

Furthermore, “[i]n accord with these well-established criteria for 

review, [an appellant] must set forth and individually discuss 

substantively each prong of the Pierce test.”

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (citations 

omitted).

Finally, 

When reviewing a challenge to jury instructions, the reviewing 

court must consider the charge as a whole to determine if the 

charge was inadequate, erroneous, or prejudicial. The trial court 

has broad discretion in phrasing its instructions, and may choose 

its own wording so long as the law is clearly, adequately, and 

accurately presented to the jury for its consideration. A new trial 

is required on account of an erroneous jury instruction only if the 

instruction under review contained fundamental error, misled, or 

confused the jury.

Commonwealth v. Faurelus, 147 A.3d 905, 914 (Pa. Super. 2016)

(citation omitted).

With these standards in mind, we examine Dorn’s claim that trial 

counsel was ineffective for failing to challenge the trial court’s jury 
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instructions regarding burglary and possession of an instrument of crime 

(PIC).

In the first part of his claim, Dorn argues the trial court improperly 

informed the jury that the address in question was an occupied structure 

and therefore Dorn was guilty of burglary. The trial court gave the following 

jury instruction regarding burglary.

Okay. Burglary, as you know, he was charged with burglary. And to 

find the defendant guilty of this offense, you must find that all of the 

following elements have been proven beyond a reasonable doubt:

First, that the defendant entered the residence of 6642 Dicks Avenue.

Second, that the defendant entered the residence at 6642 Dicks 

Avenue with the intent to commit a crime inside.

Third, that the residence of 6642 Dicks Avenue was not open to the 

public at the time.

Fourth, that the defendant did not have permission or lawful authority 

to enter.

And fifth, that the residence at 6642 was, in fact, an occupied 

structure, which is any structure that’s adapted for overnight 

accommodation by persons. I think there’s no question it was an 

occupied structure here.

N.T. Trial, 12/19/2011, at 106-07.

Dorn’s sole argument is that the trial court improperly told the jury the 

structure was occupied. This argument is unavailing. Initially, we note that 

the trial court properly instructed the jurors that they were “the sole and 

only judges of the facts.” Id. at 77. The trial court further instructed the 

jurors,
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If, in my instructions to you, I refer to some particular evidence, 

it is your recollection of that evidence and yours alone that 

governs.

You are not bound by my recollection of the facts, nor by the 

recollection of counsel in their arguments to you. Nor are you to 

conclude that any evidence which I call to your attention or 

which counsel has called to your attention is the only evidence 

which you should consider.

Id. at 78-79.

The PCRA court determined Dorn failed to demonstrate any prejudice 

in that he admitted during his own testimony that he encountered a number 

of people inside the residence. We agree. Our review of Dorn’s testimony 

clearly shows Dorn admitted there were, in addition to the original victim 

whom Dorn encountered on the front porch, three other adults inside 6642 

Dicks Avenue at the time Dorn entered at approximately 2:00 A.M. See

N.T. Trial, 12/16/2011, at 133-39. Additionally, Dorn admitted that the 

building was adapted for overnight accommodation by testifying how he 

entered bedrooms, id. at 135, and how one of the victims jumped out of 

bed. Id. at 136. Further, because Dorn admitted these salient facts, 

defense counsel had no reason to object to the trial court’s instruction that 

acknowledged Dorn’s admissions.

Given that the trial court explicitly told the jurors they were the sole 

finders of fact and that they were not to rely on the judge’s nor counsel’s 

recollections, and that Dorn clearly admitted that 6642 Dicks Avenue was an 

occupied structure, he suffered no prejudice from the trial court’s statement.
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The same reasoning applies to the second portion of Dorn’s argument 

regarding possession of an instrument of crime. In relevant pert, the trial 

judge charged the jury as follows:

Just so you know, the definition for possession of an instrument 

of crime is if it’s an instrument of crime, it must be specifically 

adapted for criminal use, or anything that is used for criminal 

purposes and possessed by the defendant at the time of the 

alleged offense, under circumstances not manifestly appropriate 

for the lawful uses it may have.

Basically, what I’m saying here is there are instruments, there 

are items that you can have, like a bat or a knife or even a gun, 

you can have for lawful purposes. There are reasons that people 

might have these items, but in this case the person possessed it 

with the intent to use it criminally.

So, you understand that, then, it’s a lot of legal jargon for what’s 

common sense.

N.T. Trial, 12/19/2011, at 108-09.

Dorn argues the phrase “but in this case the person possessed it with 

the intent to use it criminally” told the jurors that Dorn was guilty of PIC. 

Once again, the trial court determined that Dorn demonstrated no prejudice 

in that he admitted to possessing a gun for criminal purposes. Specifically, 

Dorn testified on direct examination:

Q: [W]hat did you do when you got to 6642 Dicks Avenue?

A: I approached a gentleman that I see walking up the steps.

Q: Did that gentleman testify in here in this courtroom earlier 

this week?

A: Yes, he did.

Q: Do you recall him to be Mr. Sall?
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A: Yes.

Q: Now, when you approached him, what, if anything, did you 

have in your hands?

A: I had a semi-auto weapon – semiautomatic weapon, excuse 

me.

...

Q: What, if anything, did you say to Mr. Sall?

A: I asked him did he have any money.

Q: And what did he do or say in reply?

A: He kind of, like, kind of through [sic] his hands in the air and 

said, “Just take the money.”

Q: What did you do?

A: I stood there until he reached in his pocket and he pulled out 

some money.

Q: Did you take the money?

A: Yes.

N.T. Trial, 12/16/2011, at 127-29.

On cross-examination, Dorn testified as follows:

Q: You had your ski mask on, right?

A: Yes.

Q: You had your gun in your hand, correct?

A: Yes.

Q: And you’re pointing the gun right at Mohommad Sall, correct?

A: Yes?
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Q: And when you did that, what part of his body; you’re pointing 

at his chest or his head?

A: I would say his upper body. I wouldn’t say more like, you 

know, anywhere directly, but his upper half.

Q: When you’re pointing the gun and [sic] Mohommad Sall, 

you’re doing it because you know it’s going to make him likely to 

follow your commands, correct?

A: Yes.

Q: Okay. So you didn’t ask him for money, you commanded him 

to give you his money, didn’t you?

A: I asked him.

Q: Politely?

A: Well, I mean, it wasn’t really forcefully.

Id. at 148-49.

Having admitted to using the gun to threaten and rob one of the 

victims, there can be no doubt that Dorn admitted his guilt to the PIC 

charge. Accordingly, we agree with the trial court’s determination that Dorn 

failed to demonstrate any prejudice resulting from the jury instruction on 

PIC.4

____________________________________________

4 Although the PCRA court did not analyze any other prong of the ineffective 

assistance of counsel test, we also note that counsel would have no reason 

to object to the charges. It is clear that as a matter of strategy, Dorn 

admitted to certain aspects of his criminal activity, while denying others. In 

his opening statement, Dorn’s counsel told the jurors as much. See N.T. 

Trial, 12/14/2011, at 77. Having admitted the residence was occupied and 

that he used the gun to rob Sall, it would make no sense to object to that 

which had been freely admitted.

(Footnote Continued Next Page)
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In light of the foregoing, we find the PCRA court’s determination that 

trial counsel was not ineffective is supported by the record and is free from 

legal error. Accordingly, Dorn is not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/18/2017

(Footnote Continued) _______________________