Com. v. Shields, E. ( 2018 )

J-S62021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERROL SHIELDS :
:
Appellant : No. 3321 EDA 2016
Appeal from the PCRA Order Entered September 29, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009551-2009
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 19, 2018
Errol Shields appeals from the order entered September 29, 2016,
dismissing his petition for collateral relief filed under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. As the PCRA court correctly
determined that Shields’ claims of ineffective assistance of counsel are without
merit, we affirm.
We have previously stated the underlying facts as follows:
On June 18, 2009, around 11:00 p.m., Braheem Bailey (Victim),
answered the front door to his home on South 52nd Street in
Philadelphia and was shot in the neck by two men. Police and
paramedics responded immediately. Victim initially refused
medical attention, but was eventually convinced to go to the
hospital due to the life-threatening nature of his injury. At the
hospital, Victim described the shooting to police, but was unwilling
to identify the individuals who shot him.
The day after the shooting, Victim gave a statement to homicide
detectives wherein he identified Maliek Stroud and [Shields] as
the shooters. Victim, a drug dealer, indicated that he was in a
long-running territorial dispute with Stroud and that Stroud and
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[Shields] shot him because Victim refused to stop dealing drugs
on Stroud’s “turf.” Victim identified both Stroud and [Shields] from
approximately 130 photographs provided to him by police. Victim
signed the photographs and his statement. [Shields] was
subsequently arrested for his involvement in the shooting and
charged …. Stroud was also arrested and charged.
[Shields’] case was joined with Stroud’s and both proceeded to
jury selection on May 18, 2010. After the jury was empaneled,
Stroud decided to plead guilty. [Shields] immediately moved for a
new jury. This request was denied by the trial court. [Shields’]
case proceeded to trial with the previously-selected jury.
At trial, Victim recanted his statement insofar as it implicated
[Shields]. Victim testified that he lied to homicide detectives
regarding [Shields’] alleged involvement in the shooting and
refused to make an in-court identification of [Shields].
Nonetheless, the jury found [Shields] guilty of criminal conspiracy
to commit homicide, aggravated assault, criminal conspiracy to
commit aggravated assault, prohibited possession of a firearm,
and possession of a firearm without a license.[1]
On July 20, 2010, [Shields] was sentenced to an aggregate term
of twelve to twenty-five years’ incarceration. [Shields] timely filed
a post[-]sentence motion challenging the sufficiency and weight
of the evidence, and alleging a due process violation based on the
trial court’s refusal to empanel a new jury after Stroud pled guilty.
The trial court denied [Shields’] motion on July 30, 2010.
Commonwealth v. Shields, 69 A.3d 1299, at *1 (Pa.Super. 2013)
(unpublished memorandum). Shields timely appealed, and this Court affirmed
the judgment of sentence. Id. at *9. Shields did not seek further appellate
review.
In May 2013, Shields pro se filed a petition for collateral relief. PCRA
Petition, 05/29/2013. Counsel was appointed and filed an amended petition in
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1 18 Pa.C.S. §§ 903 (2502(a)), 2702(a), 903 (2702(a)), 6105, and 6106,
respectively.
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March 2015, asserting ineffective assistance of counsel. Amended PCRA
Petition, 03/06/2015, at 3. The PCRA court conducted a hearing in January
2016. Thereafter, in September 2016, the court issued an order from the
bench dismissing Shields’ petition. See Notes of Testimony (N.T.), September
29, 2016, at 3.
Shields timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The PCRA court issued a responsive opinion. See PCRA Court
Opinion, filed December 11, 2017.
Shields raises the following issues on appeal:
[1.] Whether the [c]ourt erred in denying [Shields’] PCRA petition
without an evidentiary hearing on the [sic] all of the issues raised
in the amended PCRA petition regarding [c]ounsel’s
ineffectiveness.
[2.] Whether the [c]ourt erred in not granting relief on the PCRA
petition alleging prior [c]ounsel was ineffective.
Shields’ Br. at 8 (emphasis in original).
Shields asserts three claims that his prior counsel, Derrick Coker, Esq.,
who represented him at both the trial and direct appeal stages, was
ineffective. According to Shields, counsel was ineffective for: (1) failing to
interview or investigate alibi witnesses; (2) failing to preserve an appellate
claim that the trial court erred in admitting evidence of his co-conspirator’s
prior bad acts; and (3) failing to preserve an appellate claim challenging
discretionary aspects of his sentence. See Shields’ Br. at 17, 20, 21. In
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addition, Shields asserts that the PCRA court erred in limiting its evidentiary
hearing to the first of these claims. Id. at 15.2
We review an order denying a petition under the PCRA to determine
whether the findings of the PCRA court are supported by record evidence and
free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.
2007). We afford the court’s factual findings deference unless there is no
support for them in the certified record. Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa.Super. 2012) (citing Commonwealth v. Anderson, 995 A.2d
1184, 1189 (Pa.Super. 2010)). Further, we may affirm the PCRA court’s
decision on any grounds if the record supports it. See Commonwealth v.
Reed, 107 A.3d 137, 140 (Pa.Super. 2014).
Shields asserts that his prior counsel was ineffective. To be eligible for
relief for an ineffectiveness claim, a petitioner must establish that counsel’s
deficient performance “so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.” 42
Pa.C.S.A. § 9543(a)(2)(ii). We presume counsel is effective.
Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To overcome this
presumption, a petitioner must establish that: (1) the underlying claim has
arguable merit; (2) counsel lacked a reasonable basis for his act or omission;
and (3) petitioner suffered actual prejudice. Commonwealth v. Treiber, 121
A.3d 435, 445 (Pa. 2015). In order to establish prejudice, a petitioner must
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2 For ease of analysis, we will address the court’s decision to limit the
evidentiary hearing in the context of Shields’ substantive claims.
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demonstrate “that there is a reasonable probability that, but for counsel's
error or omission, the result of the proceeding would have been different.”
Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). A claim will be
denied if the petitioner fails to meet any one of these prongs. See
Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.Super. 2016) (citing
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)). In particular, it
is well settled that “[c]ounsel cannot be deemed ineffective for failing to
pursue a meritless claim.” Commonwealth v. Loner, 836 A.2d 125, 132
(Pa.Super. 2003) (en banc).
The PCRA court did not grant Shields an evidentiary hearing on his
second and third claims of ineffective assistance. There is no absolute right to
an evidentiary hearing. See Commonwealth v. Springer, 961 A.2d 1262,
1264 (Pa. Super. 2008). “[T]o entitle himself to a hearing, [a petitioner] must
raise an issue of fact, which, if resolved in his favor, would justify relief.”
Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013) (citation
omitted). On appeal, we examine the issues raised in light of the record “to
determine whether the PCRA court erred in concluding that there were no
genuine issues of material fact and denying relief without an evidentiary
hearing.” Springer, 961 A.2d at 1264.
In his first claim, Shields asserts that counsel was ineffective for failing
to interview or investigate two witnesses, Danielle Mitchell and Barbara
Mitchell, to support an alibi defense. See Shields’ Br. at 17-20. “A claim that
trial counsel did not conduct an investigation or interview known witnesses
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presents an issue of arguable merit where the record demonstrates that
counsel did not perform an investigation. Commonwealth v. Stewart, 84
A.3d 701, 712 (Pa.Super. 2013) (citing, inter alia, Commonwealth v. Perry,
644 A.2d 705 (Pa. 1994); Commonwealth v. Jones, 437 A.2d 958 (Pa.
1991)).3
In considering this claim, the PCRA court reasoned as follows:
Here, the claims of [Shields] that … counsel was ineffective for
failing to call alibi witnesses are without merit. Although the
potential alibi witnesses existed, were available and, perhaps,
willing to testify for the defense, … counsel was not informed and
could not have been aware of these witnesses’ existence. By
[Shields’] own admission, he did not disclose the names of the
witnesses to his own counsel. The witnesses were not in contact
with the police and made no assertive effort to speak with
[counsel]. It becomes difficult to imagine how [counsel] would be
expected to know of the witness[es’] existence when they are not
listed in police reports, [Shields] himself does not provide names
or contact information, and the witnesses themselves did not
make any meaningful attempt to reach out to … counsel.
PCRA Ct. Op. at 11-12.
The PCRA court’s analysis is supported by the record. See generally
Notes of Testimony (N.T.), 01/20/2016, at 4-71. In particular, Shields
conceded that he never identified any alibi witnesses for his counsel. Id. at
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3 As noted by Shields, “[n]eglecting to call a witness differs from failing to
investigate a witness.” Shields’ Br. at 18 (citing Commonwealth v. Dennis,
950 A.2d 945, 960 (Pa. 2008)); see also, e.g., Simpson, 66 A.3d at 271
(outlining the requirements to establish a claim that counsel was ineffective
for failing to call witnesses).
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10. As counsel was unaware of any potential alibi witnesses prior to trial,
Shields’ claim is without arguable merit. See Stewart, 84 A.3d at 712.
In his second claim, Shields asserts that counsel was ineffective for
failing to preserve an appellate claim that the trial court had erred in admitting
evidence of his co-conspirator’s prior bad acts. See Shields’ Br. at 20-21.4
According to Shields, evidence of Stroud’s territorial disputes with the Victim
were “prejudicial” and “likely persuaded the jury to convict [Shields].” Id. at
20. Shields suggests that counsel’s error was particularly egregious because
co-conspirator Stroud had already pleaded guilty. Id. at 21.
The admissibility of evidence is left to the sound discretion of the trial
court, and we will not disturb the court’s decision absent an abuse of that
discretion. See Commonwealth v. Lynn, 192 A.3d 165, 169 (Pa.Super.
2018). In this context, “[a]n abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.” Id.(citation omitted).
Though generally prohibited, evidence of prior bad acts may be
admissible to demonstrate “motive, opportunity, intent, preparation, plan,
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4 Prior counsel challenged the admission of this evidence before the trial court.
See Shields’ Br. at 12; Post-Sentence Motion, 07/30/2010, at 2. Thereafter,
counsel sought to raise this claim on direct appeal. Shields, 69 A.3d 1299, at
*3. We deemed it waived for failure to preserve it in a Pa.R.A.P. 1925(b)
statement. Id.-7-
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knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.
404(b)(2). This list of permissible grounds for admissibility is not exclusive.
For example, our Supreme Court has also recognized the res gestae exception,
“which allows admission of other crimes evidence when relevant to furnish the
context or complete story of the events surrounding a crime.”
Commonwealth v. Williams, 936 A.2d 12, 31 (Pa. 2007) (citations
omitted).
If there are grounds to admit evidence of prior bad acts, the court must
balance its probative value against its potential for unfair prejudice. See
Pa.R.E. 404(b)(2). “[U]nfair prejudice means a tendency to suggest decision
on an improper basis or to divert the jury’s attention away from its duty of
weighing the evidence impartially.” Lynn, 192 A.3d at 170 (quoting
Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007)).
Here, the trial court admitted a statement from the victim suggesting
that he and Stroud were involved in an ongoing dispute over drug territory.
See Shields, 69 A.3d 1299, at *1. This evidence was highly probative; not
only did it help establish a motive for the attempted murder, it was also
relevant to provide context to the events surrounding Shields’ crimes. See
Williams, 936 A.2d at 31; Pa.R.E. 404(b)(2). Moreover, as noted by the
PCRA court, this evidence did not directly implicate Shields in past criminal
conduct, nor was it graphic or inflammatory. See PCRA Ct. Op. at 6-7. Thus,
we agree with the PCRA court’s conclusion that Shields did not suffer unfair
prejudice by its admission. See id. at 7.
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We also reject Shields’ assertion that this evidence was inadmissible
because Stroud had pleaded guilty prior to Shields’ trial. Shields was charged
with conspiracy. Therefore, evidence of Stroud’s ongoing dispute with the
victim explained why Stroud would enlist another in confronting the victim.
See Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)
(“The conduct of the parties and the circumstances surrounding their conduct”
are relevant). Accordingly, Shields’ second claim is without merit.
Further, we discern no genuine issue of material fact relevant to this
claim that would require an evidentiary hearing, nor does Shields identify one.
See Shields’ Br. at 15-16. Accordingly, the PCRA court did not err when it
denied Shields relief without an evidentiary hearing. See Simpson, 66 A.3d
at 261; Springer, 961 A.2d at 1264.
In his third claim, Shields asserts that counsel was ineffective for failing
to preserve an appellate claim challenging discretionary aspects of his
sentence. See Shields’ Br. at 21-26.5 Shields suggests several bases for such
a challenge. According to Shields, there was a lack of evidence that he inflicted
serious bodily injury. Id. at 22. In a related argument, Shields also suggests
that “the sentencing court impermissibly relied on [Shields’] alleged
involvement in [Victim’s] shooting, which he was not found guilty of [sic].”
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5 Shields sought to challenge discretionary aspects of his sentence on direct
appeal. Shields, 69 A.3d 1299, at *3-4. However, we found the claim waived
for failure to preserve it in a Pa.R.A.P. 2119(f) statement. Id.-9-
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Id. at 25. Finally, according to Shields, the sentencing court failed to
adequately assess evidence that he is capable of rehabilitation. Id. at 24-25.
We summarily reject Shields’ suggestion that evidence adduced at trial
failed to establish that Victim suffered a serious bodily injury. See Shields,
69 A.3d 1299, at *3 n.3 (adopting trial court’s assessment that “the jury
convicted [Shields] of aggravated assault and the infliction of serious bodily
injury was an element of the crime.”). Moreover, Shields’ related argument—
that the sentencing court impermissibly relied on Shields’ involvement in the
attempted murder—is devoid of merit. The record is quite clear that Shields
was not acquitted of the charges against him. Id.As for Shields’ remaining sentencing claim, we briefly note the following.
Before reviewing the merits of any challenge to discretionary aspects of a
sentence, we must determine whether an appellant has raised a substantial
question that the sentence imposed is inappropriate under the sentencing
code. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). Here,
Shields suggests the sentencing court “failed to adequately assess” certain
mitigating facts indicative of his propensity for rehabilitation. See Shields’ Br.
at 24-25 (noting his desire to be a parent to his children, his absent parents,
and a supportive girlfriend). As noted by the PCRA court, we have determined
previously that such claims do not raise a substantial question. See PCRA Ct.
Op. at 8 (citing Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.Super.
2010)); see also, e.g., Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.
Super. 2013) (noting claim that court failed to consider mitigating factors does
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not raise a substantial question, especially where court had benefit of
presentence investigation report). Accordingly, Shields’ third claim is without
merit. Moreover, no evidentiary hearing was necessary to ascertain its merits.
See Simpson, 66 A.3d at 261; Springer, 961 A.2d at 1264.
For these reasons, Shields’ claims of ineffective assistance of counsel
are meritless. Accordingly, he is entitled to no relief. Loner, 836 A.2d at 132.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/18
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