J-S26028-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENDRICK COOPER :
:
Appellant : No. 1885 EDA 2017
Appeal from the PCRA Order May 25, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013617-2010
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANDUM BY BOWES, J.: Filed July 20, 2018
Kendrick Cooper appeals pro se from the order dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
Reginald Kinley and Dana Blaylock, both of whom were involved in illicit
drug sales and knew Appellant, met at the intersection of 38th and Brandywine
Streets in Philadelphia on February 24, 2009, so Mr. Blaylock could give Mr.
Kinley a ride home. Appellant, with a firearm drawn and drug dealer Maurice
McIntosh standing behind him, rapped on the window of Mr. Blaylock’s car.
Appellant tried to pull Mr. Blaylock from the car, while Mr. Kinley exited the
vehicle and took cover in nearby bushes. Mr. Blaylock was able to escape,
but Appellant caught up with him and shot him multiple times in the torso.
Kevin Twyne witnessed the incident from his nearby second-floor apartment.
Mr. Blaylock’s body was discovered by police and transported to the hospital,
where he was pronounced dead on arrival.
____________________________________
* Former Justice specially assigned to the Superior Court.
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In 2011, Appellant was sentenced to life imprisonment after a jury
convicted him of first-degree murder. This Court affirmed Appellant’s
judgment of sentence and our Supreme Court denied his petition for allowance
of appeal. Commonwealth v. Cooper, 82 A.3d 1082 (Pa.Super. 2013)
(unpublished memorandum), appeal denied, 84 A.3d 1062 (Pa. 2014).
Appellant filed a timely pro se PCRA petition in June 2014. No action
was taken on the petition for more than a year. Appellant, still proceeding
pro se, filed supplements to his petition in September, November, and
December 2015. In September 2016, counsel, who apparently was appointed
at some point by means not reflected on the docket, entered an appearance
on behalf of Appellant.
On December 4, 2016, counsel filed a petition to withdraw and a no-
merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en
banc). Appellant filed a pro se response. The PCRA court issued notice of its
intent to dismiss Appellant’s petition in March 2017, and Appellant timely filed
pro se objections. The PCRA court dismissed Appellant’s petition by order of
May 25, 2017. Appellant filed a timely pro se notice of appeal, and both
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our review.
1) Was Appellant denied due process of law by ineffective
assistance of [trial] counsel?
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2) Was Appellant denied due process of law by the ineffective
assistance of appellate counsel?
3) Was Appellant wrongfully convicted of crimes he is actually
innocent of in violation of his [Fifth, Sixth, and Fourteenth
Amendment] right[s]?
Appellant’s brief at 5 (some capitalization altered).
“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v.
Johnson, 179 A.3d 1153, 1156 (Pa.Super. 2018) (internal quotation marks
omitted).
Regarding Appellant’s claims that he received ineffective assistance of
counsel, the following principles guide our review.
Counsel is presumed effective, and an appellant has the
burden of proving otherwise. In order for Appellant to prevail on
a claim of ineffective assistance of counsel, he must show, by a
preponderance of the evidence, ineffective assistance of counsel
which so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
To prevail on his ineffectiveness claims, Appellant
must plead and prove by a preponderance of the
evidence that: (1) the underlying legal claim has
arguable merit; (2) counsel had no reasonable basis
for his action or inaction; and (3) Appellant suffered
prejudice because of counsel’s action or inaction.
With regard to the [reasonable basis] prong, we will
conclude that counsel’s chosen strategy lacked a
reasonable basis only if Appellant proves that an
alternative not chosen offered a potential for success
substantially greater than the course actually
pursued. To establish the [prejudice] prong,
Appellant must show that there is a reasonable
probability that the outcome of the proceedings would
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have been different but for counsel’s action or
inaction.
Commonwealth v. Brown, 161 A.3d 960, 965 (Pa.Super. 2017) (citations
and quotation marks omitted).
With Appellant’s first question on appeal, he raises various complaints
about trial counsel’s preparedness. Appellant claims that his trial counsel was
ineffective in failing to review the statements given by Kevin Twyne, the man
who witnessed the shooting from his window. Appellant maintains that Mr.
Twyne’s statement was the result of police coercion. Appellant’s brief at 20-
21.
The PCRA court addressed Appellant’s claim as follows.
Initially, [Appellant’s] claim fails as “it is settled law that [a
defendant] lacks standing to assert the alleged deprivation of
another’s constitutional rights.” Commonwealth v. Brown, 342
A.2d 84, 91 (Pa. 1979) (quoting Commonwealth v. Butler, 291
A.2d 89, 90 (Pa. 1972)). Accordingly, counsel would have had no
grounds to seek the suppression of [Mr.] Twyne’s statement to
police.
[Appellant’s] underlying claim is also without merit because
[he] fails to proffer any evidence that shows [Mr.] Twyne’s
statement actually was the result of coercion. While [Mr.] Twyne
testified that he was present at the Homicide Division for
approximately two days before he gave his statement to police,
[he] testified that he did not feel pressured to provide the
statement, and that he did not feel like he would never leave
unless he told police something. [Appellant] has failed to proffer
any evidence that would show that [Mr.] Twyne’s statement was
not freely made. Accordingly, [Appellant’s] underlying claim is
without merit.
[Appellant] claims that trial counsel failed to properly
investigate [Mr.] Twyne and have [his] testimony suppressed on
the basis that [he] could not have seen the shooting and because
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of contradictory facts contained in [his] statement. Specifically,
[Appellant] argues that [Mr.] Twyne could not have seen and
heard the shooting through a sealed, covered window while his
television was on and with only one good eye, and that [he]
contradicted other evidence regarding the description of the
getaway car, the gun, the number of people in the car, and the
description of the shooter. However, contradictions in the
evidence provide no grounds for the suppression of [Mr.] Twyne’s
testimony. Rather, these contradictions go to the weight that the
jury was free to give [his] testimony.
Moreover, counsel cross-examined [Mr.] Twyne concerning
his ability to observe the shooting through his covered windows
while the television was on, and so the jury was aware of the
conditions under which [Mr.] Twyne made his observations.
Accordingly, trial counsel was not ineffective for failing to properly
investigate and suppress [Mr.] Twyne’s testimony.
PCRA Court Opinion, 8/8/17, at 5-6 (some citations omitted).
The PCRA court’s findings are supported by the record, and we discern
no error of law or abuse of discretion. Accordingly, Appellant has failed to
convince us that the PCRA court erred in dismissing his claim regarding Mr.
Twyne. Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super. 2012) (“It
is an appellant’s burden to persuade us that the PCRA court erred and that
relief is due.”).
Appellant next faults trial counsel’s failure to interview Andre Blaylock
(“Andre”), who was the brother of the victim, and Aisha Gardner, the victim’s
girlfriend. Appellant notes that the police statement given by Andre supports
his theory that the victim, a drug gang leader, was assassinated by a rival
gang with Mr. Kinley’s complicity, since Mr. Kinley was in position to help fill
the vacuum left by the victim’s death. Appellant’s brief at 21. Appellant
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contends that the police statement of Ms. Gardner reveals that she had
information to impeach Mr. Kinley’s testimony. Appellant’s brief at 19-20.
When raising a claim that counsel was ineffective in failing to call a
witness, a PCRA petitioner must show all of the following:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quoting
Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007)). Here,
Appellant merely relies upon the police statements, and offers noting to show
that Andre or Ms. Gardner was available or willing to testify on his behalf at
trial. See Commonwealth v. Bryant, 855 A.2d 726, 748 (Pa. 2004) (holding
petitioner failed to demonstrate that counsel was ineffective in failing to call
at second trial witnesses who testified at his first trial, where he “made no
proffer as to whether these witnesses were willing and able to testify at [his]
second trial, much less that they would stick to their stories) .
Even if these witnesses were ready and willing to testify on Appellant’s
behalf, and testified consistent with their police statements, Appellant has not
shown that the absence of their testimony was so prejudicial as to deny him
a fair trial. The PCRA court explained that Andre’s statement actually confirms
that Mr. Kinley identified Appellant as the shooter, and thus would have
bolstered, rather than impeached, Mr. Kinley’s trial testimony. PCRA Court
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Opinion, 8/8/17, at 8. Further, the court determined that it is unlikely that
evidence that Mr. Kinley told Andre that Appellant was wearing a red hoodie,
while he testified at trial that it was a black shirt “would have undermined
Kinley’s identification of [Appellant] as the shooter.” Id.
A review of Ms. Gardner’s police statement reveals that it does not
support Appellant’s contentions that Mr. Blaylock never provided
transportation to Mr. Kinley, or that Ms. Gardner witnessed Mr. Kinley
repeatedly calling to “entice the victim to come out of the building” upon
different pretenses. Appellant’s brief at 20. On the contrary, Ms. Gardner
indicated in her statement that Mr. Blaylock always drove Mr. Kinley around.
Supplemental PCRA Petition, 9/1/15, at Appendix 7. Further, there is no
indication that Ms. Gardner had information that Mr. Kinley twice called the
victim in attempts to lure him outside. As Mr. Blaylock was already on the
phone when he walked into the apartment, Ms. Gardner did not know who
called whom. Id.
Accordingly, we see no error in the PCRA court’s determination that
Appellant’s claims regarding Andre and Ms. Gardner lack merit. See Bryant,
supra (holding no prejudice resulted from failure to call witnesses who
testified at earlier proceeding because, even if witnesses were willing to
cooperate, their testimony was not helpful).
Appellant also contends on appeal that trial counsel was ineffective in
not raising an objection pursuant to Brady v. Maryland, 373 U.S. 83 (1963),
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to the Commonwealth’s failure to turn over evidence collected during the
police investigation, in particular the information obtained from search
warrants for various cellular phones. Appellant’s brief at 17.
Appellant did not raise any claim related to missing phone records in his
PCRA petition or any of the supplements thereto. Nor did he state such a
claim in response to PCRA counsel’s Turner/Finley letter or the PCRA court’s
notice of intent to dismiss. This Court will not consider PCRA claims raised for
the first time on appeal. See, e.g., Commonwealth v. Santiago, 855 A.2d
682, 691 (Pa. 2004) (“[A] claim not raised in a PCRA petition cannot be raised
for the first time on appeal.”).
Appellant next raises issues regarding the performance of his direct
appeal counsel. He first asserts that appellate counsel was ineffective in not
challenging the sufficiency of the evidence. Appellant’s brief at 25.
Particularly, Appellant asserts that counsel should have contended that the
Commonwealth offered neither evidence that Appellant had any motive for
killing Mr. Blaylock nor a witness to establish that Appellant was the shooter.
Id. at 26. He also raises the issue of appellate counsel’s failure to argue that
the trial court erred in suggesting that the Commonwealth request a jury
charge concerning accomplice liability. Id.
Direct appeal counsel did raise the very arguments Appellant presents
in this appeal. Cooper, supra (unpublished memorandum at 5). This Court
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rejected them.1 Id. (unpublished memorandum at 6-11) (holding that it was
reasonable for the jury to find that Appellant was the person who shot the
victim given the testimony of Mr. Kinley and Mr. Twyne; that motive was
established by Mr. Kinley’s testifimony that Appellant and the victim had
argued over money a few weeks before the shooting,2 and intent to kill was
shown by Appellant’s use of a deadly weapon on a vital part of the victim’s
body; and that, even if the trial court erred in sua sponte suggesting an
accomplice-liability jury instruction, it was harmless).
Appellant has pointed to no deficiencies in the manner in which direct
appeal counsel litigated these claims, nor cited additional authority that was
likely to garner a more favorable result. Appellant has not shown that he
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1 At first blush it appears that PCRA relief is unavailable on these claims
because they were previously litigated. See 42 Pa.C.S. § 9543(a)(3)
(providing that, to be eligible for relief, a petitioner must plead and prove that
“the allegation of error has not been previously litigated or waived”).
However, our Supreme Court has explained that
collateral claims of trial counsel ineffectiveness deriving from an
underlying claim of error that was litigated on direct appeal cannot
automatically be dismissed as “previously litigated.” Rather, Sixth
Amendment claims challenging counsel’s conduct . . . are
analytically distinct from the foregone claim of trial court error
from which they often derive, and must be analyzed as such.
Commonwealth v. Puksar, 951 A.2d 267, 274 (Pa. 2008).
2 Moreover, we note that “[i]t is well established that the Commonwealth is
not required, as a matter of law, to prove the accused’s motive even where
the offense charged is murder in the first degree.” Commonwealth v.
Briggs, 12 A.3d 291, 340 n.44 (Pa. 2011).
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suffered any prejudice as a result of appellate counsel’s performance, and no
relief is due. See Commonwealth v. Hanible, 30 A.3d 426, 443 (Pa. 2011)
(holding that the petitioner failed to overcome the presumption that counsel
performed effectively in challenging the conviction on direct appeal where the
petitioner (1) offered no persuasive authority to establish that counsel acted
unreasonably in emphasizing the unreliability of the evidence, and (2) did not
demonstrate that there was a reasonable probability that a challenge based
instead on due process grounds would have been successful).
With his final argument, Appellant maintains that he is innocent of the
crime, and that he was wrongfully convicted as the result of the cumulative
effect of counsel’s ineffectiveness. Appellant’s brief at 27. The PCRA court
opined that this claim merely restates the claims already discussed above,
and is thus meritless for the reasons discussed supra. PCRA Court Opinion,
8/8/17, at 14. It further concluded that, “[t]o the extent that [Appellant]
seeks to argue some other claim, his claim is waived for vagueness.” Id.
We agree with the PCRA court. Appellant in his brief does not support
this issue with any contention that we have not already found lacking in merit.
He merely reiterates his arguments that the witnesses who testified against
him were subjected to lengthy interrogations, that the descriptions of the
shooter offered by the witnesses were inconsistent, and that there were Brady
violations that counsel failed to correct. Appellant’s brief at 27. Nor does
Appellant offer any authority to suggest that the cumulative effect of the
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independently-meritless issues warrants relief. Therefore, Appellant has failed
to convince us that his final claim warrants relief. See Miner, supra.
For the foregoing reasons, we conclude that the PCRA court properly
entered its order dismissing Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2018
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