Com. v. Jackson, M. ( 2015 )

J-S57014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MELVIN JACKSON
Appellant No. 2804 EDA 2014
Appeal from the Judgment of Sentence March 25, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004208-2010
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 14, 2015
Appellant, Melvin Jackson, appeals nunc pro tunc from the March 25,
2011 aggregate judgment of sentence of life imprisonment without the
possibility of parole, imposed after he was found guilty of one count each of
murder in the first degree, robbery, criminal conspiracy, and possession of
an instrument of a crime (PIC).1 After careful review, we affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On January 20, 2009, [at] approximately 6:00
PM, Decedent, Dwayne Canty, resided with his
mother, Nikisha Ramsey, in the 2100 block of
Newkirk Street, Philadelphia, PA, and left home with
the intentions of making a purchase at a
neighborhood Kentucky Fried Chicken restaurant.
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903(a), and 907(a), respectively.
J-S57014-15
Very shortly after leaving the house, Ramsey heard
gunshots and she looked out of a window in search
of her son. When she did not see him she got into
her car and drove around the block toward the
restaurant to find him. She soon observed a crowd
outside an empty lot nearby and upon investigating
the scene she found Decendent lying in the lot.
Philadelphia Police Officer Phil Sprague
responded to the scene and observed Decedent lying
on his back face up in the lot with his eyes open.
Decedent was not breathing and he was
nonresponsive. Sprague checked Decedent’s outer
garment pockets and found nothing, but he did
observe an ID card, cell phone, and a hat, nearby.
Decedent was transported to Temple University
Hospital and was pronounced dead.
Dr. Gary Collins, Assistant Medical Examiner
for the City of Philadelphia, testified that he
performed a postmortem examination on the
remains of the [D]ecedent[,] that the manner of
death was homicide[,] and that the cause of death
was multiple gunshot wounds. He stated that four
gunshot wounds were located about the chest, upper
torso and left thigh, and that two additional injuries
were also consistent with gunshot injuries. Some of
the bullets were recovered from Decedent’s body and
submitted to the Firearms Investigation Unit for
analysis. Collins stated that he did not find any close
or contact gunshot wounds and that the range of fire
could have been anywhere from more than three
feet to any further distance from the victim.
Philadelphia Police Officer Stephen Ahmie, an
expert in firearms identification and assigned to the
Police Firearms Identification Unit, testified that he
examined the pieces of ballistics evidence submitted
to him in connection with Decedent’s murder. Ahmie
examined a .38/.357 caliber bullet from Temple
Hospital and two .38/.357 projectiles received from
the Medical Examiner’s Office. He determined that
they were fired from the same firearm. He also
examined two CBC .45 automatic-caliber fired
-2-
J-S57014-15
cartridge casings from the crime scene, and a .45
caliber bullet. Ahmie went on to opine that the
bullets removed from the body of the decedent, the
.38/.357 caliber, were fired from a revolver-type
weapon. Further investigation led Ahmie to conclude
that the two fired cartridge casings from the .45
caliber automatic matched a firearm that was
recovered in an unrelated incident which occurred on
March 7, 2009 and that the casings were fired from
2558 N. 17th Street, Philadelphia, PA and were found
on the highway near that residence.
Philadelphia Police Officer Edward Fidler was
assigned to the Crime Scene Unit on the day of the
killing and he testified that he responded to the
scene at the 2100 block of Newkirk Street, at
Susquehanna Avenue and Newkirk Street, where he
did a sketch of the area, took photographs, and
itemized physical evidence found in the empty lot
where [D]ecedent’s body was found. Recovered
from the scene was a cell phone, a Pennsylvania
Identification Card in Decedent’s name, fired
cartridge cases from a semiautomatic handgun, and
a black knit hat which belonged to [D]ecedent. The
evidence was submitted to the Criminalistics
Laboratory to be examined for the presence of hairs,
fibers, and DNA. Fidler testified that he also [found]
two CBC .45 caliber automatic fired cartridge cases
and a copper/lead projectile.
Immediately prior to the killing, Monique
Roane and her friend, Zakia Moseley, were returning
home from a party and observed Appellant pass by
upon arriving at the intersection of 29th Street and
Susquenhanna [sic] Avenue. Mosely [sic] stopped to
speak with another friend and while Roane waited for
Moseley to conclude her conversation Roane
observed Appellant run into the lot and saw him
firing a handgun. After the shooting police arrived
and Roane looked into the lot and observed
Decedent lying there.
Roane’s son was near the scene and he
grabbed Roane, admonishing her to be quiet, and
-3-
J-S57014-15
quickly escorted her into the house. Roane testified
that she did not immediately report her observations
to police because she was afraid for herself and her
son. The day before Decedent’s funeral Roane and
her son moved from their home. Roane testified
that after Decedent’s murder Appellant stalked and
harassed her. She stated that Appellant interrogated
her as to what she reported to police, and that
Appellant told her neighbors that she was a ‘snitch’.
Michael Strawther was in his grandmother’s
house in the 2900 block of Newkirk Street on
January 20, 2009 when he heard gunshots.
Strawther went out to investigate and he observed
two males running by, one male was at the next
corner of Diamond and Newkirk Streets, who he
could not see sufficiently to identify, and the other
male was half a block away, who he described to
police as light complexioned and wearing a black
jacket with a hood. Strawther testified that he had
seen Appellant once before in the neighborhood but
did not know him and did not know his name.
Strawther further testified that after the shooting
several friends in the neighborhood rushed to the
hospital where [Decedent] was taken. He stated
that he and Decedent worked together and they had
been friends during the four years Decedent lived in
the area. As the group was returning from the
hospital, Strawther saw Appellant sitting on the steps
leading to the home of Appellant’s accomplice, Isaiah
Lassiter.
On January 26, 2009[,] detectives met with
Strawther and Roane at Roanes’ [sic] home. They
were shown a photograph of Appellant and his
accomplice, Isaiah, and Strawther told detectives
that he did not know Appellant but that he knew
Isaiah. He also gave detectives a formal statement.
Strawther met with detectives a second time on
March 13, 2009 and supplemented his initial
statement. At that time Strawther was shown a
photo spread and positively identified Appellant. He
explained that he did not tell police all he knew on
the night of the shooting because he was not
-4-
J-S57014-15
thinking clearly, having just seen Decedent lying in
the lot. He also did not know that Appellant was also
known as “Prophe[c]y” but heard the name in the
neighborhood after Decedent was killed. Upon being
shown the photo spread with additional information
regarding Appellant, Strawther identified Appellant
as the person he saw on the night of shooting.
Strawther also told dectectives [sic] that he knew
Lassiter since they were young children and that he
also positively identified Lassiter.
Several months after the shooting, and after
Monique Roane and her son moved from their home
located in the neighborhood where Decedent was
killed, Appellant began calling her at her new home
and having conversations with her son. Roane
testified that [A]ppellant stalked and harassed her,
interrogating her as to what she reported to the
police and telling neighbors that she was a
“snitch[.]” Roane went on to testified [sic] that on
October 21, 2009 she was asleep in her bedroom
when a sound woke her whereupon she observed
Appellant crawl from beneath her bed and that he
began to grab Roane by the throat and pushed her
against the headboard of the bed. He called Roane a
“snitch-a[**] b[**]ch” and threatened to kill her.
Roane’s eight year old daughter ran into the room
and he threw the child back into her bedroom.
Roane then began to fight Appellant and found an
iron which she used to hit Appellant in the top of the
head. Appellant was dazed and fell back onto the
floor. He then got up and fled.
Police Officers Katie Lankford and Joseph
Caruso testified [that they] responded to the report
of a burglary in progress at Roane’s home where
[they] met with the Complainant who related that
she was asleep in her bedroom and was awakened
by Appellant who did not have permission to be in
her home and that she chased him out of the house.
Roane told the officer that Appellant was involved in
[D]ecedents’ [sic] killing in the 2100 block of
Newkirk Street. The officers surveyed the area and
[Officer] Caruso observed Appellant who was the
-5-
J-S57014-15
only person on the street and was standing across
from 2543 Natrona Street. [Officer] Caruso asked
Appellant what he was doing there and if he had any
identification and when Appellant refused to respond
and attempted to walk away, he was detained.
[Officer] Lankford then accompanied the Roane[s] to
the location [Officer] Caurso detained Appellant at
which point R[oane] immediately identified Appellant
as the person who was just inside her house without
her permission and that he was involved in
Decedent’s murder.
Isaiah Lassiter, Appellant’s accomplice, pled
guilty to murder, robbery, and conspiracy in the case
involving the killing of Dwayne Canty. Lassiter gave
the police two statements. On April 29, 2009[,]
Police Detectives McNamee and Manigold interviewed
Lassiter and took his formal statement in which
Lassiter stated that Appellant told him that he killed
[D]ecedent. McNamee believed that Lassiter was
himself involved in the shooting and he requested
Detective James Pitts and his partner, Detective
Cummings, to interview Lassiter again. Lassiter
gave Pitts and Cummings an additional formal
statement and again stated that Appellant shot
Decedent. In his second statement Lassiter
explained:
“We were outside just chilling and we seen
Dwayne. We were walking on the corner of
Newkirk and Susquehanna. Dwayne came out
of his house and was walking across the lot. I
told Prophecy [Appellant], let’s jam the boy.
We went up to him. We both had guns and
told the boy to give it up. Dwayne reached in
his pockets and pulled out his money and gave
it to me. That’s when Prophecy shot him.”
When he was asked how much money they took
from [D]ecedent[,] Lassiter responded that they
robbed him of approximately forty dollars ($40)
which Appellant and Lassiter divided between them.
Lassiter signed the statement and he positively
-6-
J-S57014-15
identified a photograph of Appellant as the person he
referred to as Prophe[c]y.
Brandon Holiday, a privately retained
investigator, testified for the defense that he
conducted an investigation of the area of 29th Street
and Susquehanna Avenue, and took several
photographs and measurements. The photographs
were published to the jury.
Trial Court Opinion, 1/20/15, at 2-7.
On April 13, 2010, the Commonwealth filed an information, charging
Appellant with the above-listed offenses, plus one count each of firearms not
to be carried without a license and carrying firearms in public in
Philadelphia.2 On March 16, 2011, Appellant proceeded to a jury trial, at the
conclusion of which, on March 25, 2011, the jury found Appellant guilty of
one count each of murder in the first degree, robbery, criminal conspiracy,
and PIC while the two firearms offenses were nolle prossed. That same day,
the trial court imposed an aggregate sentence of life imprisonment without
the possibility of parole.3 On March 30, 2011, Appellant filed a timely post-
sentence motion, which the trial court denied on April 5, 2011. Appellant did
not file a notice of appeal to this Court.
____________________________________________
2
18 Pa.C.S.A. §§ 6106(a)(1) and 6108, respectively.
3
Specifically, the trial court imposed life without parole for first-degree
murder, ten to twenty years’ imprisonment each for the robbery and
conspiracy charges, and two and one-half to five years’ incarceration for PIC.
-7-
J-S57014-15
On May 20, 2011, Appellant filed a second, counseled post-sentence
motion. Therein, counsel conceded his own ineffective assistance by not
filing Appellant’s notice of appeal due to a clerical error in his office.
Appellant’s Second Post-Sentence Motion, 5/20/11, at ¶¶ 5-11. The trial
court treated the motion as a timely first petition for relief pursuant to the
Post Conviction Relief Act (PCRA) and ordered the appointment of new
counsel.4 After many continuances spanning more than three years, on
August 27, 2014, PCRA counsel filed an amended petition. On August 29,
2014, the trial court entered an order reinstating Appellant’s direct appeal
rights nunc pro tunc. On September 26, 2014, Appellant filed a timely
notice of appeal.5
On appeal, Appellant raises the following two issues for our review.
I. Did the trial court commit error in refusing to
give a [Commonwealth v. Kloiber, 106 A.2d
820 (Pa. 1954),] instruction to the jury with
respect to the identification testimony of
Monique Roane?
II. Did the trial court abuse its discretion in
refusing to give a Kloiber instruction to the
jury with respect to the identification testimony
of Michael Strawthers that the jury must
consider with caution the witness’s
identification of [Appellant]?
____________________________________________
4
42 Pa.C.S.A. §§ 9541-9546.
5
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
-8-
J-S57014-15
Appellant’s Brief at 7.
Both of Appellant’s issues on appeal argue that the trial court erred in
refusing to give his requested Kloiber instructions, pertaining to his
identification by two witnesses. Appellant’s Brief at 14-15, 19. We first
address the Commonwealth’s argument that Appellant has waived both of
these issues on appeal because he did not object to the trial court’s actual
charge to the jury at trial. See generally Commonwealth’s Brief at 10, 14.
Pennsylvania Rule of Criminal Procedure 647(B) states that “[n]o
portions of the charge nor omissions from the charge may be assigned as
error, unless specific objections are made thereto before the jury retires to
deliberate.” Pa.R.Crim.P. 647(B). Our Supreme Court has reiterated that
Rule 647(B) is mandatory, such that “the mere submission and subsequent
denial of proposed points for charge that are inconsistent with or omitted
from the instructions actually given will not suffice to preserve an issue,
absent a specific objection or exception to the charge or the trial court's
ruling respecting the points.” Commonwealth v. Pressley, 887 A.2d 220,
225 (Pa. 2005); accord Commonwealth v. Janda, 14 A.3d 147, 163 (Pa.
Super. 2011); Commonwealth v. Marquez, 980 A.2d 145, 150-151 (Pa.
Super. 2009), appeal denied, 987 A.2d 160 (Pa. 2009).
In this case, the certified record reveals that prior to the court giving
its charge to the jury, Appellant requested the two Kloiber instructions.
N.T., 3/22/11, at 152-153; N.T., 3/23/11, at 107-108. For Roane, Appellant
-9-
J-S57014-15
requested a standard Kloiber instruction, which the Commonwealth
opposed. N.T., 3/22/11, at 153. For Strawthers, Appellant and the
Commonwealth agreed that a Kloiber instruction was appropriate, but
disagreed as to which standard jury instruction was proper for this case. Id.
at 154; N.T., 3/23/11, at 108, 110-111. Appellant requested the first
alternative instruction, whereas, the Commonwealth believed the second
alternative was more appropriate. N.T., 3/23/11, at 109, 111; see also
generally Pa. Sugg. Stan. Crim. Jury Instrs. § 4.07B (2015). The trial court
refused to give any type of Kloiber instruction for Roane, and agreed with
the Commonwealth that the second alternative instruction was proper for
Strawthers. N.T., 3/22/11, at 153; N.T., 3/23/11, at 108; N.T., 3/24/11, at
103. After the trial court gave its charge to the jury, at no point in time did
Appellant object to the trial court’s actual charge as required by Pressley
and Rule 647(B). Therefore, we agree with the Commonwealth that
Appellant has waived both issues on appeal.6 See generally
Commonwealth’s Brief at 10, 14.
____________________________________________
6
We note that Appellant actually requested the trial court clarify the second
alternate Kloiber instruction for Strawthers after the trial court gave it to
the jury. N.T., 3/24/11, at 150.
- 10 -
J-S57014-15
Based on the foregoing, we conclude both of Appellant’s issues on
appeal are waived under Rule 647(B) and Pressley.7 Accordingly, the trial
court’s March 25, 2011 judgment of sentence is affirmed.
Judgment of sentence affirmed.
____________________________________________
7
Even if we were to conclude that Appellant’s issues were not waived, we
would conclude they lack merit. As to Roane, she testified that she knew
Appellant, as he had stayed in her home and was a friend of her son’s. N.T.,
3/16/11, at 62-63. Our Supreme Court has held that “prior familiarity
creates an independent basis for [a] witness’s in-court identification of the
defendant” rendering a Kloiber instruction unnecessary. Commonwealth
v. Ali, 10 A.3d 282, 303 (Pa. 2010). Further, any alleged poor lighting in
the area at the time Roane saw Appellant went to her credibility, not to
whether a Kloiber instruction was required. See generally
Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995).
As to Strawthers, to the extent Appellant complains that the conditions
under which Strawthers viewed Appellant were “less than optimal,” this goes
to Strawthers’ credibility. See id. In addition, Appellant points out that
Strawthers did not describe the perpetrator as having a beard, which
Appellant does. Appellant’s Brief at 19-20. However, a Kloiber instruction
is not required where a witness “explained … the reason for his doubt was
that [the defendant]’s appearance in the photograph was different than his
appearance at the [scene].” Commonwealth v. Yarris, 549 A.2d 513, 528
(Pa. 1988). Here, Strawthers explained that the reason he did not mention
Appellant having facial hair to the police was because Appellant’s face was
partially covered with a hood. N.T., 3/21/11, at 20, 55. Therefore, based
on these considerations, even if we could address Appellant’s claims on their
merits, they would not garner him relief on appeal.
- 11 -
J-S57014-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
- 12 -