J-S49029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KENT NORRIS OWENS,

                         Appellant                   No. 260 MDA 2015


          Appeal from the PCRA Order entered January 12, 2015,
              in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0006404-2009


BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.

MEMORANDUM BY ALLEN, J.:                           FILED AUGUST 19, 2015

      Kent Norris Owens (“Appellant”) appeals from the order denying his

petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

sections 9541-46. We affirm.

      We previously summarized the pertinent facts as follows:

            On June 2, 2009, at approximately 4:30 p.m., Officer
         Jeremy Fultz of the York County Police Department
         received a call for a burglary in progress on South Penn
         Street in York City. When he arrived at the scene with
         Officer Daniel Craven, Officer Fultz stayed at the front
         entrance of 47 South Penn Street and Officer Craven went
         to the back. Appellant exited the front entrance, shooting
         at Officer Fultz. The officer returned fire, and Appellant
         retreated into the residence, fleeing via the back of the
         building through a broken rear window. Appellant and
         another male, Steven Stokes, were taken into custody with
         lacerations on their hands.

           That same day, a criminal complaint was filed, charging
         Appellant, inter alia, with [aggravated assault, recklessly
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        endangering another      person,   and   assault   of   a   law
        enforcement officer].

                                   ***

            At trial, Officer Fultz testified that, when he arrived at
        the scene, he witnessed a figure in a black hooded
        sweatshirt lean out of the doorway and look directly at him
        at the same time as he was announcing himself as the
        police. (See N.T. Trial, 9/07/10, at 81-82). Officer Fultz
        further testified that he would never forget what happened
        next and that it was “something that’s burned into my
        mind.” (Id. at 84). The most distinguishing feature on
        the face of the man who shot at him was the chinstrap
        beard that he saw as the flash from the gun went off,
        illuminating his face from below like a flashlight. (Id. at
        84, 87-88). In fact, before Appellant was apprehended,
        the officer radioed that the shooter was a “black male in a
        hoodie with a chin-strapped beard, tall . . . .” (Id. at
        154). Afterwards, he positively identified Appellant when
        Appellant was being treated by emergency medical
        personnel at the scene. (Id. at 98).

           John E. Evans, of the Pennsylvania State Police Crime
        Lab, testified that although he did not find gunshot residue
        on Appellant’s hands, there is no guarantee that you will
        find gunshot residue on the hands of a person who fires a
        gun. (See N.T. Trial, 9/08/10, at 260).

            On September 9, 2010, the jury found Appellant guilty
        of the aforementioned crimes. On October 22, 2010, the
        [trial] court sentenced Appellant to [an aggregate term of]
        no less than twenty nor more than forty years’
        imprisonment[.]

Commonwealth v. Owens, 47 A.3d 1239 (Pa. Super. 2012), unpublished

memorandum at 1-3.

     Appellant filed a timely appeal to this Court. On March 9, 2012, we

affirmed Appellant’s judgment of sentence. Owens, supra. Subsequently,

we denied Appellant’s petition for reargument. On November 14, 2012, our



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

Commonwealth v. Owens, 57 A.3d 69 (Pa. 2012).

      On August 28, 2013, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, and on May 30, 2014, PCRA counsel filed an

amended petition.          On December 18, 2014, the PCRA Court issued

Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition

without a hearing.        Appellant did not file a response.          By order entered

January 12, 2015, the PCRA court denied Appellant’s PCRA petition.                     This

timely appeal followed. Both Appellant and the PCRA court have complied

with Pa.R.A.P. 1925.

      In his sole issue raised on appeal, Appellant claims that the PCRA court

erred in dismissing his PCRA petition without first holding an evidentiary

hearing. See Appellant’s Brief at 4. More specifically, Appellant asserts that

he has raised factual issues involving whether his trial counsel represented

him despite the existence of a conflict of interest, and whether counsel was

ineffective for failing to obtain a gunshot residue test on his clothing.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported    by     the   evidence   of   record   and    is   free    of   legal    error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).         Moreover, a PCRA court may decline to hold a

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hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish by a preponderance of the evidence

that counsel’s ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.”   Johnson, 966 A.2d at 532.      This requires the petitioner to

demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel

had no reasonable strategic basis for his or her action or inaction; and (3)

petitioner was prejudiced by counsel’s act or omission.      Id. at 533.    A

finding of "prejudice" requires the petitioner to show "that there is a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different." Id.

      In assessing a claim of ineffectiveness, when it is clear that appellant

has failed to meet the prejudice prong, the court may dispose of the claim

on that basis alone, without a determination of whether the first two prongs

have been met.     Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.

1995). Counsel will not be deemed ineffective if any reasonable basis exists

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for counsel’s actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.

1994). Even if counsel had no reasonable basis for the course of conduct

pursued, an appellant is not entitled to relief if he fails to demonstrate the

requisite prejudice which is necessary under Pennsylvania’s ineffectiveness

standard.      Douglas, 645 A.2d at 232.             Counsel cannot be deemed

ineffective for failing to pursue a meritless claim.           Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

      In his first issue, Appellant asserts that trial counsel previously had

prosecuted him in 2004, when counsel was employed as an assistant district

attorney.   Appellant’s Brief at 8.         According to Appellant, this allegation

raises a factual issue of whether trial counsel represented him despite a

conflict of interest.      Appellant further asserts, “if trial counsel’s prior

prosecutions    affected    his   ability    to   represent   Appellant,   then   his

representation was not effective.” Id. at 9.

      The PCRA court found that Appellant failed to raise a factual issue

regarding this claim:

            While it is true that Trial Counsel . . . was a prosecutor
         in the York County District Attorney’s Office when
         [Appellant] pled guilty in June 2004 in two cases that were
         consolidated [], the Court has reviewed the conflict of
         interest rules in the Rules of Professional [C]onduct, and
         did not find that any of those rules are applicable in this
         case, or that indicate there is a conflict in this case. (See
         Rules of Professional Conduct 1.7 – 1.12). Moreover,
         [Appellant] has not cited to any legal authority to support
         his contention. As this claim does not have arguable
         merit, it fails to meet the first prong of the ineffectiveness
         standard.      Given the foregoing, there are no genuine

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         issues of material fact, [Appellant] is not entitled to post-
         conviction relief, and no purpose would be served by any
         further proceedings.

PCRA Court Opinion, 4/7/15, 2-3.

      Our review of the record supports the PCRA court’s conclusions. “[T]o

establish a conflict of interest, an appellant must show that counsel actively

represented conflicting interests[,] and the actual conflict adversely affected

counsel’s performance.”     Commonwealth v. Spotz, 18 A.3d 244 (Pa.

2009) (citation omitted).    Within his brief, Appellant fails to cite to any

specific rule of professional conduct under which an alleged conflict may

exist because a former assistant district attorney becomes a criminal

defense attorney. Appellant cites to Spotz, supra, to support his request

for an evidentiary hearing, however, such reliance is inapt. In Spotz, the

PCRA petitioner asserted that his decision to waive representation and

proceed pro se was involuntary for several reasons, including the fact that

trial counsel’s “prior representation of [one of the murder victims]

constituted an undisclosed conflict of interest because counsel’s duty of

loyalty to his deceased client precluded counsel from pursuing viable

avenues of defense” on his behalf. Spotz, 18 A.3d at 267.

      In affirming the PCRA court’s rejection of the petitioner’s claim, our

Supreme Court in Spotz acknowledged that counsel’s prior representation of

one of the murder victims “had terminated in 1990, well before [counsel]

was appointed to represent” the petitioner. Id. at 268. Here, trial counsel

represented Appellant in his 2010 trial—approximately six years after he

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represented the Commonwealth in accepting Appellant’s prior guilty pleas.

As in Spotz, Appellant’s “allegations of conflict of interest are vague [and]

entirely speculative[.]” Thus, Appellant’s first issue fails.

      In his second issue, Appellant asserts that trial counsel was ineffective

for failing to obtain a gunshot residue test on his clothing.     According to

Appellant, “[t]he argument forwarded at trial was designed to counter the

officer’s identification of Appellant as the shooter. Obtaining evidence which

would show Appellant was not the shooter would have been incredibly

beneficial.” Appellant’s Brief at 6.

      In rejecting Appellant’s claim, the PCRA court explained:

            At trial, Trial Counsel called John E. Evans (who is
         employed by the Pennsylvania State Police Laboratory) to
         testify. (N.T., 9/8/10, page 248). Mr. Evans was offered
         by the defense as an “expert in the testing and analysis of
         gunshot residue.” (N.T., 9/8/10, page 249). As noted by
         the Superior Court on appeal, while Mr. Evans testified that
         “although he did not find gunshot residue on [Appellant’s]
         hands, there is no guarantee that you will find gunshot
         residue on the hands of a person who fires a gun.”
         (Superior Court Memorandum, 3/9/12, page 3). Moreover,
         Mr. Evans testified that his lab did not receive any clothing
         for testing, and that their lab, in fact, does not have the
         ability to test clothing for gunshot residue.” (N.T., 9/8/10,
         pages 253-254). Mr. Evans testified that if someone fired
         a gun, it would be possible that gunshot residue could be
         on their clothing. (N.T., page 254). However, he also
         testified that there are several ways of removing gunshot
         residue from material, one of which is to rub it off, and
         another is that a breeze may remove it. (N.T., 9/8/10,
         page 260). Hence, even if [Appellant’s] clothing had been
         tested, and even if there had been no gunshot residue
         found on his clothing, it would not have made a difference
         in the outcome of the case, given the [o]fficer’s
         identification of [Appellant] as the shooter. As a result,

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         this contention fails to meet the third prong of the
         ineffectiveness standard as there was no prejudice to
         [Appellant]. Given the foregoing, there are no genuine
         issues of material fact, [Appellant] is not entitled to post-
         conviction relief, and no purpose would be served by any
         further proceedings.

PCRA Court Opinion, 4/7/15, at 4-5.

      Our review of the record supports the PCRA court’s conclusion that

Appellant’s ineffectiveness claim fails because he cannot establish the

requisite prejudice. Travaglia, supra. Indeed, Appellant once again bases

his ineffectiveness claim on no more than speculation. “It is easy to say that

failing to pursue exculpatory evidence is ineffectiveness, but this presumes

the evidence will indeed be exculpatory.”     Commonwealth v. Williams,

899 A.2d 1060, 1064 (Pa. 2006). Appellant proffers no evidence to support

his claim that no gunshot residue would be found on his sweatshirt.

Moreover, as stated by the PCRA court, even if testing of Appellant’s clothing

would show no gunshot residue, Appellant’s own expert testified at trial

about why this fact would have little to no significance.    Thus, Appellant’s

second ineffectiveness claim fails.

      In sum, because the PCRA court correctly concluded that Appellant’s

ineffectiveness claims did not warrant an evidentiary hearing, we affirm the

order denying post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2015




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