J-S19007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KENNY R. SHIELDS,

                         Appellant                   No. 1382 EDA 2015


             Appeal from the PCRA Order Entered April 17, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0508751-2006


BEFORE: BENDER, P.J.E., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 16, 2016

      Appellant, Kenny R. Shields, appeals from the post conviction court’s

April 17, 2015 order denying his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.       Appellant argues

that the PCRA court erred by not granting him an evidentiary hearing before

denying his claim of trial counsel’s ineffectiveness. We affirm.

      In January of 2008, Appellant was convicted of three counts of

attempted murder, four counts of aggravated assault, one count of criminal

conspiracy, one count of carrying a firearm without a license, and one count

of possessing an instrument of crime. Appellant’s convictions stemmed from

his and three cohorts’ shooting into Primos Sports Bar in Philadelphia, hitting

two people inside. While fleeing, Appellant and the other men also shot at a

woman standing outside her parked car, striking two children inside the
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vehicle. All of the victims who were shot had serious, but non-fatal injuries.

Appellant’s fingerprints were found on one of the weapons used in the

shooting, which had been discarded in close proximity to the sports bar.

      On March 28, 2008, Appellant was sentenced to an aggregate term of

47 to 107 years’ incarceration.     He filed a timely appeal, and this Court

affirmed Appellant’s judgment of sentence on January 5, 2010, after which

our Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Shields, 991 A.2d 361 (Pa. Super. 2010) (unpublished

memorandum), appeal denied, 998 A.2d 960 (Pa. 2010).

      Appellant filed a timely, pro se PCRA petition on July 21, 2011.

Counsel was appointed and filed an amended petition on Appellant’s behalf,

asserting, inter alia, that trial counsel acted ineffectively by failing to

properly cross-examine Clifford Parson, a fingerprint expert, “to educate the

jury that a certain fingerprint did not have to be left on the weapon at any

time proximate to the incident in question.” Amended Petition, 9/14/12, at

2. On January 21, 2015, the court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition without a hearing.   Appellant filed a

response to the Rule 907 notice, but on April 17, 2015, the court issued an

order dismissing his petition as meritless.

      Appellant filed a timely notice of appeal. The PCRA court did not order

him to file a Pa.R.A.P. 1925(b) statement, but it did issue an opinion on

August 14, 2015. Herein, Appellant raises one issue for our review: “Did the




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PCRA [c]ourt err when it denied … [Appellant] PCRA relief[,] and all …

without granting an [e]videntiary [h]earing?” Appellant’s Brief at 3.

      In the argument portion of his brief, Appellant contends that the PCRA

court erred by not granting him an evidentiary hearing on his claim that his

trial counsel ineffectively failed to properly cross-examine Mr. Parson about

whether he could determine the specific time that Appellant’s fingerprint was

placed on the shotgun found close to the scene of the shooting. Appellant’s

Brief at 10. According to Appellant, because counsel failed to cross-examine

Mr. Parson on this issue, “the jury … [was] left with the presumption or

assumption that the fingerprint was placed at a time proximate to the

event….” Id. He maintains that,

      [a] proper cross[-]examination of Mr. Parson would have
      revealed that he had absolutely no idea as to when that print
      could have been placed. That would have permitted the jury to
      consider that in determining whether the fingerprint on the
      weapon carried much weight or little weight. This was an
      extremely important issue in the case[,] as the weapon became
      identified to [Appellant].

Id. at 10-11. Appellant concludes that this Court should remand this case to

the PCRA court for an evidentiary hearing to determine if trial counsel “had

some strategic reason for having failed to engage in the relevant and

necessary cross-examination. If counsel lacked such a reason, [Appellant]

should be entitled to a new trial.” Id. at 11.

      Our standard of review regarding an order denying post-conviction

relief under the PCRA is whether the determination of the court is supported

by the evidence of record and is free of legal error.    Commonwealth v.

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Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference

to the findings of the PCRA court, and we will not disturb those findings

merely    because    the   record    could   support      a   contrary   holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).

      In regard to a PCRA court’s decision not to conduct an evidentiary

hearing, our Supreme Court has stated:

      The PCRA court has the discretion to dismiss a petition without a
      hearing when the court is satisfied “that there are no genuine
      issues concerning any material fact, the defendant is not entitled
      to post-conviction collateral relief, and no legitimate purpose
      would be served by further proceedings.” Commonwealth v.
      Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011) (quoting
      Pa.R.Crim.P. 909(B)(2)). “To obtain reversal of a PCRA court's
      decision to dismiss a petition without a hearing, an appellant
      must show that he raised a genuine issue of fact which, if
      resolved in his favor, would have entitled him to relief, or that
      the court otherwise abused its discretion in denying a hearing.”
      Id. (quoting Commonwealth v. D'Amato, 579 Pa. 490, 856
      A.2d 806, 820 (2004)).

Commonwealth v. Roney, 79 A.3d 595, 604-05 (Pa. 2013).

      Our Supreme Court has also set forth the requirements for proving a

claim of ineffective assistance of counsel, as follows:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.” 42
      Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
      rebut that presumption, the PCRA petitioner must demonstrate
      that counsel's performance was deficient and that such
      deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
      Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
      Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In

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     Pennsylvania, we have refined the Strickland performance and
     prejudice test into a three-part inquiry. See [Commonwealth
     v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
     prove counsel ineffective, the petitioner must show that: (1) his
     underlying claim is of arguable merit; (2) counsel had no
     reasonable basis for his action or inaction; and (3) the petitioner
     suffered actual prejudice as a result. Commonwealth v. Ali,
     608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
     prove any of these prongs, his claim fails.” Commonwealth v.
     Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
     omitted).      Generally,   counsel's   assistance    is  deemed
     constitutionally effective if he chose a particular course of
     conduct that had some reasonable basis designed to effectuate
     his client's interests. See Ali, supra. Where matters of strategy
     and tactics are concerned, “[a] finding that a chosen strategy
     lacked a reasonable basis is not warranted unless it can be
     concluded that an alternative not chosen offered a potential for
     success substantially greater than the course actually pursued.”
     Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
     quotation marks omitted). To demonstrate prejudice, the
     petitioner must show that “there is a reasonable probability that,
     but for counsel's unprofessional errors, the result of the
     proceedings would have been different.” Commonwealth v.
     King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
     quotation marks, and citation omitted). “‘[A] reasonable
     probability is a probability that is sufficient to undermine
     confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
     86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
     598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
     U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

     Appellant contends that he is entitled to an evidentiary hearing

because there is a ‘genuine issue of material fact’ concerning whether his

trial counsel had a reasonable basis for not cross-examining Mr. Parson

about when Appellant’s fingerprint was left on the shotgun.     However, the

PCRA court concluded that Appellant failed to demonstrate that he was




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prejudiced by counsel’s conduct and, thus, his claim is meritless on that

basis alone.

      After careful review, we agree with the PCRA court that the verdict

would not have changed, even had counsel questioned Mr. Parson about the

timing of Appellant’s fingerprints.   To begin, the following evidence was

presented at Appellant’s trial:

            On March 30, 2006, Officer Stephen Korpalski and his
      partner, Officer David Richardson, were on patrol when they
      received a call at 12:30 a.m. N.T., 1/16/08, at 88. The call
      indicated gunshots were heard around the 1500 block of Arrott
      Street.    Id.    After investigating the scene, the officers
      determined the assignment to be unfounded because no victims
      were discovered and witnesses did not report anything. Id.

             Approximately one hour later, while still in the same
      vicinity, Officer Korpalski testified that he and Officer Richardson
      heard “a loud boom” and then a “continuous string of fire.” Id.
      at 90. He stated that the “first boom sounded almost identical
      to a shotgun.” Id. at 91.

            Monique Bolden testified that her car was parked outside
      Primos Sports Bar at the intersection of Arrott and Griscom
      Streets when two males aimed weapons at her. N.T., 1/17/08,
      at 18. She stated that the first shooter was a tall-built black
      man and the second shooter was also black but shorter and
      skinnier than the first male. Id. at 23-24. She testified that
      both men turned their guns in her direction and started shooting.
      Id. at 28-29. She later identified Holloway as one of the
      shooters. Id. at 28.

            Meanwhile, the officers noticed three men, Holloway,
      Sharpe, and Diaz, run to a van and get inside. N.T., 1/16/08, at
      92. When Officer Korpalski activated his lights to stop the van,
      the vehicle reversed at a high rate of speed and then crashed
      into a utility pole. Id. Sharpe and Diaz proceeded to flee on
      foot while Holloway remained inside the van. Id. at 95.

           Officer Richardson testified that he apprehended Holloway
      and searched the van. N.T., 1/17/08, at 105. Inside the

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     vehicle, he observed an AK-47 standing upright against the
     passenger rear seat. Id.

           There were four victims in the shooting. Inside Primos’
     bar, Molina was shot in the leg, arm and chest. N.T., 1/16/08,
     186-90. Alvarado, a bartender at Primos’, was shot in her left
     thigh. N.T., 1/17/08, at 73. On the street, two of Bolden’s
     children were injured. Ten-year-old Hykeem Bolden was shot in
     the back. Id. at 34. His seven-year-old brother, Kaseem, was
     shot in the face. Id. at 37.

            Officer Robert Flade testified that he was assigned as an
     investigator to process the shooting scene from the intersection
     of Arrott and Griscom Streets to the juncture of Oxford and
     Griscom Streets.      Id. at 151.     The officer stated that he
     observed a shotgun in an alleyway right above 4728 Griscom
     Street.     Id. at 160-61.    He also recovered eighteen fired
     cartridge casings from the AK-47 as well as four fired shot shells
     and two live rounds from the shotgun.            Id. at 167-69.
     Additionally, the officer observed three fingerprints found
     underneath the ejection port of the shotgun. Id. at 177-78.
     Officer Flade testified that the location of the prints indicated
     who had loaded the weapon and held the gun while firing. Id. at
     186, 189.

            After Officer Flade made four “lifts,” or impressions, of the
     fingerprints from the shotgun, Cliff Parson analyzed them for
     identification purposes.    N.T., 1/18/08, at 115-16.        Parson
     testified that with respect to the second lift, he matched the
     prints with the middle, ring, and pinky fingers of Appellant’s left
     hand. Id. at 124.

            Furthermore, Officer Ernest Bottomer, a ballistics expert,
     testified that the gun recovered from the alleyway was a 20-
     gauge sawed-off shotgun. Id. at 161. He stated that the design
     of the four fired shells were comparable to those found on the
     ground. Id. at 166-67. He also testified that there were no
     inconsistencies between the fired shot [gun] shells and the live
     rounds. Id. at 170.

           Additionally, the Commonwealth also introduced a
     statement made by Rasheeda DeShields, Appellant’s sister, to
     police on March 31, 2006. N.T., 1/22/08, at 68-9. DeShields
     told police that on the night in question, Appellant was at her
     house around 11 p.m. when she received a phone call from
     Holloway. Id. at 74. Holloway asked to speak with Appellant

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     and said that he had just got shot and that he was “on his way
     to the house to get something.” Id. When Appellant got on the
     phone, DeShields stated that she heard Holloway tell Appellant
     that he needed “the AK.” Id. at 75. She said that Appellant told
     Holloway that he “would meet them out front.” Id. DeShields
     stated that Appellant then went upstairs and she fell asleep. Id.
     at 75-6.    The next time DeShields saw Appellant was the
     following morning. Id. at 76.

            At trial, DeShields recanted her statements to police and
     testified that she did not see her brother on the night in
     question. Id. at 59. She also stated that she did not receive a
     phone call from Holloway. Id. at 60. Moreover, the witness
     testified that when the police came to her house on March 31,
     2006, they threatened her with [a] gun and said that she was
     going to jail and her children would be taken away from her if
     she did not tell them where Appellant was.         Id. at 61-4.
     Furthermore, DeShields stated that she did not remember
     signing the statement she made to police. Id. at 66.

           To impeach DeShields’ testimony, Detective Vincent
     Guarna testified that he interviewed the witness and took her
     statement on March 31, 2006. Id. at 154. The detective
     indicated that DeShields was cooperative, coherent, and
     answered the questions to the best of her ability. Id. Detective
     Guarna stated that he typed up the statement while DeShields
     answered the questions and then she signed it to verify [it] as
     her true statement. Id. at 163. He also testified that he did not
     promise her anything and did not threaten her. Id. at 166-67.
     Furthermore, the detective stated that DeShields never indicated
     to him that she had been threatened by police. Id. at 167.

           Lastly, the parties stipulated that Diaz pled guilty to
     conspiracy to commit aggravated assault against Alvarado,
     Molina, Kaseem Bolden, and Hykeem Bolden. Id. at 146.

Commonwealth       v.   Shields,   No.   1273   EDA    2008,      unpublished

memorandum at 5-9 (Pa. Super. filed January 5, 2010) (footnote omitted).

     On direct appeal, this Court concluded that “[t]his evidence, and the

reasonable inferences drawn therefrom, was sufficient to establish that

Appellant was involved in the shooting.” Id. at 9. We reasoned:


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             First, witnesses testified that they heard two types of guns
      being fired when the shooting took place. One was a continuous
      fire and the other was a loud boom. Second, Appellant’s left-
      hand fingerprints were found on the shotgun used in the
      incident. Specifically, his prints were located under the ejection
      port, which is the area where a person loads the gun and holds it
      while firing. One could reasonably conclude that this location was
      not of common usage and thus, did not signify a great possibility
      of innocent contact by others. Additionally, we note that the
      shotgun was found in an alleyway close in proximity to the
      location of the crime scene and shortly after the shooting took
      place. The four fired shot shells and two live rounds that were
      discovered matched the shotgun. Moreover, the weapon was
      found in the opposite direction to where Appellant’s
      codefendants were apprehended and the AK-47 was seized.

            Additionally, the Commonwealth presented testimony
      regarding [a] potential motive for the shooting. Appellant’s sister
      gave a statement to police that Holloway had called and said
      that he had been recently shot. DeShields heard Holloway tell
      Appellant that he needed a gun. Additionally, the witness told
      police that Appellant agreed to meet Holloway and others
      outside the house. Based on all this circumstantial evidence, one
      can reasonably infer that Appellant was the second shooter on
      March 30, 2006.

            Moreover, we note that although DeShields may have
      recanted her prior statements to police and testified that events
      on March 30, 2006 did not take place and that the police
      threatened her, the jury was free to believe her earlier
      statements. For these reasons, Appellant’s argument that the
      Commonwealth failed to prove the identification element of his
      convictions is without merit. Thus, Appellant’s sufficiency
      argument fails.

Id. at 9-11 (citations omitted).

      Viewing Appellant’s ineffectiveness claim against the totality of the

evidence, and our Court’s prior determination that the evidence was

sufficient to sustain his convictions, Appellant has failed to convince us that

the jury would have reached a different result had Mr. Parson testified that



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he could not determine precisely when Appellant’s fingerprints were placed

on the shotgun. Accordingly, Appellant has not demonstrated that he was

prejudiced by trial counsel’s failure to elicit this testimony from Mr. Parson

during cross-examination.     Because Appellant’s claim fails to meet the

prejudice prong of the ineffectiveness test, no legitimate purpose would be

served by remanding for an evidentiary hearing regarding counsel’s strategy

for not cross-examining Mr. Parson in this regard.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2016




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