Com. v. Shields, K. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
KENNY R. R. SHIELDS : No. 3690 EDA 2018
Appeal from the Order Entered December 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): Cp-51-CR-0002482-2008
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 4, 2020
The Commonwealth appeals the order granting Kenny R. R. Shields
relief under the Post Conviction Relief Act (“PCRA”) in the form of a new trial.1
The Commonwealth argues the PCRA court did not apply the appropriate
standard in determining Shields had been deprived his right to effective
assistance of trial counsel. We reverse and remand.
The Commonwealth charged Shields in 2006 with first-degree murder2
and related offenses for his involvement in the shooting death of Thomas
Faison, and gave notice of intent to pursue the death penalty. The trial court
appointed James S. Bruno to represent Shields. Approximately two weeks
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1 See 42 Pa.C.S.A. §§ 9541-9545.
2 18 Pa.C.S.A. § 2502(a).
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before trial, the Commonwealth withdrew its notice of intent to seek the death
penalty.
Shields was tried before a jury along with two co-defendants: Maurice
Lewis and Stephon Bennett. The Commonwealth presented evidence that in
December 2005, Shields, Lewis, and Bennett went to Faison’s house,
intending to rob him. During the confrontation, Lewis was shot in the stomach,
and Faison was shot in the hand and chest and died. Lewis and Shields fled,
and reported to police that they had been robbed after getting off a bus and
Lewis had been shot during the robbery. However, at Faison’s house, police
found a jacket with bullet holes and blood that matched Lewis’s DNA.
The Commonwealth introduced statements that Shields, Lewis, and
Bennett made to the police, in which they admitted to being involved in the
plan to rob Faison but blamed the shooting on one another. The
Commonwealth also introduced witness statements relating Shields’
incriminating statements.
The Commonwealth was unable to locate one witness, Sabrina Clyburn,
for trial, and thus introduced her testimony via the transcripts of the
preliminary hearings. Clyburn had testified that before the shooting she was
walking with three girlfriends, including Katrina Shiver, to a store. As they
were walking, she overheard Shields, Lewis, and Bennett, who were walking
fifteen feet behind her, discussing robbing Faison. After she left the store,
Clyburn, alone, walked by Faison’s house, where she saw Shields, Lewis, and
Bennett, standing outside, wearing masks and gloves. Clyburn saw Lewis
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enter the house, and heard sounds of an argument and a gunshot. She saw
Shields and Bennett run into the house, and heard a second gunshot. She
then ran away from the house. At trial, Shiver testified in rebuttal that she
had not been with Clyburn that evening.
The court conducted a colloquy on Shields’ decision not to testify.
Shields stated in open court that he understood he had the right to testify, he
had discussed his decision not to testify with Attorney Bruno, and he was
satisfied with Attorney Bruno’s advice and representation.
The jury found Shields guilty, and the court sentenced Shields to serve
life imprisonment without the possibility of parole. We affirmed Shields’
judgment of sentence, and the Supreme Court of Pennsylvania denied review.
Shields timely filed the subject, pro se PCRA Petition. The court
appointed counsel, who filed an Amended Petition. In the Amended Petition,
counsel argued that Shields was deprived of his right to assistance of counsel
during trial, alleging Attorney Bruno had no communication with Shields until
the day of his trial, and failed to conduct a pretrial investigation or prepare a
defense.3
The PCRA court held an evidentiary hearing, at which Shields and
Attorney Bruno testified. Shields testified that Attorney Bruno had not met or
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3 PCRA counsel later filed a no-merit letter, stating his belief that Attorney
Bruno’s actions had not prejudiced Shields. See Letter, 5/24/18. However,
PCRA counsel did not request to withdraw from representation, and continued
to represent Shields throughout the PCRA proceedings. See N.T., 10/31/18,
at 41.
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spoken with him before the preliminary hearing, when they met inside the
courtroom. Shields said he had sent multiple letters to Attorney Bruno, and
called him, but did not hear from Attorney Bruno again until trial. He also
stated that Attorney Bruno did not give him a copy of the discovery file or the
transcript of the preliminary hearing until jury selection began, and Shields
was still reviewing discovery during trial. Shields further stated that Attorney
Bruno did not tell him before trial that he would be tried with co-defendants,
or that he had been facing the death penalty. Shields testified he met with
Attorney Bruno three or four times in the consultation booth during jury
selection and trial. See N.T., 8/21/18 at 53.
Regarding trial preparation and performance, Shields said he believed
that Attorney Bruno should have investigated certain witnesses and cross-
examined some Commonwealth witnesses on specific points. Among other
things, Shields claimed that Attorney Bruno had not attempted to investigate
as potential witnesses the women with whom Clyburn had said she was
walking before the shooting, or the owner of the store Clyburn claimed to have
been in.
Shields also testified that Attorney Bruno did not communicate the
Commonwealth’s offer for a plea deal until jury selection began. Shields stated
that when he asked Attorney Bruno whether he should take the
Commonwealth’s offer of a 20-40 year sentence, Attorney Bruno simply
replied, “We got this.” N.T., 10/31/18, at 13. Shields testified that if he had
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known what evidence the Commonwealth was intending to put forth at trial,
he would have taken the offer and pled guilty.
In addition, Shields testified at the PCRA hearing that Attorney Bruno
did not discuss with him his right to testify at trial until “right before” the
court’s colloquy. N.T., 8/21/18, at 54. Shields stated that he had not
understood his right to testify, and that he had wanted to take the stand at
trial. Shields stated he would have testified at trial in accordance to his initial
statement to the police, and told the jury that he and Lewis had not
participated in Faison’s death, but had been robbed that night. Shields
acknowledged he had not told Attorney Bruno that he had wanted to testify.
Shields also admitted that during the colloquy, he told the court he did not
want to testify, and that he had an opportunity to discuss his decision with
Attorney Bruno. Shields agreed that if he had testified, the Commonwealth
would have cross-examined him regarding a previous incident of assault.
Attorney Bruno testified that although it was his general practice to meet
with clients between the preliminary hearing and trial, he could not specifically
remember whether he met with Shields between his preliminary hearing and
trial. Attorney Bruno also could not remember whether he spoke to Shields on
the telephone before trial, but recalled that he frequently spoke to Shields’
mother. Attorney Bruno testified it was his practice to send his clients
discovery, he believed he had sent discovery to Shields before trial, and he
recalled having given it to Shields’ mother. Attorney Bruno stated that he did
remember meeting with Shields on the day of the preliminary hearing, and
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each day of the four days of jury selection and trial. During that time, they
went through discovery and discussed potential witnesses.
Regarding his trial strategy, Attorney Bruno explained that he had
attempted to show that the Commonwealth witnesses were not credible,
blame the murder on the co-defendants, and emphasize that there was no
physical evidence linking Shields to the shooting. Attorney Bruno testified that
prior to trial, he litigated a motion to suppress Shields’ self-incriminating
statement to the police, and convinced the Commonwealth not to seek the
death penalty. Attorney Bruno recalled he had objected to the admission of
Clyburn’s preliminary hearing testimony, and called Shiver as a witness to
rebut her testimony. Attorney Bruno testified that he discussed with Shields
whether he wanted to testify at trial, and recalled that it was the trial court’s
practice to colloquy the defendants regarding their right to testify.
Shields’ PCRA counsel argued Shields had been deprived effective
assistance of counsel because Attorney Bruno had failed to send Shields
discovery and meet with him before trial. Shields’ counsel further argued that
due to Attorney Bruno’s failings, Shields did not have adequate opportunity to
accept a plea deal, and had not made a knowing, intelligent, and voluntary
decision to waive his right to testify. However, Shields’ counsel conceded that
he would not be “able to bring forth a witness that absolutely would contradict
the evidence which was put forth [against Shields].” N.T., 10/31/18, at 40.
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The PCRA court granted Shields a new trial. The PCRA court’s order
granting relief does not state the grounds for the court’s decision. The PCRA
court also announced its decision in open court, but stated only the following:
This is a troubling case for the following reason: Jim Bruno is a
fellow that I always had respect for, always, always, always, and
we all know Jim fell on hard times. I think those hard times,
unfortunately, affected his representation of the defendant in this
matter, and I am going to grant defendant a new trial.
N.T., 12/5/18, at 3.
The Commonwealth appealed, and presents the following question:
Did the PCRA court err by granting defendant new trial because it
opined that trial counsel’s handling of the case was affected by
personal issues where the court did not explain what actions or
inactions of counsel were “affected;” did not find prejudice; there
was compelling evidence of defendant’s guilt; and defendant’s
assertions of ineffectiveness were unsupported by evidence
and/or contradicted by the record?
Commonwealth’s Br. at 7.4
The Commonwealth argues that Commonwealth v. Brooks, 839 A.2d
245 (Pa. 2003), which addresses ineffectiveness based on failure to have a
pre-trial meeting with a defendant in a capital trial, does not apply to Shields’
non-capital case, and regardless, Attorney Bruno surpassed the minimal
amount of pre-trial contact required by Brooks and its progeny. The
Commonwealth argues Shields’ ineffectiveness claims were therefore subject
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4The judge who presided over Shields’ trial and PCRA proceedings retired,
and did not author a Rule 1925(a) opinion.
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to analysis under Strickland5 and the PCRA court erred in awarding Shields
a new trial without finding any specific conduct by Attorney Bruno prejudiced
Shields. According to the Commonwealth, Shields did not prove the alleged
failings by Attorney Bruno caused prejudice, given the compelling evidence of
guilt presented at trial, and the lack of contrary evidence presented at the
PCRA hearing. The Commonwealth adds that Shields did not prove the
Commonwealth extended a plea offer to him, and failed to examine Attorney
Bruno on that point. The Commonwealth further argues that Shields did not
tell Attorney Bruno he wanted to testify in his own defense, and told the trial
court during the colloquy that he had elected not to testify.
We review a PCRA court’s decision to grant relief to determine “whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Mason, 130
A.3d 601, 617 (Pa. 2015) (quoting Commonwealth v. Hanible, 30 A.3d 426,
438 (Pa. 2011)). We must view the PCRA court’s findings and the record
evidence in the light most favorable to the prevailing party, but “we apply a
de novo standard of review to the PCRA court’s legal conclusions.” Id. (quoting
Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013)).
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5 Strickland v. Washington, 466 U.S. 668 (1984); see also
Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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We conclude that, as a matter of law, Shields did not plead and prove
that he was deprived of the right to effective assistance of counsel,6 and the
PCRA court therefore erred in vacating Shields’ judgment of sentence. We first
consider Shields’ claim that he was deprived his right to effective assistance
of counsel because Attorney Bruno failed to meet with him or communicate
with him before trial. We agree with the Commonwealth that the standard set
forth in Brooks does not apply, because Shields was not facing the death
penalty.
In Brooks, the defendant claimed his counsel was ineffective for failing
to meet with him at all before his capital trial; counsel confirmed that he could
only recall having had one 20- to 30-minute telephone conversation with the
defendant prior to trial. Brooks had then waived his right to counsel and
represented himself at trial, and the jury had found him guilty. On appeal, the
Supreme Court vacated his conviction and death sentence, holding that
counsel had been ineffective for failing to meet with his client “even once
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6 As we have previously explained,
The Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defense.”
Moreover, Article I, Section 9 of the Pennsylvania Constitution
provides in relevant part that “[i]n all criminal prosecutions the
accused hath a right to be heard by himself and his counsel[.]”
The Pennsylvania Supreme Court has held that with respect to the
right to counsel, Article I, Section 9 provides the same level of
protection to criminal defendants as does the Sixth Amendment.
Commonwealth v. Brown, 145 A.3d 196, 198 n.2 (Pa.Super. 2016), appeal
granted.
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before his trial on capital charges.” Brooks, 839 A.2d at 250; see also id. at
249 n.7 (“[A]n attorney who does not meet in person with his client at all prior
to a capital trial simply cannot be deemed sufficiently prepared to defend his
client’s life”).
Brooks emphasized that its holding applied where the Commonwealth
sought to have the death penalty imposed:
Indeed, the very nature of a capital case, typically quite involved
and always subjecting the defendant to the possibility of death,
clearly necessitates at least one in-person meeting between a
lawyer and his client before trial begins. Without such a meeting,
there is little to no hope that the client will develop a fundamental
base of communication with his attorney, such that the client will
freely share important information and work comfortably with the
lawyer in developing a defense plan. Moreover, only a face-to-face
meeting allows an attorney to assess the client’s demeanor,
credibility, and the overall impression he might have on a jury.
This is of particular importance in cases in which the client may
take the stand in his defense or at the penalty phase in an attempt
to establish the existence of particular mitigating circumstances.
Id. at 249. The holding of Brooks thus applies only to those cases in which
the Commonwealth was pursuing the death penalty. See, e.g., Brown, 145
A.3d at 198 (reversing based on Brooks), appeal granted, 165 A.3d 868 (Pa.
2017), and discontinued, No. 6 EAP 2017 (filed April 18, 2017);
Commonwealth v. Johnson, 51 A.3d 237, 243-44 (Pa.Super. 2012) (en
banc) (distinguishing facts of Brooks).
As Shields was not facing the death penalty at the time of trial, his
ineffectiveness claims are subject to the Strickland standard. Shields had the
burden of establishing that there was “beneficial information or issues that
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counsel should have presented had he been prepared adequately, which would
have changed the outcome of the trial.” Commonwealth v. Elliott, 80 A.3d
415, 432 (Pa. 2013); see also Commonwealth v. Ligons, 971 A.2d 1125,
1137 (Pa. 2009) (stating that counsel is presumed effective, and it is a
petitioner’s burden to prove otherwise). To prove counsel ineffective for failing
to call a witness, Shields was required to show:
(1) that the witnesses existed; (2) that the witnesses were
available; (3) that counsel was informed of the existence of the
witnesses or should have known of the witnesses’ existence; (4)
that the witnesses were available and prepared to cooperate and
would have testified on [Shields’] behalf; and (5) that the absence
of the testimony prejudiced [Shields].
Commonwealth v. Pursell, 724 A.2d 293, 306 (Pa. 1999).
At the PCRA hearing, Shields argued that counsel failed to produce
certain witnesses or more successfully cross-examine certain witnesses.
However, Shields did not produce these witnesses at the PCRA hearing, or
even any other evidence, aside from his testimony, about the testimony he
claims those witnesses would have given. Even if we indulge in the assumption
that Shields established every other element of his ineffectiveness claims, he
failed to establish prejudice, i.e., that there was a reasonable probability that
if there had been additional questioning or witnesses presented by Attorney
Bruno, the jury would not have found him guilty. This is particularly so given
the amount of evidence introduced against him at trial, including Clyburn’s
eyewitness testimony, several accounts of Shields’ self-incriminating
statements, and the fact that the blood on the jacket found at the crime scene
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belonged to Lewis, whom Shields said he was with that night. Shields’ PCRA
counsel even admitted during argument that he was unable to produce
evidence that would have changed the outcome of trial.
Without establishing prejudice, the claims related to Attorney Bruno’s
failure to meet with Shields or prepare for trial cannot provide the basis for a
finding of ineffectiveness. We therefore hold that insofar as the PCRA court
granted relief on the basis that Attorney Bruno failed to meet with Shields,
the trial court erred.
We turn to Shields’ argument that counsel was ineffective for failing to
more thoroughly discuss the details of the case when communicating the
Commonwealth’s offer of a plea deal. “[C]ounsel has a duty to explain the
relative advantages and disadvantages of accepting or rejecting a plea offer
and . . . failure to do so may render counsel ineffective.” Commonwealth v.
Lewis, 708 A.2d 497, 501 (Pa.Super. 1998). The Strickland test governs
whether a defendant’s right to effective assistance of counsel during the plea
bargaining process has been denied. Commonwealth v. Feliciano, 69 A.3d
1270, 1276 (Pa.Super. 2013). Where the defendant rejected a plea offer, he
must show prejudice by establishing that were it not for the ineffective advice,
there is a reasonable probability that he would have accepted the offer, the
Commonwealth would not have withdrawn it, and the court would have
accepted the terms and imposed a sentence that was less severe than the
sentence that was actually imposed. Id. at 1276-77.
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At the PCRA hearing, Shields testified that Attorney Bruno
communicated the Commonwealth’s offer to him, but did not adequately
discuss the Commonwealth’s evidence against him and advised him not to
accept the offer because, as Shields claimed Attorney Bruno put it, “We got
this.” N.T., 10/31/18, at 13. However, Shields did not present any evidence
at the PCRA hearing that if he had accepted the alleged offer, the
Commonwealth would not have withdrawn it, or that the court would have
accepted the terms of the offer. Feliciano, 69 A.3d at 1276-77. Shields also
failed to question Attorney Bruno regarding what advice he gave Shields
regarding an offer, and his reason for that advice. A court should not find
counsel ineffective if counsel has not been given the opportunity to explain
whether there was a strategic basis for his action or inaction, unless the record
plainly belies any rational reason. See Hanible, 30 A.3d at 442;
Commonwealth v. Postie, 200 A.3d 1015, 1023 (Pa.Super. 2018) (en
banc). As Shields failed to put forth evidence regarding the reasonable basis
or prejudice aspects of his claim, the record does not support a finding of
ineffectiveness in relation to the alleged plea offer.
Finally, we consider Shields’ argument that Attorney Bruno provided
ineffective assistance when advising Shields not to testify. To support such a
claim, the defendant “must demonstrate either that counsel interfered with
his right to testify, or that counsel gave specific advice so unreasonable as to
vitiate a knowing and intelligent decision to testify on his own behalf.”
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000). The waiver of
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a constitutional right is knowing and intelligent when the defendant is “aware
of both the nature of the constitutional right and the risk of forfeiting the
same.” Commonwealth v. Szekeresh, 515 A.2d 605, 607 (Pa.Super. 1986).
Prejudice in this context means that but for counsel’s ineffectiveness, the
defendant would have made a different decision as to whether to testify.
Commonwealth v. Walker, 110 A.3d 1000, 1005 (Pa.Super. 2015).
Shields asserted that Attorney Bruno did not discuss his right to testify
until immediately before the court’s colloquy, and that he had not fully
understood his right to testify. However, at trial, Shields stated under oath
and in open court that he understood his right to testify. See N.T., 1/7/18, at
133-35. He cannot now contradict that statement. See Commonwealth v.
Lawson, 762 A.2d 753, 755 (Pa.Super. 2000) (“[A] defendant who made a
knowing, voluntary, intelligent waiver of testimony may not later claim
ineffective assistance of counsel for failure to testify”). Further, the colloquy
occurred after the Commonwealth had rested, and Shields had seen the full
extent of the evidence against him, which controverts his argument that he
would have testified if he had understood the magnitude of the
Commonwealth’s case. Shields also stated at the PCRA hearing that he never
told Attorney Bruno that he wanted to testify.
Therefore, Shields’ claims that he did not understand his rights are
belied by the record, and there is no support for a conclusion that Attorney
Bruno interfered with Shields’ ability to testify, or gave him advice that
rendered his waiver unknowing or unintelligent. Moreover, Shields did not
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question Attorney Bruno regarding his advice on this point, and we cannot
presume Attorney Bruno would have had no basis for advising Shields not to
testify. Hanible, 30 A.3d at 442; Postie, 200 A.3d at 1023.
As the record does not support a finding of ineffectiveness, we reverse
the order granting relief, and remand for the PCRA court to reinstate Shields’
judgment of sentence.
Order reversed. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/04/2020
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