J-S41040-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KENNETH MALIK EVANS, III, : : Appellant : No. 1770 MDA 2018
Appeal from the PCRA Order Entered September 24, 2018 in the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-XX-XXXXXXX-2013
BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED: SEPTEMBER 16, 2019
Kenneth Malik Evans, III (Appellant) appeals from the order entered
September 24, 2018, dismissing his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel has filed a petition to
withdraw and a brief pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). Upon review, we grant counsel’s petition to withdraw and affirm
the order of the PCRA court.
In January 2014, a criminal information was filed charging Appellant
with one count of criminal homicide, stemming from the shooting of
Shantique Goodson (“the victim”) in the Sherman Hills Apartment Complex
on November 11, 2013. Pertinent to this appeal, the evidence presented at
trial established the following.
* Retired Senior Judge assigned to the Superior Court. J-S41040-19
[O]n the date in question, Tiara McDuffie (“McDuffie”), driving a white Jeep Cherokee with the victim as her passenger, drove into the Sherman Hills Apartment Complex. McDuffie did not park the car upon entering the complex because she saw Appellant in the complex. After seeing Appellant, the victim also told McDuffie not to park the vehicle. As a result, McDuffie cut across the parking lot and spun the car around to leave the area of the complex where Appellant was approaching. The two women headed to the apartment of their friend Jasmine Frazier (“Frazier”) that was located within the complex.
After McDuffie stopped the Jeep near Frazier’s apartment, Frazier approached the vehicle on the passenger side where the victim was sitting. The victim rolled the window down, and the parties engaged in a conversation. Moments later, Appellant aggressively approached the passenger side of the vehicle and addressed the victim. Appellant told the victim to get the “‘F’ out of the car.” After the victim refused, Appellant reached for the handle of the passenger side door. The victim commented to Appellant: “didn’t we discuss this yesterday?” Undeterred, Appellant pushed his left hand into the vehicle in an attempt to reach for the lock. The victim pushed Appellant’s left hand away from the lock, and Appellant then put his right hand into the passenger side of the vehicle. With his right hand in the passenger side of the vehicle, Appellant shot the victim twice.
Frazier testified that while she was still leaning into the passenger side window, she saw Appellant shoot the victim in the lower abdomen. After the two gunshots were fired, McDuffie sped away. Appellant continued to fire several shots at the vehicle as McDuffie drove off, and Appellant then ran off between the buildings of the complex. McDuffie drove the victim to the Wilkes–Barre General Hospital emergency room.
At trial, McDuffie explained that the friendship between the victim and Appellant had deteriorated approximately a week prior to the shooting. While not entirely clear from the record what they were, McDuffie testified that there were “issues” existing between victim and Appellant in the days leading up to the victim’s homicide. McDuffie testified that “leading up [to] this incident, things had got [sic] out of control to [sic] the friendship.”
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Dr. [Gary] Ross testified[, as an expert in the field of forensic pathology,] that the victim suffered two gunshot wounds. The first gunshot wound was to the victim’s vulvar region. Dr. Ross provided the following explanation regarding whether this was a lethal gunshot wound:
Not in and of itself. It certainly is a survivable wound, even though it’s to the vulvar region, even though it bled very copiously. It did not bleed enough to have—in my opinion, it did not bleed enough to have caused death in and of itself. It is certainly a medically survivable injury.
*** [The victim] died as a result of a hemorrhage from multiple gunshot wounds. This wound contributed to that hemorrhage, so this wound contributed to her death.
Dr. Ross further explained that the second gunshot wound was to the victim’s right thigh. Dr. Ross provided the following testimony regarding gunshot wound number two:
[Dr. Ross:] Gunshot wound number two is lethal in and of it[self]. Gunshot wound number two went through the soft tissues of the thigh and tore major vessels of the right femoral artery, which is the major artery within the right leg and also the right femoral vein. This wound bled copiously and she died as a result of the extenuation of bleeding from this wound.
[Commonwealth:] Is the femoral artery a vital part of the body?
[Dr. Ross:] It is.
[Commonwealth:] So [the victim] was shot in a vital part of the body, correct, Dr. Ross?
[Dr. Ross:] Yes.
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Commonwealth v. Evans, 144 A.3d 198 (Pa. Super. 2016) (unpublished
memorandum at *3-4) (citations omitted).
Following a jury trial, Appellant was found guilty of first-degree
murder, and on October 24, 2014, Appellant was sentenced to life
imprisonment without the possibility of parole. This Court affirmed
Appellant’s judgment of sentence on March 14, 2016 and our Supreme Court
denied his petition for allowance of appeal. Evans, supra, appeal denied,
145 A.3d 162 (Pa. 2016).
On July 20, 2017, Appellant pro se filed a PCRA petition asserting trial
court error and ineffective assistance of trial counsel,1 as well as arguing
that the cumulative effect of counsel’s ineffectiveness denied Appellant the
right to a fair trial. Pro se PCRA Petition, 7/20/2017, at 3-11 (unnumbered).
The PCRA court scheduled a hearing on Appellant’s pro se petition,
appointed Jeffery A. Yelen, Esquire as counsel, and permitted Attorney Yelen
to file a supplemental petition if he deemed necessary. No supplemental
petition was filed, and on August 14, 2018, the PCRA court held an
evidentiary hearing. There, Appellant testified on his own behalf, raising the
aforementioned issues, as well as arguing that the evidence was insufficient
to support his conviction. N.T., 8/14/2018, at 12-14. In response, the
Commonwealth called trial counsel to testify. On September 24, 2018, the
1 Appellant was represented by co-counsel, Hugh Taylor, Esquire and John Pike, Esquire (collectively, “trial counsel”), at trial.
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PCRA court filed a memorandum opinion and order, dismissing Appellant’s
petition.
Appellant, through counsel, timely filed a notice of appeal.2
Subsequent to filing Appellant’s notice of appeal, Attorney Yelen filed a
motion for appointment of appellate counsel, seeking permission to withdraw
and requesting the PCRA court appoint substitute counsel to represent
Appellant on appeal. Motion for Appointment of Appellate Counsel,
10/24/2018. By order dated October 29, 2018, the PCRA court granted
Attorney Yelen’s motion and appointed Matthew P. Kelly, Esquire, who
presently represents Appellant on appeal. Order, 10/29/2018.
In this Court, Attorney Kelly filed a Turner/Finley brief and an
application to withdraw as counsel.3 Thus, we must first determine if
2 The PCRA court did not direct Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b). In lieu of an opinion, the PCRA court relied on its September 24, 2018 memorandum. See Statement in Lieu of Opinion, 12/21/2018. 3 On June 10, 2019, Appellant filed a pro se response to Attorney Kelly’s Turner/Finley brief, averring that he has “been subjected to a cascading form of ineffective assistance of counsel[.]” Pro se Response, 6/10/2019, at 3. Therein, Appellant argued that Attorney Yelen provided inadequate representation at Appellant’s PCRA hearing and that Attorney Kelly’s Turner/Finley brief was insufficient, as it merely “parrot[ed] the opinion of the PCRA court[.]” Id. For these reasons, Appellant requested this Court: (1) dismiss Attorney Kelly’s motion to withdraw; (2) appoint new counsel; “and/or” (3) grant Appellant leave to file a pro se supplemental brief in support of his objection to Attorney Kelly’s Turner/Finley brief. Id. at 12. For the reasons that follow, even assuming arguendo that Appellant has been subjected to a “cascading form” of ineffectiveness, because we find Appellant’s issues are either not cognizable under the PCRA or wholly lacking merit, Appellant cannot prove he has been prejudiced by counsel’s alleged -5- J-S41040-19
Attorney Kelly has complied with the technical requirements of Turner and
Finley.
… Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical prerequisites of Turner/Finley, the court will not reach the merits of the underlying claims but, rather, will merely deny counsel’s request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit letter that do satisfy the technical demands of Turner/Finley, the court — trial court or this Court — must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief. By contrast, if the claims appear to have merit, the court will deny counsel’s request and grant relief, or at least instruct counsel to file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citations omitted).
After review, we are satisfied that Attorney Kelly has complied with the
technical requirements of Turner and Finley. Therefore, we will consider
shortcomings and therefore, he is not entitled to relief. Thus, we decline to grant the relief requested by Appellant in his pro se response. -6- J-S41040-19
the substantive issues contained in Attorney Kelly’s brief. On appeal,
Attorney Kelly sets forth the following issues for our review, which we have
reordered for ease of disposition.
I. Whether the trial court erred in failing to instruct the jury on voluntary manslaughter.
II. Whether there was sufficient evidence to convict Appellant for the crime of criminal homicide.
III. Whether trial counsel [were] ineffective in representing [] Appellant.
Turner/Finley Brief at 1 (unnecessary capitalization omitted).
Initially, we note that Appellant’s first two issues were raised
previously by Appellant and addressed by this Court on direct appeal. See
Evans, supra. It is well-settled that previously litigated claims are not
cognizable under the PCRA. See 42 Pa.C.S. § 9544(a)(2)-(3) (An error is
considered previously litigated if (1) “the highest appellate court in which the
petitioner could have had review as a matter of right has ruled on the merits
of the issue; or” (2) “has been raised and decided in a proceeding
collaterally attacking the conviction or sentence.”). Thus, Appellant is
precluded from raising these claims again.
We now address the remaining issue, which challenges the
effectiveness of trial counsel. Specifically, Appellant claims trial counsel
were ineffective for: (1) “allowing two detectives to testify as experts” at
Appellant’s trial about gunshot residue (GSR) collected after the shooting;
(2) failing to call, as defense witnesses, the emergency room physicians who
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treated the victim; and (3) failing to impeach Commonwealth witnesses,
Frazier and McDuffie. Appellant also argues these cumulative errors
committed by counsel denied him fair trial. Turner/Finley Brief at 4-7. We
address these individual claims mindful of the following.
“Our standard of review of a [] court order granting or denying relief
under the PCRA calls upon us to determine ‘whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.’”
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
“It is well-established that counsel is presumed effective, and the
defendant bears the burden of proving ineffectiveness.” Commonwealth v.
Martin, 5 A.3d 177, 183 (Pa. 2010). To overcome this presumption,
Appellant must show each of the following: “(1) the underlying substantive
claim has arguable merit; (2) counsel whose effectiveness is being
challenged did not have a reasonable basis for his or her actions or failure to
act; and (3) the petitioner suffered prejudice as a result of counsel’s
deficient performance.” Id. Appellant’s claim will be denied if he fails to
meet any one of these three prongs. Id.
With respect to his first claim, Appellant argues trial counsel were
ineffective for calling two detectives from the Wilkes-Barre City Police
Department, Detective David Sobocinski and Detective Ronald Foy, to testify
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about GSR that may have been collected from Appellant. Turner/Finley
Brief at 5-6. As summarized by the PCRA court:
Detective Sobocinski testified [at trial] that [Appellant] consented to the test and multiple swabs of his right hand were collected. On cross-examination, the assistant district attorney attempted to inquire as to how a [GSR] test would be affected if [Appellant] had washed his hands. An objection to this question by defense counsel was sustained by the [trial c]ourt. Detective Foy only testified as to sending the [GSR] test sample to a lab. Neither detective provided any expert testimony regarding the [GSR] test.
PCRA Court Memorandum Opinion, 9/24/2018, at 3-4 (unnumbered;
citations omitted).
At the PCRA hearing, Attorney Taylor testified that the results of the
GSR test were inconclusive, and part of his and Attorney Pike’s defense
strategy was to exploit the inconclusiveness of the test.
We were aware that the [GSR] was [i]nconclusive. The defense in [Appellant’s] case was a difficult one given that the bulk of the evidence against him was [sic] eyewitness who knew him and would testify they observed [Appellant] shoot the victim. So we were in a position … [of making] the argument that the evidence isn’t beyond a reasonable doubt, that these witnesses are not credible, and that there’s no other evidence. Now, the GSR was [i]nconclusive[.] …. The reason I went to the question relative to the GSR [was] to get as close to the line as possible and get into evidence that it’s [i]nconclusive, they don’t have it, sufficiency of the investigation, you didn’t do these tests and things like that. And get close to the line as possible without, you know, letting in evidence that would hurt [Appellant]; but ultimately the evidence of the GSR was inconclusive and that’s just that[.]
N.T., 8/14/2018, at 22-23.
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In its memorandum opinion, the PCRA court credited Attorney Taylor’s
testimony as credible and found that the defense strategy employed by
Appellant’s counsel was reasonable and “that no better alternative existed.”
PCRA Court Memorandum Opinion, 9/24/2018, at 4, 8 (unnumbered).
It is well-settled that
before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it. If a reasonable basis exists for the particular course, the inquiry ends and counsel’s performance is deemed constitutionally effective. Nor can a claim of ineffective assistance generally succeed through comparing, by hindsight, the trial strategy employed with alternatives not pursued. 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.
Commonwealth v. Reed, 42 A.3d 314, 324 (Pa. Super. 2012) (citations
and quotation marks omitted).
Here, the PCRA court found that the detectives did not provide any
expert testimony, which the certified record confirms. Moreover, the court
found that any testimony regarding the GSR test that was elicited by counsel
was part of counsel’s defense strategy and that strategy was reasonable. We
see no reason to disturb this finding. See Commonwealth v. Jones, 912
A.2d 268, 293 (Pa. 2006) (“The findings of a post-conviction court, which
hears evidence and passes on the credibility of witnesses, should be given
great deference.”).
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Next, Appellant alleges trial counsel were ineffective for failing to call
the emergency room surgeons who operated on the victim as witnesses.
Turner/Finley Brief at 6. Although testimony from Dr. Ross revealed that
the victim died of multiple gunshot wounds, and specifically, of a gunshot
wound to the femoral artery, see N.T., 8/20/2015, at 237-38, Appellant
asserts that because the victim was shot “from the waist down,” counsel
should have called the emergency room surgeons to testify as to whether
the victim’s death was preventable. N.T., 8/14/2018, at 8-9. Essentially,
Appellant is implying that the emergency room surgeons who treated the
victim were negligent and that their negligence contributed to, or was the
cause of, the victim’s death. Id.
In order to establish that trial counsel was ineffective for failing to call witnesses, a petitioner must: (1) identify the witness or witnesses; (2) demonstrate that counsel actually knew, or had a duty to know, the identity of the witness or witnesses prior to trial; (3) demonstrate that the witness or witnesses were ready, willing and able to testify for the defense at trial; and (4) demonstrate that the proposed testimony would have been helpful to the defense asserted at trial.
Commonwealth v. Neal, 713 A.2d 657, 663 (Pa. Super. 1998).
In considering Appellant’s claim of ineffective assistance of counsel for
failing to call these alleged witnesses, the PCRA court found Appellant was
not entitled to relief because Appellant failed to present the testimony of the
emergency room surgeons at the PCRA hearing. Memorandum, 9/24/2018,
at 5-6 (unnumbered) (“Without hearing the testimony of the emergency
room surgeons, th[e PCRA court] is unable to determine if they were willing
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to testify and whether they would have been beneficial to the defense.”).
Additionally, the court found Appellant “failed to submit affidavits from the
emergency room surgeons indicating their availability and willingness to
testify for the defense.” Id. at 6 (unnumbered). Lastly, the PCRA court
found that
[u]pon consideration of the testimony provided by Dr. Ross, it is clear that the victim had no chance of survival based upon the location of the gunshot wound. It is highly unlikely that the emergency room physicians would have essentially admitted their own negligence and testified that they should have prevented the victim’s death.
Id. We agree.
Here, Appellant baldy asserts that had the emergency room surgeons
been called to testify, they would have provided favorable testimony to his
defense regarding victim’s cause of death. Such a bald assertion, without
more, does not meet his burden. Moreover, and most notably, Appellant has
failed to demonstrate that these alleged witnesses were willing and able to
testify on his behalf at trial. This alone precludes Appellant from obtaining
relief. See Commonwealth v. Khalil, 806 A.2d 415, 422-23 (Pa. Super.
2002) (“This Court will not grant relief based on an allegation that a certain
witness may have testified in the absence of an affidavit from that witness to
show that the witness would, in fact, testify.”).
Irrespective of the foregoing, even if Appellant pleaded sufficiently this
claim, we would find it lacks arguable merit.
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The causal connection required to attach criminal responsibility for the death of a victim must be more direct than the tort law concept of proximate cause. In Commonwealth v. Nunn, our Court described the two-part test to determine criminal causation.
First, the defendant’s conduct must be an antecedent, but for which the result in question would not have occurred. A victim’s death cannot be entirely attributable to other factors; rather, there must exist a causal connection between the conduct and the result of conduct; and causal connection requires something more than mere coincidence as to time and place. Second, the results of the defendant’s actions cannot be so extraordinarily remote or attenuated that it would be unfair to hold the defendant criminally responsible.
As to the first part of the test, the defendant’s conduct need not be the only cause of the victim’s death in order to establish a causal connection. Criminal responsibility may be properly assessed against an individual whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result. The second part of the test is satisfied when the victim’s death is the natural or foreseeable consequence of the defendant’s actions. Where the fatal result was an unnatural or obscure consequence of the defendant’s actions, justice would prevent us from allowing the result to have an impact upon a finding of the defendant’s guilt.
947 A.2d 756, 760 (Pa. Super. 2008) (citations and quotation marks omitted)[.]
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1256-57 (Pa. Super. 2014)
(some citations omitted).
In this case, the evidence presented at trial, which this Court found
sufficient to sustain Appellant’s conviction on direct appeal, established that
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Appellant twice shot the victim at close range. Dr. Ross, an expert in
forensic pathology, testified that the cause of death was a gunshot wound
that hit the victim’s femoral artery, which Dr. Ross testified as being a vital
part of the human body. As such, any alleged “negligence” that the
emergency room physicians would possibly have testified to would not have
negated the fact that the victim’s arrival at the hospital for treatment was
necessitated by the injuries inflicted upon her by Appellant. Moreover, it is
clear that Appellant’s conduct was “a direct and substantial factor in
producing the death[,]” regardless of any other alleged factors that may
have contributed to her death, and the result of Appellant’s actions was not
so “extraordinarily remote or attenuated” that it would be unfair to hold
Appellant criminally liable under these circumstances. Buterbaugh, supra.
No relief is due.
In his third issue, Appellant contends trial counsel were ineffective for
failing to impeach two Commonwealth witnesses, Frazier and McDuffie.
Appellant alleges both witnesses had ulterior motives to testify; Frazier
because of a lawsuit she was involved in against the Sherman Hills
Apartment Complex, where the shooting occurred, and McDuffie because she
was previously in a relationship with the victim and had pending criminal
charges at the time of Appellant’s trial. N.T., 8/14/2018, at 10-12.
At the PCRA hearing, Attorney Pike testified that he and Attorney
Taylor hired a private investigator to investigate the Commonwealth
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witnesses but were unsuccessful in obtaining any additional information
other than what was provided by the Commonwealth during discovery. Id.
at 31-32. Thus, while they were aware of Appellant’s allegations about
Frazier’s financial motives, they were unable to corroborate independently
and verify this information. Id. at 32-33. However, trial counsel testified
that they did receive criminal records of “all witnesses and potential
witnesses” during discovery, as well as independently searched both the
magisterial district court and Court of Common Pleas dockets, and utilized
these records during cross-examination. Id. at 24-26, 32. The PCRA court
credited counsel’s testimony and found Appellant’s allegations to be without
merit. Memorandum, 9/24/2018, at 6-8 (unnumbered). The record
supports the PCRA court’s findings.
Specifically, the transcript from Appellant’s trial reveals that Attorney
Pike cross-examined McDuffie, who admitted that she had dated the victim
and acknowledged that she had pending criminal charges. N.T., 8/19/2014,
at 76-77, 102-107. However, despite Attorney Pike’s inquiry, McDuffie
denied that she expected to “gain favor with the Commonwealth” with
respect to these charges in exchange for her testimony. Id. at 107. In light
of the foregoing, the record clearly belies Appellant’s claim that counsel did
not use these alleged ulterior motives in an attempt to impeach McDuffie.
With respect to Frazier, while she was cross-examined extensively at
trial, counsel did not inquire about a lawsuit that Frazier was involved in
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against the apartment complex. However, not only did the PCRA court credit
counsel’s testimony that such an allegation could not be independently
corroborated, at the PCRA hearing, Appellant admitted that he too, did not
have any “proof” regarding Frazier potentially “inheriting” money from a
lawsuit against the apartment complex. See N.T., 8/14/2018, at 10. It is
well-settled that “[c]ounsel cannot be faulted for failing to discover or
present evidence if Appellant fails to meet the burden of establishing that
the evidence exists.” Commonwealth v. Fisher, 813 A.2d 761, 771 (Pa.
2002). For these reasons, Appellant is not entitled to relief.
Lastly, Appellant claims that, due to the cumulative errors of trial
counsel, Appellant was denied the right to a fair trial. Initially, we observe
that
[i]t is well-settled that no number of failed ineffectiveness claims may collectively warrant relief if they fail to do so individually. Accordingly, where ineffectiveness claims are rejected for lack of arguable merit, there is no basis for an accumulation claim. When the failure of individual claims is grounded in lack of prejudice, however, then the cumulative prejudice from those individual claims may properly be assessed.
Commonwealth v. Smith, 181 A.3d 1168, 1187 (Pa. Super. 2018)
(citations and quotation marks omitted).
The PCRA court found that “[n]one of [Appellant’s] claims warrant[s]
relief individually and they do not do so collectively.” Memorandum,
9/24/2018, at 8. As discussed supra, we agree with the PCRA court’s
findings, and reject all of Appellant’s ineffective assistance of counsel claims
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as meritless. Thus, as noted by the PCRA court, there can be no
aggregation of prejudice. See Smith, 181 A.3d at 1187.
We agree with counsel that based upon the PCRA court’s findings and
the record, which supports them, the issues raised by Appellant have no
merit. Therefore, the PCRA court did not err by dismissing Appellant’s PCRA
petition. Accordingly, we affirm the order of the PCRA court denying
Appellant’s PCRA petition and grant counsel’s petition to withdraw.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/16/19
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