J-A28044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

CHARLES SHIELDS

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 543 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-0001484-2013

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. 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 previously summarized the underlying facts:

When Dwayne Walters awoke in the early afternoon hours of 

November 17, 2012, his cell phone displayed numerous missed 

calls from [Appellee]. Around 1:30 p.m., Mr. Walters left his 

apartment to get a haircut. He walked through the parking lot of 

his apartment complex towards his rental car, a white Dodge. As 

he unlocked the car door, Lamar Roane, whom Mr. Walters did not 

____________________________________________

* 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. Thomas Shields, No. 

544 EDA 2023.
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know, approached Mr. Walters and asked him for a light. When 

Mr. Walters said he did not smoke, Roane grabbed his arm tightly. 

[Appellee] and his brother, Thomas Shields, appeared from their 

concealed locations and approached Mr. Walters and Roane. 

Thomas Shields displayed a long chrome-colored handgun and 

shoved the barrel into Mr. Walters’s stomach. Thomas Shields 

asked Mr. Walters about the money, a reference to $700 he 

believed Mr. Walters owed him from a drug transaction. 

Surrounded, and desperate to defend himself, Mr. Walters 

grabbed the gun. A brief struggle ensued between Mr. Walters and 

Thomas Shields. [Appellee] pulled out a black handgun and 

Thomas told [Appellee] to shoot Mr. Walters. Mr. Walters released 

his hold on the gun and stopped struggling. [Appellee] took Mr. 

Walters’ car keys, phone, watch and wallet and then forced him 

into the driver’s door of his white Dodge. He shoved Mr. Walters 

over the center console into the passenger seat, while Roane and 

Thomas Shields went around the car and entered the rear seats 

of the vehicle. 

Mr. Walters pushed open the passenger door, and as he started 

to escape, Roane grabbed his jacket. Mr. Walters wiggled out of 

his grasp and ran while Roane pursued him. When Mr. Walters 

glanced back to see if anyone was chasing him, he saw [Appellee]

and Thomas Shields aiming guns at him. He heard two gunshots 

and a single bullet struck him in the back and exited his chest.

Jennifer Boyle, a resident of the apartment complex, heard men 

arguing outside. When she went to the window of her apartment, 

she saw two men fire their guns. She later identified the shooters 

as [Appellee] and Thomas Shields.

[2]

Mr. Walters, bleeding profusely from his gunshot wound, entered 

the back seat of a stopped vehicle occupied by two women and a 

young boy. He pressed his back against the seat of the vehicle in 

an attempt to stop the bleeding. The woman in the passenger seat 

panicked and asked Mr. Walters to exit her car, and he stumbled 

out and collapsed onto the sidewalk. As he lay there, he saw his 

assailants exiting the parking lot in his white Dodge rental car. 

____________________________________________

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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At approximately 1:39 p.m., Philadelphia Police Officer Brandon 

Badey received a priority radio call reporting a shooting near 2607 

Welsh Road, Philadelphia, Pennsylvania. Upon arriving at the 

scene, Officer Badey saw Mr. Walters on the ground, holding a 

blood-soaked towel to his chest. Mr. Walters, who was slipping in 

and out of consciousness, was unable to communicate to Officer 

Badey who shot him. Realizing that Mr. Walters’ condition was 

critical, Officer Badey and the second officer on scene placed Mr.

Walters in the back of Officer Badey’s patrol car and rushed him 

to the hospital. Mr. Walters was immediately taken to the 

operating room and, after surgery, he was transferred to the 

Intensive Care Unit. He remained hospitalized for six weeks.

During the investigation of the crime scene, police located two .45 

caliber casings, which the Commonwealth’s ballistician testified 

were fired from the same gun. Underneath a nearby car that had 

a bullet hole in its windshield, investigators found a cell phone that 

contained several videos and photos that Thomas Shields had 

taken of himself. Investigators obtained search warrants for that 

cell phone data, including call logs and text messages. It also 

obtained warrants for the data from Mr. Walters’ cell phone and 

information associated with the telephone numbers of [Appellee], 

Thomas Shields, and Lamar Roane. The search revealed that 

multiple telephone calls were made to and from Thomas Shields 

and [Appellee], and from Thomas Shields to Lamar Roane, on the 

day in question. At least four telephone calls and several text 

messages were sent from Thomas Shields’ phone to the victim on 

the morning of the shooting. 

On November 20, 2012, Mr. Walters identified both [Appellee] and 

Thomas Shields from a photographic array. Several days later, 

Officers arrested Thomas Shields at 1758 East Washington Lane, 

Philadelphia, Pennsylvania. A search of the residence yielded one 

silver .45 caliber hollow point bullet. The Commonwealth’s 

ballistics expert could not determine if the spent .45 caliber 

casings found at the scene were hollow point bullets. On 

November 29, 2012, [Appellee] surrendered at the U.S. Marshall’s 

office. 

At trial, Mr. Walters testified that he had previously sold drugs for 

[Appellee] and his brother. Mr. Walters reported that he received 

numerous threatening phone calls and text messages from 

[Appellee] and Thomas Shields about a $700 debt he allegedly 

owed Thomas following a recent drug transaction. Thomas Shields 

gave him an ultimatum: “either come up with money or there will 
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be consequences[,]” which he understood to mean “physical 

harm.” N.T., 5/7/14, at 56. 

Mr. Walters told the jury that, prior to trial, a mutual friend of 

[Appellee] and Mr. Walters offered him $5,000.00 not to testify in 

court, but he did not accept. On May 16, 2014, a jury found 

[Appellee] 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. Charles Shields, 3376 EDA 2014, 2016 WL 5210901, 

*1-*2 (Pa. Super., filed July 22, 2016), appeal denied, 160 A.3d 793 (Pa. 

2016).

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

that demonstrated that someone in possession of Appellee’s T-Mobile 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 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, Appellee’s 

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 Appellee having been near the crime scene in the northeast section of 
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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 Appellee’s 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 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 Appellee and Roane followed a similar path leaving the 

crime scene at approximately the same time immediately after the shooting. 

Id., 16. Appellee’s brother’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 Appellee leaving first

to watch the victim’s apartment for a time and the other two joining him 
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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 

on July 22, 2016. The Supreme Court of Pennsylvania denied a petition for 

allowance of appeal on November 8, 2016.

On November 6, 2017, 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 

multiple instances of 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 that appellate counsel, 

who was trial counsel, was ineffective for not raising as error the trial court’s 

admission of Pa.R.E. 404(b) evidence. The Commonwealth filed a motion to 

____________________________________________

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

using Appellee’s cell phone called or messaged his brother’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 brother’s phone called or messaged 

Appellee’s phone 15 times, ending at 12:07 p.m. Id., 25. There also were five 

calls or messages between Appellee’s 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 Appellee’s 

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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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 24, 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, 2991 EDA 2019, 2020 WL 7663483, **2 (Pa. 

Super., filed Dec. 24, 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 

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 and direct appeal counsel were ineffective.”

Commonwealth v. Shields, 2991 EDA 2019, 2021 WL 3056291, **1 (Pa. 

Super., filed July 20, 2021) (the “Remand Order”). Further, the PCRA court 

stated both that “if direct appeal counsel and trial counsel had objected at the 

proper times, this court believes that a curative instruction would have been 
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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 and direct appeal counsel to explain the 

bases for their legal strategies, we cannot determine whether trial 

counsel had a reasonable basis for not objecting to comments 

made by the prosecutor during closing argument or to the trial 

court’s jury instructions, or whether direct appeal counsel had a 

reasonable basis for not challenging the trial court's admission of 

prior bad acts evidence. Without this critical evidence, it was 

improper for the PCRA court to summarily conclude that trial 

counsel and direct appeal counsel did not have a reasonable basis 

for their 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 made 

the specified objections and direct appeal counsel had challenged 

the admission of prior bad acts evidence.

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. at 

**1-2.

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.

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

appeal, id., 30-31.4

At the conclusion of the testimony, PCRA counsel 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 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., 73-77.5

____________________________________________

4 Appellee’s brother’s trial counsel also 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.

5 PCRA counsel for Appellee’s brother 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 act was 

confusing and not objecting was prejudicial because it could have led to the 

jury using the wrong standard. Id., 86-88.
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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.

On January 31, 2023, the PCRA court entered an order and 

memorandum opinion on the docket. See Trial Court Docket Entries 284 & 

285; Trial Court Record, 554. 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, 554. The PCRA court contemporaneously filed an 

opinion which explained that the grant of the petition and award of a new trial
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was on the ground that trial counsel was ineffective for not objecting to 

“claims” made in the prosecutor’s summation. PCRA Court Opinion, 7.

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. at 7-8. (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. It rejected “trial counsel’s argument that not 

objecting to outlandish statements made during closing arguments is 

sometimes the best strategy.” PCRA Court Opinion, 8.

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. Accordingly, the court granted Appellee’s “PCRA 

[petition] and order[ed] that a new trial be held in the matter.” Id. 
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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 post-conviction relief and 

awarding defendant a new trial based on the claim that trial 

counsel was ineffective for supposedly not objecting to the remark 

the prosecutor made during closing argument that appropriately 

highlighted the impropriety of one of defense counsel’s own 

closing remarks, where counsel did object, and where that 

objection was sustained by the trial court? ... 

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 

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; 
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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 

don’t know why [Appellee’s trial counsel is] purposefully trying to mislead 

you.” Appellant’s Brief, 14; 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

____________________________________________

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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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 [trial counsel] -- I don't know why he’s 

purposefully trying to mislead you. 

[Trial 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.

Trial counsel in fact objected. N.T. 5/15/14, 13. Therefore, he could not 

be found ineffective for not objecting to the prosecutor’s summation. See 

Commonwealth v. Paddy, 800 A.2d 294, 316 (Pa. 2002). Not only did trial 

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

the prosecutor’s summation. N.T. 5/15/14, 24. 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. “Since the very issue Appellant claims not to have been raised, in fact, 

was raised and adequately disposed of, his argument of ineffectiveness has 

no merit.” Commonwealth v. Silo, 502 A.2d 173, 176–77 (Pa. 1985).

7

____________________________________________

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

was referring to the defense argument that the cell tower data showed that 

(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.

____________________________________________

Appellee 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 

Appellee’s cell phone was connected to the cell tower 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 that he believed both that the prosecutor’s summation had gone 

beyond the bounds of propriety and that an objection was not necessary 

because the judge’s instructions to the jury to base its decision on the 

evidence and not the arguments of counsel would suffice. N.T. 9/15/22, 12-

14. He also explained that he believed it is sometimes best not to object. In 

this instance, he believed the prosecutor had been “abrasive and 

argumentative” during trial such that she had lost the jury, and so he did not 

want to object and possibly engage in argument in front of the jury that might 

lose that advantage. Id., 14-17. 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 to “reject[...] trial counsel’s argument that not 

objecting to outlandish statements made during closing arguments is 

sometimes the best strategy.” 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 
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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 

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.

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 
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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).

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 
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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 

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 

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 Appellee, 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 his brother and Roane coming into the area shortly before the shooting, 

having been in near constant contact with Appellee, and then all three fleeing
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in similar timing and directions after the shooting, with Appellee’s brother’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 argument that an 

inconsistent verdict – Appellee was acquitted of attempted murder and 

firearms possession – necessarily demonstrates it “was more of a compromise 

than one based on the actual evidence.” Appellee’s Brief, 16.9

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, 

17.

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).

____________________________________________

9

If the jury found Appellee was not armed during the incident but otherwise 

fully participated in the assault, the verdict is not at all inconsistent.
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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.

Appellee also argues that the PCRA court granted a new trial on the 

basis of his allegation that trial counsel was 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. See Appellee’s 

Brief, 18-20. 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’s 

brother 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. 

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, 554. 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 
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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, 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 argues 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. Again, the PCRA court did not grant 

relief on that claim. Further, it may not do so now, as that allegation of 

ineffective assistance was explicitly withdrawn at the conclusion of the 

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

With respect to co-defendant’s allegation that his trial counsel was 

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

argued at the PCRA hearing, 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 
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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’s brother lost possession of the cell phone while engaging 

(voluntarily) with Walters before any police officer arrived at the scene.

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.
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Date: 6/3/2024