Com. v. Shields, R. ( 2018 )

J-A31028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RIDLEY SHIELDS :
:
Appellant : No. 1110 EDA 2017
Appeal from the PCRA Order March 9, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011770-2007
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JANUARY 11, 2018
Appellant, Ridley Shields, appeals pro se from the order entered on
March 9, 2017, dismissing his petition filed under the Post-Conviction Relief
Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.
The trial court ably summarized the facts underlying Appellant’s
convictions:
On November 18, 2006, Justun Mershon . . . [,] Darrell
Robinson . . . , and [Appellant] were driving to [Mershon’s
mother’s] house[,] which was located on North 28th Street
in . . . Philadelphia. Each man was carrying a firearm. The
three men had a conversation about a confrontation with a
local drug dealer who had threatened Mershon with a gun
the day before. Appellant believed that Jimmy Moody, the
decedent, had provided the gun and he wanted to confront
Moody about the issue. Mershon did not want to initiate
any confrontation with Moody because Moody’s uncle “was
respected in the neighborhood” and if Mershon did anything
to Moody, then Mershon would have to answer to Moody’s
uncle.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Appellant[,] Mershon[,] and Robinson parked near
Mershon’s mother’s house and began to walk up to the
corner of 28th and Clearfield Streets[,] where they met John
Gale. Moody, who was alone, was crossing the intersection
and met the group. Moody shook hands with Mershon and
said, “What’s up J?”[,] to which Mershon replied, “Nothin’,
I’m just chillin’.” Appellant immediately pulled his firearm
from his sweatshirt sleeve and fired repeatedly at Moody.
Moody fell backwards onto the street. As Appellant was
firing his weapon at Moody, he also struck Mershon in the
stomach. Mershon was lying on the ground when he saw
Robinson stand over Moody and fire a single shot into
[Moody’s] head. After a few minutes, Mershon was able to
rise to his feet and stagger up the block to his mother’s
house. Mershon’s mother took him to the hospital where he
was treated for a bullet wound to the liver and spleen.
The decedent, Jimmy Moody, sustained gunshot wounds to
his head[,] jaw[,] arm[,] and back. The wounds to the
[head, arm, and back] were made with a .32 caliber
weapon[; the] wound to [Moody’s] jaw was made with a .44
caliber weapon.
Appellant was arrested on July 17, 2007.
Trial Court Opinion, 7/13/10, at 2-3 (internal citations and footnote
omitted).
On January 8, 2010, a jury found Appellant guilty of first-degree
murder, criminal conspiracy, aggravated assault, possession of an
instrument of crime, carrying a firearm without a license, and carrying a
firearm on the public streets of Philadelphia.1 On January 11, 2010, the trial
court sentenced Appellant to serve a mandatory term of life in prison without
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1 18 Pa.C.S.A. §§ 2502, 903, 2702(a), 907, 6106(a)(1), and 6108,
respectively.
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the possibility of parole for his first-degree murder conviction, and to serve
concurrent terms of incarceration for the remaining convictions.
This Court affirmed Appellant’s judgment of sentence on January 21,
2011 and Appellant did not file a petition for allowance of appeal to the
Pennsylvania Supreme Court. Commonwealth v. Shields, 23 A.3d 1087(Pa. Super. 2011) (unpublished memorandum) at 1-14.
On January 17, 2012, Appellant filed a timely, pro se PCRA petition.
Within this petition, Appellant claimed the following:
Trial counsel was ineffective for failing to investigate,
interview, locate and present exculpatory eyewitnesses.
Counsel was ineffective for not informing petitioner of the
importance of his right to present character witnesses and
where counsel failed to present character witness
testimony. Counsel was ineffective for failing to submit
motion to suppress my incriminating statements.
Appeal counsel was ineffective for failing to submit my
appeal to the Supreme Court.
Appellant’s Pro Se PCRA Petition, 1/17/12, at 3.
Appellant filed an amended pro se PCRA petition on August 20, 2012.
In the amended petition, Appellant claimed that he was entitled to relief
under Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), where the
United States Supreme Court held that “mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller v.
Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2460 (2012). Appellant claimed
that Miller provided him with an avenue for relief because he was “the age
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of 18 at the time the above cited crimes were committed” and he received a
mandatory sentence of life in prison without the possibility of parole for his
first-degree murder conviction. Appellant’s Amended Pro Se PCRA Petition,
8/20/12, at 3-4.
On October 11, 2012, the PCRA court appointed counsel to represent
Appellant. However, on January 3, 2017, appointed counsel filed a no-merit
letter and a request to withdraw as counsel, pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).
After reviewing counsel’s Turner/Finley letter, the PCRA court
entered an order that notified Appellant that it intended to dismiss the PCRA
petition in 20 days, without holding a hearing. See PCRA Court Order,
2/10/17, at 1; Pa.R.Crim.P. 907(1). Appellant did not respond to the PCRA
court’s notice of intent to dismiss and, on March 9, 2017, the PCRA court
granted counsel’s request to withdraw and finally dismissed Appellant’s PCRA
petition. PCRA Court Order, 3/9/17, at 6.
Appellant filed a timely notice of appeal. Appellant raises the following
claims on appeal:
1. Was the Commonwealth devoid of Tenth Amendment
authority to prosecute [Appellant] and was the trial court
devoid of Tenth Amendment jurisdiction and subject matter
jurisdiction to hear criminal proceedings against [Appellant]
where the Commonwealth is under the mandate(s) of the
federal regulatory program of voitis, and where the
Commonwealth filed fatally defective bills of information?
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2. Was PCRA counsel ineffective for failing to raise all prior
counsels’ ineffectiveness in failing to discover and raise
Tenth Amendment and subject matter jurisdiction violations
and unconstitutional jury instructions?
3. Was PCRA counsel ineffective[] for failing to abide by
[Appellant’s] request to raise trial counsel’s ineffectiveness
in failing to object to, and preserve for direct appeal[,] an
unconstitutional jury instruction which equated malice with
intent and impermissibly instructed the jury that it could
infer or presume malice and intent?
4. Was PCRA counsel ineffective for failing to discover and
raise in an amended PCRA petition that malice, as defined
by state law, violates the Fifth and Fourteenth
Amendments?
Appellant’s Brief at 2 (some internal capitalization omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffectiveness of counsel which, in the
circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is, however, presumed to be effective and “the burden of
demonstrating ineffectiveness rests on [A]ppellant.” Commonwealth v.
Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To satisfy this burden,
Appellant must plead and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not
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have some reasonable basis designed to effectuate his
interests; and, (3) but for counsel’s ineffectiveness, there is
a reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). “A failure to
satisfy any prong of the test for ineffectiveness will require rejection of the
claim.” Id.Appellant has waived all of his claims on appeal, as Appellant did not
plead any of the claims in his initial or amended PCRA petition. As
summarized above, Appellant raised the following claims in his initial and
amended PCRA petition:
1) “Trial counsel was ineffective for failing to investigate,
interview, locate and present exculpatory eyewitnesses;”
2) “Counsel was ineffective for not informing petitioner of
the importance of his right to present character witnesses
and where counsel failed to present character witness
testimony;”
3) “Counsel was ineffective for failing to submit [a] motion
to suppress [Appellant’s] incriminating statements;”
4) “[appellate] counsel was ineffective for failing to [file an]
appeal to the [Pennsylvania] Supreme Court;” and,
5) Appellant was entitled to relief under Miller v. Alabama.
Appellant’s Pro Se PCRA Petition, 1/17/12, at 3; Appellant’s Amended Pro Se
PCRA Petition, 8/20/12, at 3-4.
On appeal, Appellant abandoned all of the claims he raised in his PCRA
petition and Appellant has, instead, sought to raise new claims for the first
time in this Court. Appellant cannot do so. As our Supreme Court has
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emphasized, the pleadings constitute an “essential predicate for appellate
review of post-conviction proceedings” and the failure to specifically plead
the grounds for relief results in mandatory waiver of the claim.
Commonwealth v. Wilson, 861 A.2d 919, 928 n.8 (Pa. 2004). See also
Commonwealth v. Edminston, 851 A.2d 883, 889 (Pa. 2004) (“[c]laims
not raised in the PCRA court are waived and cannot be raised for the first
time on appeal”).
Thus, since Appellant did not plead any of his current claims in his
PCRA petition, all of Appellant’s claims on appeal are waived.2
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/18
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2 We note that Appellant filed a supplemental brief in this Court, where
Appellant claimed that his trial counsel was ineffective for failing to object to
the trial court’s “jury instruction[] on the concept of reasonable doubt.”
Appellant’s Supplemental Brief at 1. Like Appellant’s other claims on appeal,
Appellant did not raise his supplemental claim in his PCRA petition.
Therefore, the claim is waived. Edminston, 851 A.2d at 889.
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