J-S21020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL JONES

Appellant No. 1879 EDA 2014

Appeal from the PCRA Order May 29, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0007421-2009

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 21, 2015

Appellant Michael Jones appeals from the order of the Philadelphia 

County Court of Common Pleas dismissing his petition filed pursuant to the 

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts of this case. Opinion, 9/24/2014, 2-4, 14-16. Therefore, we have no 

reason to restate them. 

On April 7, 2010, a jury convicted Appellant of burglary.1 On June 23, 

2010, the trial court sentenced Appellant to seven to fourteen years’ 

incarceration. N.T., 6/23/2010, at 23-24. Appellant filed a post-sentence 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S § 3502.
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motion, which the trial court denied on July 23, 2010. On July 26, 2010, 

Appellant filed a timely notice of appeal. On December 13, 2010, this Court 

dismissed the appeal for failure to file a brief. 

On January 3, 2011, Appellant filed a timely pro se PCRA petition 

requesting reinstatement of his appeal rights. On February 23, 2011, 

Appellant’s counsel filed an amended petition, seeking reinstatement of 

Appellant’s direct appeal rights nunc pro tunc. On June 17, 2011, the trial 

court granted the PCRA petition and reinstated Appellant’s direct appeal 

rights nunc pro tunc. On July 13, 2011, Appellant filed a timely notice of 

appeal. On April 27, 2012, this Court affirmed the judgment of sentence.

On May 10, 2012, Appellant filed a pro se PCRA petition. On June 8, 

2012 and January 4, 2013, he filed two amended petitions. The trial court 

appointed counsel. On December 12, 2013, counsel filed a Turner/Finley2

letter and a motion to withdraw. Counsel filed supplemental Turner/Finley

letters on February 20, 2014 and March 12, 2014. On March 14, 2014, the 

trial court issued notice of its intent to dismiss Appellant’s PCRA petition 

without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. 

On March 24, 2014, Appellant filed a response. On May 29, 2014, the trial 

____________________________________________

2 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
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court dismissed the petition.3 Appellant retained new counsel who filed a 

timely notice of appeal on June 30, 2014.4 Both Appellant and the trial court 

complied with Pennsylvania Rule of Appellate Procedure 1925.

Appellant raises the following issues for our review:

I. Did the [PCRA court] err and deny Appellant his rights 

under Article 1 sec. 9 of the Pennsylvania Constitution and 

the Sixth and Fourteenth Amendments of the U.S. 

Constitution by finding that pre-trial counsel was not 

ineffective for failing to request a line up with Ms. Sheerer 

which resulted in an unduly suggestive in[-]court 

identification of the Appellant[?]

II. Did the [PCRA court] err and deny Appellant his rights 

under Article 1 sec. 9 of the Pennsylvania Constitution and 

the Sixth and Fourteenth Amendments of the U.S. 

Constitution by finding that counsel was not ineffective for 

failing to request a Kloiber[5]charge[?]

____________________________________________

3 The trial court opinion references a third supplemental Turner/Finley

letter filed on May 28, 2014. Opinion, 9/24/2014, at 2. The certified record 

does not contain this document and it is not reflected on the docket. 

4 Thirty days from the date of the May 29, 2014 order was Saturday, June 

28, 2014. Because the thirtieth day was a Saturday, Appellant had until 

Monday, June 30, 2014, to file his notice of appeal. See 1 Pa.C.S.A. § 1908 

(“Whenever the last day of any such period shall fall on Saturday or Sunday, 

or on any day made a legal holiday by the laws of this Commonwealth or of 

the United States, such day shall be omitted from the computation.”).

5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa.1954). A Kloiber jury 

charge “instructs the jury that an eyewitness’[s] identification should be 

viewed with caution where the eyewitness: (1) did not have an opportunity 

to clearly view the defendant; (2) equivocated on the identification of the 

defendant; or (3) had a problem making an identification in the past.” 

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super.2008) (quoting 

Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa.Super.2000)).
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III. Did the [PCRA court] err and deny Appellant his rights 

under Article 1 sec. 9 of the Pennsylvania Constitution and 

the Sixth and Fourteenth Amendments of the U.S. 

Constitution by finding that counsel was not ineffective for 

failing to timely object to the Commonwealth’s failure to 

disclosure prior to the suppression hearing their ‘surprise’ 

witness, Jennifer Malloy[?]

IV. Did the [PCRA court] err and deny Appellant his rights 

under Article 1 sec. 9 of the Pennsylvania Constitution and 

the Sixth and Fourteenth Amendments of the U.S. 

Constitution by finding that counsel was not ineffective for 

failing to challenge the inherently suggestive ‘show up’ 

identification made by Jennifer Malloy while in the 

presence of her boyfriend, Christopher Sheerer[?]

V. Did the P.C.R.A. Court err and deny Appellant his rights 

under Article 1 sec. 9 of the Pennsylvania Constitution and 

the Sixth and Fourteenth Amendments of the U.S. 

Constitution by finding that counsel was not ineffective for 

making an improper closing argument which prompted the 

[c]ourt to prejudicially correct counsel in front of the 

jury[?]

VI. Did the P.C.R.A. Court err and deny Appellant his rights 

under Article 1 sec. 9 of the Pennsylvania Constitution and 

the Sixth and Fourteenth Amendments of the U.S. 

Constitution by finding that counsel was not ineffective for 

failing to submit written argument to the trial court related 

to cross racial identification[?]

[VII]. Did P.C.R.A. Counsel, David Rudenstein[,] violate 

Appellant’s Sixth and Fourteenth Amendment rights by 

ineffectively failing to preserve and argue a claim that 

sentencing counsel, Jeffrey Azzarano, was constitutionally 

ineffective for failing to object to the use of an inaccurate 

offense gravity score to sentence the Appellant[?]

Appellant’s Brief at 3-4.

Our standard of review from the denial of post-conviction relief “is 

limited to examining whether the court’s determination is supported by the 

evidence of record and whether it is free of legal error.” Commonwealth v. 
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Ousley, 21 A.3d 1238 (Pa.Super.2011) (citing Commonwealth v. 

Morales, 701 A.2d 516, 520 (Pa.1997)).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Glenn B. 

Bronson, we conclude Appellant’s issues merit no relief. The trial court 

opinion comprehensively discusses and properly disposes of the questions 

presented. (See Trial Court Opinion, dated September 24, 2014, at 4-18) 

(finding: (1) counsel not ineffective for failing to challenge Alberta Sheerer’s 

in-court identification of Appellant where identification flowed from 

independent observations Ms. Sheerer made five days prior to preliminary 

hearing, where she had clear view of Appellant’s face when he used force to 

enter her neighbor’s house, where Ms. Sheerer positively identified Appellant 

and was confident in identification, and where there was no reasonable 

probability outcome of trial would have been different if counsel had 

requested lineup because Officer Berry and Ms. Malloy also identified 

Appellant; (2) counsel not ineffective for failing to request Kloiber

instructions where: Ms. Sheerer had unobstructed view of Appellant in her 

neighbor’s yard for two to three minutes from approximately 100 feet away 

while sun was out, she had opportunity to view Appellant before he entered 

house and while he fled, including two times when she was able to view his 

face, she identified Appellant at preliminary hearing, and was “a hundred 

percent sure” of her identification; Ms. Malloy had ample opportunity to view 

Appellant as he moved around and exited her neighbor’s house, and she 
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identified him shortly after incident, at preliminary hearing, and at trial; and 

Officer Berry saw Appellant attempting to open sliding glass door, while he 

was approximately five feet away with unobstructed view, recognized 

Appellant shortly after he fled as he watched Appellant attempt to hide 

under car, and identified Appellant at preliminary hearing and trial; (3) 

Appellant not prejudiced by counsel’s failure to object to Ms. Malloy’s 

testimony where counsel fully tested legality of Ms. Malloy’s identification, 

evidence established identification was lawful, Appellant had ample 

opportunity to investigate because trial was several days after hearing, 

counsel had significant opportunity to question Ms. Malloy at motions 

hearing, and two other witnesses identified Appellant; (4) counsel not 

ineffective for failing to challenge “show up” identification by Ms. Malloy 

because counsel did, in fact, challenge it by supplementing omnibus pretrial 

motion; (5) counsel not ineffective due to closing argument statements 

because, although counsel made objectionable statements during closing 

arguments, court properly sustained objections and provided appropriate 

directions, court did not demean counsel or Appellant, and objectionable 

arguments did not prejudice Appellant; (6) counsel not ineffective for failing 

to submit argument related to cross-racial identification because, at time of 

trial, expert testimony on eyewitness identification was inadmissible; (7) 

claim of counsel ineffectiveness for failure to object to offense gravity score 

waived because Appellant did not raise it before trial court and is frivolous 

because the court found Appellant’s offense gravity score was 7, not 9, as 
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claimed in statement of errors complained of on appeal6).7 Accordingly, we 

affirm on the basis of the trial court’s opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015

____________________________________________

6 Appellant maintains that, based on the sentence imposed, the trial court 

must have used an offense gravity score of 9, which has a standard range of 

60 to 72 months’ incarceration, not an offense gravity score of 7, which has 

a standard range of 35 to 45 months’ incarceration. Appellant’s Brief at 35-

37. At the sentencing hearing, the court noted the offense gravity score was 

7 and noted the sentencing guidelines range was 35 to 45 months plus or 

minus 6 months. N.T., 6/23/2010, at 4. The court then reviewed the 

aggravating and mitigating factors and departed from the guidelines range 

when it imposed a sentence of 7 to 14 years’ incarceration. Id. at 20-24. 

Because the trial court noted the correct guidelines, departed from those 

guidelines, and provided reasons for its departure, trial counsel is not 

ineffective for failing to object to the offense gravity score.

7

In his 1925(b) statement, Appellant also claims PCRA counsel was 

ineffective for “abandoning, without any analysis or discussion in his Finley

letter, three of the above meritorious issues which were raised in Appellant’s 

pro se PCRA petition.” Appellant’s Concise Statement of Matters Complained 

of on Appeal, dated July 28, 2014, at ¶ VII. Appellant waived this claim 

because he did not include it in his statement of questions presented or 

argument sections of his appellate brief. Pa.R.A.P. 2116(a) (“No question 

will be considered unless it is stated in the statement of questions involved 

or is fairly suggested thereby.”).
(Pa.Super. 1988), Mr. Rudenstein filed a letter stating there was no merit to defendant's 

May 13, 2013. On December 12, 2013, pursuant to Commonwealth v. Finley, 550 A.2d 213 

as two amended petitions. Counsel for defendant, David S. Rudenstein, was appointed on 

Defendant subsequently filed a second; pro se PCRA petition on May 10, 2012, as well 

Superior Court affirmed defendant's sentence on April 27, 2012. 

pro tune. Defendant filed a timely Notice of Appeal on July 13, 2011. The Pennsylvania 

2011, defendant's PCRA petition was granted, and his appellate rights were reinstated nunc 

retained counsel, who filed an amended PCRA petition on February 23, 2011. On June 17, 

Act ("PCRA"), requesting reinstatement of his appellate rights. Defendant subsequently 

On January 3, 2011, defendant filed a prose petition under the Post-Conviction Relief 

to file a brief. 

timely notice of appeal. On December 13, 2010, defendant's appeal was dismissed for failure 

defendant's post-sentence motions on July 23, 2010. On July 26, 2010, defendant filed a 

a sentence of seven to fourteen years incarceration in state prison. The Court denied 

convicted of first-degree burglary (18 Pa.C.S. § 3502). On June 23, 2010, the Court imposed· 

On April 7, 2010, following a jury trial before this Court, defendant Michael Jones was 

BRONSON,J. September 24, 2014 

OPINION 

II I I I II lllll/ 111111111 Ill 

7202914491 

MICHAEL JONES 

CP-51-CR-0007421-2009 ~omm. v. Jon~s. Michael v. Oprmon 

COMMONWEALTH OF CP-5 l-CR-0007 4 21-2009 

PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

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2 

I. FACTUAL BACKGROUND 

At trial, the Commonwealth presented the testimony of Philadelphia Police Officer 

Anthony Berry, Michael McGeehan, Alberta Scheerer, Jennifer Malloy, Detective Andrew 

claims for collateral relief. Mr. Rudenstein subsequently filed supplemental Finley letters on 

February 21, 2014, and March 13, 2014. On March 14, 2014, the Court issued notice pursuant 

to Pa.R.Crim.P. 907 ("907 Notice") of its intent to dismiss defendant's claims without an 

evidentiary hearing. Defendant filed a response to the 907 Notice on April 25, 2014. Mr. 

Rudenstein filed a final supplemental Finley letter on May 28, 2014. The Court dismissed 

defendant's second PCRA petition on May 29, 2014. 

Defendant has now appealed from the Court's dismissal of his second PCRA petition 

on the grounds that: 1) pre-trial counsel was ineffective for failing to request a line up for 

witness Alberta Sheerer; 2) trial counsel was ineffective for failing to request a Kloiber 

charge; 3) trial counsel was ineffective for failing to timely object to the Commonwealth's 

failure to disclose Jennifer Malloy as a witness prior to the suppression hearing; 4) trial 

counsel was ineffective for failing to challenge defendant's "show up" identification made by 

Jennifer Malloy; 5) trial counsel was ineffective for making an improper closing argument, 

prompting the Court to prejudicially correct counsel in front of the jury; 6) trial counsel was 

ineffective for failing to submit a written argument citing case law relating to cross racial 

identification; 7) PCRA counsel, David Rudenstein, was ineffective for failing to address 

three of the above claims raised in defendant's prose PCRA petition; and 8) PCRA counsel 

was ineffective for failing to preserve and argue a claim that sentencing counsel, Jeffrey 

Azarano, was ineffective for failing to object to the use of an inaccurate offense gravity score. 

See Statement of Errors Complained of on Appeal ("Statement of Errors") at 11 I-VIII. For 

the reasons set forth below, defendant's claims are without merit. 

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Danks, and James Ryan. Defendant presented the testimony of Takisha Miller and Timothy 

Hoppes. Viewed in the light most favorable to the Commonwealth as the verdict winner, their 

testimony established the following. 

On May 29, 2009, Alberta Scheerer was at her home, located directly behind 4413 

McMenamy Street in Philadelphia. N.T. 4/6/2010 at 48, 71. At approximately 10 a.m., Ms. 

Scheerer looked out of her upstairs bedroom window and noticed defendant, whom she did 

not recognize, standing in the backyard of her neighbor, Michael McGeehan. N.T. 4/6/2010 at 

29, 49-50. Ms. Scheerer continued to watch defendant through the window, and a couple of 

minutes later, defendant went to the side of 4413 McMenamy Street, forced open one of the 

windows, and climbed inside the house. N.T. 4/6/2010 at 32, 51-52. 

Ms. Scheerer then ran down the stairs inside her home and alerted her son, Christopher 

Scheerer, and her son's fiancee, Jennifer Malloy, to what she had witnessed. N.T. 4/6/2010 at 

53-54. Ms. Malloy went upstairs with Ms. Scheerer, while Mr. Scheerer ran outside to see if 

he could flag down a police officer. N.T. 4/6/2010 at 54. Ms. Malloy and Ms. Scheerer 

watched through the window as defendant walked around the interior of their neighbor's 

home. N.T. 4/6/2010 at 54-55. Outside, Mr. Scheerer located a police officer and brought 

him to 4413 McMenamy Street. N.T. 4/5/2010 at 41-42. As Philadelphia Police Officer 

Anthony Berry approached, he saw defendant trying to break a sliding glass door to get out of 

the home. N.T. 4/5/2010 at 44; 4/6/2010 at 73. 

Defendant ran out the back door of the home, jumped over the fence, and ran in the 

opposite direction from the Scheerer home. N.T. 4/6/2010 at 55-56. Officer Berry returned to 

his patrol car and circled the block, locating defendant approximately ten seconds later 

walking northbound up McMenamy Street. N.T. 4/5/2010 at 48, 81. Officer Berry pulled his 

patrol car over and asked defendant ifhe could talk to him. N.T. 4/5/2010 at 48-49. 

3 

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4 

If court-appointed counsel for a PCRA petitioner determines that the issues the 

petitioner raises for collateral review are meritless, and the PCRA court concurs, counsel may 

withdraw and the petitioner may proceed pro se, by privately retained counsel, or not at all. 

Finley, 550 A.2d at 218. To be permitted to withdraw, petitioner's counsel must file a nomerit letter, or "Finley letter," detailing the nature and extent of counsel's review and listing 

each issue the petitioner wished to raise, with counsel's explanation as to why the issues are 

meritless. Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009) (quoting Finley, 550 A.2d at 

215). After reviewing a Finley letter, the PCRA court is required to independently review the 

record to evaluate the petitioner's claims. Id A PCRA petition may be dismissed without a 

Defendant ran, with Officer Berry pursuing him first in his patrol car and then on foot. N.T. 

4/5/2010 at 49. Officer Berry chased defendant through an apartment complex andover a 

fence before defendant finally hid underneath an abandoned car. N.T. 4/5/2010 at 49-51. 

Officer Berry drew his weapon, at which point defendant surrendered. N.T. 4/5/2010 at 51. 

Another police officer transported Ms. Malloy, accompanied by Mr. Scheerer, to 

identify defendant. From the backseat of the officer's patrol car, while defendant stood in the 

street, Ms.: Malloy positively identified defendant as the man she saw burglarizing her 

neighbor's home. 4/5/2010 at 61-62. Based on Officer Berry and Ms. Malloy's 

identifications, defendant was arrested. N.T. 4/5/2010 at 87-88. 

Mr. McGeehan arrived home shortly after being notified of the burglary. N.T. 

4/6/2010 at 31. He told police that a duffel bag typically filled with gym equipment and kept 

in his bedroom had been moved next to the back door. N.T. 4/6/2010 at 32-34, 91. Inside the 

duffel bag was a five-gallon water jug in which Mr. McGeehan kept between twelve hundred 

to fifteen hundred dollars' worth ofloose change. N.T. 4/6/2010 at 33-37. 

II. DISCUSSION 

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5 

hearing if the Court determines that there are no claims of arguable merit an:d no purpose 

would be served by further proceedings. Commonwealth v. Lignons, 971 A.2d 1125, 1143 

(Pa. 2009); see Pa.R.Crim.P. 907(1). 

In his pro se PCRA petition, defendant claimed that he was entitled to collateral relief 

on the following grounds: 1) pre-trial counsel was ineffective for failing to request a line up 

for witness Alberta Sheerer; 2) trial counsel was ineffective for failing to request a Kloiber 

charge; 3) trial counsel was ineffective for failing to timely object to the Commonwealth's 

failure to disclose Jennifer Malloy as a witness prior to the suppression hearing; 4) trial 

counsel was ineffective for failing to challenge defendant's show up identification made by 

Jennifer Malloy; 5) trial counsel was ineffective for making an improper closing argument, 

prompting the Court to prejudicially correct counsel in front of the jury; and 6) trial counsel 

was ineffective for failing to submit a written argument citing case law relating to cross racial 

identification. PCRA Petition at pp. 3-5. Defendant raised additional claims in a pro se 

amended PCRA petition filed on June 8, 2012, claiming that he was entitled to collateral relief 

on the following grounds: 7) pre-trial counsel was ineffective for failing to request a hearing 

to "ascertain whether or not the Prosecutor's misstatement were [sic] in fact intentional;" 8) 

trial counsel was ineffective for failing to inform defendant that defendant's motion in limine 

to exclude defendant' s prior burglary conviction had been granted and that defendant would 

have testified had he known; and 9) trial counsel was ineffective for failing to request this 

Court recuse itself. See Amended Petition to P.C.R.A. Claims at 2. Defendant then raised an 

additional three claims on January 1, 2013, wherein defendant claimed that he was entitled to 

collateral relief on the following grounds: 10) trial counsel was ineffective for failing to 

follow up and ascertain whether "prosecutor's misstatement of procedure were in fact 

intentional as to this Sight Arrest;" 11) trial counsel was ineffective for failing to 

' ' 

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communicate with defendant regarding trial strategy; and 12) trial counsel was ineffective for 

not disputing the contradictory stories between the Commonwealth trial witnesses. See 

Amended Petition Additional Issues at 2-3. Finally, defendant raised one additional issue in 

his 907 Response, alleging that 13) defendant was actually innocent and that trial counsel was 

ineffective for failing to preserve a claim of actual innocence on appeal. See Defendant's 

Notice of Objection to Intent to Dismiss Post Conviction Relief Act Petition at 2. 

In his Finley Letter, and in his three Supplemental Finley Letters, Mr. Rudenstein 

stated his opinion that defendant's claims had no arguable merit. After an independent review 

of the record, the Court agreed with Mr. Rudenstein. 

All of defendant's appellate claims are premised upon his contention that he received 

ineffective assistance of counsel. Under Pennsylvania law, counsel is presumed to be 

effective and the burden to prove otherwise lies with the petitioner. Commonwealth v. 

Basemore, 744 A.2d 717, 728 (Pa. 2000), n.10 (citing Commonwealth v. Copenhefer, 719 

A.2d 242, 250 (Pa. 1998)). To obtain collateral relief based on the ineffective assistance of 

counsel, a petitioner must show that counsel's representation fell below accepted standards of 

advocacy and that as a result thereof, the petitioner was prejudiced. Strickland v. Washington, 

466 U.S. 668, 694 (1984). In Pennsylvania, the Strickland standard is interpreted as requiring 

proof that: (1) the claim underlying the ineffectiveness claim had arguable merit; (2)counsel's 

actions lacked any reasonable basis; and (3) the ineffectiveness of counsel caused the 

petitioner prejudice. Commonwealth v. Miller, 987 A.2d 638, 648 (Pa. 2009); Commonwealth 

v. Pierce, 527 A.2d 973 (Pa. 1987). To satisfy the third prong ofthe test, the petitioner must 

prove that, but for counsel's error, there is a reasonable probability that the outcome of the 

proceeding would have been different. Commonwealth v. Sneed, 899 A.2d 1067, 1084 (Pa. 

2006) (citing Strickland, 466 U.S. at 694). If the PCRA court determines that any one of the 

6 

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7 

three prongs cannot be met, then the court need not hold an evidentiary hearing as such a 

hearing would serve no purpose. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 

2008), appeal denied, 956 A.2d 433 (Pa. 2008). 

A. Failure to Request Lineup Identification 

Defendant first claims that pre-trial counsel was ineffective for failing to request a 

lineup identification by witness Alberta Sheerer. Statement of Errors at 1 I. This claim is 

without merit. 

First, the absence of a pre-trial lineup did not render Ms. Sheerer's identifications of 

defendant at the preliminary hearing and trial to be unlawful. A criminal defendant does not 

have a constitutional right to a lineup. Commonwealth v. Lark, 462 A.2d 1329, 1335 (Pa. 

Super. 1983). The circumstances of a one-to-one identification made at a preliminary hearing 

are obviously suggestive. Nevertheless, where, as here, a witness first makes an identification 

of a defendant at a preliminary hearing, proof at trial of the identification made at the 

preliminary hearing, as well as an in-court identification at trial by that witness, will not 

necessarily violate defendant's due process rights. Commonwealth v. Steffy, 399 A.2d 690, 

693 (Pa. Super. 1979) (sustaining admission of an identification made at a preliminary hearing 

and a subsequent in-court identification at trial where the first confrontation was at the 

preliminary hearing). The test is "whether under the 'totality of the circumstances' the 

identification was reliable even though the confrontation procedure was suggestive." Steffy, 

399 A.2d at 693, quoting Neil v. Biggers, 409 U.S. 188, 199 (1972). "The fact that the 

confrontation was on a one-to-one basis in a courtroom setting is not in itself sufficient to 

reason to exclude the evidence." Steffy, 399 A.2d at 693; accord, Commonwealth v. Davis, 

439 A.2d 195, 198 (Pa. Super. 1981). 

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8 

A court must examine the totality of the circumstances to determine if the in-court . 

identification "flows independently from the witness' observations at the time of the crime 

and not from the unduly suggestive pre-trial confrontation." Steffy, 399 A.2d at 694. These 

circumstances include "the opportunity of the witness to view the criminal at the time of the 

crime, the witness' [ s] degree of attention, the accuracy of the witness' [ s] prior description of 

the criminal, the level of certainty demonstrated by the witness at the confrontation, and the 

length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. at 199- 

200. "Of these factors, the opportunity of the witness to observe the defendant at the time of 

the incident is considered to be the most important." Davis, 4 3 9 A.2d at 19 8. 

Here, the totality of the circumstances clearly demonstrates that Ms. Sheerer's in court 

identification of defendant flowed from the independent observations which she made only 

five days prior to the preliminary hearing. At the preliminary hearing, Ms. Scheerer testified 

that on the morning of May 29, 2009, she witnessed defendant stand in her neighbor's yard, 

then force his way into her neighbor's home. N.T. 6/4/09 at 19. Ms. Scheerer positively 

identified defendant as the individual who broke into her neighbor's home only five days 

earlier. N.T. 6/4/09 at 20. As defendant stood in the yard, Ms. Scheerer had a clear look at 

defendant's face. N.T. 6/4/09 at 23, 26, 28. Ms. Scheerer, therefore, had a clear view of 

defendant as he committed the crime, was recalling it shortly afterwards, and was confident in 

her identification. Accordingly, the record establishes that Ms. Scheerer' s identification of 

defendant was reliable, and therefore; her identification testimony did not violate defendant's 

due process rights. 

Moreover, the record establishes that even if counsel had requested a lineup, and had 

that request been granted, there is not a reasonable probability that the outcome of the trial 

would have been different. Because Ms. Scheerer's identification was highly reliable, it is 

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9 

unlikely that she would have failed to make an identification at a lineup. Moreover, in 

addition to Ms. Sheerer' s identification, defendant was also identified as the perpetrator at trial 

by Officer Berry, who arrested defendant only moments after viewing defendant inside 

McGeehan's home. N.T. 4/5/10 at 45-52. Finally, defendant was identified by Malloy via an 

in person show up identification moments after defendant was apprehended as well as at trial. 

N.T. 4/6/10 at 73, 77. Accordingly, the record establishes that counsel's failure to request a 

line up did not deprive defendant of effective assistance of counsel as defendant cannot show 

that he was prejudiced by the lack of a line up identification by Ms. Sheerer. 

B. Failure to Request Kloiber Charge 

Defendant next claims that trial counsel was ineffective for not requesting that the 

Court give the jury a Kloiber charge. Statement of Errors at ,r II. This claim is without merit. 

A Kloiber charge instructs the jury to receive a witness's identification of a perpetrator · 

with caution where the eyewitness: 1) did not have an opportunity to clearly view the 

perpetrator; 2) equivocated on the identification of the perpetrator; or 3) had a problem 

making an identification in the past. Commonwealth v. Kloiber, 106 A.2d 820, 826-27 (Pa. 

1954), cert. denied, 348 U.S. 875 (1954); see Commonwealth v. Rios, 920 A.2d 790, 804 (Pa. 

2007)~ A Kloiber charge is not appropriate where an eyewitness's identification of the 

defendant was always positive and the opportunity for the witness to observe the defendant 

was good. Kloiber, 106 A.2d at 826; Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa. Super. 

2000). Here, a Kloiber charge was clearly not warranted. While defendant did not specify for 

which witness trial counsel should have requested a Kloiber charge, all witnesses clearly 

viewed defendant, were unequivocal in their identification, and never had past issues in their 

identification. 

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Alberta Sheerer was the first individual to see defendant standing in the backyard of 

McGeehan's home at approximately 10:00 in the morning. N.T. 4/6/10 at 49. Ms. Sheerer 

watched defendant for approximately two or three minutes from approximately 100 feet away 

while the sun was out and nothing was obstructing her view. N.T. 4/1/10 at 22; 4/6/10 at 50. 

Throughout the incident, Ms. Sheerer had an opportunity to view defendant before he entered 

the house, while he was in the house, and as he fled the house, including two times where 

defendant was facing her and she was able to view his face. N.T. 4/6/10 at 51, 54-56. Ms. 

Sheerer further identified defendant at the preliminary hearing on June 4, 2009, at a motions 

hearing on April 1, 2010, and again at trial, where she stated that she was "a hundred percent 

sure" defendant was the individual she saw entering McGeehan's home. N.T. 6/4/09 at 20; 

4/1/10 at 16, 23; 4/6/10 at 57-58. As Ms. Sheerer clearly viewed defendant, unequivocally 

indentified him, and did not have past issues in her identification, trial counsel could not err 

by failing to request a Kloiber challenge. 

Similar to Ms. Sheerer, Malloy had ample opportunity to view defendant as he moved 

around the house and eventually exited. N.T. 4/6/10 at 73-75. Shortly following defendant's 

apprehension by police, Malloy was transported to the location where defendant was being 

detained and identified defendant as the individual she had seen inside McGeehan's home. 

N.T. 4/6/10 at 77. Like Ms. Sheerer, Malloy positively identified defendant at the April 1 

motions hearing and again at trial. N.T. 4/1/10 at 35; 4/6/10 at 73. As Malloy clearly viewed 

defendant, unequivocally indentified him, and did not have past issues in her identification, 

trial counsel could not err by failing to request a Kloiber charge. 

Officer Anthony Berry, similarly, had sufficient time to view defendant and 

subsequently identify him. When Berry first approached McGeehan's home, he viewed 

defendant attempting to open a sliding glass door. N.T. 4/5/10 at 44. At the time Berry made 

10 

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these observations, he was approximately five feet away from defendant with nothing 

obscuring his view. N.T. 4/5/10 at 45. While Berry lost sight of defendant after he fled the 

house through the back door, Berry testified that he saw defendant approximately ten-seconds 

later as defendant walked down McMenamy Street. N.T. 4/5/10 at 48 .. Berry then chased 

defendant as he attempted to flee and watched as defendant attempted to hide under an 

abandoned car. N.T. 4/5/10 at 49,-50. Upon apprehending defendant, Berry recognized him as 

the individual he had seen in McGeehan's home. N.T. 4/5/10 at 52. Officer Berry again 

identified defendant at the April 1, 2010 motions hearing and finally at trial. N.T. 4/1/10 at 

60; 4/5/10 at 44. As Berry clearly viewed defendant, unequivocally indentified him, and did 

not have past issues in his identification, trial counsel could not err by failing to request a 

Kloiber challenge. 

Accordingly, there was no basis for trial counsel to request a Kloiber instruction 

regarding the witnesses' identifications of the defendant. Counsel's failure to do so, therefore, 

did not deprive defendant of effective assistance of counsel. 

C. Failure to Object to Witness Jennifer Malloy 

Defendant "ii.ext cl:nms-that trial couiiserwasirieffective for falling to-object fo tlie -· 

Commonwealth's failure to disclose Jennifer Malloy as a witness prior to the suppression 

hearing held on April 1, 2010. Statement of Errors at 1 III. This claim is without merit. While 

the failure to disclose an eyewitness may be a discovery violation, see Pa.R.Crim.P. 

573(B)(2)(a) (specifying names and addresses of eyewitnesses as disclosure discretionary with 

the Court), defendant cannot demonstrate that he was prejudiced by trial counsel's failure to 

specifically object to the Commonwealth's failure to disclose. 

At the motions hearing on April 1, 2010, defendant moved to suppress the 

identification testimony of all three eye witnesses, including Malloy. The Commonwealth 

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12 

The record demonstrates that the outcome of the trial could not have been different if 

counsel had objected to Malloy as a surprise witness at the suppression hearing. The record of 

the suppression hearing shows that counsel fully tested the legality of the identification made 

by Malloy, just as he did with the other witnesses. The evidence at that hearing unequivocally 

established that the identifications were lawful. Defendant had ample opportunity to 

investigate further before the trial commenced several days after the hearing. This is not a case 

where the Commonwealth surprised defendant at trial with a new witness who identified him 

at the scene of the crime. Counsel had significant opportunity to question Malloy at the 

motions hearing prior to trial and again at trial. In addition, two other witnesses identified 

defendant as the individual who was present in McGeehan's home and who fled the scene. 

Counsel, therefore, was not ineffective for failing to object to the testimony of Malloy based 

on surpnse. 

presented the testimony of Sheerer, Malloy, and Berry. At this hearing, Malloy testified 

regarding her observations of defendant as he moved inside McGeehan's home and eventually 

fled. N.T. 4/1/10 at 35-36. Malloy further testified of the process in which she was 

transported to the scene of defendant's apprehension for a prompt, on-scene show up 

identification where at she identified defendant as the individual whom she saw inside the 

home. N.T. 4/1/10 at 36. For an unknown reason, Malloy's name and information were never 

taken by police, or otherwise recorded in any of the discovery information that would be 

provided to defendant prior to his trial. N.T. 4/1/10 at 38, 74-75. Following Malloy's direct 

testimony, trial counsel conducted a lengthy and comprehensive cross-examination. At the 

conclusion of the hearing, the Court denied defendant's motion to suppress. N.T. 4/1/10 at 

112. 

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1 Although the Omnibus Motion purported to challenge a show up identification by Ms. Sheerer, the record is 

clear that Ms. Sheerer never made a show up identification, and that it was Malloy's show up identification that 

was at issue. 

appeal. See Superior Court Opinion, filed April 27, 2012, at pp. 6-8. 

finding that Malloy's identifications were lawful was upheld by the Superior Court on direct 

alleged suggestive show up identification. N.T. 4/1/10 at 111-112. Moreover, the trial court's 

the beginning of the suppression hearing, it was clear that the only show up identification 

made was by Malloy. 1 The Court specifically denied trial counsel's motion to suppress the 

name was not used in either the Omnibus Motion or while trial counsel stated his grounds at 

show up identification was unnecessarily suggestive. N.T. 4/1/10 at 12. While Malloy's 

that the show up identification was fruit of this unlawful stop, and that the procedure for the 

Malloy's identification on the grounds that defendant was stopped without probable cause, 

testimony. N.T. 4/1/10 at 4-5. Trial counsel further clarified that he was seeking to suppress 

counsel again relied upon the Omnibus Motion, seeking the suppression of all identifying 

exclude Ms. Sheerer's identification." N.T. 3/26/10 at 17. At the suppression hearing, trial 

stated that his grounds for objecting to Malloy were for the "same reasons that [he J moved to 

witness Alberta Sheerer. N.T: 3/26/10 at 17; Omnibus Motion at 1, 21, 24-39. Trial counsel 

which challenged, among other items, an alleged suggestive show up identification made by 

supplemented his original Omnibus Pretrial Motion ("Omnibus Motion") of February 1, 2010, 

challenge the show up identifications made by Malloy. Upon learning of Malloy, trial counsel 

at 1 IV. This claim is frivolous, since the record shows that trial counsel actually did 

show up identification made by Jennifer Malloy as inherently suggestive. Statement of Errors 

Defendant next claims that trial counsel was ineffective for failing to challenge the 

D. Failure to Challenge Suggestive Identification of Witness Jennifer Malloy 

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The Court: This is argument, not to state what Mr. Jones would or would not say. He 

didn't testify. 

Mr. Connelly: Okay. 

The Court: Basis is you are referring to what Mr. Jones does or does not agree with. 

Okay? 

Mr. Connelly: Can I ask for a basis? 

The Court: Sustained. 

Mr; Hepburn: Objection 

Mr. Connelly: No one should feel their home was invaded and violated, their safety 

put at issue. Mr. Jones agrees with the Commonwealth on that point. 

part of the evidence in the case: 

negative feelings about home invasions, although defendant had not testified and that was not 

The Commonwealth first objected to trial counsel's statements regarding defendant's 

defendant. 

reason to believe that defense counsel's objectionable arguments in any way prejudiced the 

time did the Court demean counsel or the defendant. Accordingly, there is absolutely no 

the Court properly sustained the objections and gave appropriate directions to counsel. At no 

arguments, as happens in most trials. After the Commonwealth objected to these arguments, 

It is true that trial counsel made some objectionable statements during his closing 

Statement of Errors at, V. This claim is without merit. 

arguments which prompted the Court to prejudicially correct counsel before the jury. 

Defendant next submits that trial counsel was ineffective for making improper closing 

E. Presenting Improper Closing Argument 

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2 Importantly, the Court clearly instructed the jury that defendant had an absolute right not to testify and that the 

jury was prohibited from drawing any inference adverse to the defendant from his decision not to testify in this 

case. N.T. 4/7/10 at 61. 

N.T. 4/7/10 at 21. 

The Court: All right. Don't tell the jury that I will give them something that's not in 

evidence. All right? Thank you. 

Mr. Connelly: No. 

The Court: Sustained. Is that in evidence? 

Mr. Hepburn: Objection. 

Mr. Connelly: If you ask for this tape measure, the judge, I think, will give it to you. 

not in evidence: 

jury that they could ask for a tape measure that counsel had used during the trial, but that was 

The Court next sustained an objection when defense counsel incorrectly advised the 

N.T. 4/7/10 at 12: 

Mr. Connelly: Thank you. Thank you. I will rephrase that. 

You may continue, without stating your personal belief in the credibility of the 

witnesses. 

I'm sure you know that's not proper argument ina criminal jury trial. 

You can continue your argument. 

The Court: Sir, refrain from saying which witnesses you believe. That's improper 

argument. You may say what the evidence shows, and refrain from saying what 

witnesses you personally believe. 

Mr. Connelly: Plus, her story that this person was wearing a black leather coat and a 

black leather cap was verified by Ms. Malloy, who also testified, and I saw no reason 

not to believe Ms. Malloy. 

regarding the credibility of witnesses: 

The Court next interjected when trial counsel improperly stated his personal belief 

N.T. 4/7/10 at 10.2 

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exclusionary rule in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014). However, at the time 

1176 (Pa. 1993). The Pennsylvania Supreme Court only recently overturned this per se 

testimony relating to eyewitness identification. See, e.g., Commonwealth v. Spence, 627 A.2d 

Historically, Pennsylvania maintained a strict bar against the admission of expert 

claim is without merit. 

argument to the Court relating to cross-racial identification. Statement of Errors at , VI. This 

Defendant next submits that trial counsel was ineffective for failing to submit written 

F. Failure to Submit Written Argument Relating to Cross Racial Identification 

arguments should be rejected. 

closing argument, defendant's ineffective assistance of counsel claims premised upon those 

As defendant cannot demonstrate that he was prejudiced by trial counsel's errors in 

described in detail above. 

particularly true given the overwhelming evidence of defendant's guilt presented at trial and 

made by the Court, could not have, in any manner, affected the outcome of the trial. This is 

made in his closing arguments. However, the objections made above, and the corrections 

Certainly, trial counsel could have been more eloquent and avoided the mistakes he 

N.T. 4/7/10 at 23. 

The Court: Do not make comments to specific people on the jury or their background. 

You may continue your argument. 

Mr; Hepburn: Objection. 

Mr. Connelly: But the judge is going to talk to you about reasonable doubt, and I 

know we have a couple lawyers, at least one lawyer on the panel, and I think it's a 

good thing, because lawyers are used to dealing with what we call the burden of 

proof-. 

juror's backgrounds that he had learned during the jury selection process: 

Finally, the Court sustained an objection when counsel made reference to individual 

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17 

3 The Court notes, however, that each of the claims raised by defendant in his Statement of Errors, with the 

exception of the claims pertaining to Mr. Rudenstein's ineffectiveness, were addressed in Mr. Rudenstein's 

initial Finley letter filed on December 12; 2013. 

is waived and cannot be raised for the first time on appeal."). 

Super. 2006), appeal denied, 917 A.2d 946 (Pa. 2007) ("any issue not raised in the lower court 

therefore waived. See Pa.R.A.P. 302(a); Commonwealth v. Stevenson, 894 A.2d 759, 766 (Pa. 

alleged ineffectiveness of sentencing counsel for the first time on appeal. His claim is 

gravity score for the burglary charge. Statement of Errors at , VIII. Defendant is raising this 

claim of sentencing counsel's ineffectiveness for failure to object to an incorrect offense 

Defendant's final claim is that PCRA counsel was ineffective for failing to raise a 

H PCRA Counsel's Ineffectiveness for Failure to Preserve Sentencing Counsel's 

Ineffectiveness 

generalized argument of ineffectiveness that leaves the PCRA court to guess at his claims, 

those claims are deemed to have been waived).3 

630 A.2d 1281, 1282 (Pa. Super. 1993) (where a PCRA petitioner makes a vague and 

Errors Rudenstein failed to review, this claim is waived. see, e.g., Commonwealth v. Bond, 

Because defendant does not state which of the three claims raised in his Statement of 

of Errors at , VII. 

failing to address "three of the above meritorious issues" in counsel's Finley letter. Statement 

Defendant next claims that PCRA counsel, David Rudenstein, was ineffective for 

G. PCRA Counsel's Ineffectiveness for Failure to Address Issues 

to cross-racial identification. 

· prohibited and counsel could not be ineffective for failing to submit written argument relating 

identification remained in place. Thus, at the time of defendant's trial, such testimony was 

of defendant's trial, the per se ban against expert testimony relating to eyewitness 

-, 

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18 

GLENN B. BRONSON, J. 

BY THE COURT: 

For all of the foregoing reasons, the Court's order dismissing Defendant's 

PCRA petition should be affirmed. 

III. CONCLUSION 

In any event, this claim is frivolous. At sentencing, the Court determined defendant's 

offense gravity score as seven, contrary to defendant's claim in his Statement of Errors. N.T. 

6/23/10 at 4. Of course, sentencing counsel could not be ineffective for failing to object to a 

correct offense gravity score determination and PCRA counsel could not be ineffective for not 

raising a frivolous claim. 

·l Circulated 03/26/2015 11:42 AM
onathon M. Frisby 

Law Clerk to Hon. Glenn B. 

Dated: September 24, 2014 

Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify: 

Joseph D. Seletyn, Esquire 

Prothonotary 

Office of the Prothonotary - Superior Court 

530 Walnut Street, Suite 315 

Philadelphia, PA 19106 

Additional Counsel/Party: 

Type of Service () Personal (X) First Class Mail ( ) Other, please specify: 

Hugh J. Burns, Jr., Esquire 

Chief, Appeals Unit 

Philadelphia District Attorney's Office 

Three South Penn Square 

Philadelphia, PA 19107 

District Attorney(s): 

Type of Service: ( ) Personal (X) First Class Mail ( ) Other, please specify: 

Teri Himebaugh 

2201 Pennsylvania Ave. #513 

Philadelphia, PA 1913 0 

Defense Counsel/Party: 

I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and 

in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114: 

PROOF OF SERVICE 

Commonwealth v. Michael Jones CP-51-CR-0007 421-2009 

Type of Order: 1925(a) Opinion 

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