MEMORANDUM
McCAFFERY, J.
Tyron
Dixon Tildon (Appellant) appeals from the order entered on
May 11, 2021, in the Philadelphia County Court of Common
Pleas, dismissing his timely petition for collateral relief
filed under the Post Conviction Relief Act
(PCRA).[1] Appellant seeks relief from an aggregate
sentence of life imprisonment, imposed on August 5, 2013
after a jury found him guilty of first-degree murder
carrying a firearm without a license, and recklessly
endangering another person (REAP).[2] On appeal, Appellant raises
a myriad of ineffective assistance of counsel claims. Based
on the following, we affirm on the basis of the PCRA court
opinion.
The
PCRA court summarized the underlying facts as follows:
On the evening of October 6, 2006, Denise Chandler drove to
the intersection of N. Cleveland Street and W. Cumberland
Street, intending to purchase a bag of heroin from Mark
Jordan. Chandler arrived at the intersection and found Jordan
standing outside of a bar. Chandler drove to Jordan, asked if
he was carrying heroin, and invited him to the car. Once
Jordan entered the car, Chandler parked on the corner of
Cleveland and Cumberland Streets.
As Chandler gave Jordan money for the drugs, gunshots rang
out. Chandler attempted to pull out from her parking spot,
but Appellant crossed in front of her car on foot with a
black revolver in his hand, forcing Chandler to wait until he
entered the car in front of her. Jordan looked down Cleveland
Street and saw "a lot of people running, but [Appellant]
was the only one coming down Cleveland. They [were] all
running away from where Bilal[3] was. He ran right past the car
and he looked right at me when I was in the car."
After . . . Appellant stepped into that car, Chandler forced
her way [in] the front of Appellant, honking her horn and
speeding out of her parking spot onto York Street. Suddenly,
Jordan exclaimed "Stop, stop, that's my boy."
Chandler stopped the car; Donnell Goulbourne ran up to
Chandler's car yelling, "Let me get in, let me get
in, they shootin!" Chandler let Goulbourne into her car.
Upon entering, Goulbourne said, "I been hit [sic]."
"He was asking how long to the hospital and he was
saying he was short of breath and that he was going to die.
He kept saying that. I didn't know he was shot until he
said Bilal shot him when he was chasing us in the car."
Goulbourne then suddenly exclaimed, "There he is!"
Chandler turned towards the driver's side window, through
which she saw . . . Appellant point a gun in her direction
from his position inside of the car. Goulbourne exclaimed,
"Pull out, that's who shot me." Chandler sped
off; a car chase ensued, during which Chandler ran at least
two red lights and nearly collided with a van. Prior to
getting to the hospital, Chandler spotted two police cars
and pulled up to them. Jordan exited the car and helped to
move Goulbourne into the back of one of the police cars.
Goulbourne was taken to Temple [U]niversity Hospital, where
he was pronounced dead at 11:40 p.m.
Five days after the shooting, Appellant traveled to the
Middle East, where he remained for five and one-half years.
Appellant was arrested in Amman, Jordan and brought back to
the United States by United States Marshals on April 29,
2012.
PCRA Ct. Op., 7/5/22, at 1-2 (record citations & footnote
omitted).
Appellant
was charged with first-degree murder, carrying a firearm
without a license, carrying a firearm on a public street in
Philadelphia, possession of an instrument of
crime,[4] and REAP. The matter proceeded to a jury
trial in the summer of 2013. Appellant's trial counsel
was Lawrence S. Krasner, Esquire (Trial
Counsel).[5] On August 5, 2013, the jury convicted
Appellant of murder, carrying an unlicensed firearm, and
REAP.[6] After the verdict was read,
Appellant's counsel made an oral motion for judgment of
acquittal regarding the carrying an unlicensed firearm
charge, which the trial court granted. See N.T.,
8/5/23, 64-65. That same day, the court sentenced Appellant
as follows: (1) a term of life imprisonment without the
possibility of parole for the murder conviction; and (2) a
concurrent term of nine to 24
months' incarceration for the REAP conviction. Appellant
filed a post-sentence motion, which was denied on December 3,
2013.
Appellant
then filed a direct appeal. A panel of this Court affirmed
his judgment on sentence on June 16, 2015, and the
Pennsylvania Supreme Court denied his petition for allowance
of appeal on December 31, 2015. See Commonwealth v.
Tildon, 3438 EDA 2013 (unpub. memo.) (Pa. Super. June
16, 2015), appeal denied, 443 EAL 2015 (Pa. Dec. 31,
2015).
On May
17, 2016, Appellant filed a timely, pro se PCRA
petition. Thereafter, new counsel, the Defender Association
of Philadelphia, entered its appearance. On February 8, 2019,
Appellant filed a counseled, amended PCRA petition, raising,
inter alia, ineffective assistance of counsel claims
in terms of Batson,[7] Brady,[8] prosecutorial
misconduct, defective jury instructions,
Ross[9]/speedy trial, and
Kloiber[10] instruction challenges. The Commonwealth
filed a motion to dismiss Appellant's amended PCRA
petition on June 21, 2019.[11]
The
PCRA court heard argument on March 3, 2020, but did not
provide a decision at the conclusion of the proceeding.
Subsequently, on February 16, 2021, the court issued a
Pa.R.Crim.P. 907 notice of intent to dismiss the petition as
meritless.
On
March 3, 2021, Appellant filed a witness certification in
support of his amended PCRA petition, which identified Trial
Counsel, and indicated he would proffer the following
testimony regarding his defense of Appellant:
Specifically[,] if [the PCRA court held] a hearing[, Trial
Counsel] will testify . . . that his theory of defense at
trial was both
sufficiency of the evidence and self-defense and that he
requested a jury instruction on self-defense. He will also
testify that he reviewed two documents that PCRA counsel
provided him that show that prior to trial the Commonwealth
had conducted an investigation that revealed that
"[Appellant] shot the victim[ ] because the victim was
selling drugs in [his] area" and also concluded that the
"shooting was prompted over drug territory[. . . ."
Trial Counsel] will also testify that he has no recollection
of receiving these documents any time during his
representation of [Appellant] and that these documents
support his theory of self-defense. [Trial Counsel] will also
testify that he was not made aware that Police Officer
[Andre] Daniels was unavailable to testify because he had
been fired from the police force due to his guilty plea in
federal court for numerous counts of prescription drug fraud.
Appellant's Certification of Witnesses in Support of
Amended Petition for Writ of Habeas Corpus and for Collateral
Relief from Criminal Conviction Pursuant to the Post
Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.,
3/3/21, at 1-2 (unpaginated). The Commonwealth filed a
response to Appellant's witness certification on April 7,
2021. Thereafter, on May 11, 2021, the PCRA court dismissed
Appellant's petition as meritless. This timely appeal
followed.[12]
Appellant raises eight issues on appeal:
1. Did the PCRA court err in dismissing the claim that
[A]ppellate [C]ounsel were ineffective in failing to raise on
appeal the issue that the Commonwealth used its peremptory
strikes in a discriminatory manner to strike African
Americans on the jury panel, in violation of
[Appellant]'s rights to equal protection, due process of
law, and a fair trial under the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution?
2. Did the PCRA court err in dismissing the claim that the
Commonwealth violated Brady v. Maryland when it
suppressed material evidence favorable to the defense in
violation of [Appellant]'s due process rights;
specifically, the Commonwealth suppressed the records of its
investigation into the decedent's involvement in the drug
trade, as well as the fact that Officer Andre Daniels had
been fired by the police department and was convicted in
federal court on drug and fraud offenses, and that [T]rial
[C]ounsel was ineffective in stipulating to Officer
Daniels' testimony?
3. Did the PCRA court err in dismissing the claim that the
prosecution mischaracterized the evidence in this case and
misled the jury by stating that [Appellant] had not given a
statement to authorities, and argued consciousness of guilt
based upon that false claim, when [Appellant] had in fact
given a statement to authorities, and that [T]rial [C]ounsel
was ineffective for failing to object to this prosecutorial
misconduct and for failing to introduce the statement to
rebut the prosecutor's misleading argument?
4. Did the PCRA court err in dismissing the claim that
[T]rial [C]ounsel was ineffective for failing to object to
the trial court's defective instructions on burden of
proof, in that by instructing the jury that their
determination of whether the Commonwealth has satisfied its
burden of proof should be based solely on the
Commonwealth's evidence, and failing to allow or compel
consideration of evidence presented by the defense, the
instruction violated [Appellant]'s constitutional rights
to present a defense, to testify in his own behalf, and to
due process?
5. Did the PCRA court err in dismissing the claim that
[T]rial [C]ounsel was ineffective for failing to litigate
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