J-A28045-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

THOMAS SHIELDS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 544 EDA 2023

Appeal from the Order Entered January 31, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0001153-2013

BEFORE: OLSON, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED JUNE 3, 2024

The Commonwealth of Pennsylvania appeals from the grant of relief in 

the form of a new trial pursuant to the Post Conviction Relief Act, 42 Pa.C.S. 

§ 9541 et seq. (the “PCRA”), entered by the Philadelphia Court of Common 

Pleas on January 31, 2023. This case has been sent back to the PCRA court 

twice. We reverse the PCRA court’s order granting a new trial and remand for 

the filing of a supplemental opinion and order.1

This Court set forth the underlying facts of this case on direct appeal:

At approximately 1:40 p.m. on November 17, 2012, Dwayne 

Walters left his apartment to get a haircut. As he was opening the 

door of his rental car, a white Dodge, Lamar Roane approached 

him and asked him for a light. When Mr. Walters responded that 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We are entering a similar order in the Commonwealth’s appeal in Appellee’s 

co-defendant brother’s case. See Commonwealth v. Charles Shields, No. 

543 EDA 2023.
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he did not smoke, Roane seized Mr. Walters’s arm. At that 

moment, [Appellee] and his brother, Charles Shields, emerged 

from hiding, and the three men surrounded Mr. Walters. 

[Appellee] pulled out a chrome-colored handgun and thrust it into 

Mr. Walters’s abdomen. [Appellee] attempted to force Mr. Walters 

into the white Dodge, but Mr. Walters grabbed [Appellee’s] gun. 

The two briefly wrestled until Charles Shields brandished a black 

handgun and forced Mr. Walters into the driver’s door of his white 

Dodge. Charles shoved Mr. Walters over the center console to the 

passenger side of the vehicle, and got behind the wheel of the car. 

Roane and [Appellee] went around the car and entered the back 

seats. 

Mr. Walters unlocked the passenger door and exited the car. 

Roane grabbed Mr. Walters’ jacket, but Mr. Walters shed his jacket 

and ran. When Mr. Walters looked back to see if Roane was in 

pursuit, he saw [Appellee] and Charles pointing guns at him. 

Seconds later, a single bullet struck Mr. Walters in his back and 

exited his chest. 

A resident of Mr. Walters’ apartment complex, Jennifer Boyle, 

glanced out her window as she heard men arguing outside. She 

observed two men, whom she identified as [Appellee] and Charles 

Shields, fire their guns. Ms. Boyle saw Mr. Walters clutch his back 

and continue to run until he was out of her sight.[2]

Bleeding profusely, Mr. Walters stopped running when he came to 

a vehicle occupied by two women and a boy. He entered the rear 

seat of that vehicle and pressed his back up against the seat in an 

effort to stop the bleeding. One of the women panicked and 

demanded that Mr. Walters leave. When he tried to stand, he 

collapsed onto the nearby sidewalk. As he lay there, Mr. Walters 

watched his white Dodge rental car leave the parking lot. 

At approximately 1:39 p.m., Philadelphia Police received a 911 

call reporting a shooting near 2607 Welsh Road, Philadelphia, 

Pennsylvania. Officer Brandon Badey was first on the scene and 

saw Mr. Walters on the ground, holding a blood-soaked towel to 

his chest. Officer Badey knew Mr. Walters’s condition was critical 

and, with the help of the second officer on scene, placed Mr. 

____________________________________________

2 Although this Court stated that Ms. Boyle identified Appellee and his brother 

as the shooters, there is no testimony to that effect in the trial record. 

However, her testimony was consistent with a conclusion that it was the codefendants who were shooting at Mr. Walters.
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Walters in the back of his patrol car and rushed him to the 

hospital. Once at the hospital, Mr. Walters was taken directly to 

surgery. He remained hospitalized for six weeks. 

An investigation of the crime scene yielded two .45 caliber bullet 

casings along with a cellphone. The police department’s ballistics 

expert determined that these two bullet casings were fired from 

the same gun. The cellphone’s SIM card contained videos and 

photos indicating it belonged to [Appellee]. When investigators 

obtained a search warrant for [Appellee’s] phone, they noticed 

three distinct numbers that [Appellee] called frequently in the 

days and hours leading up to the shooting. Investigators acquired 

search warrants for the records associated with those numbers 

and learned that they belonged to Lamar Roane, Charles Shields, 

and Mr. Walters.

Investigators showed Mr. Walters a photographic array and he 

identified both [Appellee] and Charles. Police officers arrested 

[Appellee] at 1758 East Washington Lane, Philadelphia, 

Pennsylvania, and subsequently searched that residence. They 

found one .45 caliber bullet with a casing that looked like the bullet 

casings found at the crime scene. 

Mr. Walters testified at trial that he previously sold drugs on behalf 

of [Appellee] and Charles. He stated that, before the incident, 

[Appellee] and his brother made numerous harassing phone calls 

and sent threatening text messages due to an alleged $700 debt 

Mr. Walters owed [Appellee] following a recent drug transaction. 

On May 16, 2014, a jury found Appellant guilty of aggravated 

assault, conspiracy to commit aggravated assault, and attempted 

kidnapping. He was acquitted of attempted murder, firearms not 

to be carried without a license, and possession of an instrument 

of crime.

Commonwealth v. Thomas Shields, 3446 EDA 2014, 2016 WL 5210894,

*1-*2 (Pa. Super., filed July 15, 2016), appeal denied, 166 A.3d 1228 (Pa. 

2017).

In addition, the Commonwealth presented at trial cell phone tower data 

that demonstrated that someone in possession of Charles Shield’s T-Mobile 
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cell phone was within the service area of the southeast sector of a cell phone 

tower at 2555 Welsh Road for about an hour and a half immediately before 

the kidnapping attempt and shooting. N.T. 5/12/14, 9. The crime scene is 

close to the base of that tower. Id. Inferring that it was Appellee’s brother in 

possession of his phone, this pattern would be consistent with him staking out 

the victim’s apartment. Starting at 1:40 p.m., immediately after the shooting, 

Charles Shields’ cell phone was on the move away from the crime scene. Id., 

9. It first connected to a cell tower northwest of the crime scene, then on a 

cell tower near the entrance to the Pennsylvania Turnpike, and at 2:21 p.m. 

it was on a cell tower on Bethlehem Pike more than 12 miles west of the crime 

scene and northwest of the city, which distance, timing and location would be 

consistent with Charles Shields having been near the crime scene in the 

northeast section of the city, then on the turnpike heading to his residence in 

Germantown in the northwest section of the city. Id., 10-12. The phone 

connected and remained connected to a cell tower near his residence at 2:53 

p.m. Id., 12. 

The Sprint cell phone associated with Lamar Roane connected to a cell 

tower approximately a half mile from the apartment complex at 1:19 p.m. 

Id., 14. At 1:40 p.m., it was connected to a tower about a mile northwest, 

and on another tower 5.6 miles northeast of that about 15 minutes later. Id. 

14-15. At 2:12 p.m. the phone connected to the same cell tower on Bethlehem 

Pike that Charles Shields’ phone had connected to at 2:21 p.m. Id., 10, 15. 

Roane’s phone ultimately connected to the cell tower near his residence on 
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Washington Lane in Germantown in the northwest section of the city by 2:21 

p.m. and stayed connected to that tower through 2:56 p.m. Id., 15-16. The 

evidence at trial thus showed Charles Shields and Roane followed a similar 

path leaving the crime scene at approximately the same time immediately 

after the shooting. Id., 16. Appellee’s cell phone was found at the scene. N.T. 

5/8/14, 86, 100. The straightforward inference from the cell phone location 

evidence is that Appellee, his brother and Lamar Roane, residents in 

Germantown, had travelled across the city to the Apartment complex, with 

Charles Shields leaving first to watch the victim’s apartment for a time and 

the other two joining him shortly before the attempted kidnapping and 

shooting. The trio then fled immediately, in near unison, after the shooting to 

return to Germantown.3

The jury found Appellee guilty of aggravated assault with serious bodily 

injury, conspiracy to commit aggravated assault and attempted kidnapping. 

It acquitted him of attempted murder, carrying a firearm without a license and 

possessing an instrument of crime. The trial court imposed an aggregate term 

of 21 to 42 years’ imprisonment. This Court affirmed the judgment of sentence 

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3 On the day of the shooting, cell phone records established that someone 

using Charles Shields’ cell phone called or messaged Appellee’s cell phone, 

the one ultimately left at the scene, 16 times that day, ending at 1:19 p.m. 

N.T. 5/9/14, 21-24. Someone using Appellee’s phone called or messaged 

Charles Shields’ phone 15 times, ending at 12:07 p.m. Id., 25. There also 

were five calls or messages between Charles Shields’ and Lamar Roane’s cell 

phones starting at 12:23 p.m. and ending at 1:40 p.m., as well as four calls 

from Charles Shields’ phone to the victim’s phone in the morning. Id., 26-30. 

This pattern of calls supports the inference that the three conspirators 

converged on the scene of the shooting.
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on July 15, 2016. The Supreme Court of Pennsylvania denied a petition for 

allowance of appeal on February 15, 2017.

On February 12, 2018, Appellee filed a timely pro se PCRA petition. 

Counsel was appointed and amended the petition. In the amendment and 

subsequent filings, Appellee alleged, inter alia, that trial counsel provided 

ineffective assistance by not objecting to portions of the prosecutor’s 

summation and not objecting to the court’s instruction on an “overt act” as an 

element of criminal conspiracy, and by not moving to suppress the cell phone 

and information retrieved from it. The Commonwealth filed a motion to 

dismiss the petition. On September 19, 2019, the trial judge, sitting as the 

PCRA court, summarily granted the petition without holding an evidentiary 

hearing. The Commonwealth timely sought reconsideration alleging PCRA 

court error in not holding a hearing or specifying the claim or claims on which 

it granted relief. Before the PCRA court ruled on the reconsideration, the 

Commonwealth appealed.

On December 18, 2020, this Court remanded while retaining 

jurisdiction, because it was unable “to determine which of [Appellee’s] 

ineffectiveness claims the PCRA court [had] found to be meritorious.” 

Commonwealth v. Shields, 2990 EDA 2019, 2020 WL 7419524, *2 (Pa. 

Super., filed Dec. 18, 2020). “[T]he PCRA court did not indicate in its 

September 19, 2019 order the basis on which it granted [Appellee’s] 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 
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its concise statement.” Id. This Court ordered the PCRA court to issue a 

revised opinion addressing the issues raised by the Commonwealth. Id.

The PCRA court complied by revising its opinion “to indicate that PCRA 

relief was granted on multiple bases, including on claims made by [Appellee] 

that trial counsel was ineffective.” Commonwealth v. Shields, 2990 EDA 

2019, 2021 WL 3056777, **1 (Pa. Super., filed July 20, 2021) (the “Remand 

Order”). Further, the PCRA court stated both that “if ... trial counsel had 

objected at the proper times, this court believes that a curative instruction 

would have been offered” and that “these failures of counsel to object could 

not reasonably have been designed to further [Appellee’s] interests.” Id.

This Court remanded again, stating: 

[B]ecause the PCRA court did not conduct an evidentiary hearing 

to permit trial counsel to explain the bases for his trial strategies, 

we cannot determine whether trial counsel had a reasonable basis 

for not filing a motion to suppress and not objecting to comments 

made by the prosecutor during closing argument or to the trial 

court’s jury instructions. Without this critical evidence, it was 

improper for the PCRA court to summarily conclude that counsel 

did not have a reasonable basis for his actions. Additionally, the 

PCRA court did not address whether there was a reasonable 

probability that the outcome of the proceedings would have been 

different had trial counsel filed a motion to suppress and made the 

specified objections.

Id. Thus, on July 20, 2021, this Court vacated the order granting PCRA relief 

and remanded for the PCRA court to conduct an evidentiary hearing. Id.

The ordered hearing was held before the PCRA court on September 15, 

2022. There is no order in the record limiting the claims to be addressed at 

the hearing. Trial counsel for Appellee and Appellee’s brother testified. 
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Appellee’s trial counsel testified to his reasons for: not seeking to suppress 

the information found on the cell phone found by police at the scene, N.T. 

9/15/22, 45-49, 57-60; not objecting to the closing portion of the prosecutor’s 

summation, id., 49-50, 61-62; and not objecting to an instruction that inured 

to his client’s benefit, id., 51-52.

4

At the conclusion of testimony, PCRA counsel primarily argued the 

ineffective assistance of trial counsel for not moving to suppress the cell phone 

found on the scene on the ground that the Commonwealth’s evidence showed 

there had been a struggle with the victim during which the cell phone was 

dropped, which, he argued, distinguished voluntarily abandonment of the 

phone. N.T. 9/15/22, 80-84. With respect to trial counsel’s failure to object to 

the prosecutor’s summation in which she asked the jury to put themselves at 

the scene, counsel argued there was no reasonable basis and prejudice 

because of the risk the jury might reach a verdict based on passion and not 

evidence. Id,. 85-86. PCRA counsel also argued that the instruction on overt 

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4 Appellee’s brother’s counsel testified to: the reasons he did not object to the 

closing portion of the prosecutor’s summation, N.T. 9/15/22, 10-19; his 

overall trial strategy, id., 20-21; his reason for objecting to and requesting a 

curative instruction for the prosecutor saying he tried to “mislead” the jury, 

id., 23-24; his reason for not objecting to an instruction that inured to 

Appellee’s benefit, id., 25-29; and reasons for not raising the Rule 404(b) 

issue on appeal, id., 30-31 
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act was confusing and not objecting was prejudicial because it could have led 

to the jury using the wrong standard. Id., 86-88.5

With respect to the prosecutor’s summation, the Commonwealth argued 

that, in context, the argument addressed the character attacks on the victim 

and stressed that even though not a perfect person, he still had a right to not 

be shot and robbed by the co-defendants who put others at risk with their 

actions. The Commonwealth also argued that the defendants’ trial strategy 

was to avoid conviction for attempted murder, which goal was achieved, and 

emphasized that it was a reasonable strategy. Moreover, there was no 

prejudice as an objection would have, at most, obtained a curative instruction 

that likely would have tracked the court’s general instruction to base the 

verdict on the evidence. Id. 95-105. That instruction was given. The 

Commonwealth also noted that the physical evidence corroborated the 

victim’s testimony. Id., 106-111. The Commonwealth also argued reasons to 

reject the ineffectiveness claims with respect to suppression and the court’s 

instruction. Id., 90-94, 112-114. The PCRA court held its decision under 

advisement. Id., 133.

____________________________________________

5 PCRA counsel for Appellee’s brother explicitly withdrew the ineffective 

assistance claim against direct appeal counsel for not raising the Rule 404(b) 

issue. N.T. 9/15/22, 67. PCRA counsel then forwarded argument on the 

allegations of ineffective assistance based on the failure of trial counsel to 

object to the final portion of the prosecutor’s summation, including on both 

the lack of a reasonable basis and the presence of prejudice based on 

inconsistent verdicts. Id., 67-73. Counsel also argued both a lack of 

reasonable basis and prejudice for the allegation of ineffectiveness for failing 

to object to the court’s instruction on the overt act element. Id., 73-77.
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On January 31, 2023, the PCRA court entered an order and 

memorandum opinion on the docket. See Trial Court Docket Entries 295 & 

296; Trial Court Record, 557. The order recited the petition, subsequent 

filings, Commonwealth responses, and independent review of the record and 

argument of counsel at an evidentiary hearing, and “ordered and decreed that 

the Petitioner’s Petition is granted and the defendant is awarded a new trial.” 

See Trial Court Record, 557. The PCRA court contemporaneously filed an 

opinion which explained that the grant of the petition and award of a new trial

was on the ground that trial counsel was ineffective for not objecting to 

“claims” made in the prosecutor’s summation. PCRA Court Opinion, 8. 

Specifically, the PCRA court ruled that there was arguable merit that trial 

counsel should have objected to claims “such as” (1) trial counsel “was 

‘purposefully trying to mislead you [the jury]’” or (2) “it’s about people like 

you... [the jury], [w]ho live in apartment complexes like the people at the 

Joshua Street Houses.” Id. (brackets in PCRA court opinion). See N.T. 

5/15/14, 13, 24.

The PCRA court then found that trial counsel did not articulate a 

reasonable basis for electing not to object to the final portion of the 

prosecutor’s summation. That counsel “presumed it was prejudicial to his 

client, but did not want to belabor the point,” was not a strategy “designed to 

effectuate his client’s interests.” PCRA Court Opinion, 8. 
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Addressing the prejudice prong, the PCRA court wrote:

Finally, this court finds that there is, in fact, a reasonable 

probability that the outcome of the proceedings would have been 

different had trial counsel objected to [the prosecutor’s] closing 

statement. This court finds that statements made in the ADA’s 

closing such as, “Bullets don't have names on them ... Bullets 

don’t care who you are or what you do. Bullets don’t care if you’re 

Dwayne Walters or if you're a kid riding a bike. That's why this 

case isn't about Dwayne. It’s about this.” [N.T. 9/15/22, 12.] 

Furthermore, other remarks made in the closing mentioned above 

could have reasonably, unfairly prejudiced the jury against 

Appellant as counsel did not object to them during trial.

PCRA Court Opinion, 8-9. Accordingly, the court granted Appellee’s “PCRA 

[petition] and order[ed] that a new trial be held in the matter.” Id. at 9.

The Commonwealth filed a timely appeal. Notably, the PCRA court 

neither ordered a Rule 1925(b) Statement, nor filed a revised opinion.

The Questions Presented in the Commonwealth’s brief are:

1. Did the PCRA court err by granting defendant post-conviction 

relief and awarding him a new trial based, in part, on a 

hypothetical claim of ineffective assistance of trial counsel, where 

defendant never raised that claim? ... 

2. Did the PCRA court err by granting post-conviction relief and 

awarding defendant a new trial based on the claim that trial 

counsel was ineffective for not objecting to a remark the 

prosecutor made during closing argument that, while properly 

reminding the jury that the victim’s character was not on trial, 

briefly referred to the wider community, where the passing 

comment did not prevent the jurors from weighing the evidence 

objectively and rendering a true verdict?

Commonwealth’s Brief, 4.

When reviewing the grant of PCRA relief, “we determine whether the 

PCRA court’s determinations are supported by the evidence of record and are 
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free of legal error.” Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 

2018). We will not disturb the PCRA court’s factual findings unless the certified 

record does not support them. Id. We review its legal conclusions de novo. 

Id.; Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

With respect to claims of ineffective assistance of counsel, counsel 

is presumed to be effective, and the petitioner bears the burden 

of proving to the contrary. [Commonwealth v. Hanible, 30 A.3d 

426, 439 (Pa. 2011)]. To prevail, the petitioner must plead and 

prove, by a preponderance of the evidence, the following three 

elements: (1) the underlying claim has arguable merit; (2) 

counsel had no reasonable basis for his or her action or inaction; 

and (3) the petitioner suffered prejudice as a result of counsel’s 

action or inaction. Id. With regard to the second prong 

(reasonable basis), “we do not question whether there were other 

more logical courses of action which counsel could have pursued; 

rather, we must examine whether counsel's decisions had any 

reasonable basis.” [Id.] We will hold that counsel's strategy 

lacked a reasonable basis only if the petitioner proves that a 

foregone alternative “offered a potential for success substantially 

greater than the course actually pursued.” Spotz, 18 A.3d at 260. 

Our review of counsel's performance “must be highly deferential.” 

Commonwealth v. Tharp, ... 101 A.3d 736, 772 (Pa. 2014) 

(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). 

To establish the third element (prejudice), the petitioner must 

show that there is a reasonable probability that the outcome of 

the proceedings would have been different but for counsel’s action 

or inaction. [Hanible, 30 A.3d at 439].

Brown, 196 A.3d at 150–51 (internal citations edited for clarity). A failure to 

satisfy any of the three prongs is fatal to the claim of counsel’s ineffectiveness. 

Id. at 151; Commonwealth v. Midgley, 289 A.3d 1111, 1119 (Pa. Super. 

2023).

The Commonwealth first argues that the PCRA court ruled trial counsel 

was ineffective for not objecting to the prosecutor’s statement to the jury “I 
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don’t know why [counsel for co-defendant is] purposefully trying to mislead 

you.” Appellant’s Brief, 13; N.T. 5/15/14, 13. We do not read the PCRA court’s 

opinion to have granted relief on that claim, but to the extent it did, we agree 

it would be erroneous.6

During the prosecutor’s summation, she stated:

Now, the shooting happens right before 1:38pm. Now, how do we 

know that? Because there's a 911 call, the 911 print out, that we 

all agreed to or stipulated to. Showing the first 911 call at 

1:37:52pm. So the shooting happened, what, a minutes or two 

before. I don't know why [co-defendant’s counsel] -- I don't know 

why he’s purposefully trying to mislead you. 

[Co-defendant’s Counsel]: Objection. 

[Prosecutor]: I would hope not, but the defendants, the 

evidence, that they agreed to put the shooting at before 1:38, and 

2 to 3 minutes after that shooting, Charles Shields, and at least 

Lamar Roane because we have his phone and are driving away.

N.T. 5/15/14, 13.

As the Commonwealth notes, and Appellee agrees, this claim was never 

raised before the PCRA court by Appellee. Commonwealth’s Brief, 13; 

Appellee’s Brief, 3. “As this claim was never raised before the PCRA court, it 

cannot be raised for the first time on appeal.” Commonwealth v. Bedell, 

954 A.2d 1209, 1216 (Pa. Super. 2008); accord Commonwealth v. 

Edmiston, 851 A.2d 883, 889 (Pa. 2004) (reiterating that “[c]laims not raised 

____________________________________________

6 The PCRA court opinion is not a model of clarity, which we will discuss further 

with respect to remand. We find it particularly problematic that the PCRA court 

has not made its rulings clear in light of the prior remands in this PCRA 

proceeding.
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in the PCRA court are waived and cannot be raised for the first time on 

appeal”).

In any event, co-defendant’s counsel, at whom the challenged comment 

was directed, in fact objected. N.T. 5/15/14, 13. Not only did co-defendant’s 

counsel object, but the trial court sustained the objection at the conclusion of 

the prosecutor’s summation. N.T. 5/15/14, 24. Co-defendant’s counsel then 

asked for a mistrial. Id., 25. The trial court, which also was the PCRA court, 

and which had heard the final portion of the prosecutor’s summation 

immediately prior to the sidebar, then denied both a mistrial and a cautionary 

instruction. Id., 26. There could be no merit to an allegation of ineffectiveness 

against co-defendant’s counsel, who in fact objected. Commonwealth v. 

Spotz, 896 A.2d 1191, 1224 (Pa. 2006). Since no relief was granted for the 

objection raised by co-defendant’s counsel, there was no probability that the 

outcome of trial would have been different, and thus no actual prejudice to 

Appellee when Appellee’s counsel did not object. Commonwealth v. 

Hammond, 953 A.2d 544, 562–63 (Pa. Super. 2008) (reversing grant of 

post-conviction relief where PCRA hearing evidence did not support conclusion 

that “a different outcome at trial” would result).7

____________________________________________

7 For the purposes of completeness, the objected to “claim” by the prosecutor 

was referring to the co-defendant counsel’s argument that the cell tower data 

showed that co-defendant had left the scene before the shooting, but the 

record was clear that the shooting had to occur before the first 911 call 

reporting it, which information was broadcast over police radio and received 

at 1:39 p.m., and co-defendant’s cell phone was connected to the cell tower 

(Footnote Continued Next Page)
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The Commonwealth’s second claim argues that the PCRA court 

erroneously granted relief on an allegation of trial counsel’s ineffective 

assistance for declining to object to the prosecutor’s summation, which 

allegation was based on the following passage:

I know I’ve talked for a long time. And I just have one more thing to 

say. Dwayne Walters may not be a great guy. He’s an admitted drug 

dealer. He’s an admitted non-violent drug dealer. Dwayne Walters isn’t 

my friend, he’s not coming over to my house for Sunday dinner. We’re 

not watching the Phillies together. But I want you to understand 

something very important. This case isn’t about Dwayne. It’s about you. 

It’s about each and every one of you. It’s about people like you who 

live in apartment complexes like the people at the Joshua Street 

Houses. It’s about people like you who want to raise their kids and 

families in safe environments, safe from people like the defendants who 

shoot guns in the middle of the parking lot. It’s about this. And it’s about 

this. Bullets don’t have names on them. They don’t have zip codes. 

There’s no GPS tracker. Bullets don’t care who you are or what you 

do. Bullets don’t care if you’re Dwayne Walters or if you’re a kid 

riding a bike. That’s why this case isn’t about Dwayne. It’s about 

this. No one has the right to shoot anybody. Period. End of story.

This was a bold and brazen shooting in broad daylight and the evidence 

is convincing and it’s compelling. And it could not be more clear that 

these defendants are guilty.

____________________________________________

near the victim’s apartment from 11:53 a.m. until 1:20 p.m. and only 

connected to a different cell tower, a half mile northwest, after the shooting, 

at 1:40 p.m. N.T. 5/6/14, 27; N.T. 5/12/14, 9. While the objection to the 

prosecutor’s disparagement of counsel was properly sustained, the purpose of 

the argument was both proper rebuttal of a defense claim and evidence based. 
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N.T. 5/15/14, 23-24 (emphasis supplied based on the PCRA court’s emphasis 

in its analysis).8

The PCRA court ruled there was arguable merit to the underlying claim 

that counsel should have objected to the prosecutor’s assertions “such as” the 

case being “about people like you who live in apartment complexes like the 

people at the Joshua Street Houses.” PCRA Court Opinion, 7. Although we do 

not find that statement particularly worrisome as it was merely a rhetorical 

device to impart on the jury the seriousness of a shooting in a public area, 

even one over a drug debt, we agree there is a problematic assertion in this 

passage. The prosecutor’s reference to “a kid riding a bike” in the path of a 

bullet was a fact not in evidence. There was evidence that it was a sunny, 

unusually warm weekend afternoon in a residential area, and Dwayne Walters 

testified there was a child in a car in which he sought refuge. N.T 5/7/14, 49, 

68-69; N.T. 5/8/14, 88. We do not have to decide whether the prosecutor’s 

assertion might have been a fair inference. See Commonwealth v. Luster, 

71 A.3d 1029, 1048 (Pa. Super. 2013) (en banc) (“a prosecutor is permitted 

to ‘vigorously argue his case so long as his comments are supported by the 

evidence or constitute legitimate inferences arising from that evidence’”). It 

is enough for this purpose to find that it was not clearly so. Therefore, we 

____________________________________________

8 We infer from context that where the prosecutor states, “It’s about this. And 

it’s about this,” she was referring individually to the two fired cartridge casings 

found at the scene and admitted into the record. See N.T. 5/8/14, 94-95.
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agree with the PCRA court that an objection would have had at least arguable 

merit satisfying the first element of the ineffectiveness test. 

With respect to the second element, this Court remanded the matter in 

2021 for the PCRA court to hold an evidentiary hearing in part to create a 

record of trial counsel’s “legal strategies.” Remand Order, **1. Trial counsel 

explained at the hearing that in retrospect he believed this portion of the 

Commonwealth’s summation was objectionable, he did not object, in part, 

because the prosecutor was making the victim look bad, that is, character 

assassination of the prosecutor’s own witness. N.T. 9/15/22, 51, 56. He also 

explained that he does not usually object to a prosecutor’s argument that he 

believes work to his client’s benefit. Id., 56. The PCRA court found that 

counsel had not articulated a reasonable strategic reason “designed to 

effectuate his client’s interest” for not objecting to the final portion of the 

prosecutor’s summation. PCRA Court Opinion, 8. This ruling is, in part, based 

on the PCRA court’s credibility determination that failing to object to an 

“outlandish” argument “cannot be seen as reasonably designed to effectuate 

his client’s interests.” PCRA Court Opinion, 8. “We must defer to the PCRA 

court’s findings of fact and credibility determinations, which are supported by 

the record,” as they are here. Commonwealth v. Spotz, 84 A.3d 294, 319 

(Pa. 2014); Commonwealth v. Harper, 230 A.3d 1231, 1236 (Pa. Super. 

2020).

We also remanded this matter for the PCRA court to “address whether 

there was a reasonable probability that the outcome of the proceedings would 
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have been different had trial counsel made the specified objections.” Remand 

Order, **1. The PCRA court addressed the prejudice prong as follows:

[T]his court finds that there is, in fact, a reasonable probability 

that the outcome of the proceedings would have been different 

had trial counsel objected to [the prosecutor’s] closing statement. 

This court finds that statements made in the ADA’s closing such 

as, “Bullets don’t have names on them ... Bullets don’t care who 

you are or what you do. Bullets don’t care if you’re Dwayne 

Walters or if you’re a kid riding a bike. That’s why this case isn’t 

about Dwayne. It’s about this.” Id. p. 12. Furthermore, other 

remarks made in the closing mentioned above could have 

reasonably, unfairly prejudiced the jury against Appellant as 

counsel did not object to them during trial. 

PCRA Court Opinion, 8-9.

The PCRA court’s discussion is unpersuasive. It merely repeats the legal 

standard from our 2021 decision and, without reference to the evidence at 

trial or possible relief, asserted a tautology that Appellee was prejudiced 

because counsel did not object. 

Accordingly, we conduct our own review of the record and hold that 

prejudice was not proven. 

[T]he prosecutor must be allowed to respond to defense counsel's 

arguments, and any challenged statement must be viewed not in 

isolation, but in the context in which it was offered. The prosecutor 

must be free to present his or her arguments with logical force 

and vigor.” Within reasonable bounds, the prosecutor may employ 

oratorical flair and impassioned argument when commenting on 

the evidence....

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013) (citations omitted); 

Commonwealth v. Riggle, 119 A.3d 1058, 1068 (Pa. Super. 2015).
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The final portion of the Commonwealth’s summation was, in context, an 

aggressive argument by the prosecutor to rebut the attacks on the victim, an 

admitted drug dealer, while providing the jury with a reason for why they had 

spent a week in trial over an alleged drug debt that turned violent. An 

argument focusing on the danger of fired bullets to bystanders is a legitimate 

concern for the jury whenever the evidence at trial demonstrates that gunfire 

was initiated in an open and populated public area. If the argument strayed 

over a line that the trial court would have enforced had there been an 

objection, it still was not per se reversible as it was firmly based in the 

evidence at trial – other than the reference to a child on a bike – and was 

about the nature of the crime committed. See Commonwealth v. Hall, 701 

A.2d 190, 202 (Pa. 1997) (“[C]omments by a prosecutor do not constitute 

reversible error unless the unavoidable effect of such comments would be to 

prejudice the jury, forming in their minds a fixed bias and hostility toward the 

defendant so that they could not weigh the evidence objectively and render a 

true verdict”); Commonwealth v. Patton, 936 A.2d 1170, 1174-75 (Pa. 

Super. 2007) (discussing the lack of reversible prejudice for “send a message” 

arguments generally where arguing for a finding of guilt based on trial 

evidence), aff’d, 985 A.2d 1283 (Pa. 2009). The Pennsylvania Supreme Court 

has stated in this context that it does “not favor per se rules in error review.” 

Patton, 985 A.2d at 1288 n.3.

Thus, the question of prejudice turns not on an assumption the 

argument per se denied Appellee a fair trial, but whether an objection would 
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have had a reasonable likelihood to alter the result at trial. Commonwealth

v. Daniels, 963 A.2d 409, 427 (Pa. 2009) (“In order to establish prejudice, 

appellees must demonstrate that there is a reasonable probability that the 

outcome of the proceedings would have been different had counsel pursued 

the theory they now present”). The evidence against Appellee was strong, 

albeit not so overwhelming that the jury convicted him on all charges. The 

victim identified Appellee and his brother whom he knew from the drug trade, 

explained the nature of the drug debt and Appellee’s prior attempts to obtain 

payment. N.T. 5/7/14, 46, 52-56, 80. There were numerous calls by Appellee’s 

co-defendant brother to Walters the morning of the shooting. N.T. 5/9/14, 28-

30. Walters also described the ambush attack, attempted kidnapping, his 

initial escape and the shooting, much of which was corroborated by a neighbor 

who saw the confrontation and shooting and the physical items found at the 

scene. N.T. 5/6/14, 30; N.T. 5/7/14, 9, 15, 47-52, 56-79; N.T. 5/8/14, 17-

32, 85-87. In addition, the cell phone location evidence demonstrated that the 

brother, who lived on the opposite side of the city, had been in the immediate 

area of Walters’ apartment for an hour and a half immediately prior to the 

shooting, with Appellee and Roane coming into the area shortly before the 

shooting, having been in near constant contact with Appellee, and then all 

three fleeing in similar timing and directions after the shooting, with Appellee’s 

cell phone left at the scene. N.T. 5/8/14, 100; N.T. 5/9/14, 19-30; N.T. 

5/12/14, 3-16. Accordingly, there was ample evidence on which the jury could 

base a finding of guilt. We are not persuaded by Appellee’s circular argument 
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that he was prejudiced because the trial court was not given an opportunity 

to sustain an objection and give a curative instruction or grant a mistrial.

Appellee’s Brief, 7.

Assuming the trial court would have sustained an objection if it had been 

raised, it then could have chosen among three responses. It could have given 

no additional relief – as it did with the objection raised and argued by trial 

counsel – a cautionary instruction or a mistrial. We do not believe that a 

cautionary instruction would have changed the jury’s verdict, and note that 

Appellee does not present any argument that it could have. Appellee’s Brief, 

7.

Obviously, the grant of a mistrial would alter the result of trial. However, 

as discussed above, the argument itself did not warrant it absent a clear effect 

on the jury. We note that the trial court had the opportunity to grant a mistrial 

immediately after the portion of the summation at issue and declined to do 

so. N.T. 5/15/14, 26. The court was in “the best position to assess the effect” 

of the summation on the jury. Commonwealth v. Rega, 933 A.2d 997, 1016 

(Pa. 2007); Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000).

We do not find it to be reasonably probable that an additional objection by 

trial counsel would have obtained a mistrial where one had already been 

denied. Therefore, Appellee failed to prove actual prejudice. “Accordingly, we 

reverse the PCRA court’s grant of a new trial on this basis.” Daniels, 936 A.2d 

at 429.
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We are aware, however, that the written order of the PCRA court grants 

the petition (and all subsequent amendments) in total, rather than in part. 

See Trial Court Record, 557. Both Appellee and co-defendant litigated fully 

before the PCRA court a claim that trial counsel were ineffective for not 

objecting to the court’s instructions on criminal attempt and criminal 

conspiracy in that they did not clearly distinguish a substantial step from an 

overt act. N.T. 9/15/22, 73-77, 86-88. The PCRA court did not enter a specific 

ruling on this claim, either granting it or denying it.9 We also recognize that 

whether a reasonable basis or actual prejudice was proven at the hearing may 

play out differently with a jury instruction claim. Out of fairness to all of the 

parties, we therefore remand the matter for the PCRA court to write a 

supplemental opinion stating clearly its ruling on this claim, and its reasons 

therefor, including a determination of whether the instructions were confusing, 

whether counsel had a reasonable basis to not object, and whether, in light of 

the strong evidence supporting the verdict, there was actual prejudice from

counsel’s alleged failure. We will relinquish jurisdiction so that the parties can, 

____________________________________________

9 Co-defendant argues in his appeal that the PCRA court granted a new trial 

on the basis of this allegation. It is clear to us that the PCRA court did not 

grant relief on this claim of ineffective assistance, as it is not mentioned in the 

PCRA Court Opinion. We note further that neither the Commonwealth nor 

Appellee believed the PCRA court had granted relief on this claim as neither 

discuss it. Moreover, the claim was explicitly mentioned in this Court’s 2017 

decision ordering the PCRA court to issue a new decision explaining which 

claims it had granted relief on and the reason for doing so. Therefore, we 

doubt that the PCRA court would have declined to explicitly grant relief if it 

had intended to do so after the hearing. 
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within 30 days of the entry of the supplemental opinion and order, appeal the 

ruling if they so choose. 

To aid the PCRA court to expeditiously file its supplementary opinion, 

we address the two other claims raised by Appellee and Appellee’s brother at 

the PCRA hearing. Appellee argued at the PCRA hearing that his trial counsel 

was ineffective for not seeking to suppress the cell phone that he left at the 

scene. There are two legal bases on which that claim fails. First, subsequent 

to the time of trial in May 2014, the United States and Pennsylvania Supreme 

Courts authored decisions altering the legal requirements for suppression of 

data obtained from cell phones. See Riley v. California, 573 U.S. 373, 403

(2014) (requiring search warrant for information on cell phone seized incident 

to an arrest); Commonwealth v. Fulton, 179 A.3d 475, 486-489 (Pa. 2018) 

(extending search warrant requirement). Counsel cannot be found ineffective 

for failing to predict a future change in the law. Commonwealth v. Brown, 

196 A.3d 130, 178 (Pa. 2018). Second, the argument forwarded by Appellee’s 

brother was that the cell phone had been forcibly abandoned by him during a 

struggle with Walters. N.T. 9/15/22, 80-82. The question of coerced 

abandonment arises where police conduct causes the possessor of property to 

abandon control over it. See Commonwealth v. Jackson, 698 A.2d 571, 

576 (Pa. 1997) (“when the causative factor in the abandonment of the 

evidence is an unconstitutional search and seizure, the contraband must be 

suppressed”). In contrast, here, Appellee lost possession of the cell phone 
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while voluntarily engaging with Walters before any police officer arrived at the 

scene.

Appellee’s brother argues in his appeal that the trial court also granted 

relief on his allegation that direct appeal counsel was ineffective for not 

challenging the admission of Rule 404(b) evidence at trial. The PCRA court did 

not and could not grant relief on that claim, as that allegation of ineffective 

assistance was explicitly withdrawn at the conclusion of the evidentiary 

hearing. N.T. 9/15/22, 68. 

Based upon the foregoing, the order of the PCRA court is reversed and 

the matter remanded to the PCRA court. Upon remittal of the record pursuant 

to Pa.R.A.P. 2591, the PCRA court shall file a supplementary order and opinion 

addressing the one remaining allegation of ineffective assistance. 

Order reversed. Case remanded for entry of a supplementary opinion 

and order. Jurisdiction relinquished.

Date: 6/3/2024