J-S20041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KENNY R. R. SHIELDS                        :   No. 3690 EDA 2018

               Appeal from the Order Entered December 5, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): Cp-51-CR-0002482-2008


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED AUGUST 4, 2020

        The Commonwealth appeals the order granting Kenny R. R. Shields

relief under the Post Conviction Relief Act (“PCRA”) in the form of a new trial.1

The Commonwealth argues the PCRA court did not apply the appropriate

standard in determining Shields had been deprived his right to effective

assistance of trial counsel. We reverse and remand.

        The Commonwealth charged Shields in 2006 with first-degree murder2

and related offenses for his involvement in the shooting death of Thomas

Faison, and gave notice of intent to pursue the death penalty. The trial court

appointed James S. Bruno to represent Shields. Approximately two weeks




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1   See 42 Pa.C.S.A. §§ 9541-9545.

2   18 Pa.C.S.A. § 2502(a).
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before trial, the Commonwealth withdrew its notice of intent to seek the death

penalty.

      Shields was tried before a jury along with two co-defendants: Maurice

Lewis and Stephon Bennett. The Commonwealth presented evidence that in

December 2005, Shields, Lewis, and Bennett went to Faison’s house,

intending to rob him. During the confrontation, Lewis was shot in the stomach,

and Faison was shot in the hand and chest and died. Lewis and Shields fled,

and reported to police that they had been robbed after getting off a bus and

Lewis had been shot during the robbery. However, at Faison’s house, police

found a jacket with bullet holes and blood that matched Lewis’s DNA.

      The Commonwealth introduced statements that Shields, Lewis, and

Bennett made to the police, in which they admitted to being involved in the

plan to rob Faison but blamed the shooting on one another. The

Commonwealth     also   introduced   witness   statements   relating   Shields’

incriminating statements.

      The Commonwealth was unable to locate one witness, Sabrina Clyburn,

for trial, and thus introduced her testimony via the transcripts of the

preliminary hearings. Clyburn had testified that before the shooting she was

walking with three girlfriends, including Katrina Shiver, to a store. As they

were walking, she overheard Shields, Lewis, and Bennett, who were walking

fifteen feet behind her, discussing robbing Faison. After she left the store,

Clyburn, alone, walked by Faison’s house, where she saw Shields, Lewis, and

Bennett, standing outside, wearing masks and gloves. Clyburn saw Lewis

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enter the house, and heard sounds of an argument and a gunshot. She saw

Shields and Bennett run into the house, and heard a second gunshot. She

then ran away from the house. At trial, Shiver testified in rebuttal that she

had not been with Clyburn that evening.

       The court conducted a colloquy on Shields’ decision not to testify.

Shields stated in open court that he understood he had the right to testify, he

had discussed his decision not to testify with Attorney Bruno, and he was

satisfied with Attorney Bruno’s advice and representation.

       The jury found Shields guilty, and the court sentenced Shields to serve

life imprisonment without the possibility of parole. We affirmed Shields’

judgment of sentence, and the Supreme Court of Pennsylvania denied review.

       Shields timely filed the subject, pro se PCRA Petition. The court

appointed counsel, who filed an Amended Petition. In the Amended Petition,

counsel argued that Shields was deprived of his right to assistance of counsel

during trial, alleging Attorney Bruno had no communication with Shields until

the day of his trial, and failed to conduct a pretrial investigation or prepare a

defense.3

       The PCRA court held an evidentiary hearing, at which Shields and

Attorney Bruno testified. Shields testified that Attorney Bruno had not met or

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3 PCRA counsel later filed a no-merit letter, stating his belief that Attorney
Bruno’s actions had not prejudiced Shields. See Letter, 5/24/18. However,
PCRA counsel did not request to withdraw from representation, and continued
to represent Shields throughout the PCRA proceedings. See N.T., 10/31/18,
at 41.

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spoken with him before the preliminary hearing, when they met inside the

courtroom. Shields said he had sent multiple letters to Attorney Bruno, and

called him, but did not hear from Attorney Bruno again until trial. He also

stated that Attorney Bruno did not give him a copy of the discovery file or the

transcript of the preliminary hearing until jury selection began, and Shields

was still reviewing discovery during trial. Shields further stated that Attorney

Bruno did not tell him before trial that he would be tried with co-defendants,

or that he had been facing the death penalty. Shields testified he met with

Attorney Bruno three or four times in the consultation booth during jury

selection and trial. See N.T., 8/21/18 at 53.

       Regarding trial preparation and performance, Shields said he believed

that Attorney Bruno should have investigated certain witnesses and cross-

examined some Commonwealth witnesses on specific points. Among other

things, Shields claimed that Attorney Bruno had not attempted to investigate

as potential witnesses the women with whom Clyburn had said she was

walking before the shooting, or the owner of the store Clyburn claimed to have

been in.

       Shields also testified that Attorney Bruno did not communicate the

Commonwealth’s offer for a plea deal until jury selection began. Shields stated

that   when   he   asked   Attorney   Bruno     whether   he   should   take   the

Commonwealth’s offer of a 20-40 year sentence, Attorney Bruno simply

replied, “We got this.” N.T., 10/31/18, at 13. Shields testified that if he had




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known what evidence the Commonwealth was intending to put forth at trial,

he would have taken the offer and pled guilty.

      In addition, Shields testified at the PCRA hearing that Attorney Bruno

did not discuss with him his right to testify at trial until “right before” the

court’s colloquy. N.T., 8/21/18, at 54. Shields stated that he had not

understood his right to testify, and that he had wanted to take the stand at

trial. Shields stated he would have testified at trial in accordance to his initial

statement to the police, and told the jury that he and Lewis had not

participated in Faison’s death, but had been robbed that night. Shields

acknowledged he had not told Attorney Bruno that he had wanted to testify.

Shields also admitted that during the colloquy, he told the court he did not

want to testify, and that he had an opportunity to discuss his decision with

Attorney Bruno. Shields agreed that if he had testified, the Commonwealth

would have cross-examined him regarding a previous incident of assault.

      Attorney Bruno testified that although it was his general practice to meet

with clients between the preliminary hearing and trial, he could not specifically

remember whether he met with Shields between his preliminary hearing and

trial. Attorney Bruno also could not remember whether he spoke to Shields on

the telephone before trial, but recalled that he frequently spoke to Shields’

mother. Attorney Bruno testified it was his practice to send his clients

discovery, he believed he had sent discovery to Shields before trial, and he

recalled having given it to Shields’ mother. Attorney Bruno stated that he did

remember meeting with Shields on the day of the preliminary hearing, and

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each day of the four days of jury selection and trial. During that time, they

went through discovery and discussed potential witnesses.

      Regarding his trial strategy, Attorney Bruno explained that he had

attempted to show that the Commonwealth witnesses were not credible,

blame the murder on the co-defendants, and emphasize that there was no

physical evidence linking Shields to the shooting. Attorney Bruno testified that

prior to trial, he litigated a motion to suppress Shields’ self-incriminating

statement to the police, and convinced the Commonwealth not to seek the

death penalty. Attorney Bruno recalled he had objected to the admission of

Clyburn’s preliminary hearing testimony, and called Shiver as a witness to

rebut her testimony. Attorney Bruno testified that he discussed with Shields

whether he wanted to testify at trial, and recalled that it was the trial court’s

practice to colloquy the defendants regarding their right to testify.

      Shields’ PCRA counsel argued Shields had been deprived effective

assistance of counsel because Attorney Bruno had failed to send Shields

discovery and meet with him before trial. Shields’ counsel further argued that

due to Attorney Bruno’s failings, Shields did not have adequate opportunity to

accept a plea deal, and had not made a knowing, intelligent, and voluntary

decision to waive his right to testify. However, Shields’ counsel conceded that

he would not be “able to bring forth a witness that absolutely would contradict

the evidence which was put forth [against Shields].” N.T., 10/31/18, at 40.




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       The PCRA court granted Shields a new trial. The PCRA court’s order

granting relief does not state the grounds for the court’s decision. The PCRA

court also announced its decision in open court, but stated only the following:

       This is a troubling case for the following reason: Jim Bruno is a
       fellow that I always had respect for, always, always, always, and
       we all know Jim fell on hard times. I think those hard times,
       unfortunately, affected his representation of the defendant in this
       matter, and I am going to grant defendant a new trial.

N.T., 12/5/18, at 3.

       The Commonwealth appealed, and presents the following question:

       Did the PCRA court err by granting defendant new trial because it
       opined that trial counsel’s handling of the case was affected by
       personal issues where the court did not explain what actions or
       inactions of counsel were “affected;” did not find prejudice; there
       was compelling evidence of defendant’s guilt; and defendant’s
       assertions of ineffectiveness were unsupported by evidence
       and/or contradicted by the record?

Commonwealth’s Br. at 7.4

       The Commonwealth argues that Commonwealth v. Brooks, 839 A.2d

245 (Pa. 2003), which addresses ineffectiveness based on failure to have a

pre-trial meeting with a defendant in a capital trial, does not apply to Shields’

non-capital case, and regardless, Attorney Bruno surpassed the minimal

amount of pre-trial contact required by Brooks and its progeny. The

Commonwealth argues Shields’ ineffectiveness claims were therefore subject


____________________________________________


4The judge who presided over Shields’ trial and PCRA proceedings retired,
and did not author a Rule 1925(a) opinion.




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to analysis under Strickland5 and the PCRA court erred in awarding Shields

a new trial without finding any specific conduct by Attorney Bruno prejudiced

Shields. According to the Commonwealth, Shields did not prove the alleged

failings by Attorney Bruno caused prejudice, given the compelling evidence of

guilt presented at trial, and the lack of contrary evidence presented at the

PCRA hearing. The Commonwealth adds that Shields did not prove the

Commonwealth extended a plea offer to him, and failed to examine Attorney

Bruno on that point. The Commonwealth further argues that Shields did not

tell Attorney Bruno he wanted to testify in his own defense, and told the trial

court during the colloquy that he had elected not to testify.

       We review a PCRA court’s decision to grant relief to determine “whether

the PCRA court’s findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015) (quoting Commonwealth v. Hanible, 30 A.3d 426,

438 (Pa. 2011)). We must view the PCRA court’s findings and the record

evidence in the light most favorable to the prevailing party, but “we apply a

de novo standard of review to the PCRA court’s legal conclusions.” Id. (quoting

Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013)).




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5 Strickland v. Washington, 466 U.S. 668 (1984);                    see   also
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



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        We conclude that, as a matter of law, Shields did not plead and prove

that he was deprived of the right to effective assistance of counsel,6 and the

PCRA court therefore erred in vacating Shields’ judgment of sentence. We first

consider Shields’ claim that he was deprived his right to effective assistance

of counsel because Attorney Bruno failed to meet with him or communicate

with him before trial. We agree with the Commonwealth that the standard set

forth in Brooks does not apply, because Shields was not facing the death

penalty.

        In Brooks, the defendant claimed his counsel was ineffective for failing

to meet with him at all before his capital trial; counsel confirmed that he could

only recall having had one 20- to 30-minute telephone conversation with the

defendant prior to trial. Brooks had then waived his right to counsel and

represented himself at trial, and the jury had found him guilty. On appeal, the

Supreme Court vacated his conviction and death sentence, holding that

counsel had been ineffective for failing to meet with his client “even once
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6   As we have previously explained,

        The Sixth Amendment to the United States Constitution provides
        that “[i]n all criminal prosecutions, the accused shall enjoy the
        right . . . to have the Assistance of Counsel for his defense.”
        Moreover, Article I, Section 9 of the Pennsylvania Constitution
        provides in relevant part that “[i]n all criminal prosecutions the
        accused hath a right to be heard by himself and his counsel[.]”
        The Pennsylvania Supreme Court has held that with respect to the
        right to counsel, Article I, Section 9 provides the same level of
        protection to criminal defendants as does the Sixth Amendment.

Commonwealth v. Brown, 145 A.3d 196, 198 n.2 (Pa.Super. 2016), appeal
granted.

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before his trial on capital charges.” Brooks, 839 A.2d at 250; see also id. at

249 n.7 (“[A]n attorney who does not meet in person with his client at all prior

to a capital trial simply cannot be deemed sufficiently prepared to defend his

client’s life”).

       Brooks emphasized that its holding applied where the Commonwealth

sought to have the death penalty imposed:

       Indeed, the very nature of a capital case, typically quite involved
       and always subjecting the defendant to the possibility of death,
       clearly necessitates at least one in-person meeting between a
       lawyer and his client before trial begins. Without such a meeting,
       there is little to no hope that the client will develop a fundamental
       base of communication with his attorney, such that the client will
       freely share important information and work comfortably with the
       lawyer in developing a defense plan. Moreover, only a face-to-face
       meeting allows an attorney to assess the client’s demeanor,
       credibility, and the overall impression he might have on a jury.
       This is of particular importance in cases in which the client may
       take the stand in his defense or at the penalty phase in an attempt
       to establish the existence of particular mitigating circumstances.

Id. at 249. The holding of Brooks thus applies only to those cases in which

the Commonwealth was pursuing the death penalty. See, e.g., Brown, 145

A.3d at 198 (reversing based on Brooks), appeal granted, 165 A.3d 868 (Pa.

2017),    and      discontinued,   No.   6   EAP   2017   (filed   April   18,   2017);

Commonwealth v. Johnson, 51 A.3d 237, 243-44 (Pa.Super. 2012) (en

banc) (distinguishing facts of Brooks).

       As Shields was not facing the death penalty at the time of trial, his

ineffectiveness claims are subject to the Strickland standard. Shields had the

burden of establishing that there was “beneficial information or issues that



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counsel should have presented had he been prepared adequately, which would

have changed the outcome of the trial.” Commonwealth v. Elliott, 80 A.3d

415, 432 (Pa. 2013); see also Commonwealth v. Ligons, 971 A.2d 1125,

1137 (Pa. 2009) (stating that counsel is presumed effective, and it is a

petitioner’s burden to prove otherwise). To prove counsel ineffective for failing

to call a witness, Shields was required to show:

      (1) that the witnesses existed; (2) that the witnesses were
      available; (3) that counsel was informed of the existence of the
      witnesses or should have known of the witnesses’ existence; (4)
      that the witnesses were available and prepared to cooperate and
      would have testified on [Shields’] behalf; and (5) that the absence
      of the testimony prejudiced [Shields].

Commonwealth v. Pursell, 724 A.2d 293, 306 (Pa. 1999).

      At the PCRA hearing, Shields argued that counsel failed to produce

certain witnesses or more successfully cross-examine certain witnesses.

However, Shields did not produce these witnesses at the PCRA hearing, or

even any other evidence, aside from his testimony, about the testimony he

claims those witnesses would have given. Even if we indulge in the assumption

that Shields established every other element of his ineffectiveness claims, he

failed to establish prejudice, i.e., that there was a reasonable probability that

if there had been additional questioning or witnesses presented by Attorney

Bruno, the jury would not have found him guilty. This is particularly so given

the amount of evidence introduced against him at trial, including Clyburn’s

eyewitness    testimony,   several   accounts   of   Shields’   self-incriminating

statements, and the fact that the blood on the jacket found at the crime scene


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belonged to Lewis, whom Shields said he was with that night. Shields’ PCRA

counsel even admitted during argument that he was unable to produce

evidence that would have changed the outcome of trial.

      Without establishing prejudice, the claims related to Attorney Bruno’s

failure to meet with Shields or prepare for trial cannot provide the basis for a

finding of ineffectiveness. We therefore hold that insofar as the PCRA court

granted relief on the basis that Attorney Bruno failed to meet with Shields,

the trial court erred.

      We turn to Shields’ argument that counsel was ineffective for failing to

more thoroughly discuss the details of the case when communicating the

Commonwealth’s offer of a plea deal. “[C]ounsel has a duty to explain the

relative advantages and disadvantages of accepting or rejecting a plea offer

and . . . failure to do so may render counsel ineffective.” Commonwealth v.

Lewis, 708 A.2d 497, 501 (Pa.Super. 1998). The Strickland test governs

whether a defendant’s right to effective assistance of counsel during the plea

bargaining process has been denied. Commonwealth v. Feliciano, 69 A.3d

1270, 1276 (Pa.Super. 2013). Where the defendant rejected a plea offer, he

must show prejudice by establishing that were it not for the ineffective advice,

there is a reasonable probability that he would have accepted the offer, the

Commonwealth would not have withdrawn it, and the court would have

accepted the terms and imposed a sentence that was less severe than the

sentence that was actually imposed. Id. at 1276-77.




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      At   the   PCRA    hearing,   Shields    testified   that   Attorney   Bruno

communicated the Commonwealth’s offer to him, but did not adequately

discuss the Commonwealth’s evidence against him and advised him not to

accept the offer because, as Shields claimed Attorney Bruno put it, “We got

this.” N.T., 10/31/18, at 13. However, Shields did not present any evidence

at the PCRA hearing that if he had accepted the alleged offer, the

Commonwealth would not have withdrawn it, or that the court would have

accepted the terms of the offer. Feliciano, 69 A.3d at 1276-77. Shields also

failed to question Attorney Bruno regarding what advice he gave Shields

regarding an offer, and his reason for that advice. A court should not find

counsel ineffective if counsel has not been given the opportunity to explain

whether there was a strategic basis for his action or inaction, unless the record

plainly belies any rational reason. See Hanible, 30 A.3d at 442;

Commonwealth v. Postie, 200 A.3d 1015, 1023 (Pa.Super. 2018) (en

banc). As Shields failed to put forth evidence regarding the reasonable basis

or prejudice aspects of his claim, the record does not support a finding of

ineffectiveness in relation to the alleged plea offer.

      Finally, we consider Shields’ argument that Attorney Bruno provided

ineffective assistance when advising Shields not to testify. To support such a

claim, the defendant “must demonstrate either that counsel interfered with

his right to testify, or that counsel gave specific advice so unreasonable as to

vitiate a knowing and intelligent decision to testify on his own behalf.”

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000). The waiver of

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a constitutional right is knowing and intelligent when the defendant is “aware

of both the nature of the constitutional right and the risk of forfeiting the

same.” Commonwealth v. Szekeresh, 515 A.2d 605, 607 (Pa.Super. 1986).

Prejudice in this context means that but for counsel’s ineffectiveness, the

defendant would have made a different decision as to whether to testify.

Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa.Super. 2015).

        Shields asserted that Attorney Bruno did not discuss his right to testify

until immediately before the court’s colloquy, and that he had not fully

understood his right to testify. However, at trial, Shields stated under oath

and in open court that he understood his right to testify. See N.T., 1/7/18, at

133-35. He cannot now contradict that statement. See Commonwealth v.

Lawson, 762 A.2d 753, 755 (Pa.Super. 2000) (“[A] defendant who made a

knowing, voluntary, intelligent waiver of testimony may not later claim

ineffective assistance of counsel for failure to testify”). Further, the colloquy

occurred after the Commonwealth had rested, and Shields had seen the full

extent of the evidence against him, which controverts his argument that he

would     have   testified   if   he   had   understood   the   magnitude   of   the

Commonwealth’s case. Shields also stated at the PCRA hearing that he never

told Attorney Bruno that he wanted to testify.

        Therefore, Shields’ claims that he did not understand his rights are

belied by the record, and there is no support for a conclusion that Attorney

Bruno interfered with Shields’ ability to testify, or gave him advice that

rendered his waiver unknowing or unintelligent. Moreover, Shields did not

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question Attorney Bruno regarding his advice on this point, and we cannot

presume Attorney Bruno would have had no basis for advising Shields not to

testify. Hanible, 30 A.3d at 442; Postie, 200 A.3d at 1023.

      As the record does not support a finding of ineffectiveness, we reverse

the order granting relief, and remand for the PCRA court to reinstate Shields’

judgment of sentence.

      Order     reversed.   Case   remanded   with   instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/04/2020




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