J-S62021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 ERROL SHIELDS                              :
                                            :
                     Appellant              :    No. 3321 EDA 2016

          Appeal from the PCRA Order Entered September 29, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0009551-2009


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED DECEMBER 19, 2018

      Errol Shields appeals from the order entered September 29, 2016,

dismissing his petition for collateral relief filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. As the PCRA court correctly

determined that Shields’ claims of ineffective assistance of counsel are without

merit, we affirm.

      We have previously stated the underlying facts as follows:

      On June 18, 2009, around 11:00 p.m., Braheem Bailey (Victim),
      answered the front door to his home on South 52nd Street in
      Philadelphia and was shot in the neck by two men. Police and
      paramedics responded immediately. Victim initially refused
      medical attention, but was eventually convinced to go to the
      hospital due to the life-threatening nature of his injury. At the
      hospital, Victim described the shooting to police, but was unwilling
      to identify the individuals who shot him.

      The day after the shooting, Victim gave a statement to homicide
      detectives wherein he identified Maliek Stroud and [Shields] as
      the shooters. Victim, a drug dealer, indicated that he was in a
      long-running territorial dispute with Stroud and that Stroud and
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       [Shields] shot him because Victim refused to stop dealing drugs
       on Stroud’s “turf.” Victim identified both Stroud and [Shields] from
       approximately 130 photographs provided to him by police. Victim
       signed the photographs and his statement. [Shields] was
       subsequently arrested for his involvement in the shooting and
       charged …. Stroud was also arrested and charged.

       [Shields’] case was joined with Stroud’s and both proceeded to
       jury selection on May 18, 2010. After the jury was empaneled,
       Stroud decided to plead guilty. [Shields] immediately moved for a
       new jury. This request was denied by the trial court. [Shields’]
       case proceeded to trial with the previously-selected jury.

       At trial, Victim recanted his statement insofar as it implicated
       [Shields]. Victim testified that he lied to homicide detectives
       regarding [Shields’] alleged involvement in the shooting and
       refused to make an in-court identification of [Shields].
       Nonetheless, the jury found [Shields] guilty of criminal conspiracy
       to commit homicide, aggravated assault, criminal conspiracy to
       commit aggravated assault, prohibited possession of a firearm,
       and possession of a firearm without a license.[1]

       On July 20, 2010, [Shields] was sentenced to an aggregate term
       of twelve to twenty-five years’ incarceration. [Shields] timely filed
       a post[-]sentence motion challenging the sufficiency and weight
       of the evidence, and alleging a due process violation based on the
       trial court’s refusal to empanel a new jury after Stroud pled guilty.
       The trial court denied [Shields’] motion on July 30, 2010.

Commonwealth v. Shields, 69 A.3d 1299, at *1 (Pa.Super. 2013)

(unpublished memorandum). Shields timely appealed, and this Court affirmed

the judgment of sentence. Id. at *9. Shields did not seek further appellate

review.

       In May 2013, Shields pro se filed a petition for collateral relief. PCRA

Petition, 05/29/2013. Counsel was appointed and filed an amended petition in

____________________________________________


1 18 Pa.C.S. §§ 903 (2502(a)), 2702(a), 903 (2702(a)), 6105, and 6106,
respectively.

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March 2015, asserting ineffective assistance of counsel. Amended PCRA

Petition, 03/06/2015, at 3. The PCRA court conducted a hearing in January

2016. Thereafter, in September 2016, the court issued an order from the

bench dismissing Shields’ petition. See Notes of Testimony (N.T.), September

29, 2016, at 3.

      Shields timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The PCRA court issued a responsive opinion.        See PCRA Court

Opinion, filed December 11, 2017.

      Shields raises the following issues on appeal:

      [1.] Whether the [c]ourt erred in denying [Shields’] PCRA petition
      without an evidentiary hearing on the [sic] all of the issues raised
      in   the    amended    PCRA     petition   regarding     [c]ounsel’s
      ineffectiveness.

      [2.] Whether the [c]ourt erred in not granting relief on the PCRA
      petition alleging prior [c]ounsel was ineffective.

Shields’ Br. at 8 (emphasis in original).

      Shields asserts three claims that his prior counsel, Derrick Coker, Esq.,

who represented him at both the trial and direct appeal stages, was

ineffective. According to Shields, counsel was ineffective for: (1) failing to

interview or investigate alibi witnesses; (2) failing to preserve an appellate

claim that the trial court erred in admitting evidence of his co-conspirator’s

prior bad acts; and (3) failing to preserve an appellate claim challenging

discretionary aspects of his sentence. See Shields’ Br. at 17, 20, 21. In




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addition, Shields asserts that the PCRA court erred in limiting its evidentiary

hearing to the first of these claims. Id. at 15.2

       We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by record evidence and

free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.

2007). We afford the court’s factual findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa.Super. 2012) (citing Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa.Super. 2010)). Further, we may affirm the PCRA court’s

decision on any grounds if the record supports it. See Commonwealth v.

Reed, 107 A.3d 137, 140 (Pa.Super. 2014).

       Shields asserts that his prior counsel was ineffective. To be eligible for

relief for an ineffectiveness claim, a petitioner must establish that counsel’s

deficient performance “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).      We      presume   counsel   is   effective.

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To overcome this

presumption, a petitioner must establish that: (1) the underlying claim has

arguable merit; (2) counsel lacked a reasonable basis for his act or omission;

and (3) petitioner suffered actual prejudice. Commonwealth v. Treiber, 121

A.3d 435, 445 (Pa. 2015). In order to establish prejudice, a petitioner must
____________________________________________


2 For ease of analysis, we will address the court’s decision to limit the
evidentiary hearing in the context of Shields’ substantive claims.

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demonstrate “that there is a reasonable probability that, but for counsel's

error or omission, the result of the proceeding would have been different.”

Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). A claim will be

denied if the petitioner fails to meet any one of these prongs. See

Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.Super. 2016) (citing

Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)). In particular, it

is well settled that “[c]ounsel cannot be deemed ineffective for failing to

pursue a meritless claim.” Commonwealth v. Loner, 836 A.2d 125, 132

(Pa.Super. 2003) (en banc).

      The PCRA court did not grant Shields an evidentiary hearing on his

second and third claims of ineffective assistance. There is no absolute right to

an evidentiary hearing. See Commonwealth v. Springer, 961 A.2d 1262,

1264 (Pa. Super. 2008). “[T]o entitle himself to a hearing, [a petitioner] must

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

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation

omitted). On appeal, we examine the issues raised in light of the record “to

determine whether the PCRA court erred in concluding that there were no

genuine issues of material fact and denying relief without an evidentiary

hearing.” Springer, 961 A.2d at 1264.

      In his first claim, Shields asserts that counsel was ineffective for failing

to interview or investigate two witnesses, Danielle Mitchell and Barbara

Mitchell, to support an alibi defense. See Shields’ Br. at 17-20. “A claim that

trial counsel did not conduct an investigation or interview known witnesses

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presents an issue of arguable merit where the record demonstrates that

counsel did not perform an investigation. Commonwealth v. Stewart, 84

A.3d 701, 712 (Pa.Super. 2013) (citing, inter alia, Commonwealth v. Perry,

644 A.2d 705 (Pa. 1994); Commonwealth v. Jones, 437 A.2d 958 (Pa.

1991)).3

       In considering this claim, the PCRA court reasoned as follows:

       Here, the claims of [Shields] that … counsel was ineffective for
       failing to call alibi witnesses are without merit. Although the
       potential alibi witnesses existed, were available and, perhaps,
       willing to testify for the defense, … counsel was not informed and
       could not have been aware of these witnesses’ existence. By
       [Shields’] own admission, he did not disclose the names of the
       witnesses to his own counsel. The witnesses were not in contact
       with the police and made no assertive effort to speak with
       [counsel]. It becomes difficult to imagine how [counsel] would be
       expected to know of the witness[es’] existence when they are not
       listed in police reports, [Shields] himself does not provide names
       or contact information, and the witnesses themselves did not
       make any meaningful attempt to reach out to … counsel.

PCRA Ct. Op. at 11-12.

       The PCRA court’s analysis is supported by the record. See generally

Notes of Testimony (N.T.), 01/20/2016, at 4-71. In particular, Shields

conceded that he never identified any alibi witnesses for his counsel. Id. at



____________________________________________


3 As noted by Shields, “[n]eglecting to call a witness differs from failing to
investigate a witness.” Shields’ Br. at 18 (citing Commonwealth v. Dennis,
950 A.2d 945, 960 (Pa. 2008)); see also, e.g., Simpson, 66 A.3d at 271
(outlining the requirements to establish a claim that counsel was ineffective
for failing to call witnesses).



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10. As counsel was unaware of any potential alibi witnesses prior to trial,

Shields’ claim is without arguable merit. See Stewart, 84 A.3d at 712.

       In his second claim, Shields asserts that counsel was ineffective for

failing to preserve an appellate claim that the trial court had erred in admitting

evidence of his co-conspirator’s prior bad acts. See Shields’ Br. at 20-21.4

According to Shields, evidence of Stroud’s territorial disputes with the Victim

were “prejudicial” and “likely persuaded the jury to convict [Shields].” Id. at

20. Shields suggests that counsel’s error was particularly egregious because

co-conspirator Stroud had already pleaded guilty. Id. at 21.

       The admissibility of evidence is left to the sound discretion of the trial

court, and we will not disturb the court’s decision absent an abuse of that

discretion.   See Commonwealth v. Lynn, 192 A.3d 165, 169 (Pa.Super.

2018). In this context, “[a]n abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.” Id.

(citation omitted).

       Though generally prohibited, evidence of prior bad acts may be

admissible to demonstrate “motive, opportunity, intent, preparation, plan,
____________________________________________


4 Prior counsel challenged the admission of this evidence before the trial court.
See Shields’ Br. at 12; Post-Sentence Motion, 07/30/2010, at 2. Thereafter,
counsel sought to raise this claim on direct appeal. Shields, 69 A.3d 1299, at
*3. We deemed it waived for failure to preserve it in a Pa.R.A.P. 1925(b)
statement. Id.


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knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.

404(b)(2). This list of permissible grounds for admissibility is not exclusive.

For example, our Supreme Court has also recognized the res gestae exception,

“which allows admission of other crimes evidence when relevant to furnish the

context     or   complete   story   of   the   events     surrounding   a   crime.”

Commonwealth v. Williams, 936 A.2d 12, 31 (Pa. 2007) (citations

omitted).

      If there are grounds to admit evidence of prior bad acts, the court must

balance its probative value against its potential for unfair prejudice.        See

Pa.R.E. 404(b)(2). “[U]nfair prejudice means a tendency to suggest decision

on an improper basis or to divert the jury’s attention away from its duty of

weighing the evidence impartially.” Lynn, 192 A.3d at 170 (quoting

Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007)).

      Here, the trial court admitted a statement from the victim suggesting

that he and Stroud were involved in an ongoing dispute over drug territory.

See Shields, 69 A.3d 1299, at *1. This evidence was highly probative; not

only did it help establish a motive for the attempted murder, it was also

relevant to provide context to the events surrounding Shields’ crimes. See

Williams, 936 A.2d at 31; Pa.R.E. 404(b)(2).            Moreover, as noted by the

PCRA court, this evidence did not directly implicate Shields in past criminal

conduct, nor was it graphic or inflammatory. See PCRA Ct. Op. at 6-7. Thus,

we agree with the PCRA court’s conclusion that Shields did not suffer unfair

prejudice by its admission. See id. at 7.

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       We also reject Shields’ assertion that this evidence was inadmissible

because Stroud had pleaded guilty prior to Shields’ trial. Shields was charged

with conspiracy. Therefore, evidence of Stroud’s ongoing dispute with the

victim explained why Stroud would enlist another in confronting the victim.

See Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)

(“The conduct of the parties and the circumstances surrounding their conduct”

are relevant). Accordingly, Shields’ second claim is without merit.

       Further, we discern no genuine issue of material fact relevant to this

claim that would require an evidentiary hearing, nor does Shields identify one.

See Shields’ Br. at 15-16. Accordingly, the PCRA court did not err when it

denied Shields relief without an evidentiary hearing. See Simpson, 66 A.3d

at 261; Springer, 961 A.2d at 1264.

       In his third claim, Shields asserts that counsel was ineffective for failing

to preserve an appellate claim challenging discretionary aspects of his

sentence. See Shields’ Br. at 21-26.5 Shields suggests several bases for such

a challenge. According to Shields, there was a lack of evidence that he inflicted

serious bodily injury. Id. at 22. In a related argument, Shields also suggests

that “the sentencing court impermissibly relied on [Shields’] alleged

involvement in [Victim’s] shooting, which he was not found guilty of [sic].”




____________________________________________


5 Shields sought to challenge discretionary aspects of his sentence on direct
appeal. Shields, 69 A.3d 1299, at *3-4. However, we found the claim waived
for failure to preserve it in a Pa.R.A.P. 2119(f) statement. Id.

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Id. at 25. Finally, according to Shields, the sentencing court failed to

adequately assess evidence that he is capable of rehabilitation. Id. at 24-25.

      We summarily reject Shields’ suggestion that evidence adduced at trial

failed to establish that Victim suffered a serious bodily injury. See Shields,

69 A.3d 1299, at *3 n.3 (adopting trial court’s assessment that “the jury

convicted [Shields] of aggravated assault and the infliction of serious bodily

injury was an element of the crime.”). Moreover, Shields’ related argument—

that the sentencing court impermissibly relied on Shields’ involvement in the

attempted murder—is devoid of merit. The record is quite clear that Shields

was not acquitted of the charges against him. Id.

      As for Shields’ remaining sentencing claim, we briefly note the following.

Before reviewing the merits of any challenge to discretionary aspects of a

sentence, we must determine whether an appellant has raised a substantial

question that the sentence imposed is inappropriate under the sentencing

code. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). Here,

Shields suggests the sentencing court “failed to adequately assess” certain

mitigating facts indicative of his propensity for rehabilitation. See Shields’ Br.

at 24-25 (noting his desire to be a parent to his children, his absent parents,

and a supportive girlfriend). As noted by the PCRA court, we have determined

previously that such claims do not raise a substantial question. See PCRA Ct.

Op. at 8 (citing Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.Super.

2010)); see also, e.g., Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.

Super. 2013) (noting claim that court failed to consider mitigating factors does

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not raise a substantial question, especially where court had benefit of

presentence investigation report). Accordingly, Shields’ third claim is without

merit. Moreover, no evidentiary hearing was necessary to ascertain its merits.

See Simpson, 66 A.3d at 261; Springer, 961 A.2d at 1264.

      For these reasons, Shields’ claims of ineffective assistance of counsel

are meritless. Accordingly, he is entitled to no relief. Loner, 836 A.2d at 132.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/18




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