Com. v. Shelton, D.

• Court: Superior Court of Pennsylvania
• Decided: January 30, 2024
• Docket: 457 WDA 2023
• Status: Unpublished

Opinion

J-S41010-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DALE SHELTON : : Appellant : No. 457 WDA 2023

Appeal from the PCRA Order Entered April 12, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0016217-2008

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: JANUARY 30, 2024

Dale Shelton appeals from the order entered in the Allegheny County

Court of Common Pleas on April 12, 2023, dismissing his serial petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-

9546 as untimely. After careful review, we affirm.

This Court has previously provided a summary of the underlying facts

of this case as follows:

On September 24, 2008, several people were shot. Sandra Stewart was shot with a .40-caliber bullet and died as a result of this incident.

....

[Shelton] testified that [three or four weeks] prior to the incident on September 24, 2008, he and Devin Scott had an altercation. ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S41010-23

Scott approached [Shelton] and hit him in the back of the head with something. [Shelton] turned and Scott aimed a gun at his face. Scott threatened to kill him and demanded money. Scott stole everything [Shelton] had on him, as well as his mother's car. [Shelton] did not contact the police because he feared Scott would retaliate, killing him or his family. After the robbery, [Shelton] obtained a .40-caliber firearm from Maurice Williams.

On the day of the shooting, [Shelton] was with Maurice and Kevin Williams. They were going to [obtain a refund for fake drugs they had purchased earlier]. [Shelton] and Maurice dropped off Kevin Williams. They drove on Curtain Avenue towards Warrington Avenue when [Shelton] saw Devin Scott. This was the first time [Shelton] had seen Scott since Scott robbed him and threatened his life with a gun.

[Shelton] testified that Scott looked directly at him. They made eye contact and [Shelton] panicked. He was scared because he knew that Scott always carried a firearm, Scott had threate[n]ed his life, and the car in which [Shelton] was riding was coming to a stop at a stop sign by Scott. When the car stopped, [Shelton] said he got out, attempting to run away from Scott. He saw Scott pull out a gun and fire it at him. Appellant obtained his gun and fired it in response....

Kevin Williams testified that he was outside on Curtain Avenue at the time of the incident. He heard shots down around Bey's Store so he ran to get his illegal .45-caliber firearm. He saw Scott running down Curtain Avenue shooting backwards toward Warrington Avenue. Kevin Williams started shooting towards Scott. Then, he hid the gun....

Devin Scott, an associate of gang members, testified that he left Bey's Store and walked up the sidewalk towards Climax Street. He was on house arrest with a window of time to go to the hospital. Rather, he went to the store, carrying an illegal firearm. He testified that he heard shots behind him from the Warrington Avenue area, so he started running and shooting his nine- millimeter weapon over his shoulder. He threw his nine-millimeter weapon in the bushes and his shirt in the garbage. Law enforcement captured him and charged him with crimes related

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to this shooting. He denied ever robbing [Shelton]. Scott was the only person who could definitively testify that [Shelton] shot first.

There were several people firing weapons during this incident.... Fourteen .40-caliber casings were found on the sidewalk, in [a] parking lot, and on the street. The fourteen spent .40-caliber casings were discharged from the same gun.

Commonwealth v. Shelton, 174 WDA 2018 (Pa. Super. filed December 27,

2019) (unpublished memorandum).

On November 19, 2010, a jury convicted Shelton of one count each of

third-degree murder, criminal attempt – homicide, aggravated assault,

firearms not to be carried without a license, and six counts of recklessly

endangering another person. On April 12, 2011, the trial court sentenced

Shelton to an aggregate term of twenty-five to fifty-one years’ incarceration.

Shelton’s post-sentence motion was denied. This Court subsequently

dismissed Shelton’s appeal for failure to file a brief.

New counsel filed a PCRA petition, requesting reinstatement of Shelton’s

direct appeal rights. The PCRA court granted the petition and Shelton’s

appellate rights were reinstated. On direct appeal, we affirmed the judgment

of sentence. On December 11, 2014, the Supreme Court of Pennsylvania

denied allowance of appeal.

On October 20, 2015, Shelton filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition. The PCRA court subsequently issued

notice of its intent to dismiss the petition without a hearing pursuant to

Pa.R.Crim.P. 907. Counsel filed a response. However, a few days later Shelton

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submitted a filing styled as a “Motion to Proceed Pro Se”, requesting that he

be permitted to represent himself during the remainder of the proceedings.

On October 20, 2016, the PCRA court dismissed the PCRA petition, but

scheduled a hearing on Shelton’s request to proceed pro se. See

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

Prior to the Grazier hearing, Shelton filed a counseled notice of appeal.

The PCRA court subsequently granted Shelton’s request to represent himself.

After significant back and forth, the appeal was ultimately discontinued at

Shelton’s request.

On June 26, 2017, Shelton filed an amended PCRA petition. In response,

the Commonwealth asserted the amended petition was essentially an untimely

second PCRA petition.

On August 31, 2017, the PCRA court issued notice of its intent to dismiss

Shelton’s amended petition as untimely. In response, Shelton argued that his

amended petition related back to his first PCRA petition. Further, Shelton

emphasized that the PCRA court had granted him leave to amend his timely

first PCRA petition while his appeal of the order denying that petition was

pending. On January 4, 2018, the PCRA court dismissed the petition as

untimely. On appeal, a panel of this Court concluded that the PCRA court was

without jurisdiction or ancillary authority to grant Shelton the right to amend

his first PCRA petition, as the PCRA court did so after it had already issued a

final order dismissing Shelton’s first PCRA petition. As such, we found the

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litigation of Shelton’s first PCRA petition properly concluded when Shelton

discontinued his appeal before this Court. Accordingly, we concluded that

Shelton’s June 2017 PCRA petition was in fact an untimely second PCRA

petition and affirmed the order dismissing that petition.

On July 31, 2020, Shelton filed a third PCRA petition. The PCRA court

issued notice of its intent to dismiss the petition as untimely pursuant to Rule

907. Shelton filed a response in which he argued the governmental

interference exception to the PCRA time-bar applied, based on the PCRA court

improperly leading Shelton to believe that he could amend his first PCRA

petition. The PCRA court entered an order indicating it was moved by Shelton’s

argument that a timeliness exception had been demonstrated by

governmental interference and admitting that it had contributed to the

interference of Shelton’s rights to a complete post-conviction review. The

PCRA court directed Shelton to file a pleading setting forth all claims that were

not previously litigated. In response, on December 14, 2020, Shelton filed a

PCRA petition setting forth numerous claims, including his argument regarding

governmental interference. At the PCRA court’s direction, the Commonwealth

filed an answer addressing Shelton’s claims. Shelton then filed a response to

the Commonwealth’s answer. The PCRA court subsequently issued notice of

its intent to dismiss the petition without a hearing. Shelton filed a response.

After review, the PCRA court entered an order finding the issues raised in the

PCRA petition untimely. However, the court found Shelton raised a colorable

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argument that the governmental interference exception to the timeliness

requirement may apply. As such, the PCRA court directed the Commonwealth

to file a response addressing the issue of governmental interference. The

Commonwealth filed an answer in which it concluded Shelton’s claims of

governmental interference were unavailing. The PCRA court subsequently

issued a second notice of its intent to dismiss the petition without a hearing,

stating Shelton’s allegations regarding governmental interference do not have

merit. After Shelton filed a response, the PCRA court dismissed the petition as

untimely. On appeal, this Court vacated the order dismissing the PCRA petition

as untimely, finding Shelton had timely raised the governmental interference

claim at the first opportunity to do so. As such, his third petition fell under a

timeliness exception. Accordingly, we remanded with instructions for the PCRA

court to consider Shelton’s substantive claims.

On remand, the PCRA court ordered Shelton to file an amended PCRA

petition. After receiving a few extensions, Shelton filed an amended PCRA

petition, in which he raised a claim of ineffective assistance of trial counsel

and an illegal sentence claim. The Commonwealth filed an answer. The PCRA

court then issued notice of its intent to dismiss the petition, and later

dismissed the amended PCRA petition. This timely appeal followed.1

____________________________________________

1 Shelton filed a timely notice of appeal on April 19, 2023, as indicated by the

date listed on the notice of appeal and the entry on the trial court docket. However, the trial court’s timestamp on the notice of appeal is dated April 29, (Footnote Continued Next Page)

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Shelton raises the following claims on appeal:

Whether the PCRA court abused its discretion in[] finding that [Shelton]’s ineffectiveness of counsel claim was waived; refusing to grant [Shelton]’s March 27, 2023 motion for leave to amend in order to cure a purported lack of a certification of witnesses; finding that [Shelton]’s February 10, 2023 amended first PCRA petition was subject to the Lawson standard for second or successive petitions; finding that counsel was not ineffective for failing to request a jury instruction; finding that [Shelton]’s claim of an Alleyne violation was not supported by the record.

Appellant’s Brief, at 2 (unnecessary capitalization omitted).

Our standard of review is settled. We review the denial of a post-

conviction petition to determine whether the record supports the PCRA court’s

findings and whether its order is otherwise free of legal error. See

Commonwealth v. Faulk, 21 A.3d 1196, 1199 (Pa. Super. 2011). To be

eligible for relief pursuant to the PCRA, Shelton must establish, inter alia, his

conviction or sentence resulted from one or more of the enumerated errors or

defects found in 42 Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2).

He must also establish the issues raised in the PCRA petition have not been

previously litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation

of error “is waived if the petitioner could have raised it but failed to do so

2023. That date appears to be an error, as the notice of appeal was transmitted to this Court on April 24, 2023, as indicated by this Court’s timestamp on the notice of appeal. In any event, the timeliness of the appeal would not be implicated even if the notice of appeal was filed on April 29, 2023. Our docket indicates the notice of appeal was filed on April 19, 2023 in order to match the trial court docket.

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before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.” 42 Pa.C.S.A. § 9544(b).

Prior to reaching the merits of Shelton’s issues, we must determine

which, if any, issues Shelton has preserved for our review. It is well-

established that any issue not raised in a Rule 1925(b) concise statement will

be deemed waived for appellate review. See Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998). In his concise statement, Shelton only raised a

substantive claim of ineffective assistance of trial counsel and a claim of an

Alleyne2 violation. The issues related to waiver of Shelton’s ineffective

assistance claim,3 the March 27, 2023 motion for leave to amend and

application of the Lawson standard to the amended petition were not included

in the concise statement. Instead, they were raised for the first time in

Shelton’s appellate brief. As these claims were not raised before the PCRA

court, they are waived. See Lord, 719 A.2d at 309. We will now proceed to

address the issues that were preserved in Shelton’s concise statement.

2 Alleyne v. United States, 570 U.S. 99 (2013).

3 In the order appealed from, the trial court stated it found Shelton’s claim of

ineffective assistance of counsel to be waived and, in addition, substantively without merit. However, in its opinion, the trial court addresses the ineffectiveness claim on its merits only, with no reference to waiver. An appellate court may affirm a PCRA court’s decision on any grounds if the record supports it. See Commonwealth v. Dozier, 208 A.3d 1101, 1103 (Pa. Super. 2019). Accordingly, the PCRA court’s treatment of this issue does not affect our disposition.

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First, Shelton argues the PCRA court abused its discretion in finding his

trial counsel was not ineffective for failing to request a jury instruction for

voluntary manslaughter.

We presume counsel is effective, and a PCRA petitioner bears the burden

to prove otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195

(Pa. 2012). The test for ineffective assistance of counsel is the same under

both the Federal and Pennsylvania Constitutions. See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); Commonwealth v. Kimball,

724 A.2d 326, 330-332 (Pa. 1999). A petitioner must demonstrate: (1) his

underlying claim is of arguable merit; (2) the particular course of conduct

pursued by counsel did not have some reasonable basis designed to effectuate

his interests; and (3) but for counsel’s ineffectiveness, there is a reasonable

probability that the outcome of the proceedings would have been different.

See Commonwealth v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A

failure to satisfy any prong of the test for ineffectiveness requires rejection of

the claim. See id. at 1163.

A person commits voluntary manslaughter if he kills another while

“acting under a sudden and intense passion resulting from serious provocation

by: (1) the individual killed, or (2) another whom the actor endeavors to kill,

but he negligently or accidentally causes the death of the individual killed.” 18

Pa.C.S.A. § 2503(a)(1)-(2).

This Court has explained, with respect to a “heat of passion” voluntary manslaughter instruction:

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A voluntary manslaughter instruction is warranted only where the offense is at issue and the evidence would support such a verdict. To support a verdict for voluntary manslaughter, the evidence would have had to demonstrate that, at the time of the killing, appellant acted under a sudden and intense passion resulting from serious provocation by the victim. If any of these be wanting – if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder.

Commonwealth v. Sanchez, 82 A.3d 943, 989 (Pa. 2013) (citations and

brackets omitted).

Shelton testified on his own behalf at trial. In doing so, Shelton stated

that when he saw Devin Scott on September 24, 2008, it was the first time

he had seen Scott since Scott had robbed him at gun point three or four weeks

earlier. See N.T., Jury Trial, 11/19/10, at 389. Shelton testified that he got

out of the car to run for his safety because he was scared. See id. at 390,

393. He testified that Scott shot at him first, and that is why he fired back.

See id. at 391, 393. Shelton therefore argued he was acting in self-defense

when he shot and killed the victim. See id. at 402-403, 415. Shelton was

adamant that he was not mad after the initial incident, but rather upset. See

id. at 427 (“I wasn’t mad in the heated anger like I wanted to do something.

I was upset.”).

Based on the record before us, we find no voluntary manslaughter

instruction was warranted. The evidence does not reflect that Shelton had

been seriously provoked when he saw Scott on the day of the shooting.

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Shelton also had not explained how the three to four weeks in between his

interactions with Scott was not sufficient time to cool off from the first incident.

“It is well settled that the decision whether to seek a jury instruction

implicates a matter of trial strategy.” Commonwealth v. Lesko, 15 A.3d

345, 401 (Pa. Super. 2011) (citation omitted). Based on the record before us,

Shelton has failed to establish that counsel did not have a reasonable trial

strategy for failing to request a voluntary manslaughter instruction. Rather,

as it is clear Shelton’s trial strategy was a claim of self-defense, it was

reasonable for counsel to focus on that avenue of justification. Accordingly,

this issue is without merit.

Finally, Shelton argues the PCRA court abused its discretion in finding

that Shelton’s claim of an Alleyne violation was not supported by the record.

In Alleyne, the United States Supreme Court held that a criminal

defendant may not be sentenced to a mandatory minimum sentence unless

the factfinder found the underlying facts triggering the imposition of the

mandatory to have been proven beyond a reasonable doubt.

Shelton asserts he was sentenced under 42 Pa.C.S. § 9712, which has

since been found to be unconstitutional pursuant to Alleyne. See

Commonwealth v. Valentine, 101 A.3d 801, 812 (Pa. Super. 2014). At the

time of Shelton’s sentencing, Section 9712 required the imposition of a five-

year mandatory sentence for violent crimes committed by an individual visibly

possessing a firearm.

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After a review of the record, it is clear Shelton was not sentenced to a

mandatory minimum pursuant to Section 9712. The sentencing hearing made

no mention of the applicability of Section 9712. On the contrary, there were

multiple arguments made at the hearing about the discretion of the trial court

in imposing sentence, and what sentence was recommended by each party.

Defense counsel stated that the guidelines were in the standard range, which

would be eleven years’ incarceration for the third-degree murder charge. See

N.T., Sentencing Hearing, 4/12/11, at 9. The Commonwealth recommended

an aggregate sentence of thirty-two to sixty-four years’ incarceration. See id.

at 40-41. The trial court then stated its reasoning for the sentence it would be

imposing and imposed an aggregate sentence of twenty to forty years’

incarceration. See also id. at 41-45. The sentencing order does not include

any indication that a mandatory minimum was considered or imposed. Finally,

the Department of Corrections Form DC-300B, has a section titled Mandatory

Sentence, with a check box for “Yes” or “No” below it. The box for “No” is

checked off on Shelton’s form.

Since Shelton was not sentenced under Section 9712, his claim has no

merit.

As Shelton’s issues are either waived or meritless, we affirm the order

dismissing Shelton’s PCRA petition.

Order affirmed. Jurisdiction relinquished.

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FILED: 1/30/2024

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