Commonwealth v. Tildon

1

COMMONWEALTH OF PENNSYLVANIA v. TYRON DIXON TILDON Appellant

No. 1126 EDA 2021

No. J-A01011-23

Superior Court of Pennsylvania

November 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered May 11, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008638-2012

BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.

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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