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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KAHLIL DAVIS,
Appellant No. 2544 EDA 2015
Appeal from the PCRA Order July 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002625-2008, CP-51-CR-0003742-
2008
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 29, 2017
Appellant, Kahlil Davis, appeals from the July 21, 2015 order that
denied his petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
In addressing Appellant’s direct appeal, a prior panel of this Court set
forth the underlying facts of this case as follows:
The facts, as aptly stated by the trial court, are as follows:
On November 24, 2007, Mr. Omar O’Neal (“O’Neal”)
was getting his hair cut at a barbershop located at
54th and Christian Streets, Philadelphia. Also
present at the barbershop were the owner,
Mr. Darryl Perry, several employees including
Mr. O’Neal’s brother, Mr. Samuel Bailey, and several
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*
Retired Senior Judge assigned to the Superior Court.
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customers. At approximately 8:30 p.m., three
individuals, including the Appellant, entered the
establishment and produced firearms. They
immediately ordered everyone inside to get down on
the ground, and physically struck some of the
victims to facilitate their demand. One of the
robbers stated “Where is all this money at?” and
“we’re about to start stripping y’all.” Once every
occupant was positioned on the floor, the three
individuals began searching each of their pockets.
During the search, a firearm was discovered in
Mr. Perry’s possession. Angered, the individual who
recovered the firearm proceeded to strike Mr. Perry
in the back of the head with it. Discussions [among]
the robbers ensued regarding whether to shoot
everyone. Mr. O’Neal testified that at that time he
looked up and observed the Appellant wearing a
large tan coat with a dark hood on, light blue “True
Religion” jeans, ripped at the bottom, and carrying a
firearm in his hand. No one else testified that they
had an opportunity to view the Appellant’s face.
After the individuals collected currency and personal
items to their satisfaction, they left the barbershop
together. A threat was issued indicating their
intention to begin shooting if anyone attempted to
impede their escape. Within several minutes of the
robbers’ departure on foot, several police officers
arrived at the barbershop.
Mr. O’Neal gave a statement to a police officer
within forty-five minutes of the robbery. The written
responses on the police report indicated that
Mr. O’Neal did not observe any guns, and that he
would be unable to recognize any of the males if he
saw them again. Mr. O’Neal, who testified he was
distraught during the time he gave a statement,
indicated he began to remember details from the
robbery later that evening. He specifically recalled
observing exactly one of the participants of the
robbery, a man he had never seen before prior to
that day.
On November 26, 2007, Police Officer Tyreek
Cunningham and his partner were on patrol near the
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area of the robbery, conducting an investigation.
Near the 700 block of Cecil Street,
Officer Cunningham observed the Appellant standing
on the corner with another male later identified as
James Henderson. The Appellant, who began
walking away eastbound, reaching toward his waist
area, removed a black handgun, and dropped it into
nearby bushes. After discarding the handgun, the
officers drove toward the individuals and exited their
vehicle. The Appellant began running away, but was
immediately apprehended. Officer Cunningham then
proceeded to walk toward the bushes where the
firearm was discarded. As he was recovering the
firearm, the Appellant again attempted to run away
while handcuffed. Appellant’s efforts to flee were
unsuccessful however as the officers grabbed him
and secured him in the back of the police vehicle.
The firearm was identified as a .357 Caliber
Sigsauer, serial number U71038, matching the
firearm taken from Mr. Perry during the robbery two
days prior. The firearm and ammunition were tested
by a qualified ballistics expert and determined to be
operable. Based on a certificate of non-licensure, the
Appellant did not have a valid permit to carry a
firearm on either November 24, 2007 or
November 26, 2007.
In the evening of November 26, 2007,
Mr. O’Neal along with the six other victims viewed
two photo arrays consisting of eight individuals.
Mr. O’Neal was the only victim to give a positive
identification, picking out the Appellant who was
included in one of the arrays.
Trial court opinion, 1/27/10 at 1-3 (citations omitted). O’Neal
later identified [A]ppellant again under oath at trial, and Perry
identified his gun at trial. (Notes of testimony, 11/21/08 at 26-
7, 70-71.) O’Neal testified that [A]ppellant was the only
perpetrator not wearing a mask during the robbery. (Id. at 36.)
Following a jury trial, [A]ppellant was convicted of [eight counts
of robbery, as well as aggravated assault, criminal conspiracy,
and violations of the Uniform Firearms Act] on November 24,
2009. On January 22, 2009, [A]ppellant was sentenced to a
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term of 15 to 30 years of incarceration to be followed by 10
years of probation.
Commonwealth v. Davis, 13 A.3d 980, 569 EDA 2009 (Pa. Super. filed
September 13, 2010) (unpublished memorandum at *1-*4). Appellant filed
a timely notice of appeal, and this Court affirmed Appellant’s judgment of
sentence. Id. Appellant filed a petition for allowance of appeal in the
Pennsylvania Supreme Court that was denied on June 28, 2011.
Commonwealth v. Davis, 23 A.3d 1054, 574 EAL 2010 (Pa. 2011).
On June 7, 2012, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel who filed an amended PCRA petition on
December 12, 2013. An evidentiary hearing was held on July 21, 2015, and
the PCRA court denied Appellant’s petition that same day. This timely
appeal followed; both Appellant and the PCRA court have complied with
Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue for this Court’s
consideration:
I. Did the PCRA Court err when it dismissed [Appellant’s]
Amended Petition without a Hearing and all where
[Appellant] properly pled and would have been able to
prove and did in fact prove that [Appellant] was entitled to
relief?
Appellant’s Brief at 3.1
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1
We are constrained to point out that contrary to Appellant’s assertion in
his issue presented, the PCRA court did in fact hold an evidentiary hearing in
(Footnote Continued Next Page)
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While not immediately evident from Appellant’s question presented,
Appellant is alleging that trial counsel was ineffective for failing to challenge
the weight of the evidence. As this claim was specifically raised in
Appellant’s Pa.R.A.P. 1925(b) statement and presented in the argument
portion of Appellant’s brief, we decline to find waiver for Appellant’s failure
to more fully articulate this issue in his statement of questions presented.
Cf. Commonwealth v. Hodge, 144 A.3d 170, 172 n.4 (Pa. Super. 2016)
(citing Pa.R.A.P. 2116(a)) (“No question will be considered unless it is stated
in the statement of questions involved or is fairly suggested thereby.”).
When reviewing the propriety of an order denying PCRA relief, this
Court is limited to determining whether the evidence of record supports the
conclusions of the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super. 2014).
Additionally, in resolving questions of counsel’s effectiveness, we begin
with the presumption that counsel rendered effective assistance.
Commonwealth v. Bomar, 104 A.3d 1179, 1188 (Pa. 2014). To overcome
that presumption, the petitioner must establish: “(1) the underlying claim
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(Footnote Continued)
this matter on July 21, 2015. Thus, we reject that portion of his argument
outright.
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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.” Id.
(citation omitted). A claim of ineffective assistance of counsel will fail if the
petitioner does not satisfy all three prongs. Id. “In order to meet the
prejudice prong of the ineffectiveness standard, a defendant must show that
there is a ‘reasonable probability that but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’” Commonwealth
v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). “The burden of proving
ineffectiveness rests with Appellant.” Commonwealth v. Rega, 933 A.2d
997, 1018 (Pa. 2007). We note also that trial counsel cannot be deemed
ineffective for failing to pursue meritless claims. Commonwealth v.
Freeland, 106 A.3d 768, 778 (Pa. Super. 2014).
Here, Appellant avers that counsel was ineffective in failing to file a
post-sentence motion. To support this assertion of ineffectiveness,
Appellant claims that the identification testimony was unreliable resulting in
a verdict that was against the weight of the evidence and, therefore, he
deserves a new trial. Appellant’s Brief at 9-10. We disagree.
When reviewing issues concerning the weight of the evidence we note
that the jury is free to believe all, part, or none of the evidence presented
and to determine the credibility of the witnesses. Commonwealth v.
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Houser, 18 A.3d 1128, 1136 (Pa. 2011) (citation omitted). A new trial
based on a challenge to the weight of the evidence is warranted only where
the jury’s verdict is so contrary to the evidence that it shocks one’s sense of
justice. Id.
As noted above, following the robbery, one of the victims, Mr. O’Neal,
initially gave conflicting statements regarding Appellant’s identity. However,
after reflection he was able to recall the events more clearly, and at trial
Mr. O’Neal positively identified Appellant. Additionally, another victim,
Mr. Perry, identified a gun that was stolen from him during the robbery,
which was subsequently recovered from Appellant. After review, we
conclude that the jury weighed the identification evidence and concluded
that Appellant was in fact the perpetrator. There is nothing “shocking” about
the jury’s conclusion. We cannot conclude that there is a reasonable
likelihood that, if trial counsel had filed a post-sentence motion challenging
the weight of the evidence, the result of these proceedings would have been
any different. Accordingly, we agree with the PCRA court that even if
Appellant’s claim had been properly presented in a post-sentence motion,
“there is no prejudice since the underlying claim itself lacks merit.” PCRA
Court Opinion, 7/20/16, at 15. Thus, Appellant cannot sustain a claim of
ineffective assistance of counsel.
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For the reasons set forth above, we discern no error of law or abuse of
discretion in the PCRA court’s decision. Accordingly, we affirm the July 21,
2015 order that denied Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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