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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THOMAS SHIELDS : No. 2990 EDA 2019
Appeal from the PCRA Order Entered September 19, 2019,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0001153-2013.
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 18, 2020
The Commonwealth of Pennsylvania appeals the order granting the
petition filed by Thomas Shields pursuant to the Post Conviction Relief Act
(“PCRA”),1 which vacated his judgment of sentence and granted him a new
trial. We vacate the PCRA court’s order and remand with instructions.
Shields was convicted in 2014 of aggravated assault, conspiracy to
commit aggravated assault, and attempted kidnapping for ransom.2 His
judgment of sentence became final in 2017, when our Supreme Court denied
allowance of appeal. See Commonwealth v. Shields, 154 A.3d 857 (Pa.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
2 One of Shields co-defendants is his brother, Charles Shields, who
successfully filed a PCRA petition and was granted a new trial on similar
grounds. In a separate appeal pending before this panel, the Commonwealth
has challenged the PCRA relief granted to Charles Shields.
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Super. 2016) (unpublished memorandum), appeal denied, 166 A.3d 1228 (Pa.
2017). Shields filed a timely PCRA petition raising three claims of trial counsel
ineffectiveness. On September 19, 2019, the PCRA court granted the petition,
vacated the judgment of sentence, and ordered a new trial. The PCRA court
did not indicate the basis for its grant of PCRA relief. On September 24, 2019,
the Commonwealth filed a timely motion to reconsider in which it asserted
that the PCRA court erred without first holding an evidentiary hearing or
specifying the claim or claims on which it granted relief. On October 18, 2019,
the Commonwealth filed a timely notice of appeal from the order granting
PCRA relief.
On October 22, 2019, the PCRA court entered an order expressly
granting the motion for reconsideration and scheduling an evidentiary hearing
on the motion. However, because the Commonwealth had filed a notice of
appeal four days earlier, the PCRA court lacked jurisdiction to rule on the
motion for reconsideration. See Pa.R.A.P. 1701(a) (providing that “after an
appeal is taken or review of a quasi judicial order is sought, the trial court or
other government unit may no longer proceed further in the matter”); see
also Commonwealth v. Pearson, 685 A.2d 551, 556-57 (Pa. Super. 1996)
(holding that, pursuant to Pa.R.A.P. 1701(a), once a notice of appeal is filed,
the lower court is divested of jurisdiction to act further in the matter).
The PCRA court ordered the Commonwealth to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
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Commonwealth complied with that order. In its concise statement, the
Commonwealth raised the following claims of error:
1 Whether the lower court erred in granting [Shields’] PCRA
petition and awarding him a new trial, where the court did
not hold an evidentiary hearing on [Shields’] claims or
specify which of [Shields’] three separate claims supposedly
entitled him to relief.
2 Whether the lower court erred in granting [Shields’] PCRA
petition and awarding him a new trial, where [Shields]
raised only boilerplate and undeveloped claims of ineffective
assistance of trial counsel that failed at the inception to
plead and offer to prove that he was entitled to relief.
3 Whether the lower court erred in granting [Shields’] PCRA
petition where his first pled claim—that trial counsel was
ineffective for not filing a motion to suppress evidence
recovered during a search of [Shields’] cellphone—lacked
merit because [Shields] failed to meet his preliminary
obligation to establish a reasonable expectation of privacy
in his voluntarily abandoned cellphone, and because
[Shields] could not establish a lack of reasonable basis or
prejudice.
4 Whether the lower court erred in granting [Shields] PCRA
petition where his second pled claim—that trial counsel was
ineffective for not objecting to comments made by the
prosecutor during closing argument—lacked merit because
counsel had no basis for objecting to the prosecutor’s proper
and relevant comment concerning the principle that the
victim’s record and character were not on trial and that the
jury should not allow any lack of sympathy for him to enter
their deliberations, and because [Shields] could not
establish a lack of reasonable basis or prejudice.
5 Whether the lower court erred in granting [Shields’] PCRA
petition where his third pled claim—that trial counsel was
ineffective for not objecting to the trial court’s jury
instructions defining an “overt act” as an element of criminal
conspiracy—lacked merit because the court’s instructions
accurately defined it as “an act to carry out or advance [the
co-conspirators’] agreement” and properly distinguished it
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from a “substantial step” as an element of criminal attempt,
and because [Shields] could not establish a lack of
reasonable basis or prejudice.
Concise Statement, 11/25/19, at 1-3.
In response, the PCRA court issued a Pa.R.A.P. 1925(a) opinion.
However, in its opinion, the PCRA court did not address any of the five discrete
claims of error raised by the Commonwealth. Nor did the PCRA court indicate
which of Shields’ three ineffectiveness claims it found to be meritorious, such
that Shields was entitled to PCRA relief. Rather, the PCRA court noted its prior
scheduling of an evidentiary hearing, and stated that “this matter is stayed as
a result of the instant appeal and the matter cannot move forward until this
appeal is disposed of so that this Court may then hold an evidentiary hearing.”
PCRA Court Opinion, 2/10/20, at 8.
Pennsylvania Rule of Appellate Procedure 1925(b) provides that, upon
receipt of a notice of appeal, a lower court may enter an order directing the
appellant to file a concise statement of errors complained of on appeal “if the
judge entering the order giving rise to the notice of appeal . . . desires
clarification of the errors complained of on appeal.” Pa.R.A.P. 1925(b).
Thereafter, “if the reasons for the order do not already appear of record, [the
judge entering the order giving rise to the notice of appeal] shall forthwith file
of record at least a brief opinion of the reasons for the order, or for the ruling
or other errors complained of, or shall specify in writing the place in the record
where such reasons may be found.” Pa.R.A.P. 1925(a).
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Here, the PCRA court did not indicate in its September 19, 2019 order
the basis on which it granted Shields’ petition for PCRA relief. Nor did the
PCRA court provide in its Pa.R.A.P. 1925(a) opinion the reasons for the rulings
and errors complained of by the Commonwealth in its concise statement.
Thus, our appellate review of the issues raised by the Commonwealth is
hampered by our inability to determine which of Shields ineffectiveness claims
the PCRA court found to be meritorious. We therefore remand for the PCRA
court to issue a revised Pa.R.A.P. 1925(a) opinion addressing the issues raised
in the Commonwealth’s concise statement of errors complained of on appeal,
and explaining the basis for its grant of PCRA relief to Shields.
Case remanded. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/20
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