Com. v. Barker, S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANE S. BARKER :
:
Appellant : No. 189 MDA 2022
Appeal from the PCRA Order Entered December 30, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000983-2015
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 11, 2023
Appellant, Shane S. Barker, appeals from the post-conviction court’s
December 30, 2021 order dismissing his first, timely petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. In addition,
Appellant’s court-appointed counsel, Fawn E. Kehler, Esq., has filed a petition
to withdraw and accompanying brief pursuant to Anders v. California, 386
U.S. 738 (1967).1 After review, we affirm the PCRA court’s order and grant
Attorney Kehler’s petition to withdraw.
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* Former Justice specially assigned to the Superior Court.
1 When counsel seeks to withdraw on appeal from the denial of PCRA relief,
counsel should file a Turner/Finley letter or brief, instead of an Anders brief.
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). However, “[b]ecause
an Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley letter.” Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted).
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The PCRA court set forth the background of Appellant’s offense, trial,
and direct appeal, as follows:
TRIAL AND DIRECT APPELLATE PROCEDURE
Following a jury trial commencing on August 22, 2016, and
concluding on August 26, 2016, [Appellant] was found guilty of …
murder of the third degree.1 [Appellant] was sentenced to a
period of incarceration of not less than 18 years (216 months) nor
more than 36 years (432 months). [Appellant] filed a timely post-
sentence motion on November 18, 2016, and the Commonwealth
filed a response on December 22, 2016. This Court denied the
post-sentence motion on January 12, 2017. [Appellant] filed a
timely notice of appeal on February 10, 2017. The Superior Court
affirmed the judgment of sentence on November 22, 2017.
[Commonwealth v. Barker, 181 A.3d 442 (Pa. Super. 2017)
(unpublished memorandum)]. [Appellant] subsequently filed a
Petition for Allowance of Appeal with the Supreme Court, and said
[p]etition was denied on May 2, 2018. [Commonwealth v.
Barker, 185 A.3d 275 (Pa. 2018)].
118 Pa.C.S.[] § 2502. Appellant was also charged with first
degree murder.
FACTUAL BACKGROUND
Testimony presented by the Commonwealth at trial established
that[,] in the early morning hours of October 18, 2014, an incident
occurred at a nightclub called Queenies[,] which led to a dispute
between [Appellant] and Jerome Buckner (hereinafter[,]
“victim”). The dispute carried out into the street, ultimately
leading to [Appellant’s] firing several shots toward the victim as
he was running away. Some of the shots struck the victim,
causing his death.[2] The testimony of multiple eyewitness[es],
medical experts, and ballistic experts implicated [Appellant] as the
shooter. Moreover, [Appellant] admitted in one of his police
interviews that he had shot the victim and said that he was sorry
for doing so.
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2Witnesses at trial testified that they observed Appellant stomp on the victim’s
body after he was shot. N.T. Trial, 8/22/16-8/26/16, at 266-68, 317-18.
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[Appellant], who testified on his own behalf at trial, offered his
own version of events. He stated that he had left the nightclub
and gone to his car alone when the victim came out of nowhere
and struck him on the face several times, knocking him to the
ground outside [of] his car. At some point while on the ground,
[Appellant] claimed that he felt the victim pulling on his clothes.
[Appellant] stated that he then retrieved his gun from under the
driver’s seat of his car and fired the gun at the victim. In essence,
[Appellant] claimed that he was defending himself when he fired
the shots.
PCRA Court Opinion (“PCO”), 12/30/21, at 1-2 (emphasis and capitalization in
original; footnote omitted).
On March 29, 2019, Appellant filed a timely, pro se PCRA petition, his
first. On April 2, 2019, the PCRA court appointed Attorney Kehler to represent
him. Attorney Kehler filed an amended petition on Appellant’s behalf on April
6, 2020. Therein, Appellant raised three claims: first, ineffective assistance
of trial counsel for “failing to call a key eye-witness, Leonard Lemon, to
develop testimony that [Appellant] was not the individual who killed the victim
and that it was [Appellant’s] nephew, Zindell Mckiver, aka ‘Murda[,]’ who was
the shooter”; second, ineffective assistance of trial counsel for failing “to
present the 911 caller as a witness at trial to disprove the Commonwealth’s
theory of the case”3; and third, newly-discovered evidence in that Appellant
____________________________________________
3 For context, Appellant explained that:
At trial, the 911 call was entered into evidence by the
Commonwealth over no objection by [Appellant’s] trial counsel.
The 911 caller identifies the shooter and stomper as a heavy set,
black male, with [dreadlocks]. It was also testified to by Detective
[Jarrett] Ferrari that the police had never spoken to nor
interviewed the 911 caller, despite having her address and her
(Footnote Continued Next Page)
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“received notification from his family members that the witness, Zindell
Mckiver, aka ‘Murda[,]’ … has bragged to several individuals (newly[-
]discovered [W]itness #1 and [W]itness #2) that he was the shooter and the
one who killed the victim.” Amended Petition at ¶¶ 10, 14.4
The Commonwealth filed an answer to Appellant’s amended petition on
April 27, 2020. Upon consideration of Appellant’s amended petition and the
Commonwealth’s answer thereto, the PCRA court held a PCRA hearing on April
20, 2021. There, Appellant, and his trial attorneys — Elizabeth Ruby, Esq.
and Jessica Bush, Esq. — testified. Due to witness availability, the hearing
was ultimately continued until September 22, 2021. At the September 22,
2021 hearing, Mr. Lemon testified. None of the witnesses or family members
in connection with Appellant’s third, newly-discovered evidence claim testified
at the PCRA hearings, rendering that claim abandoned. See PCO at 6.
____________________________________________
telephone number. Had the 911 caller been interviewed and
testified at trial[,] she could have provided additional information
regarding her statement that the shooter had [dreadlocks] (which
eliminates [Appellant] as the shooter and stomper) and
confirmed, in person, by looking at [Appellant] at trial, that
[Appellant] was not the individual that she observed shoot the
victim that early morning.
Amended Petition, 4/6/20, at ¶ 12 (original brackets omitted).
4 With respect to the third, newly-discovered evidence claim, Appellant
elaborated in his petition that Witness #1 was murdered, and that he was
having difficulty obtaining the name of and speaking to Witness #2, as Witness
#2 was also incarcerated. Amended Petition at ¶¶ 16, 17. Appellant also
represented that his family members that received the newly-discovered
information do not wish to get involved and are fearful of their safety. Id. at
¶ 17.
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On December 30, 2021, the PCRA court filed a memorandum opinion
and order, in which it dismissed Appellant’s petition. Thereafter, Appellant
filed a timely notice of appeal. The PCRA court directed Appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Attorney Kehler subsequently filed a timely statement of intent to file an
Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Because of the filing of a Rule
1925(c)(4) statement, the PCRA court elected not to file a Rule 1925(a)
opinion.
On July 27, 2022, Attorney Kehler filed a petition to withdraw and an
Anders brief with this Court. See footnote 1, supra (explaining that counsel
should have filed a Turner/Finley letter or brief, but that this Court may
accept an Anders brief instead). In the Anders brief, Attorney Kehler lists
the following two issues that Appellant seeks to have reviewed:
1. Whether trial counsel was ineffective when they failed to call
eye-witness Leonard Lemon as a witness at trial when his
testimony would have established that Appellant was not the
shooter and that two other individuals shot and killed the victim?
2. Whether trial counsel was ineffective when they failed to
present the 911 caller as a witness at trial?
Anders Brief at 7 (unnecessary emphasis and capitalization omitted).
We begin our review by determining whether Attorney Kehler has
satisfied the prerequisites of withdrawal.
Counsel petitioning to withdraw from PCRA representation must
proceed … under … Turner, and … Finley, and … must review the
case zealously. Turner/Finley counsel must then submit a “no-
merit” letter to the trial court, or brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review of the
case, listing the issues which petitioner wants to have reviewed,
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explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
***
Where counsel submits a petition and no-merit letter that …
satisfy the technical demands of Turner/Finley, the court
— trial court or this Court — must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will
permit counsel to withdraw and deny relief.
Commonwealth v. Muzzy, 141 A.3d 509, 510-11 (Pa. Super. 2016)
(citations omitted).
Attorney Kehler has substantially complied with these requirements.
Though not mentioned in the Anders brief, Attorney Kehler represents in her
petition to withdraw that she thoroughly reviewed the record, as well as all
applicable law. See Petition to Withdraw, 7/27/22, at ¶ 6. In addition, in the
Anders brief, Attorney Kehler lists the issues which Appellant wants to have
reviewed, and explains why and how those issues lack merit. She also
requested permission to withdraw via her petition filed with this Court.
Moreover, Attorney Kehler has attached a letter written to Appellant as an
exhibit to the Anders brief, in which she informs him that he may proceed
pro se or by new counsel.5 The certificates of service on both the petition to
withdraw and the Anders brief show that Appellant was served with them via
____________________________________________
5 This exhibit does not appear in the paper copy of the Anders brief filed with
this Court. However, it is included in the electronically-filed Anders brief.
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first class mail.6, 7 Thus, we will now conduct an independent review of
Appellant’s claims.
At the outset of our review, we recognize that:
In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the
record supports the determination of the PCRA court and whether
the ruling is free of legal error. We pay great deference to the
findings of the PCRA court, but its legal determinations are subject
to our plenary review.
Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super. 2013) (en banc)
(cleaned up). Further, where the petitioner asserts that he received the
ineffective assistance of counsel, this Court has explained:
To be eligible for relief based on a claim of ineffective assistance
of counsel, a PCRA petitioner must demonstrate, by a
preponderance of the evidence, that (1) the underlying claim is of
arguable merit; (2) no reasonable basis existed for counsel’s
action or omission; and (3) there is a reasonable probability that
the result of the proceeding would have been different absent such
error. With regard to the second, i.e., the “reasonable basis”
prong, this Court will conclude that counsel’s chosen strategy
lacked a reasonable basis only if the appellant proves that an
alternative not chosen offered a potential for success substantially
greater than the course actually pursued. To establish the third
prong, i.e., prejudice, the appellant must show that there is a
reasonable probability that the outcome of the proceedings would
have been different, but for counsel’s action or inaction.
In reviewing this determination, we are cognizant that
when raising a claim of ineffectiveness for the failure to call
a potential witness, a petitioner satisfies the performance
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6 See also Petition to Withdraw at ¶ 7 (Attorney Kehler’s representing that,
“[o]n July 27, 2022, a letter to Appellant outlining his rights, the Motion to
Withdraw as Counsel, and a copy of the Anders brief were forwarded by
undersigned counsel to [Appellant], via first class mail”).
7 As of the date of this writing, Appellant has not filed a response.
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and prejudice requirements of the Strickland v.
Washington, 466 U.S. 668 … (1984) test by establishing
that: (1) the witness existed; (2) the witness was available
to testify for the defense; (3) counsel knew of, or should
have known of, the existence of the witness; (4) the witness
was willing to testify for the defense; and (5) the absence
of the testimony of the witness was so prejudicial as to have
denied the defendant a fair trial….
To demonstrate Strickland prejudice, a petitioner must show how
the uncalled witnesses’ testimony would have been beneficial
under the circumstances of the case. Counsel will not be found
ineffective for failing to call a witness unless the petitioner can
show that the witness’s testimony would have been helpful to the
defense. A failure to call a witness is not per se ineffective
assistance of counsel for such decision usually involves matters of
trial strategy.
Matias, 63 A.3d at 810-11 (cleaned up).
In the first issue, Appellant advances that his trial attorneys were
ineffective when they failed to call eyewitness Leonard Lemon as a witness at
trial, when his testimony would have established that Appellant was not the
shooter and that two other individuals shot and killed the victim. Anders
Brief at 7. Here, in disposing of this issue, the PCRA court aptly explained:
At the PCRA hearing held on September 22, 2021, [Mr.] Lemon
testified that he was in his vehicle in the vicinity of the nightclub
when he saw two individuals other than [Appellant] “run up on”
the victim and shoot the victim. He said that he knew these
individuals were not [Appellant] because they did not match the
physical characteristics of [Appellant]. [Mr.] Lemon further
testified that [Appellant] was not in the vicinity of the area when
this happened.
Considering [Mr.] Lemon’s testimony at the PCRA hearing, we find
that trial counsel had a completely reasonable basis for refraining
from calling [Mr.] Lemon to testify at the trial. At trial, the
Commonwealth presented the testimony of multiple witnesses
tending to establish that [Appellant] shot at the victim on the night
in question. Moreover, [Appellant] admitted in one of his police
interviews that he had shot the victim and said that he was sorry
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for doing so. Given the overwhelming evidence establishing that
[Appellant] was the shooter, [Appellant], in testifying on his own
behalf, admitted that he shot at the victim, but he claimed that he
was doing so to protect himself. However, [Mr.] Lemon testified
at the PCRA hearing that [Appellant] was not involved in the
shooting and was not even in the vicinity at the time the shooting
occurred. If such testimony had been presented at trial, it would
have completely undermined and discredited [Appellant’s] self-
defense theory and would have been directly contradictory to
virtually all the other evidence presented in the case. Moreover,
[Mr.] Lemon had a crimen falsi conviction within 10 years of the
trial date, and this could have been used to impeach [Mr.] Lemon
as a witness. In sum, [Appellant] cannot establish that calling
[Mr.] Lemon as a witness offered a potential for success
substantially greater than the course pursued, and, therefore, trial
counsel did not render ineffective assistance by failing to call [Mr.]
Lemon. Moreover, considering the overwhelming evidence of guilt
established by the remaining evidence presented at trial, including
[Appellant’s] own testimony, [Appellant] cannot establish that he
was prejudiced by counsel’s decision not to call [Mr.] Lemon as a
defense witness.
PCO at 4-5 (internal citations omitted).
Based on our independent review of the record, we agree with the PCRA
court’s analysis that this issue lacks merit. Appellant cannot establish
ineffective assistance of counsel for failing to call Mr. Lemon as a witness at
trial, given the overwhelming evidence that Appellant was in fact the shooter.
No relief is due on this basis.
In the second issue, Appellant claims that his trial attorneys were
ineffective when they failed to present the 911 caller as a witness at trial.
Anders Brief at 7. As mentioned supra, Appellant averred below that:
At trial, the 911 call was entered into evidence by the
Commonwealth over no objection by [Appellant’s] trial counsel.
The 911 caller identifies the shooter and stomper as a heavy set,
black male, with [dreadlocks]. It was also testified to by Detective
Ferrari that the police had never spoken to nor interviewed the
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911 caller, despite having her address and her telephone number.
Had the 911 caller been interviewed and testified at trial[,] she
could have provided additional information regarding her
statement that the shooter had [dreadlocks] (which eliminates
[Appellant] as the shooter and stomper) and confirmed, in person,
by looking at [Appellant] at trial, that [Appellant] was not the
individual that she observed shoot the victim that early morning.
Amended Petition at ¶ 12 (original brackets omitted).
With respect to this claim, the PCRA court observed that the fact that
the 911 caller’s description of the shooter did not exactly match Appellant’s
physical characteristics was elicited at trial. PCO at 5; see also N.T. Trial at
249-50, 255, 381-82, 632-634. As such, the PCRA court opined that “it is
difficult to fathom how the 911 caller’s testimony could have provided
information that was more beneficial to [Appellant] than the information that
was already presented at trial.” PCO at 5. It also observed that Appellant
“claims that the person who called 911 to report the incident would have
identified the shooter as someone other than [Appellant], but he provides no
information to suggest how the caller could have made that identification or
provided any information that was not already elicited at trial.” Id. Thus, the
PCRA court concluded that Appellant “cannot establish that trial counsel did
not have a reasonable basis for refraining from presenting the 911 caller’s
testimony, and he cannot establish that he was prejudiced by this alleged
nonaction.” Id.
Once again, we agree with the PCRA court’s analysis. Further, we
observe that, at the PCRA hearing, Appellant’s trial counsel testified that they
interviewed the 911 caller and determined that her testimony at trial would
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not benefit Appellant. Specifically, at the interview, trial counsel said that the
911 caller identified the person standing over the victim and stomping his
body as a person with dreadlocks, but identified Appellant as the actual
shooter. N.T. Hearing, 4/20/21, at 29-34, 42-44. In addition, we reiterate
that Appellant argued self-defense at trial, which would make any hypothetical
testimony from the 911 caller pointing to someone else as the shooter
confusing and unproductive to his defense. Accordingly, Appellant has not
established that trial counsel was ineffective for failing to present the 911
caller as a witness at trial. This issue is meritless as well.
In conclusion, based on the foregoing, we affirm the PCRA court’s order
dismissing Appellant’s petition. Because his claims are meritless, we also
grant Attorney Kehler’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2023
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