J-S03026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KENDALL L. HENRY

                        Appellant                   No. 1685 EDA 2014


                Appeal from the PCRA Order May 15, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0902321-2006


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

JUDGMENT ORDER BY PANELLA, J.                        FILED APRIL 08, 2015

      Appellant, Kendall L. Henry, appeals from the order entered on May

15, 2014, in the Court of Common Pleas of Philadelphia County, that

dismissed his petition filed pursuant to the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-9546.

      We direct the reader to the PCRA court’s opinion for a detailed

recitation of the facts and procedural history of this case. See PCRA Court

Opinion, 5/15/14, at 1-2.      Briefly stated, during an altercation at a

neighborhood cookout, Henry shot a man in the back, leaving him unable to

walk. A jury convicted him of, among other things, attempted murder. The

trial court sentenced Henry to a period of imprisonment and after this Court

affirmed the conviction, Henry filed a timely PCRA petition and later, through
J-S03026-15


counsel, an amended petition.        This appeal follows the denial of the

amended PCRA petition.

      On appeal, Henry first argues that the PCRA court abused its discretion

in dismissing the petition without first holding an evidentiary hearing.     He

then argues that trial counsel was ineffective for failing to file post-sentence

motions that the verdict was against the weight of the evidence and for

reconsideration of his sentence.

      Our scope and standard of review is as follows.       We must examine

whether the record supports the PCRA court’s determination and whether

the PCRA court’s determination is free of legal error. See Commonwealth

v. Hall, 867 A.2d 619, 628 (Pa. Super. 2005). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.

Super. 2001).     Our scope of review is limited by the parameters of the

PCRA. See Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super.

2005).

      We first address the claim that the PCRA court erred in dismissing the

petition without holding an evidentiary hearing. We review the PCRA court’s

refusal to hold an evidentiary hearing for an abuse of discretion.         See

Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013).

      Where a PCRA petition does not raise a genuine issue[ ] of
      material fact, the reviewing court is not required to hold an
      evidentiary hearing on the petition. Thus, to entitle himself to a


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J-S03026-15


       hearing, an appellant must raise an issue of fact, which, if
       resolved in his favor, would justify relief.

Id., at 260-261 (citations and internal quotation marks omitted; brackets in

original).

       Here, neither claim of ineffective assistance of counsel raises a

genuine issue of material fact. Henry does not even allege the existence of

any such fact in his brief. See Appellant’s Brief, at 14-15. And the claims of

ineffective assistance of trial counsel are patently meritless. We therefore

conclude that the PCRA court did not abuse its discretion in dismissing the

petition without conducting an evidentiary hearing.

       As for Henry’s claims of ineffective assistance of trial counsel, we have

examined the briefs, the PCRA court’s opinion, our standards of review, and

the certified record, and find that the PCRA court’s well-written opinion,

authored by the Honorable Barbara A. McDermott, adequately addresses the

claims. We affirm the dismissal of those claims based on that opinion. See

PCRA Court Opinion, 5/15/14, at 3-8.1

____________________________________________


1
  Henry’s claim that trial counsel was ineffective for failing to raise a weight
of the evidence claim is an extraordinarily difficult claim to prove has
arguable merit. “A verdict is said to be contrary to the evidence such that it
shocks one’s sense of justice when the figure of Justice totters on her
pedestal, or when the jury’s verdict, at the time of its rendition, causes the
trial judge to lose his breath, temporarily, and causes him to almost fall from
the bench, then it is truly shocking to the judicial conscience.”
Commonwealth v. Boyd, 73 A.3d 1269, 1274-1275 (Pa. Super. 2013)
(citation and internal quotation marks omitted).



                                           -3-
J-S03026-15


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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                           IN THE COURT OF COMMON PLEAS
                      FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                               CRIMINAL TRIAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA                            CP -5I-CR-0902321-2006


        v.
                                                                                     F~LED

 KENDELL HENRY                                                                   MAY 15"Zd14'

                                                                                Post Triai Unit
                                     ORDER AND OPINION

McDermott, J._                                                                May 15, 2014

Procedural History

        On November 27, 2007, petitioner, Kendell Henry, was found guilty of Aggravated

Assault, Attempted Murder, and PIC. On December 26,2007, the Honorable Anthony Defino

sentenced petitioner to a total term of twelve and one half to twenty five years of imprisonment.

       On March 16, 2010, the Superior Court of Pennsylvania affirmed petitioner's judgment

of sentence, rej ecting petitioner's challenges to the sufficiency of the evidence, witness

credibility, and prosecutorial misconduct. On November 1,2010, the Supreme Court of

Pennsylvania denied petitioner's Petition for Allowance of Appeal.

       On March 25,2011, petitioner filed apro se Post-Conviction Relief Act (PCRA) petition.

On May 16, 2011, petitioner filed a second pro se PCRA petition. On October 25, 2012, counsel

was appointed to represent petitioner for purposes of his PCRA. On February 19,2013, PCRA

counsel filed an amended petition. On January 28,2014, the Commonwealth filed a Motion to
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                 1
       Dismiss. On April 11, 2014, after argument, this Court filed a Notice pursuant Pennsylvania

       Rule of Criminal Procedure 907 of its intent to dismiss without a hearing.



               The Superior Court of Pennsylvania recounted the facts of this case as follows:

                            Appellant's convictions rest on the following evidence. On
                        May 29,2006, sisters Shalnee and Shakita Cook were walking
                        along the 2300 block of Bambrey Terrace in South Philadelphia
                        when a car stopped nearby. Several females exited the car and
                        began to physically attack the Cook sisters. The incident was
                        motivated by a fight that occurred the previous day between the
                        children of two of the women. When the altercation erupted,
                        Daheem White, Shakita's boyfriend and the father of her child,
                       was around the comer at the home of Shakita' s mother, Michelle.
                       He y.:as alerted to the attack and ran to its location. He saw a girl
                       holding a butcher knife, and he grabbed her wrist to stop her from
                       using it.                                                 .
                               Appellant, who was standing nearby, told Mr. White not to
                       touch the girl. Appellant then reached into his clothing and
                       retrieved a gun. When Mr. White saw the weapon, he started to run
                       in an attempt to hide behind a nearby car. Mr. White tripped over a
                       curb and fell. When Mr. White was facedown on the ground,
                       Appellant shot him in the back saying, "I am tired of this s_."
                       N.T. Trial, 11128/07, at 108.
                               At trial, Appellant was identified as the shooter by Mr.
                       White, who was familiar with Appellant from the neighborhood.
                      Michelle Cook, the Cook sisters' mother, testified that she saw
                      Appellant "[p ]ull his gun and shoot" Mr. White twice in the back
                      from a distance of four to six feet while the victim was "laying
                      [facedown] on the ground." rd. at 102, 103. Shalnee saw Appellant
                      reach into his jacket and retrieve a gun but did not see the actual
                      shooting. Both Michelle and Shalnee knew appellant, who lived in
                      the neighborhood, by name.
                               Mr. White was transported to the hospital, where he
                      underwent multiple surgeries. He remains unable to walk due to
                      his injuries. A nine millimeter gun was used in the shooting, and
                      when police executed a search warrant at Appellant's home, they
                      discovered two boxes of nine millimeter bullets in his bedroom
                      closet." Commonwealth v. Henry, 375 EDA 2008 (pa. Super.
                      March 16, 201 0) (non-precedential decision).



     IOn February 7, 2014, the present matter was assigned to this Court. This Court has no explanation as to why the
     Commonwealth took nearly a year to file a response to petitioner's amended petition.

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         A PCRA petition must be filed within one year of the date that the judgment becomes

  final. 42 Pa.C.S. § 9545(b)(1). A jUdgment becomes final for purposes of the PCRA "at the

 conclusion of direct review, including discretionary review in the Supreme Court of the United

 States and the Supreme Court of Pennsylvania, or at the expiration oftime for seeking the

 review." 42 Pa.C.S. § 9545(b)(3).

         On November 1,2010, the Supreme Court of Pennsylvania denied petitioner's Petition

 for Allowance of Appeal. Consequently, petitioner's conviction became final on January 30,
                                                                              ;   .

 2011 and on March 25,2011, petitioner filed a timely pro se PCRA petition.

        In his amended petition, counsel raises two issues regarding trial counsel's

 ineffectiveness: 1) failing to a file post-trial Motion alleging that the verdict was against the

weight of the evidence, and 2) failing to file a Motion to Reconsider Sentence. Counsel also

addresses two issues raised by petitioner in his pro se petition that counsel, after independent

review of the record, explains are without merit.

        To warrant relief based on a claim of ineffective assistance of counsel, a petitioner must

show that such ineffectiveness "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." Commonwealth v. Jones, 912 A.2d 268,278 (Pa. 2006); 42 Pa.C.S. § 9543 (a)(2)(ii).

Counsel is presumed to have rendered effective assistance. Commonwealth v. Weiss, 81 A.3d

767,783 (Pa. 20 13)(citing Commonwealth v. Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012».

       To overcome the presumption, the petitioner has to satisfy the performance and prejudice

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court of

Penl1sylvania has applied the Strickland test by looking to three elements, whether: (1) the



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      underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or

      failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's

      lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been

      different. Commonwealth v. Bennett, 57 A.3d 1185, 1195-96 (Pa. 20 12)(citing Commonwealth v.

      Pierce, 527 A.2d 973, 975 (Pa. 1987). If a claim fails under any necessary element of the

      Strickland test, the court may proceed to that element first. Bennett, 57 AJd at 1195-96. Counsel

      will not be deemed ineffective for failing to raise a meritless claim. Jones, 912 A.2d at 278

      (citing Commonwealth v. Darrick Hall, 701 A.2d 190,203 (pa. 1997)). In the present case, none

      of the claims presented is of arguable merit.

             Petitioner alleges that trial counsel was ineffective for failing to file a post verdict motion

     challenging the weight of the evidence. Petitioner argues that the evidence was against the

     weight of the evidence because there was evidence the victim had a gun and the only witnesses

     that implicated petitioner were family members of the victim.

             An allegation that the verdict is against the weight of the evidence is addressed to the

     sound discretion ofthe trial court. Commonwealth v. Widmer, 744 A.2d 745,751-752 (Pa. 2000);

     Commonwealth v. Dupre, 866 A.2d 1089,1101 (Pa. Super. 2005). The factfinderis free to

     believe all, part, or none of the evidence and to determine the credibility of the witnesses.

     Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008). A new trial should not be granted

     because of a mere conflict in the testimony or because the judge on the same facts would have

     arrived at a different conclusion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)(citing

     Widmer, 744 A.2d at 752).

            The Superior Court has explained that the test is whether the evidence is "so tenuous,

     vague and uncertain that the verdict shocks the conscience of the court." Commonwealth v.



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     Sullivan, 820 A.2d 795,806 (pa. Super. 2003). For one to prevail on a challenge of the weight of

     the evidence, the jury's verdict must be so contrary to the evidence as to shock one's sense of

     justice.ld. (citing Commonwealth v. Goodwine, 692 A.2d 233,236 (Pa. Super. 1997)).

             In Commonwealth v. Luster, 71 A.3d 1029, 1049 (Pa. Super. 2013) appeal denied, 83

     A.3d 414 (Pa. 2013), the Superior Court affirmed the PCRA court's dismissal of appellant's

     allegation that trial counsel was ineffective for failing to raise a challenge to the weight of the

     evidence where the petitioner was convicted of Murder after beating a woman and leaving her on

     a highway, where she was subsequently run over. The PCRA court determined that even if the

     claim had been raised, it would have found that "the jury's verdict was not so contrary to the

    evidence as to shock one's sense of justice" and that it "would not have granted a new trial on a

    weight of the evidence argument." Id. (citing PCRA Court Opinion,'2/28/11, at 4-5 (emphasis

    supplied)).

            Here, even if trial counsel had raised a challenge to the weight of the evidence, both this

    Court and the trial court would have denied such a challenge. Petitioner argues that the evidence

    identifying the petitioner as the shooter was unreliable. Three eyewitnesses, Daheem White,

    Shalnee Cook, and Michelle Cook all identified the petitioner as the shooter. Daheem White, the

    victim in this case, testified that during the fight, he saw the defendant, whom he knew from the

    neighborhood, take out a gun from his pocket. N.T. 11128/2007 at 59-60. White tumed to run and

    was immediately shot. Id. Michelle Cook identified the petitioner as the shooter from a photo

    array at the police district hours after the incident, at the preliminary hearing, and at trial. ld. at

    102, 111-112, 116, 117. Shalnee Cook gave a formal statement to police after the incident in

    which she identified the petitioner as the person she saw shoot White, Id. at 149, 152. At trial,

    she retreated from her unequivocal identification and said that she saw the petitioner pull out a



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 gun and immediately heard gunshots. While she did not see petitioner actually shoot White she

 assumed he had. Id. at 141-142, 151.

         The physical evidence presented in this case corroborated the Commonwealth's

 witnesses' testimony that the petitioner was the shooter. Detective Thorsten Lucke recovered two

 nine millimeter fired cartridge cases from the scene of the incident. N.T. 11128/2007 at 184.

 Pursuant a search warrant, Detective Lucke searched the defendant's home and recovered two

 boxes of nine millimeter ammunition in the defendant's bedroom. Id. at 206. Police Officer

 Leonard Johnson, an expert in ballistics and firearms identification, testified that the two fired

 cartridge cases recovered from the scene was similar to the ammunition recovered from the

defendant's bedroom in that they were all made by Federal Manufacturer and they were all nine

millimeter caliber. N.T. 11/28/2007 at 211; N.T. 11/2912007 at 19,27-30.

        The evidence presented at trial on behalf of petitioner does not outweigh the three

eyewitnesses' testimony. While petitioner presented four witnesses who were allegedly present

when White was shot, none of them saw the shooter. Lionel Frager is petitioner's sole witness

who claims petitioner was not the shooter, while the other witnesses were focused on the actions

of White. N.T. 11129/2007 at 87,94,98. Although Frager stated that petitioner did not shoot

White, he conveniently did not see who the actual shooter was. Further, Frager confirmed that

petitioner was at the scene of the shooting. This testimony does not outweigh the testimony of

three eyewitnesses who unequivocally identified the petitioner as the shooter.

       Petitioner also argues that the evidence was against the weight of the evidence because

there was evidence White had a gun. Two witnesses presented on behalf of petitioner testified

that White had a gun during the fight. N.T. 1112812007 at 61, 70. A third witness testified that he




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 observed an unidentified man take a gun off of White after he had been shot and run away. Id at

  127.

          Even if the jury accepted the testimony of these three witnesses and concluded that White

 had a gun on the night he was shot, such testimony does not require a different result. Petitioner

 did not argue that he acted in self-defense or in defense of others, a defense that would require

 petitioner to admit that he was the shooter. Instead, petitioner asselied his innocence. Thus, the

 fact that White had a gun, if true, does not negate petitioner's specific intent to kill when he shot

 White in the back. This claim is meritless.

         The petitioner claims that trial counsel was ineffective for failing to fIle a Motion to

Reconsider Sentence arguing that the court did not take into consideration the petitioner's

rehabilitative needs. "Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion."

Commonwealth v. Cunningham, 805 A.2d 566,575 (pa. Super. 2002)(citations omitted). On

appeal, a sentencing court will not be found to have abused its discretion unless the record

reveals that the judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will.ld 42 Pa.C.S. § 9721 (b) specifies that "the sentence imposed should

call for confinement that is consistent with the protection of the public, the gravity of the offense

as it relates to the impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant."

         The sentencing court acknowledged that petitioner suffered from a personality disorder

and ordered that upon release the petitioner be supervised by the mental health unit. N. T.

12/26/2007 at 15-18. The Court recognized the specific rehabilitative challenges the petitioner

had and fashioned his sentence accordingly. In this case, the Sentencing Guidelines suggested a



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  sentence of ninety months to the statutory limit, plus or minus twelve months for the charge of

  Attempted Murder. N.T. 12/26/2007 at 2; Deadly Weapon Used Sentencing Matrix, 204 Pa.

  Code § 303.18. Under 42 Pa~C.S. § 9712, petitioner was subject to a mandatory minimum

  sentence of five years of confinement for committing crime of violence with a firearm. The

 Commonwealth asked for a sentence of twenty to forty years of imprisonment, the statutory

 maximum. N. T. 12/26/2007 at 12. The trial court sentenced petitioner to a standard guideline

 sentence of ten to twenty years of imprisonment for the Attempted Murder conviction. The trial

 court also sentenced the petitioner to a consecutive term of imprisonment of two and a half years

 to five years for the PIC conviction. This sentence was within the statutory maximum. 2 18

 Pa.C.S. § 1104.

          The trial court imposed a total sentence of twelve ,and a half years to twenty five years of

imprisonment. The trial court took into account the petitioner's mental health evaluation and

sentenced the petitioner to a sentence much lighter than the Commonwealth's recommendation

of twenty to forty years of incarceration. Id at 12, 14-15. This sentence was consistent with

applicable mandatory minimum sentence and well below the statutory maximum and the

Commonwealth's recommendation. Accordingly, this Court sees no reason, nor does the

petitioner provide a reason, that the trial court should have had to reconsider its already modest

sentence. This claim is meritless.




2 This Court recognizes that the sentence imposed for PIC was a departure from the Sentencing Guidelines for which
the sentencing court did not state specific reasons on the record. While a sentencing court is required to place its
reasons for a sentence on the record, the failure to do so does not make the sentence imposed an illegal one.
Commonwealth v. Fowler, 930 A.2d 586, 593 (Fa. Super, 2007). It is clear that the sentencing court considered the
Sentencing Guidelines in addition to all relevant sentencing factors. N.T. 12/26/2007 at 2; Commonwealth v.
Pennington, 751 A.2d 212, 217 (Pa. Super. 2000)(citation omitted)(Where pre-sentence reports exist, Pennsylvania
courts presume that the sentencing judge was aware of relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory factors).


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         Petitioner in his pro se petition raised two additional issues, a prosecutorial misconduct

 claim and a perjury claim, which PCRA counsel believes are without merit. Petitioner alleges the

 following:

                 The prosecutor's closing remarks (involving snitches) when
                 interpreted properly infected the jury's deliberations. They had a
                 substantial influence on the outcome of the trial. The proceeding,
                 which resulted in an unlawful conviction, was so unfair that a
                 miscarriage of justice occurred which no civilized society could
                 tolerate, or that he was innocent of the crime. The trial court did
                 not consider the merits of the case. Petitioner would have been
                 acquitted but for prosecutorial misconduct and the cumulative
                 effect of multiple errors.

        As PCRA counsel explained in his pleading and this Court, after its independent review

 ofthe record, agrees the above claim was presented to the Superior Court of Pennsylvania on

direct appeal. On direct appeal, petitioner alleged prosecutorial misconduct for the exact remark

regarding snitches made in the prosecutor's closing argument that petitioner is challenging here.

See Commonwealth v. Henry, 375 EDA 2008 (Pa. Super. March 16, 20 10) (non-precedential

decision). Under 42 Pa.C.S. § 9543(a)(3), petitioner must prove by a preponderance of the

evidence that the issue has not been previously litigated or waived. This issue has been

previously litigated; thus, this Court agrees with PCRA counsel's assessment that this issue is

without merit.

       Petitioner also alleges that "[t]he witnesses for the prosecution committed perjury, and

perjury is a crime. False testimony is grounds for a reversal and a conviction based upon false

evidence cannot stand and must be overturned."

       The credibility of the witnesses has been presented by PCRA counsel in challenging the

weight of the evidence and was addressed by the Superior Court of Pennsylvania on direct

appeal, when the petitioner challenged witnesses' credibility because they were related to the



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 victim. See Commonwealth v. Henry, 375 EDA 2008 (Pa. Super. March 16, 201O)(non-

 precedential decision). Petitioner has not provided PCRA counselor this Court with proof that

 any witnesses committed perjury. A PCRA petition must include facts supporting petition and

 the place in the record where they appear; to extent they do not appear in record, petition must

include affidavits, documents, and other evidence showing such facts. Pa.R.Crim.P. 902(A)12

and (D). This claim is without merit.

        In his second pro se petition, petitioner alleges multiple issues that go to the weight of the

evidence and the sufficiency of the evidence supporting the petitioner's convictions. While not

addressed by PCRA counsel, this Court, though its independent review, finds these claims

meritless. Petitioner also alleges that "[j]ury instructions are suppose[d] to come from the judge

not the prosecutor. The prosecutor's remarks were instructions to the jury to bring back a guilty

verdict and thereby deprive[J the defendant of a fai[r] 'trial." This Court has already dismissed the

argument that the petitioner's convictions were against the weight of the evidence supra. The

Superior Court found the evidence was sufficient to support petitioner's convictions. See

Commonwealth v. Henry, 375 EDA 2008 (Pa. Super. March 16, 2010)(non-precedential

decision). This claim has been previously litigated and does not merit relief. Finally, this Court

finds no error in the prosecutor suggesting to the jury that it convict the petitioner.

       The petition does not meet the requirements of an ineffective assistance of counsel claim

and does not merit substantive relief under the Post-Conviction Relief Act. For the foregoing

reasons, the petition is dismissed.

                                                               BY THE COURT,



                                                               ~;tt,J.
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