Com. v. Shields, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNY R. SHIELDS,
Appellant No. 1382 EDA 2015
Appeal from the PCRA Order Entered April 17, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0508751-2006
BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 16, 2016
Appellant, Kenny R. Shields, appeals from the post conviction court’s
April 17, 2015 order denying his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant argues
that the PCRA court erred by not granting him an evidentiary hearing before
denying his claim of trial counsel’s ineffectiveness. We affirm.
In January of 2008, Appellant was convicted of three counts of
attempted murder, four counts of aggravated assault, one count of criminal
conspiracy, one count of carrying a firearm without a license, and one count
of possessing an instrument of crime. Appellant’s convictions stemmed from
his and three cohorts’ shooting into Primos Sports Bar in Philadelphia, hitting
two people inside. While fleeing, Appellant and the other men also shot at a
woman standing outside her parked car, striking two children inside the
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vehicle. All of the victims who were shot had serious, but non-fatal injuries.
Appellant’s fingerprints were found on one of the weapons used in the
shooting, which had been discarded in close proximity to the sports bar.
On March 28, 2008, Appellant was sentenced to an aggregate term of
47 to 107 years’ incarceration. He filed a timely appeal, and this Court
affirmed Appellant’s judgment of sentence on January 5, 2010, after which
our Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Shields, 991 A.2d 361 (Pa. Super. 2010) (unpublished
memorandum), appeal denied, 998 A.2d 960 (Pa. 2010).
Appellant filed a timely, pro se PCRA petition on July 21, 2011.
Counsel was appointed and filed an amended petition on Appellant’s behalf,
asserting, inter alia, that trial counsel acted ineffectively by failing to
properly cross-examine Clifford Parson, a fingerprint expert, “to educate the
jury that a certain fingerprint did not have to be left on the weapon at any
time proximate to the incident in question.” Amended Petition, 9/14/12, at
2. On January 21, 2015, the court issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition without a hearing. Appellant filed a
response to the Rule 907 notice, but on April 17, 2015, the court issued an
order dismissing his petition as meritless.
Appellant filed a timely notice of appeal. The PCRA court did not order
him to file a Pa.R.A.P. 1925(b) statement, but it did issue an opinion on
August 14, 2015. Herein, Appellant raises one issue for our review: “Did the
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PCRA [c]ourt err when it denied … [Appellant] PCRA relief[,] and all …
without granting an [e]videntiary [h]earing?” Appellant’s Brief at 3.
In the argument portion of his brief, Appellant contends that the PCRA
court erred by not granting him an evidentiary hearing on his claim that his
trial counsel ineffectively failed to properly cross-examine Mr. Parson about
whether he could determine the specific time that Appellant’s fingerprint was
placed on the shotgun found close to the scene of the shooting. Appellant’s
Brief at 10. According to Appellant, because counsel failed to cross-examine
Mr. Parson on this issue, “the jury … [was] left with the presumption or
assumption that the fingerprint was placed at a time proximate to the
event….” Id. He maintains that,
[a] proper cross[-]examination of Mr. Parson would have
revealed that he had absolutely no idea as to when that print
could have been placed. That would have permitted the jury to
consider that in determining whether the fingerprint on the
weapon carried much weight or little weight. This was an
extremely important issue in the case[,] as the weapon became
identified to [Appellant].
Id. at 10-11. Appellant concludes that this Court should remand this case to
the PCRA court for an evidentiary hearing to determine if trial counsel “had
some strategic reason for having failed to engage in the relevant and
necessary cross-examination. If counsel lacked such a reason, [Appellant]
should be entitled to a new trial.” Id. at 11.
Our standard of review regarding an order denying post-conviction
relief under the PCRA is whether the determination of the court is supported
by the evidence of record and is free of legal error. Commonwealth v.
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Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference
to the findings of the PCRA court, and we will not disturb those findings
merely because the record could support a contrary holding.
Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).
In regard to a PCRA court’s decision not to conduct an evidentiary
hearing, our Supreme Court has stated:
The PCRA court has the discretion to dismiss a petition without a
hearing when the court is satisfied “that there are no genuine
issues concerning any material fact, the defendant is not entitled
to post-conviction collateral relief, and no legitimate purpose
would be served by further proceedings.” Commonwealth v.
Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (quoting
Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a PCRA court's
decision to dismiss a petition without a hearing, an appellant
must show that he raised a genuine issue of fact which, if
resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Id. (quoting Commonwealth v. D'Amato, 579 Pa. 490, 856
A.2d 806, 820 (2004)).
Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013).
Our Supreme Court has also set forth the requirements for proving a
claim of ineffective assistance of counsel, as follows:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance 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. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
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Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Appellant contends that he is entitled to an evidentiary hearing
because there is a ‘genuine issue of material fact’ concerning whether his
trial counsel had a reasonable basis for not cross-examining Mr. Parson
about when Appellant’s fingerprint was left on the shotgun. However, the
PCRA court concluded that Appellant failed to demonstrate that he was
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prejudiced by counsel’s conduct and, thus, his claim is meritless on that
basis alone.
After careful review, we agree with the PCRA court that the verdict
would not have changed, even had counsel questioned Mr. Parson about the
timing of Appellant’s fingerprints. To begin, the following evidence was
presented at Appellant’s trial:
On March 30, 2006, Officer Stephen Korpalski and his
partner, Officer David Richardson, were on patrol when they
received a call at 12:30 a.m. N.T., 1/16/08, at 88. The call
indicated gunshots were heard around the 1500 block of Arrott
Street. Id. After investigating the scene, the officers
determined the assignment to be unfounded because no victims
were discovered and witnesses did not report anything. Id.Approximately one hour later, while still in the same
vicinity, Officer Korpalski testified that he and Officer Richardson
heard “a loud boom” and then a “continuous string of fire.” Id.
at 90. He stated that the “first boom sounded almost identical
to a shotgun.” Id. at 91.
Monique Bolden testified that her car was parked outside
Primos Sports Bar at the intersection of Arrott and Griscom
Streets when two males aimed weapons at her. N.T., 1/17/08,
at 18. She stated that the first shooter was a tall-built black
man and the second shooter was also black but shorter and
skinnier than the first male. Id. at 23-24. She testified that
both men turned their guns in her direction and started shooting.
Id. at 28-29. She later identified Holloway as one of the
shooters. Id. at 28.
Meanwhile, the officers noticed three men, Holloway,
Sharpe, and Diaz, run to a van and get inside. N.T., 1/16/08, at
92. When Officer Korpalski activated his lights to stop the van,
the vehicle reversed at a high rate of speed and then crashed
into a utility pole. Id. Sharpe and Diaz proceeded to flee on
foot while Holloway remained inside the van. Id. at 95.
Officer Richardson testified that he apprehended Holloway
and searched the van. N.T., 1/17/08, at 105. Inside the
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vehicle, he observed an AK-47 standing upright against the
passenger rear seat. Id.
There were four victims in the shooting. Inside Primos’
bar, Molina was shot in the leg, arm and chest. N.T., 1/16/08,
186-90. Alvarado, a bartender at Primos’, was shot in her left
thigh. N.T., 1/17/08, at 73. On the street, two of Bolden’s
children were injured. Ten-year-old Hykeem Bolden was shot in
the back. Id. at 34. His seven-year-old brother, Kaseem, was
shot in the face. Id. at 37.
Officer Robert Flade testified that he was assigned as an
investigator to process the shooting scene from the intersection
of Arrott and Griscom Streets to the juncture of Oxford and
Griscom Streets. Id. at 151. The officer stated that he
observed a shotgun in an alleyway right above 4728 Griscom
Street. Id. at 160-61. He also recovered eighteen fired
cartridge casings from the AK-47 as well as four fired shot shells
and two live rounds from the shotgun. Id. at 167-69.
Additionally, the officer observed three fingerprints found
underneath the ejection port of the shotgun. Id. at 177-78.
Officer Flade testified that the location of the prints indicated
who had loaded the weapon and held the gun while firing. Id. at
186, 189.
After Officer Flade made four “lifts,” or impressions, of the
fingerprints from the shotgun, Cliff Parson analyzed them for
identification purposes. N.T., 1/18/08, at 115-16. Parson
testified that with respect to the second lift, he matched the
prints with the middle, ring, and pinky fingers of Appellant’s left
hand. Id. at 124.
Furthermore, Officer Ernest Bottomer, a ballistics expert,
testified that the gun recovered from the alleyway was a 20-
gauge sawed-off shotgun. Id. at 161. He stated that the design
of the four fired shells were comparable to those found on the
ground. Id. at 166-67. He also testified that there were no
inconsistencies between the fired shot [gun] shells and the live
rounds. Id. at 170.
Additionally, the Commonwealth also introduced a
statement made by Rasheeda DeShields, Appellant’s sister, to
police on March 31, 2006. N.T., 1/22/08, at 68-9. DeShields
told police that on the night in question, Appellant was at her
house around 11 p.m. when she received a phone call from
Holloway. Id. at 74. Holloway asked to speak with Appellant
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and said that he had just got shot and that he was “on his way
to the house to get something.” Id. When Appellant got on the
phone, DeShields stated that she heard Holloway tell Appellant
that he needed “the AK.” Id. at 75. She said that Appellant told
Holloway that he “would meet them out front.” Id. DeShields
stated that Appellant then went upstairs and she fell asleep. Id.
at 75-6. The next time DeShields saw Appellant was the
following morning. Id. at 76.
At trial, DeShields recanted her statements to police and
testified that she did not see her brother on the night in
question. Id. at 59. She also stated that she did not receive a
phone call from Holloway. Id. at 60. Moreover, the witness
testified that when the police came to her house on March 31,
2006, they threatened her with [a] gun and said that she was
going to jail and her children would be taken away from her if
she did not tell them where Appellant was. Id. at 61-4.
Furthermore, DeShields stated that she did not remember
signing the statement she made to police. Id. at 66.
To impeach DeShields’ testimony, Detective Vincent
Guarna testified that he interviewed the witness and took her
statement on March 31, 2006. Id. at 154. The detective
indicated that DeShields was cooperative, coherent, and
answered the questions to the best of her ability. Id. Detective
Guarna stated that he typed up the statement while DeShields
answered the questions and then she signed it to verify [it] as
her true statement. Id. at 163. He also testified that he did not
promise her anything and did not threaten her. Id. at 166-67.
Furthermore, the detective stated that DeShields never indicated
to him that she had been threatened by police. Id. at 167.
Lastly, the parties stipulated that Diaz pled guilty to
conspiracy to commit aggravated assault against Alvarado,
Molina, Kaseem Bolden, and Hykeem Bolden. Id. at 146.
Commonwealth v. Shields, No. 1273 EDA 2008, unpublished
memorandum at 5-9 (Pa. Super. filed January 5, 2010) (footnote omitted).
On direct appeal, this Court concluded that “[t]his evidence, and the
reasonable inferences drawn therefrom, was sufficient to establish that
Appellant was involved in the shooting.” Id. at 9. We reasoned:
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First, witnesses testified that they heard two types of guns
being fired when the shooting took place. One was a continuous
fire and the other was a loud boom. Second, Appellant’s left-
hand fingerprints were found on the shotgun used in the
incident. Specifically, his prints were located under the ejection
port, which is the area where a person loads the gun and holds it
while firing. One could reasonably conclude that this location was
not of common usage and thus, did not signify a great possibility
of innocent contact by others. Additionally, we note that the
shotgun was found in an alleyway close in proximity to the
location of the crime scene and shortly after the shooting took
place. The four fired shot shells and two live rounds that were
discovered matched the shotgun. Moreover, the weapon was
found in the opposite direction to where Appellant’s
codefendants were apprehended and the AK-47 was seized.
Additionally, the Commonwealth presented testimony
regarding [a] potential motive for the shooting. Appellant’s sister
gave a statement to police that Holloway had called and said
that he had been recently shot. DeShields heard Holloway tell
Appellant that he needed a gun. Additionally, the witness told
police that Appellant agreed to meet Holloway and others
outside the house. Based on all this circumstantial evidence, one
can reasonably infer that Appellant was the second shooter on
March 30, 2006.
Moreover, we note that although DeShields may have
recanted her prior statements to police and testified that events
on March 30, 2006 did not take place and that the police
threatened her, the jury was free to believe her earlier
statements. For these reasons, Appellant’s argument that the
Commonwealth failed to prove the identification element of his
convictions is without merit. Thus, Appellant’s sufficiency
argument fails.
Id. at 9-11 (citations omitted).
Viewing Appellant’s ineffectiveness claim against the totality of the
evidence, and our Court’s prior determination that the evidence was
sufficient to sustain his convictions, Appellant has failed to convince us that
the jury would have reached a different result had Mr. Parson testified that
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he could not determine precisely when Appellant’s fingerprints were placed
on the shotgun. Accordingly, Appellant has not demonstrated that he was
prejudiced by trial counsel’s failure to elicit this testimony from Mr. Parson
during cross-examination. Because Appellant’s claim fails to meet the
prejudice prong of the ineffectiveness test, no legitimate purpose would be
served by remanding for an evidentiary hearing regarding counsel’s strategy
for not cross-examining Mr. Parson in this regard.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
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