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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENT NORRIS OWENS,
Appellant No. 260 MDA 2015
Appeal from the PCRA Order entered January 12, 2015,
in the Court of Common Pleas of York County,
Criminal Division, at No(s): CP-67-CR-0006404-2009
BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 19, 2015
Kent Norris Owens (“Appellant”) appeals from the order denying his
petition for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
sections 9541-46. We affirm.
We previously summarized the pertinent facts as follows:
On June 2, 2009, at approximately 4:30 p.m., Officer
Jeremy Fultz of the York County Police Department
received a call for a burglary in progress on South Penn
Street in York City. When he arrived at the scene with
Officer Daniel Craven, Officer Fultz stayed at the front
entrance of 47 South Penn Street and Officer Craven went
to the back. Appellant exited the front entrance, shooting
at Officer Fultz. The officer returned fire, and Appellant
retreated into the residence, fleeing via the back of the
building through a broken rear window. Appellant and
another male, Steven Stokes, were taken into custody with
lacerations on their hands.
That same day, a criminal complaint was filed, charging
Appellant, inter alia, with [aggravated assault, recklessly
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endangering another person, and assault of a law
enforcement officer].
***
At trial, Officer Fultz testified that, when he arrived at
the scene, he witnessed a figure in a black hooded
sweatshirt lean out of the doorway and look directly at him
at the same time as he was announcing himself as the
police. (See N.T. Trial, 9/07/10, at 81-82). Officer Fultz
further testified that he would never forget what happened
next and that it was “something that’s burned into my
mind.” (Id. at 84). The most distinguishing feature on
the face of the man who shot at him was the chinstrap
beard that he saw as the flash from the gun went off,
illuminating his face from below like a flashlight. (Id. at
84, 87-88). In fact, before Appellant was apprehended,
the officer radioed that the shooter was a “black male in a
hoodie with a chin-strapped beard, tall . . . .” (Id. at
154). Afterwards, he positively identified Appellant when
Appellant was being treated by emergency medical
personnel at the scene. (Id. at 98).
John E. Evans, of the Pennsylvania State Police Crime
Lab, testified that although he did not find gunshot residue
on Appellant’s hands, there is no guarantee that you will
find gunshot residue on the hands of a person who fires a
gun. (See N.T. Trial, 9/08/10, at 260).
On September 9, 2010, the jury found Appellant guilty
of the aforementioned crimes. On October 22, 2010, the
[trial] court sentenced Appellant to [an aggregate term of]
no less than twenty nor more than forty years’
imprisonment[.]
Commonwealth v. Owens, 47 A.3d 1239 (Pa. Super. 2012), unpublished
memorandum at 1-3.
Appellant filed a timely appeal to this Court. On March 9, 2012, we
affirmed Appellant’s judgment of sentence. Owens, supra. Subsequently,
we denied Appellant’s petition for reargument. On November 14, 2012, our
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Supreme Court denied Appellant’s petition for allowance of appeal.
Commonwealth v. Owens, 57 A.3d 69 (Pa. 2012).
On August 28, 2013, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and on May 30, 2014, PCRA counsel filed an
amended petition. On December 18, 2014, the PCRA Court issued
Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition
without a hearing. Appellant did not file a response. By order entered
January 12, 2015, the PCRA court denied Appellant’s PCRA petition. This
timely appeal followed. Both Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
In his sole issue raised on appeal, Appellant claims that the PCRA court
erred in dismissing his PCRA petition without first holding an evidentiary
hearing. See Appellant’s Brief at 4. More specifically, Appellant asserts that
he has raised factual issues involving whether his trial counsel represented
him despite the existence of a conflict of interest, and whether counsel was
ineffective for failing to obtain a gunshot residue test on his clothing.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
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hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel’s ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Johnson, 966 A.2d at 532. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel’s act or omission. Id. at 533. A
finding of "prejudice" requires the petitioner to show "that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different." Id.
In assessing a claim of ineffectiveness, when it is clear that appellant
has failed to meet the prejudice prong, the court may dispose of the claim
on that basis alone, without a determination of whether the first two prongs
have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.
1995). Counsel will not be deemed ineffective if any reasonable basis exists
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for counsel’s actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.
1994). Even if counsel had no reasonable basis for the course of conduct
pursued, an appellant is not entitled to relief if he fails to demonstrate the
requisite prejudice which is necessary under Pennsylvania’s ineffectiveness
standard. Douglas, 645 A.2d at 232. Counsel cannot be deemed
ineffective for failing to pursue a meritless claim. Commonwealth v.
Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
In his first issue, Appellant asserts that trial counsel previously had
prosecuted him in 2004, when counsel was employed as an assistant district
attorney. Appellant’s Brief at 8. According to Appellant, this allegation
raises a factual issue of whether trial counsel represented him despite a
conflict of interest. Appellant further asserts, “if trial counsel’s prior
prosecutions affected his ability to represent Appellant, then his
representation was not effective.” Id. at 9.
The PCRA court found that Appellant failed to raise a factual issue
regarding this claim:
While it is true that Trial Counsel . . . was a prosecutor
in the York County District Attorney’s Office when
[Appellant] pled guilty in June 2004 in two cases that were
consolidated [], the Court has reviewed the conflict of
interest rules in the Rules of Professional [C]onduct, and
did not find that any of those rules are applicable in this
case, or that indicate there is a conflict in this case. (See
Rules of Professional Conduct 1.7 – 1.12). Moreover,
[Appellant] has not cited to any legal authority to support
his contention. As this claim does not have arguable
merit, it fails to meet the first prong of the ineffectiveness
standard. Given the foregoing, there are no genuine
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issues of material fact, [Appellant] is not entitled to post-
conviction relief, and no purpose would be served by any
further proceedings.
PCRA Court Opinion, 4/7/15, 2-3.
Our review of the record supports the PCRA court’s conclusions. “[T]o
establish a conflict of interest, an appellant must show that counsel actively
represented conflicting interests[,] and the actual conflict adversely affected
counsel’s performance.” Commonwealth v. Spotz, 18 A.3d 244 (Pa.
2009) (citation omitted). Within his brief, Appellant fails to cite to any
specific rule of professional conduct under which an alleged conflict may
exist because a former assistant district attorney becomes a criminal
defense attorney. Appellant cites to Spotz, supra, to support his request
for an evidentiary hearing, however, such reliance is inapt. In Spotz, the
PCRA petitioner asserted that his decision to waive representation and
proceed pro se was involuntary for several reasons, including the fact that
trial counsel’s “prior representation of [one of the murder victims]
constituted an undisclosed conflict of interest because counsel’s duty of
loyalty to his deceased client precluded counsel from pursuing viable
avenues of defense” on his behalf. Spotz, 18 A.3d at 267.
In affirming the PCRA court’s rejection of the petitioner’s claim, our
Supreme Court in Spotz acknowledged that counsel’s prior representation of
one of the murder victims “had terminated in 1990, well before [counsel]
was appointed to represent” the petitioner. Id. at 268. Here, trial counsel
represented Appellant in his 2010 trial—approximately six years after he
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represented the Commonwealth in accepting Appellant’s prior guilty pleas.
As in Spotz, Appellant’s “allegations of conflict of interest are vague [and]
entirely speculative[.]” Thus, Appellant’s first issue fails.
In his second issue, Appellant asserts that trial counsel was ineffective
for failing to obtain a gunshot residue test on his clothing. According to
Appellant, “[t]he argument forwarded at trial was designed to counter the
officer’s identification of Appellant as the shooter. Obtaining evidence which
would show Appellant was not the shooter would have been incredibly
beneficial.” Appellant’s Brief at 6.
In rejecting Appellant’s claim, the PCRA court explained:
At trial, Trial Counsel called John E. Evans (who is
employed by the Pennsylvania State Police Laboratory) to
testify. (N.T., 9/8/10, page 248). Mr. Evans was offered
by the defense as an “expert in the testing and analysis of
gunshot residue.” (N.T., 9/8/10, page 249). As noted by
the Superior Court on appeal, while Mr. Evans testified that
“although he did not find gunshot residue on [Appellant’s]
hands, there is no guarantee that you will find gunshot
residue on the hands of a person who fires a gun.”
(Superior Court Memorandum, 3/9/12, page 3). Moreover,
Mr. Evans testified that his lab did not receive any clothing
for testing, and that their lab, in fact, does not have the
ability to test clothing for gunshot residue.” (N.T., 9/8/10,
pages 253-254). Mr. Evans testified that if someone fired
a gun, it would be possible that gunshot residue could be
on their clothing. (N.T., page 254). However, he also
testified that there are several ways of removing gunshot
residue from material, one of which is to rub it off, and
another is that a breeze may remove it. (N.T., 9/8/10,
page 260). Hence, even if [Appellant’s] clothing had been
tested, and even if there had been no gunshot residue
found on his clothing, it would not have made a difference
in the outcome of the case, given the [o]fficer’s
identification of [Appellant] as the shooter. As a result,
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this contention fails to meet the third prong of the
ineffectiveness standard as there was no prejudice to
[Appellant]. Given the foregoing, there are no genuine
issues of material fact, [Appellant] is not entitled to post-
conviction relief, and no purpose would be served by any
further proceedings.
PCRA Court Opinion, 4/7/15, at 4-5.
Our review of the record supports the PCRA court’s conclusion that
Appellant’s ineffectiveness claim fails because he cannot establish the
requisite prejudice. Travaglia, supra. Indeed, Appellant once again bases
his ineffectiveness claim on no more than speculation. “It is easy to say that
failing to pursue exculpatory evidence is ineffectiveness, but this presumes
the evidence will indeed be exculpatory.” Commonwealth v. Williams,
899 A.2d 1060, 1064 (Pa. 2006). Appellant proffers no evidence to support
his claim that no gunshot residue would be found on his sweatshirt.
Moreover, as stated by the PCRA court, even if testing of Appellant’s clothing
would show no gunshot residue, Appellant’s own expert testified at trial
about why this fact would have little to no significance. Thus, Appellant’s
second ineffectiveness claim fails.
In sum, because the PCRA court correctly concluded that Appellant’s
ineffectiveness claims did not warrant an evidentiary hearing, we affirm the
order denying post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2015
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