Com. v. Reid, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
KAYREE REID :
:
Appellant : No. 373 EDA 2020
Appeal from the PCRA Order Entered November 13, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000144-2016
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 18, 2020
Kayree Reid (Appellant) appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his first petition filed
pursuant to the Post Conviction Relief Act (PCRA),1 seeking collateral relief
from his jury convictions of third-degree murder, possession of an instrument
of crime (PIC), recklessly endangering another person (REAP), and carrying a
firearm without a license,2 and his guilty plea to one count of possession of a
firearm by person prohibited.3 Appellant argues trial counsel was ineffective
for failing to request a slow motion/zoom analysis of surveillance video, which
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 2502(c), 907, 2705, 6106.
3 18 Pa.C.S. § 6105.
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he maintains would have supported his claim of self-defense. For the reasons
below, we affirm.
The relevant facts underlying this appeal were summarized by the PCRA
court as follows:
On November 10, 2015, at approximately 8:25 a.m.,
[Appellant] walked into the J&R Perez Grocery Store at 742 North
38th Street to purchase cigarettes. Inside, Mary Johnson
operated the store’s register as twin five-year-olds J.W. and
Jo.W[.] and their twelve year old brother R.J. browsed the aisles.
Near the front entrance sat the decedent, Maurice McDonald,
looking at his cell phone. Upon seeing the decedent, [Appellant]
drew a 10 mm Glock pistol and shot him four times, killing him.
As [Appellant] fired upon the decedent, the decedent
attempted to lunge away from the projectiles, and dove towards
the children. As the decedent moved, [Appellant] continued firing
in the direction of both the decedent and the children. One
projectile struck the backpack J.W. wore, while another struck a
shelf, inches from her head.
At 8:50 a.m., Officer Tanya Wright responded to a radio call
for a person with a gun at 742 North 38th Street, entered the J&R
Perez Grocery, and discovered the unresponsive decedent
crumpled on the floor with no weapons nearby. Officer Wright
placed the decedent in a police vehicle to transfer him to the
hospital, where he was pronounced dead.
* * *
Jacqueline Davis of the Philadelphia Crime Scene Unit
examined the crime scene and discovered three fired cartridge
casings (FCCs) and multiple lead fragments. Davis never
recovered the decedent’s phone or any firearm in the grocery.
* * *
Detective James Dunlap accessed the digital recorder
located at the grocery store and recovered footage from ten active
cameras. The recovered footage depicted the decedent sitting
near the front entrance of the store as two children walked in.
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Moments later, [Appellant] entered the store, looked at the
decedent, drew a pistol, and fired four shots. As [Appellant] fired,
the decedent moved towards and collided with the children as his
cell phone flew across the grocery. As the decedent lay dying,
the video depicts several people walking into and out of the
store, with one individual leaning down towards the
decedent and possibly picking up an object. Later, Detective
Dunlap searched the decedent’s Facebook page and identified
[Appellant] by comparing the clothes he wore in the surveillance
video to images posted by the decedent.
* * *
At trial, [Appellant] took the stand and testified that in the
months leading up to the shooting, he and the decedent had been
involved in a “beef” against each other, which culminated in the
decedent shooting at [Appellant] on October 16, 2015. Although
the decedent did not shoot [Appellant, Appellant] crashed his car
trying to escape the shooting by vehicle, requiring hospitalization.
On October 17, 2015 the decedent sent the [Appellant] a
threatening text message, which indicated that the decedent
originally attacked [Appellant] because [Appellant] started selling
crack cocaine on Reno Street in Philadelphia:
You bitch ass nigga, stop calling niggas, telling bitching
and crying for ya life. I not going to stop [until] I drop you,
pussy . . . and cut your young bull poop daddy off. I had
that nigga bitching yesterday talking about he don’t fuck
with you and all. That nigga more pussy then you. I right
at y’all, nigga. If you don’t show ya face, trust me, nigga, I
know how to get you out. Stand what the fuck you do. Go
ahead, my nigga, put rocks on Reno. Just remember if it’s
ya block, you got to stand tall and die for that shit if you
want the juice, pussy.
And tell ya cousin that was looking for me to stand what
he say. I’m going to make bull front page my word.
[Appellant] approached the decedent’s cousin and his brother-
in-law, Elliot Ruff, to mediate and possibly end the dispute. After
speaking to [Appellant], Ruff approached the decedent [at least
twice] and asked him to leave [Appellant] alone[, but] the
decedent told him he was getting soft and should not hold
[Appellant’s] hand. After that conversation, Ruff told [Appellant]
that talking to the decedent wasn’t going to help and he would not
be able to settle the issue. . . .
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[Appellant] further testified that, on the morning of the
shooting, he saw the decedent on his phone when he walked into
the grocery store, and thought he may have been reaching for a
gun as soon as the decedent saw him. [Appellant] claimed that
he drew his gun and started firing out of fear. Immediately after
the shooting, [Appellant] fled to New Jersey and ultimately
Florida, where he was apprehended [and charged with the
aforementioned offenses].
PCRA Ct. Op., 1/28/20, at 2-4 (record citation omitted and emphasis added).
Relevant to the issue raised herein, we note that the Commonwealth’s
compilation of the surveillance video of the shooting, which was played for the
jury at trial, did not include the footage after the shooting. See N.T. PCRA
H’rg, 11/13/19, at 14-15. During the Commonwealth’s case-in-chief,
Appellant’s counsel, Brian McMonagle, Esquire, briefly cross-examined
Detective Dunlap concerning the fact that the raw footage of video showed
numerous people at or near the victim’s body after the shooting, but before
the police arrived. N.T., 1/24/17, at 71-72. At the PCRA hearing, Attorney
McMonagle testified that he believed the raw surveillance video footage
showed that a friend of the victim “pretended to render aid to him,” but
actually “removed what . . . looked like a weapon or what could have been a
weapon from the decedent’s body.” N.T., PCRA H’rg, at 14 (“A guy was
actually over him, and took something off of him that was shiny.”). Attorney
McMonagle made the strategic decision not to inform the Commonwealth of
this omission before trial so that he could argue to the jury that the
Commonwealth “were keeping things from [them,] specifically being the fact
that [the decedent] did have a firearm on him.” Id. at 15.
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At trial, Attorney McMonagle then recalled Detective Dunlap during
Appellant’s case-in-chief to discuss, and play for the jury, the surveillance
video after the shooting. Attorney McMonagle asked the detective about a
male who appeared to enter the store at the same time as the decedent:
[Attorney McMonagle:] Did you notice anything about the male
after the shooting and before police arriving?
[Detective Dunlap:] It’s tough to see, but he is definitely down
over the body [of the decedent].
[Attorney McMonagle:] Did it look to you, as an experienced
detective, as if he took something from the body?
[Detective Dunlap:] When he is leaving, he is holding his
waistband area. You cannot tell what, if anything, was taken, but
he’s definitely holding about his waistband area when he goes out
the store.
N.T., 1/25/17, at 44-45. Attorney McMonagle then asked the detective to play
that portion of the video both in real time, and slowed down, frame by frame.
See id. at 49-51. The Commonwealth later called Barbara Hall to testify as a
rebuttal witness. Ms. Hall testified she arrived at the store after the shooting,
stayed with the decedent until the police arrived, and she did not see the
decedent with any weapons. N.T., 1/26/17, at 31-32.
On January 27, 2017, a jury returned a verdict of guilty on the charges
of third-degree murder, PIC, REAP, and carrying a firearm without a license.
After the verdict was recorded, Appellant entered a guilty plea to the
remaining charge of persons not to possess firearms. See N.T., 1/27/17, at
15-19. Thereafter, on April 24, 2017, the trial court sentenced Appellant to
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an aggregate term of 17 to 34 years’ imprisonment.4 This Court affirmed the
judgment of sentence on direct appeal, and the Pennsylvania Supreme Court
denied Appellant’s petition for allocatur review. Commonwealth v. Reid,
1501 EDA 2017 (Pa. Super. Aug. 21, 2018), appeal denied, 438 EAL 2018 (Pa.
Feb. 15, 2019).
On May 6, 2019, Appellant filed a timely, pro se PCRA petition. New
counsel was appointed, and, on September 19, 2019, counsel filed an
amended petition. The PCRA court conducted an evidentiary hearing on
November 13, 2019, and, that same day, entered an order dismissing
Appellant’s petition. This timely appeal follows.5
Appellant presents one issue for our review:
Did the PCRA court err in concluding that trial counsel was not
ineffective for failing to request a slow motion/zoom analysis of
the Commonwealth’s evidence where the evidence at the PCRA
evidentiary hearing established that such an analysis would have
revealed an individual leaning over the body of the decedent and
removing a silver metallic object consistent with a firearm thereby
bolstering [Appellant’s] claim of self-defense?
Appellant’s Brief at 3.
Our review of an order denying PCRA relief is well-established:
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4 The court imposed a sentence of 15 to 30 years on the charge of third-
degree murder, and consecutive terms of one to two years on the charges of
REAP and persons not to possess firearms. Appellant received no further
penalty on the remaining convictions.
5 Appellant complied with the PCRA court’s December 13, 2019, order and
filed a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), on January 3, 2020.
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[A]n appellate court considers whether the PCRA court’s
conclusions are supported by the record and free of legal error.
Moreover, the factual findings of a post-conviction court, which
hears evidence and passes on the credibility of witnesses, should
be given deference.
Commonwealth v. Housman, 226 A.3d 1249, 1260 (Pa. 2020) (citations
omitted). Indeed, “[t]he PCRA court’s credibility determinations are binding
on this Court when they are supported by the record.” Commonwealth v.
Hutchinson, 25 A.3d 277, 284 (Pa. 2011) (citation omitted).
Additionally, to obtain relief under the PCRA based on a claim of
ineffectiveness of counsel, a PCRA petitioner must satisfy the
performance and prejudice test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). In Pennsylvania, we have applied the Strickland test by
requiring a petitioner to establish that: (1) the underlying claim
has arguable merit; (2) no reasonable basis existed for counsel’s
action or failure to act; and (3) the petitioner suffered prejudice
as a result of counsel’s error, with prejudice measured by whether
there is a reasonable probability that the result of the proceeding
would have been different. Counsel is presumed to have rendered
effective assistance, and, if a claim fails under any required
element of the Strickland test, the court may dismiss the claim
on that basis.
Housman, 226 A.3d at 1260–61.
In the present case, Appellant contends that trial counsel was ineffective
for failing to request “to have a frame by frame analysis conducted of the
portion of the video in which an individual bent over the decedent and
removed something” or to have it analyzed in “slow motion or to zoom-in . . .
.” Appellant’s Brief at 10-11. He insists that the “subsequent slow
motion/zoom-in analysis . . . clearly reveals that the individual removed a
silver metallic object consistent with a firearm from the decedent’s person.”
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Id. at 11. Appellant further maintains Attorney McMonagle had no reasonable
basis for failing to request this analysis because his “trial strategy centered
around the contention that the decedent had been armed and that [Appellant,]
therefore, acted in self-defense.” Id. Lastly, he argues he was “clearly
prejudiced” by counsel’s inaction because “had the jury seen actual evidence
that the decedent was armed, the outcome might have been different.” Id.
The PCRA court concluded Appellant is entitled to no relief. First, after
viewing the enhanced video during the PCRA hearing, the court found that it
was “inconclusive as to whether the individual removed a firearm from the
decedent’s body.” PCRA Ct. Op. at 7 (“While the video clearly depicts the
individual lifting the decedent’s shirt and checking the decedent’s body, this
Court cannot, with any degree of certainty, state that the individual removed
an object or whether that object was a firearm.”). Further, the court noted
that the video presented during the hearing was a “mere enhancement of the
evidence presented at trial” so that the jury was “presented with the
opportunity to consider” Appellant’s theory. Id. at 7-8. Lastly, the court
determined that the evidence at trial “clearly support[ed]” Appellant’s third-
degree murder conviction. Id. at 8.
We detect no basis to disagree. First, the PCRA court, which had the
opportunity to view both the surveillance video at trial and the enhanced video
during the PCRA hearing, determined that the enhanced video was still
“inconclusive” as to whether the individual removed a firearm from the
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decedent after the shooting. PCRA Ct. Op. at 7. Thus, on this basis alone, we
could conclude Appellant’s claim fails for lack of arguable merit.
Nevertheless, we also conclude Appellant cannot establish he was
prejudiced by Attorney McMonagle’s failure to present a slow motion/zoomed-
in enhanced video to the jury. See Houseman, 226 A.3d at 1260-61. As the
PCRA court explains in its opinion:
Even if the decedent was armed at the time of the shooting, and
that firearm was removed by an unidentified individual after the
shooting, the surveillance footage clearly demonstrates that the
decedent did not have time to remove or even reach for an object
that may have been concealed in his waistband in the moments
before [Appellant] shot him.
PCRA Ct. Op. at 8. Indeed, Appellant’s own testimony confirms the court’s
finding. On direct examination at trial, Appellant described the events just
prior to the shooting as follows:
I walk in the store. . . . I seen two adults at the counter when I
first opened the door. When I go to turn around, I see [the
decedent] on his phone. I was shocked.
I backed up. I took a step back, and when it looked like
he was reaching, I got scared and I pulled the gun out and I
start shooting in the front of the store.
N.T., 1/25/17, at 107-08 (emphasis added). Moreover, under cross-
examination, Appellant confirmed he did not see the decedent “with a gun in
his hand” before Appellant began shooting. Id. at 160. He simply believed
the decedent made a motion like “he was reaching for a gun.” Id. Thus,
whether the decedent actually possessed a gun is irrelevant, as Appellant
admitted he did not see any gun before he began shooting at the decedent.
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Thus, any self-defense claim would necessarily fail because (1) Appellant
“provoked the use of [deadly] force” by firing before the decedent retrieved a
gun, and (2) Appellant could have retreated by immediately leaving the store
when he saw the decedent. See 18 Pa.C.S. § 505(b)(2)(i)-(ii) (use of deadly
force is not justifiable if the actor (i) “provoke[s] the use of force against him
in the same encounter” or (ii) “knows he can avoid the necessity of using such
force with complete safety by retreating”).
Because we conclude Appellant has failed to establish Attorney
McMonagle’s ineffectiveness, we affirm the order denying PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2020
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