J-S23029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    IDRIS KINARD                               :
                                               :
                       Appellant               :   No. 2455 EDA 2019

               Appeal from the PCRA Order Entered July 24, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002209-2010


BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                                Filed: June 25, 2020

        Idris Kinard (Appellant) appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his first timely petition

under the Post Conviction Relief Act1 (PCRA). Appellant avers the PCRA court

erred in denying relief on his claims that his trial attorneys were ineffective

for not seeking discovery relief when the Commonwealth provided a witness

statement on the day of trial, and for not calling that same witness to testify

at trial. We affirm.

        The trial court summarized the underlying facts as follows. On January

14, 2010, at approximately 5:30 p.m., Michael Greene, Sr. and his children,

Michael, Jr., and Michelle, exited their house and entered their car. Michael,

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1   42 Pa.C.S. §§ 9541-9546.
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Sr., saw two men “standing directly across” the street. N.T. Trial, 1/4/11, at

40. One of the men, who was Appellant,

       opened fire on [Michael, Jr.,] and shot in [Michael, Sr.’s] direction
       numerous times. As [Michael, Jr.,] jumped into the vehicle,
       [Appellant] continued to fire at the vehicle hitting the rear
       passenger tire, the passenger side of the vehicle, the rear window,
       and the driver’s side window. . . . None of the gunshots hit
       [anyone]. Immediately after the shooting, [Appellant] fled the
       scene down a set of steps in the direction of Abbotsford Avenue.
       [Appellant] dropped his cell phone during his flight. [N.T. Trial,
       1/4/11, at 37-53, 61-68, 95, 101.]

Trial Ct. Op., 5/15/15, at 1-2. Both Michael, Sr., and his daughter Michelle

testified at trial that they did not see the person who fired at them. N.T.,

1/4/11, at 40, 64. Michael, Jr., was previously arrested as a co-conspirator

in a shooting “a couple months” earlier, in which Appellant was shot.2 Id. at

127-28.

           After executing search warrants for [Appellant’s] home and
       his grandmother’s home, police recovered a .45 caliber Colt
       semiautomatic handgun and a .22 caliber revolver, which matched
       the two .22 caliber bullets recovered from the scene of the
       shooting. Police recovered [Appellant’s] DNA from the trigger of
       the .22 revolver and the back strap handle of the .45 Colt
       semiautomatic handgun. Police also recovered an iPhone box with
       a serial number matching the iPhone found at the scene of the
       shooting. Police recovered letters and papers addressed to
       [Appellant], including [Appellant’s] identification. [N.T. Trial,
       1/5/11, at 32-42, 188-97.]

Trial Ct. Op., 5/15/15, at 1-2.


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2Michael, Jr., did not testify at Appellant’s trial as he invoked his Fifth
Amendment right against self-incrimination. N.T., 1/4/11, at 90.



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       Appellant was charged with multiple offenses. This case proceeded to a

jury trial on January 4, 2011.3 Appellant was represented by Sonte Anthony

Reavis, Esquire, and Michael Hall, Esquire (collectively, Trial Counsel).

       On the first day of trial, Philadelphia Police Detective Stephen Grace

testified that he interviewed a witness, Tiera Bond.4 N.T., 1/4/11, at 128-29.

On cross-examination, Appellant attempted to ask Detective Grace about a

statement Bond made to the police concerning a description of the shooter in

this matter.       Id. at 141.          However, the trial court sustained the

Commonwealth’s objection, on hearsay grounds, to anything Bond told the

detective. Id. Appellant then immediately made an oral motion for a mistrial,

arguing the Commonwealth did not provide him with Bond’s statement to

police until the prior day, and that this late production violated Brady.5 Id.

at 142-43. Appellant explained that in the statement, Bond described the

shooter as “a dark complected person,” which was “in direct contradiction to

[Appellant’s] appearance” of “a light-skinned African American[.]” Id.




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3Jury selection was completed on January 3, 2011, and the presentation of
evidence began on January 4th.

4Bond had identified the shooter in the prior shooting in which Appellant was
shot. N.T., 1/4/11, at 129.

5Brady v. Maryland, 373 U.S. 83 (1963). See Commonwealth v. Ovalles,
144 A.3d 957, 965 (Pa. Super. 2016) (prosecutor has obligation to disclose all
exculpatory information material to guilt or punishment of accused).


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        The Commonwealth responded as follows: it “was unaware of [Bond’s]

statement until” the day prior, and it immediately provided the statement to

defense counsel. N.T., 1/4/11, at 144. It was disingenuous for Appellant to

imply he did not know of Bond, as they were dating and the Commonwealth’s

discovery showed they had exchanged “hundreds of” phone calls and text

messages.      Id. at 145.       If Appellant “needed more time to investigate

yesterday,” the Commonwealth would have agreed. Id. at 144-45. However,

Appellant did not seek a continuance, and he should not be granted a mistrial

now “because [he] can’t backdoor hearsay through the detective.” Id. at 145.

The trial court denied Appellant’s motion for a mistrial. N.T. Trial, 1/5/11, at

8.

        Appellant called his mother and two detectives to testify, but did not

testify in his own defense. N.T. Trial, 1/6/11, at 22, 38, 48, 61. The jury

found Appellant guilty of three counts of attempted murder, three counts of

aggravated assault, two violations of the Uniform Firearms Act,6 and

possession of an instrument of crime.7 On March 11, 2011, the trial court

imposed an aggregate sentence of 15 to 30 years’ incarceration. Appellant

filed a timely counseled post-sentence motion, as well as an apparently



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618 Pa.C.S. §§ 901, 2502, 2702(a), 6106(a)(1) (firearms not to be carried
without license), 6108 (carrying firearms on public streets in Philadelphia).

7   18 Pa.C.S. § 907(a).


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untimely supplemental post-sentence motion on September 21, 2011.

However, neither the trial docket nor certified record includes any order

disposing of either motion.

       On May 30, 2012, Appellant filed a pro se PCRA petition.8 The PCRA

court appointed counsel, who filed an amended petition. On December 15,

2014, the PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc.

Appellant appealed to this Court, which affirmed the judgment of sentence on

March 3, 2016, and the Pennsylvania Supreme Court denied Appellant’s

petition for allowance of appeal on August 2, 2016.        Commonwealth v.

Kinard, 120 EDA 205 (unpub. memo.) (Pa. Super. 2016), appeal denied, 136

EAL 2016 (Pa. 2016).

       Appellant filed a timely pro se PCRA petition on August 24, 2016.9

Privately-retained counsel entered his appearance on February 6, 2017, filed

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8  As noted above, it does not appear the trial court disposed of Appellant’s
post-sentence motions. Were we to deem the first, timely motion denied by
operation of law on July 19, 2011, Appellant’s judgment of sentence became
final, for PCRA purposes, 30 days thereafter, on August 18, 2011. See 42
Pa.C.S. § 9545(b)(3); Pa.R.Crim.P. 720 (A)(2)(b) (if defendant files timely
post-sentence motion, notice of appeal shall be filed within 30 days of entry
of order denying motion by operation of law), (B)(3)(a) (if judge fails to decide
post-sentence motion within 120 days of filing, motion shall be deemed denied
by operation of law). Appellant then generally had one year, or until August
18, 2012, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). His petition
filed on May 30, 2012, was thus timely.

9  Because Appellant’s May 30, 2012, PCRA petition resulted in the
reinstatement of his direct appeal rights nunc pro tunc, the underlying August
24, 2016, petition is considered his first for PCRA timeliness purposes, and



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an amended PCRA petition on September 26, 2017, and filed a memorandum

of law on October 4, 2017. He argued Trial Counsel were ineffective for, inter

alia, failing to move for a continuance or seek other discovery relief when the

Commonwealth provided “the statement of a crucial witness, . . . Bond, the

day before trial,” and for failing to investigate and call Bond as a witness.

Appellant’s Amended Petition for Post Conviction Relief, 9/26/17, at 2-3.

       On May 31, 2018, the Commonwealth filed a motion to dismiss the

petition, and on November 2, 2018, the PCRA court issued Pa.R.Crim.P. 907

notice of intent to dismiss the petition without a hearing. Appellant filed a

counseled response, but the PCRA court dismissed Appellant’s petition on July

24, 2019. Appellant, now represented by Attorney Himebaugh, filed a timely

notice of appeal and complied with the court’s Pa.R.A.P. 1925(b) order to file

a statement of errors complained of on appeal.


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thus Appellant was entitled to counsel. See Pa.R.Crim.P. 904(C) (when
unrepresented defendant satisfies the judge they are unable to afford counsel,
judge shall appoint counsel to represent defendant on first PCRA petition);
Commonwealth v. Karanicolas, 836 A.2d 940, 945-46 (Pa. Super. 2003).
We thus note it was error for the PCRA court to deny Appellant’s pro se “Motion
to Appoint Counsel” on the grounds this was his “second PCRA Petition” and
he “was previously appointed counsel on his original PCRA Petition filed on
May 30, 2012.” See Order, 8/30/16 at 1 & n.1. Nevertheless, privately-
retained counsel, Barnaby Wittels, Esquire, entered his appearance on
February 6, 2017.

      Furthermore, Appellant’s notice of appeal was filed by present counsel,
Teri Himebaugh, Esquire, although neither the certified record nor the trial
docket indicates that Attorney Wittels withdrew his appearance, nor that
Attorney Himebaugh entered her appearance.


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      Appellant presents two issues for our review:

      I. Did the PCRA Court err, violating Appellant’s rights under the
      Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution,
      Article 1, sec. 9 of the Pennsylvania Constitution and 42 Pa.C.S. §
      9545 when it found that trial counsel [were] not ineffective for
      failing to move for a continuance or seek another remedy under
      the discovery rules when handed the statement of crucial witness,
      Tiera Bond, the day before trial?

      II. Did the PCRA Court err, violating Appellant’s rights under the
      Fifth, Sixth and Fourteenth Amendments of the U.S. Constitution,
      Article 1, sec. 9 of the Pennsylvania Constitution and 42 Pa.C.S. §
      9545 when it found that [Appellant] had not established that trial
      counsel [were] ineffective for failing to investigate and call Tiera
      Bond as a witness?

Appellant’s Brief at 3.

      In   his   first   issue,   Appellant   avers   that   with   respect   to   the

Commonwealth’s “eleventh hour disclosure” of Bond’s statement to police,

Trial Counsel were ineffective for not requesting a continuance in order to

interview Bond. Appellant’s Brief at 8, 10. Appellant contends his underlying

issue has arguable merit because “it is more likely than not, particularly given

the Commonwealth’s lack of objection, that the Court would have granted that

request.” Id. at 8. He avers there was no reasonable basis for Trial Counsel’s

failure to request a continuance, as a lawyer has a duty “to investigate any

witness who may have information concerning his client’s guilt or innocence,”

and furthermore that “it was not objectively reasonable for counsel to request

a mistrial[, as c]ounsel had to have known that mistrial as a [discovery

remedy] is only granted in particularly egregious cases.” Id. at 8-9. Finally,

Appellant asserts he was prejudiced by counsel’s inaction, where Bond told

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police “the shooter was someone who was ‘shorter and lighter in complexion’

than” him, and “[a]ny reasonably experienced criminal defense counsel would

know that Bond’s statement to detectives likely did not tell the whole story.”

Id. at 10. Appellant contends “a reasonably effective defense counsel would”

have asked Bond, for example, “how much shorter the shooter was and . . .

what she considered Appellant’s skin tone to be.” Id. at 11.

       In his second issue, Appellant avers Trial Counsel were ineffective for

failing to interview, investigate, and call Bond as a trial witness. Appellant

avers his underlying issue has merit because, where neither Michael, Sr., nor

Michelle could see the shooter, Bond’s description of the shooter would have

been exculpatory and “cast doubt on the DNA evidence that Appellant handled

the gun that was fired.”10 Id. at 13. Appellant alleges Trial Counsel had no

reasonable basis for not interviewing Bond or calling her as a witness, and this

“was simply a failure on counsel’s part to be prepared.”        Id. at 14, 16.

Appellant also asserts he was prejudiced because: (1) “there was no way for



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10   Appellant also refers to a December 29, 2010, letter from the
Commonwealth, which advised “that Bond had been observed by police at the
scene calling a cell phone which was recovered by police.” Appellant’s Brief
at 12. Appellant contends, without further explanation, that “Bond’s recovery
and use of the cell phone [was a] relevant and material disputed fact[ ] at . .
. trial.” Id. at 13. This argument was not raised in Appellant’s pro se or
amended PCRA petition, and is thus waived from our review.                 See
Commonwealth v. Bedell, 954 A.2d 1209, 1216 (Pa. Super. 2008) (stating
claims not raised in PCRA court are waived and cannot be raised for first time
on appeal).


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counsel to provide [him] with the necessary information to allow him to make

an informed waiver of his right to call this witness;” and (2) “counsel’s failure

to call Bond [as a witness] rendered the verdict itself unreliable.” Id. at 16,

18. Appellant reiterates Bond would have been “an independent eyewitness

[to] testify that the shooter . . . was ‘shorter and lighter in complexion’ than”

him. Id. at 17. No relief is due.

      This Court has stated:

      Our review in PCRA matters is guided by the following principles.
      We consider the record “in the light most favorable to the
      prevailing party at the PCRA level.” This review is limited to the
      evidence of record and the factual findings of the PCRA court. [A]s
      long as a PCRA court’s ruling is free of legal error and is supported
      by record evidence, we will not disturb its ruling. . . .

Commonwealth v. Pander, 100 A.3d 626, 630-31 (Pa. Super. 2014) (en

banc) (citations omitted).

      A claim of ineffective assistance of counsel must establish:

      (1) that the underlying issue has arguable merit; (2) counsel’s
      actions lacked an objective reasonable basis; and (3) actual
      prejudice resulted from counsel’s act or failure to act.” Where the
      petitioner “fails to plead or meet any elements of the above-cited
      test, his claim must fail.”

      A claim has arguable merit where the factual averments, if
      accurate, could establish cause for relief. . . .

      The test for deciding whether counsel had a reasonable basis for
      his action or inaction is whether no competent counsel would have
      chosen that action or inaction, or, the alternative, not chosen,
      offered a significantly greater potential chance of success.
      Counsel’s decisions will be considered reasonable if they
      effectuated his client’s interests. We do not employ a hindsight
      analysis in comparing trial counsel’s actions with other efforts he
      may have taken.

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      “Prejudice is established if there is a reasonable probability that,
      but for counsel’s errors, the result of the proceeding would have
      been different. A reasonable probability ‘is a probability sufficient
      to undermine confidence in the outcome.’

Id. at 631 (citations omitted). “‘A failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim.’ Counsel is presumed to be

effective and the burden is on the appellant to prove otherwise.’” Bedell, 954

A.2d at 1211 (citations omitted).

      This Court has explained:

      “Neglecting to call a witness differs from failing to investigate a
      witness in a subtle but important way.” The failure to investigate
      “presents an issue of arguable merit where the record
      demonstrates that counsel did not perform an investigation.” “It
      can be unreasonable per se to conduct no investigation into known
      witnesses.” Importantly, a petitioner still must demonstrate
      prejudice. To demonstrate prejudice where the allegation is the
      failure to interview a witness, the petitioner must show that there
      is a reasonable probability that the testimony the witness would
      have provided would have led to a different outcome at trial.

      In this respect, a failure to investigate and interview a witness
      claim overlaps with declining to call a witness since the petitioner
      must prove: (i) the witness existed; (ii) the witness was available
      to testify; (iii) counsel knew of, or should have known of, the
      existence of the witness; (iv) the witness was willing to testify;
      and (v) the absence of the testimony was so prejudicial as to have
      denied the defendant a fair trial.

Pander, 100 A.3d at 638-39 (citations omitted). A PCRA petitioner is not

required to provide an affidavit from the proposed witness, and instead, “the

certification requirement can be met by an attorney or pro se petitioner

certifying what the witness will testify regarding.”      Id. at 642 (citations

omitted).

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      With respect to Appellant’s claim that Trial Counsel were ineffective for

not investigating Bond, neither his PCRA petition nor appellate brief specify

any new information that would have been gained from such an investigation.

Instead, Appellant relies on Bond’s description — that was provided to him at

trial — of the shooter. While Appellant speculates that an “effective defense

counsel” would have asked Bond different questions from what the police did,

his argument remains focused solely on Bond’s description of the shooter:

“how much shorter the shooter was” and his complexion. See Appellant’s

Brief at 11.    Accordingly, we reject Appellant’s argument that he was

prejudiced by the lack of an investigation, and we deny relief on this issue.

See Pander, 100 A.3d at 631; Bedell, 954 A.2d at 1211.

      In denying relief on Appellant’s claim that Trial Counsel were ineffective

for failing to call Bond to testify at trial, the PCRA court opined that Appellant

“offered no proof that Bond was ready, willing and able to testify on” his

behalf. PCRA Ct. Op. at 7. We agree. Appellant’s pro se PCRA petition made

no mention of Bond.      His counseled amended petition merely stated Trial

Counsel failed to call Bond as a witness. Appellant’s Amended Petition for Post

Conviction Relief at 3. Counsel’s memorandum of law correctly cited authority

that “[w]hen raising a failure to call a potential witness claim,” a petitioner

must establish, inter alia, “[t]he witness was available to testify.” Appellant’s

Memorandum of Law, 10/4/17, at 9. However, the memorandum failed to




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address whether Bond was available and willing to testify. See Pander, 100

A.3d at 639.

     On appeal, Appellant argues:

     To the extent that the PCRA Court found that that PCRA counsel
     did not attach an affidavit or verification for Bond showing she was
     willing and available to testify or what she would testify to
     Appellant avers that her statement to police serves as a sufficient
     ‘offer of proof’ as to what she would testify to if a hearing had
     been granted. [PCRA Ct. Op. at 7.] As the Court noted, Bond and
     Appellant knew each other. There was no reason for Appellant
     to believe that she would not be willing and available to
     testify if subpoenaed. Moreover, when the PCRA petition was
     filed, it was acceptable for counsel to provide a certification in lieu
     of a witness affidavit. This certification would have averred
     the witness[’] willingness to testify. . . . Pander, 100 A. 3d
     626 . . . .

Appellant’s Brief at 12 n.1 (emphases added).

     Appellant’s present argument is waived because it was not raised before

the PCRA court. See Bedell, 954 A.2d at 1216 (emphases added). Indeed,

Appellant acknowledges that if he had submitted a certification to the PCRA

court, it “would have averred [Bond’s] willingness to testify.”                See

Appellant’s Brief at 12 n.1 (emphasis added).            Moreover, Appellant’s

speculation — that “[t]here was no reason . . . to believe that [Bond] would

not be willing and available to testify” — would fall short of the requirement

that he “must prove” the witness existed and was willing to testify.           See

Pander, 100 A.3d at 639. We additionally note the PCRA court’s discussion

that Bond’s description of the shooter “did not rule out [Appellant] as a

possible shooter,” and the court’s emphasis of the circumstantial evidence


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presented at trial, including “Bond’s connection to [Appellant and] the

matching ballistics and firearm of the same caliber at [Appellant’s] home.”

PCRA Ct. Op. at 6.

      Accordingly, we do not disturb the PCRA court’s denial of relief on

Appellant’s claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/20




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