J-S39009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

KAMMERON L. MCKENZIE,

                            Appellant                       No. 1188 WDA 2016


                Appeal from the PCRA Order Entered July 14, 2016
                 In the Court of Common Pleas of Beaver County
               Criminal Division at No(s): CP-04-CR-0000384-2013


BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                                FILED JULY 28, 2017

        Appellant, Kammeron L. McKenzie, appeals from the post-conviction

court’s July 14, 2016 order denying his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in which he raised

several claims of ineffective assistance of counsel (IAC). We affirm.

        This   Court   summarized       the    procedural   and   factual   history   of

Appellant’s case in our disposition of his direct appeal:

        A jury found [Appellant] guilty of possession of a controlled
        substance (cocaine) with intent to deliver (“PWID”),1 possession
        of a controlled substance,2 possession of a small amount of
        marijuana,3 carrying firearms without a license,4 persons not to
        possess a firearm5 and receiving stolen property.6 The trial court
        sentenced [Appellant] to an aggregate term of 5-10 years’
        imprisonment.7

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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                                       …
       1
           35 P.S. § 780-113(a)(30).
       2
           35 P.S. § 780-113(a)(16).
       3
           35 P.S. § 780-113(a)(31).
       4
           18 Pa.C.S. § 6106(a)(1).
       5
           18 Pa.C.S. § 6105(a)(1).
       6
           18 Pa.C.S. § 3925(a).

       7  On October 30, 2013, the trial court sentenced
       [Appellant] to an aggregate term of 7-14 years’
       imprisonment. [Appellant] filed a timely post-sentence
       motion seeking modification of his sentence.            He
       subsequently filed supplemental post-sentence motions
       which included challenges to the sufficiency and weight of
       the evidence. On January 30, 2014, the trial court granted
       [Appellant’s] motion for modification of sentence and
       denied the remaining post-sentence motions. On February
       28, 2014, the trial court resentenced [Appellant] to an
       aggregate of 5-10 years’ imprisonment.

                                       …

     [Appellant] and his co-defendant, Anthony Slappy, were tried
     together. The trial court accurately recounted the evidence
     adduced during the … trial as follows:

       On December 1, 2012 at approximately 1:30 a.m., Officer
       David Johnson of the City of Beaver Falls Police
       Department was on patrol in a marked police vehicle when
       he observed what he believed to be Anthony Slappy
       pumping gas into a white Cadillac at the A-Plus gas station
       in Beaver Falls.      Officer Johnson also observed that
       another individual he could not identify from that distance
       was in the passenger seat of the Cadillac. After pumping
       the gas, the individual that appeared to be Slappy entered
       the driver's side of the Cadillac and exited the gas station
       parking lot.

       As the Cadillac turned onto Eighth Avenue and then to 26 th
       Street, Officer Johnson further observed that the taillights

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       of the vehicle were not illuminated. Officer Johnson then
       activated the overhead lights of his patrol vehicle in an
       attempt to initiate a traffic stop. According to Officer
       Johnson, the driver of the Cadillac started to pull toward
       the curb but ultimately drove back toward the middle of
       the road and continued driving.         As a result, Officer
       Johnson activated his siren and notified dispatch that the
       driver was refusing to stop. The driver of the Cadillac
       disregarded the siren and continued traveling south on
       Tenth Avenue. As they approached the intersection of
       Tenth Avenue and 25th Street, it appeared to Officer
       Johnson that the driver attempted to make a left turn
       toward Ninth Avenue, but Captain Martin of the Beaver
       Falls Police Department had arrived to intercept the driver
       at Ninth Avenue. The driver continued on Tenth Avenue
       through a ‘Do Not Enter’ sign and onto a one-way street.
       It again appeared to Officer Johnson that the driver
       attempted to turn left at the intersection of 24th Street and
       Tenth Avenue, but the driver was again blocked by Captain
       Martin’s police vehicle. The driver continued traveling
       south on Tenth Avenue, and, at the intersection of Tenth
       Avenue and 23rd Street, Officer Johnson observed, with the
       aid of his spotlight, the passenger moving around and
       throwing a white object out the window. According to
       Officer Johnson, the road on which the driver was traveling
       ended, and the driver was forced to turn left and
       eventually stop because he was intercepted by Captain
       Martin.

       After stopping the vehicle, Officer Johnson and Captain
       Martin approached the Cadillac with their weapons drawn.
       Officer Johnson approached the passenger side of the
       Cadillac and recognized [Appellant] as the passenger of
       the vehicle. According to Officer Johnson, [Appellant] was
       leaning to the left and over his seat toward the floor of the
       Cadillac. Officer Johnson ordered [Appellant] to show his
       hands, and, after initially refusing to comply, [Appellant]
       raised his hands.      Knowing that there was an active
       warrant for [Appellant]’s arrest, Officer Johnson removed
       [Appellant] from the inside of the Cadillac and took him to
       the back of the vehicle in order to conduct a search for
       weapons. While doing so, Officer Johnson observed a
       white rock substance on the window of the Cadillac. During
       the frisk, [Appellant] stated that he had ‘a little bit of


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       weed.’ The search uncovered a small baggy of suspected
       marijuana, $640, and a cell phone. After Captain Martin
       removed the driver who was determined to be Anthony
       Slappy from the Cadillac, the officers discovered an
       unloaded .45 caliber Taurus 24/7 Pro firearm on the
       driver's side of the vehicle. Officer Johnson described the
       location of the firearm as follows:

          [W]e did observe that there was a firearm also under
          the, what would be the driver's seat post, next to the
          hump. So if I would be sitting in the driver's seat,
          there, like, the bolts where the seat is bolted to the
          floor, there’s a firearm that would be slid down on
          the side of the hump right against that post.

       The magazine for the firearm was also located on the
       driver’s side of the vehicle. The officers also found another
       cell phone and a 45 caliber bullet ‘on the passenger
       floorboard where [Appellant] was seated[].’ In addition,
       white residue that was later determined to be cocaine was
       found in the vehicle.

       After [Appellant] and Slappy were arrested and secured for
       transport, Officer Johnson and Captain Martin went to the
       intersection of Tenth Avenue and 23rd Street where they
       previously observed a white rock substance thrown from
       the passenger side window of the Cadillac. Upon arriving
       at that location, the officers found and collected a plastic
       baggie of suspected crack cocaine as well as several solid
       pieces of suspected crack cocaine of varying sizes. These
       items as well as the evidence obtained from the Cadillac
       were turned over to the police department's record
       custodian, Detective Kevin Burau.

       Once the officers returned to the station, the suspected
       marijuana and cocaine were tested, yielding positive
       results for the presence of marijuana and cocaine. The
       officers also determined that the Cadillac was registered to
       Slappy. After the Cadillac was impounded, the officers
       obtained a search warrant for the Cadillac.             The
       subsequent execution of the search warrant revealed
       additional white, rock-type substances from both the driver
       and passenger sides of the vehicle.        Using the serial
       number on the Taurus 24/7 Pro firearm, the officers
       conducted a search of the National Crime Information


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        Center database, which revealed that someone in
        Independence Township had reported that the firearm had
        been stolen. The officers also determined through an
        inquiry to the Pennsylvania State Police Firearms Unit that
        neither [Appellant] nor Slappy had a valid license to carry
        a firearm concealed. The firearm as well as the recovered
        ammunition, the suspected controlled substances, and
        DNA samples from [Appellant] and Slappy were
        subsequently transferred to the Pennsylvania State Police
        for further testing.

     Trial Court Opinion, pp. 1-4.

     Several additional facts bear mention. Joseph Kukosky, a
     forensic DNA scientist with the Pennsylvania State Police Crime
     Lab, testified that swabs taken from the firearm contained DNA
     that matched [Appellant’s] DNA profile.       In addition, both
     [Appellant] and Slappy testified in their own defense.
     [Appellant] admitted to possessing the firearm in Slappy’s
     vehicle but testified that Slappy had given it to him. On the
     other hand, Slappy testified that he never possessed the firearm
     and claimed that [Appellant’]s testimony was false. [Appellant]
     admitted possessing cocaine but claimed it was for personal use.
     The Commonwealth, however, demonstrated that [Appellant]
     possessed 10 grams of cocaine mostly in rock form but had no
     pipe with which to ingest cocaine. Additionally, [Appellant] was
     unemployed at the time of his arrest, but he carried $640.00 in
     his pocket and possessed two mobile cellular phones.

Commonwealth       v.   McKenzie,    No.   527   WDA   2014,   unpublished

memorandum at 1-6 (Pa. Super. filed January 9, 2015) (some footnotes

omitted).

     Appellant filed a timely direct appeal from his judgment of sentence,

and after this Court affirmed, see id., our Supreme Court denied his

subsequent petition for allowance of appeal.     See Commonwealth v.

McKenzie, 125 A.3d 776 (Pa. 2015). Appellant then filed a timely, pro se

PCRA petition on October 30, 2015. Counsel was appointed and he filed an



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amended petition on Appellant’s behalf raising various IAC claims. A PCRA

hearing was conducted on May 2, 2016, at which Appellant, and his trial and

direct appeal counsel, Mitchell Shahen, Esq., both testified.     On July 14,

2016, the PCRA court issued an order and opinion denying Appellant’s

petition.

      Appellant filed a timely notice of appeal, as well as a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.       On September 19,

2016, the PCRA court issued a responsive opinion, relying in large part on

the rationale set forth in its July 14, 2016 opinion denying Appellant’s

petition. In Appellant’s brief to this Court, he presents the following three

issues for our review:

      I. Whether there was ineffective assistance of counsel in failing
      to challenge on appeal the sufficiency of the evidence on
      receiving stolen property - firearm[?]

      II. Whether there was ineffective assistance of counsel in failing
      to request the trial court to properly and adequately charge the
      jury and/or failing to object to the trial court improperly and
      inadequately charging the jury regarding (a) receiving stolen
      property - guilty knowledge, (b) constitutional limits on using
      inferences in criminal cases, (c) direct and circumstantial
      evidence - additional request, and (d) unanimity required for one
      of alternative theories of guilt of receiving stolen property[?]

      III. Whether there was ineffective assistance of counsel in failing
      to object to the exhibits of experts being in possession of the
      jury during deliberations[?]

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      First, “[t]his Court’s standard of review from the grant or denial of

post-conviction relief is limited to examining whether the lower court’s



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determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [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
      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

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      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 first argues that Attorney Shahen was ineffective for failing

to challenge, on direct appeal, the sufficiency of the evidence to prove the

‘guilty knowledge’ element of his receiving stolen property conviction. More

specifically, Appellant stresses that to convict an individual of receiving

stolen property, the Commonwealth must prove, inter alia, that the person

possessed the property “knowing that it has been stolen, or believing that it

has probably been stolen….” 18 Pa.C.S. § 3925(a). Appellant contends that

in this case, there was insufficient evidence to prove that he knew the

property at issue - i.e., the firearm - was stolen, or that he believed it was

probably stolen. According to Appellant, there was no evidence linking him

to the firearm, other than his presence in the vehicle in which it was found.

He also argues that the fact that the firearm was stolen three years prior to

his arrest supported that he did not know that it was stolen. Thus, Appellant

asserts that, had Attorney Shahen raised these sufficiency-of-the-evidence

arguments on direct appeal, this Court would have reversed his receiving

stolen property conviction.




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      In rejecting this claim, the PCRA court concluded both that Appellant’s

sufficiency challenge was meritless, and that Attorney Shahen had a

reasonable basis for not raising this issue on direct appeal.   Because we

agree, for the reasons stated infra, with the court’s determination on the

reasonable basis prong, we need not decide whether Appellant’s sufficiency

claim has arguable merit, or whether Appellant was prejudiced by counsel’s

conduct. See Simpson, 66 A.3d at 260.

      In regard to the reasonable basis prong, we begin by noting:

      When assessing whether counsel had a reasonable basis for his
      act or omission, the question is not whether there were other
      courses of action that counsel could have taken, but whether
      counsel's decision had any basis reasonably designed to
      effectuate his client's interest. As the Commonwealth accurately
      states, this cannot be a hindsight evaluation of counsel's
      performance, but requires an examination of “whether counsel
      made an informed choice, which at the time the decision was
      made reasonably could have been considered to advance and
      protect [the] defendant's interests.” Our evaluation of counsel's
      performance is “highly deferential.”

Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016), (internal

citations omitted).

      In concluding that Attorney Shahen had a reasonable basis for not

raising a sufficiency challenge to the ‘guilty knowledge’ element of

Appellant’s receiving stolen property conviction, the PCRA court reasoned:

            The [Pennsylvania] Supreme Court’s decision in Williams
      is relevant to this [c]ourt’s [o]pinion with regard to prior
      counsel’s reasonable strategic basis. In Williams, our Supreme
      Court held:

         It is true that “arguably meritorious claims may be omitted
         in favor of pursuing claims which, in the exercise of

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          appellate counsel's objectively reasonable professional
          judgment, offer a greater prospect of securing relief.”
          [Commonwealth v.] Bracey, 795 A.2d [935,] 950 [(Pa.
          2001)] (citing Jones v. Barnes, 463 U.S. 745, 750–54,
          103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). “Appellate
          counsel need not (and should not) raise every nonfrivolous
          claim, but rather may select from among them in order to
          maximize the likelihood of success on appeal.” Id. at 950–
          51 (quoting [Smith v.] Robbins, 528 U.S. [259,] 288
          [(2000)]…).

       Id. at [471]. … [Attorney Shahen] indicated at the evidentiary
       hearing that he had considered[,] in deciding not to raise on
       direct appeal the issue of sufficiency of the evidence on
       [Appellant’s] receiving stolen property charge, case law and a
       quote by Judge Aldisert that too many issues on appeal detracts
       from the process of review.          The most recent applicable
       Pennsylvania Supreme Court case at the time [of counsel’s
       decision], which this [c]ourt cited in its [July 14, 2016 o]pinion,
       was the case of Com[monwealth] v. Jones, … 815 A.2d 598
       ([Pa.] 2002). Jones held that counsel may reasonably forego
       even claims with merit as part of a strategic decision. Id. at …
       613 [(stating that, “as the U.S. Supreme Court has recognized,
       appellate counsel is not constitutionally obliged to raise every
       conceivable claim for relief. Counsel may forego even arguably
       meritorious issues in favor of claims which, in the exercise of
       counsel’s objectively reasonable professional judgment, offered a
       greater prospect of securing relief”) (citation omitted)]. The
       decision in Jones was…, however, only a plurality opinion.
       Williams, on the other hand, now commands a majority of the
       Court and so is binding precedent which further supports the
       [c]ourt’s analysis that [Attorney Shahen’s] decision not to raise
       [this specific sufficiency] issue on appeal was part of a
       reasonable strategic decision which defeats [Appellant’s] claim of
       ineffective assistance. Indeed, given the fact that [Appellant’s]
       aggregate sentence in this case would not have been affected
       even if [he] had been successful on appeal on that issue,[1] the
       [c]ourt can well understand [Attorney Shahen’s] strategy in

____________________________________________


1
  Appellant received a concurrent term of incarceration for his receiving
stolen property offense.



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      deciding not to pursue that claim on appeal where it might …
      only detract from more important issues.

PCRA Court Opinion, 9/19/16, at 3-4 (some citations omitted).

      In attacking the PCRA court’s rationale, Appellant claims that Attorney

Shahen never testified at the PCRA hearing that he made a strategic decision

not to include the at-issue sufficiency claim on direct appeal. The same was

true in Williams, and led to our Supreme Court’s concluding that appellate

counsel in that case did not express a reasonable basis for failing to raise a

particular claim on appeal. See Williams, 141 A.3d at 471 (concluding that

counsel failed to state a reasonable basis where “appellate counsel did not

testify that he made a reasoned decision to exclude [the] particular claim …

in an effort to winnow down his arguments to those that had the highest

chance for success on appeal”). Instead, the attorney in Williams “testified

that he had no independent recollection regarding the issues he raised on

appeal or why he chose the issues he raised….” Id.

      We disagree with Appellant that Attorney Shahen’s PCRA hearing

testimony was similar to the attorney’s testimony in Williams.        Attorney

Shahen specifically testified that when deciding on what issues to present in

Appellant’s direct appeal, he recalled considering the following, oft-quoted

remark by Judge Ruggiero Aldisert:

      With a decade and a half of federal appellate court experience
      behind me, I can say that even when we reverse a trial court it
      is rare that a brief successfully demonstrates that the trial court
      committed more than one or two reversible errors.... [W]hen I
      read an appellant's brief that contains ten or twelve points, a
      presumption arises that there is no merit to any of them. I do
      not say that this is an irrebuttable presumption, but it is a

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       presumption nevertheless that reduces the effectiveness of
       appellate advocacy. Appellate advocacy is measured by
       effectiveness, not loquaciousness.

Commonwealth v. Showers, 782 A.2d 1010, 1016 (Pa. Super. 2001)

(internal citations omitted).          See also PCRA Hearing, 5/2/16, at 23

(counsel’s testifying that he considered the above stated quote by Judge

Aldisert in deciding what issues to raise in Appellant’s appeal).

       Attorney Shahen also testified that in his experience, challenges to the

sufficiency of the evidence are “hard to win.”          PCRA Hearing at 24.

Nevertheless, he did challenge the sufficiency of the evidence to prove the

possessory element of Appellant’s receiving stolen property and firearm

convictions on direct appeal.2 Counsel explained that he chose to raise this

sufficiency-of-the-evidence claim because the primary defense at trial was

that Appellant did not possess the firearm found in the car.        Id. at 26.

Considering the Judge Aldisert quote, Attorney Shahen did not want to raise

an additional claim that Appellant did not know the gun was stolen. Id. at

23, 25.


____________________________________________


2
  Attorney Shahen also raised two other issues on direct appeal, a challenge
to the weight of the evidence to support Appellant’s PWID conviction, and a
claim that the court erred by qualifying Robert Kukosky, of the DNA crime
lab, as an expert witness. See Williams, No. 527 WDA 2014, unpublished
memorandum at 6. Appellant does not argue that these claims, or the
sufficiency challenge to the possessory element of his receiving stolen
property and firearm offenses, were weaker than a challenge to the
sufficiency of the evidence to prove the ‘guilty knowledge’ element of
receiving stolen property.



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      In view of this testimony, we conclude that the record supports the

PCRA court’s determination that Attorney Shahen strategically chose to omit,

on   direct    appeal,   a   sufficiency-of-the-evidence   claim   pertaining   to

Appellant’s knowledge that the gun was stolen.        We further conclude that

Jones and Williams support the PCRA court’s decision that Attorney

Shahen’s strategy was reasonable.         Thus, Appellant’s first IAC claim is

meritless.

      Next, Appellant takes issue with Attorney Shahen’s failure to object to,

or request, four specific jury instructions.    Notably, in three of Appellant’s

jury-instruction claims, he argues that Attorney Shahen was ineffective for

not requesting specific instructions that Appellant’s current counsel has

created. We fail to see how we could deem Attorney Shahen ineffective for

not requesting instructions that are the product of current counsel’s

imagination.    In any event, however, we conclude that the well-reasoned

opinion of the Honorable Kim Tesla of the Court of Common Pleas of Beaver

County accurately disposes of Appellant’s arguments that Attorney Shahen

acted ineffectively by failing to request certain jury instructions. See PCRA

Court Opinion, 7/14/16, at 21-25.         Accordingly, we adopt Judge Tesla’s

opinion as our own, and conclude that Appellant’s second IAC issue is

meritless on that basis.

      Lastly, Appellant contends that Attorney Shahen was ineffective for not

objecting when the trial court permitted the jury to review certain expert

reports during deliberations.       Appellant focuses his argument on one

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particular report, the expert report regarding the DNA found on the gun in

this case. Essentially, Appellant avers that allowing the jury to possess this

report - which contained “astronomical percentages that [Appellant’s] DNA

was on the stolen firearm” - weakened his defense that Slappy possessed

the firearm.    Appellant’s Brief at 31 (“Gaining an admission [during the

cross-examination of the DNA expert] that [Slappy] could have possessed

the firearm even though his DNA was not on it did not, and could not,

address the finding that [Appellant’s] DNA was found on the firearm.

Allowing the jury to possess the DNA Report with those astronomical

percentages of [Appellant’s] DNA on it and therefore possessing it cannot be

justified as effective under any circumstance.”).

      Appellant’s argument is unconvincing.         At trial, the DNA expert

testified that the probability that the DNA found on the gun matched

someone other than Appellant was “1 in 110 sextillion within the Caucasian

population[,]” and “[1] in 3.9 quintillion” out of the African-American

population.    N.T. Trial, 9/9/13, at 70.    Thus, the jury heard the same

numbers that were contained in the expert report that the court permitted

them to review during deliberations. Moreover, Appellant conceded that his

DNA was on the firearm, explaining that he had touched the weapon after

Slappy threw it on his lap and he picked it up to throw it back. N.T. Trial,

9/9/13, at 175-177.       In closing arguments, Attorney Shahen again

acknowledged that Appellant’s DNA was on the weapon, and argued that the

DNA was there because Appellant had touched the weapon when throwing it

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back at Slappy. See N.T. Trial, 9/10/13, at 62.     Counsel further stressed

that, on cross-examination, the DNA expert had admitted that “the lack of

DNA [from Slappy] did not mean that … Slappy[] did not handle the

firearm.” Id.

      In light of this testimony and argument by Attorney Shahen, we fail to

see how Appellant was prejudiced by the jury’s having, during deliberations,

a report that stated the ‘astronomical percentages’ regarding the probability

that it was Appellant’s DNA on the firearm.     The jury heard those same

numbers during the DNA expert’s testimony, and Appellant conceded that

his DNA was on the weapon. Therefore, Appellant has not demonstrated he

was prejudiced when Attorney Shahen did not object to the jury’s reviewing

the DNA expert’s report during deliberations.

      In sum, we agree with the PCRA court that Appellant’s three IAC

claims are meritless.     Accordingly, the court did not err in denying his

petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2017



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