Present: All the Justices 

SHANTEL D. PENDER 

v. Record No. 981269 OPINION BY JUSTICE ELIZABETH B. LACY 

 April 16, 1999 

RONALD J. ANGELONE, DIRECTOR, 

VIRGINIA DEPARTMENT OF CORRECTIONS 

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Robert G. O'Hara, Jr., Judge 

 On June 28, 1993, Shantel D. Pender was tried without a 

jury in the Circuit Court of the City of Petersburg and 

convicted of first degree murder. After affirmance of the 

conviction on direct appeal, Pender filed a petition for a 

writ of habeas corpus with this Court pursuant to Code § 8.01-

654, claiming that he was denied his rights under the Sixth 

Amendment to the United States Constitution because his trial 

counsel was ineffective. By order entered November 7, 1996, a 

writ of habeas corpus was issued pursuant to Code § 8.01-657 

directing the Circuit Court of the City of Petersburg to 

determine the issue of ineffective assistance of counsel. 

Following an evidentiary hearing, the circuit court concluded 

that Pender was not denied effective assistance of counsel and 

dismissed Pender's petition for writ of habeas corpus. Pender 

appeals the order of dismissal. 

 In considering Pender's appeal, we apply well-established 

principles. The Sixth Amendment to the United States 

Constitution guarantees a defendant in a criminal trial the 
right to effective assistance of counsel. Strickland v. 

Washington, 466 U.S. 668, 686 (1984). To prevail in a claim 

of ineffective assistance of counsel, a petitioner bears the 

burden of showing not only that his counsel's performance was 

deficient but also that he was actually prejudiced as a 

result. Murray v. Griffith, 243 Va. 384, 388, 416 S.E.2d 219, 

221 (1992). In order to establish prejudice, the evidence 

must show that "there is a reasonable probability that, but 

for counsel's unprofessional errors, the result of the 

proceeding would have been different." Strickland, 466 U.S. 

at 694. The prejudice analysis includes a focus on "whether 

the result of the proceeding was fundamentally unfair or 

unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). 

The circuit court dismissed Pender's petition for a writ 

of habeas corpus because it found that "[u]pon the entire 

record, the errors of counsel were not of the type, nature or 

character that would render the result of the petitioner's 

criminal trial unreliable or unfair." Accordingly, in this 

appeal, we need not consider whether the alleged errors of 

Pender's criminal trial counsel rendered counsel's performance 

deficient, but, we direct our review to whether the evidence 

presented at the habeas trial demonstrated prejudice as 

required under Strickland. See Williams v. Warden of the 

2
Mecklenberg Correctional Center, 254 Va. 16, 23, 487 S.E.2d 

194, 198 (1997). 

 Pender contends that the evidence adduced at the habeas 

proceeding, if produced at his criminal trial, "would have 

prevented the Commonwealth from meeting its burden to 

establish the elements of first degree murder in this case." 

Thus, according to Pender, his criminal trial counsel's 

failure to present this evidence was prejudicial under the 

standard in Strickland because it rendered the criminal trial 

unreliable and unfair in violation of his Sixth Amendment 

rights. We disagree. 

 To sustain the charge of first degree murder in the 

criminal trial, the Commonwealth had to show that Pender 

committed a "willful, deliberate, and premeditated killing." 

Code § 18.2-32. The element that distinguishes first degree 

murder from second degree murder is that of premeditation, a 

specific intent to kill. Rhodes v. Commonwealth, 238 Va. 480, 

486, 384 S.E.2d 95, 98 (1989). The specific intent to kill 

"'may be formed only a moment before the fatal act is 

committed provided the accused had time to think and did 

intend to kill.'" Id. at 485, 384 S.E.2d at 98 (citations 

omitted). If a defendant only intended serious bodily harm to 

the decedent, the offense is murder in the second degree. Id.

at 486, 384 S.E.2d at 98. 

3
 To understand the significance of the evidence produced 

in the habeas proceeding, we must first review the evidence in 

the criminal proceeding. In that proceeding the Commonwealth 

produced two witnesses: Rodney Turner, a friend of Pender's 

who was with him at the time of the murder; and Detective 

Patrick Kelleher, the officer who investigated the murder and 

interviewed Pender. The defense did not call any witnesses. 

Turner testified that he and two other men, John E. 

Taylor and Tony Brown, were standing in front of a residence 

when Pender approached them and stated that the deceased, who 

"had taken the package of drugs," was "at the store." Pender 

told the three men "to come on and let's go get him." 

According to Turner, the four men chased the deceased down the 

street, through an alley, and onto the porch of a house. The 

deceased then jumped off the porch and went through the bushes 

to another house, where he "was knocking on the door trying to 

get in." When he could not get inside, the deceased ran to a 

third house. The four men continued the chase to the third 

house, but only Pender and Taylor followed the deceased onto 

the porch. Turner testified that he heard Pender and the 

deceased "saying words," and that when Taylor and Pender came 

off the porch, Pender told Turner that he had stabbed the 

deceased. Turner also testified that he did not see any 

weapons on the deceased and that he could not see what 

4
happened on the porch of the third house because he was too 

far away. No weapons were found on the deceased. 

Although Pender did not testify at his trial, his written 

confession was introduced by the Commonwealth. In his 

confession Pender stated that the deceased 

stole drugs from 2 of my friends one week. So he 

tried to wait till every thing goes down and comes 

back. Well he came back and stole my 100 dollar 

bill so I started chasing him and my other friends 

chased him to [sic]. Well we caught up with him & 

my friend started hitting him. Then, he ran some 

more & he had some on him because he reached to 

his side & thats [sic] when I cut him. I was not 

trying to kill him. I just wanted to protect 

myself. He could of [sic] had a gun & just wanted 

us to case [sic] him away from the crowd. I 

didn't try to kill him. I didn't know he was dead 

because he didn't seem to be hurt. And I was not 

tryin [sic] to skip town because it would have 

made matters worst [sic]. All I wanted was my 

money. Not to kill anyone or be classified as a 

murderer. I just though [sic] I had cut him. But 

I am sorry and scared.

 At the close of the evidence, Pender moved to strike the 

first degree murder charge based on the uncontradicted 

statement in his confession that he was not trying to kill the 

deceased but only stabbed him because he thought the deceased 

was armed. The trial court rejected the defense's motion and 

found Pender guilty of the charge, stating that there was "no 

evidence" that the deceased resisted or had a weapon "with the 

exception of the statement that defendant made to the police 

after a time of reflection that he made a move to his side." 

5
At the sentencing hearing, the defense again moved to 

have the charge reduced to second degree murder or voluntary 

manslaughter based on Pender's "unrebutted" statement that "he 

struck at his hand believing that [the deceased] was going to 

produce a weapon that would endanger Pender's life or limb, 

and that he did not intend to do any more damage than to a 

strike of the hand, he did not intend the mortal wound at 

all." 

 The trial court rejected Pender's claim that he intended 

only to cut the deceased's hand concluding that it was 

impossible for Pender to pull out a knife and prepare to 

"strike the blow" to the deceased's hand "in that second" that 

the deceased allegedly made a sudden move for his waistband. 

According to the trial court, if the deceased 

made a quick move there is no way that 

[Pender] could have stabbed at his hand 

unless [Pender] already had a knife in 

[his] hand ready to use it. That's why 

the Court infers intent to kill. That 

[Pender] planned this from the very start 

or somewhere during the chase. 

 The evidence presented at the habeas hearing, which 

Pender asserts makes the result of the criminal trial 

unreliable, includes a statement given to the police by Taylor 

and the testimony of Crystal Brown, Tony Brown, and Mario 

Hawkins. The substance of the testimony by Crystal Brown and 

Tony Brown refuted that portion of Turner's testimony at the 

6
criminal trial that Pender sought to enlist Taylor, Turner, 

and Brown in a chase of the defendant because drugs were 

taken. In Taylor's statement to the police, he stated that he 

saw the deceased reach in his coat just before Pender stabbed 

him. Hawkins, whose name was given to defense counsel by 

Pender as a possible witness, testified that the deceased had 

sold a gun earlier in the evening and that, while "words were 

exchanged" just prior to the chase, the deceased "stepped back 

and he put his hand behind his back" like he was going to get 

a gun. 

This testimony, Pender asserts, provided the evidence the 

trial court found missing in the criminal trial to support 

Pender's belief that the deceased was armed and may have been 

reaching for a weapon when Pender stabbed him. In this 

regard, Pender also bases claims of prejudice on trial 

counsel's failure to introduce the videotape of his confession 

in which he says that he only intended to cut the hand of the 

deceased and on trial counsel's failure to adequately advise 

Pender of his right to testify at the criminal trial. Pender 

claims that he would have testified that he only intended to 

do bodily injury in stabbing the deceased and that his 

testimony would have refuted Turner's testimony that he urged 

others to chase and harm the deceased. 

7
None of this evidence, however, has any bearing on the 

facts upon which the trial court based its finding that Pender 

intended to kill the deceased. As recited above, the trial 

court concluded that Pender could not have pulled out the 

knife and stabbed the deceased "in that second" the deceased 

made a movement for his waistband. Thus, the trial court 

concluded that Pender had engaged in a prolonged chase of the 

deceased with his knife drawn and had formed the intention to 

kill the deceased at an earlier point in time.* Whether the 

purpose of the chase was to recover drugs or to recover money 

taken from Pender and whether Pender thought the deceased was 

armed or not, are irrelevant distinctions that do not render 

unreliable the court's factual conclusions in the criminal 

trial that Pender had his knife drawn during the chase and 

intended to use it to kill the deceased. 

 Further, Pender's claim that his counsel did not 

adequately advise him of his right to testify at the criminal 

trial is not borne out by the record. At the criminal trial, 

there was an exchange between the trial court and Pender in 

 *

 Pender apparently does not contest the trial court's 

conclusion that he had the knife drawn prior to his final 

confrontation with the deceased. At the habeas proceeding, 

Pender testified that the knife was in his hand because it had 

fallen out of his boot during the chase. This testimony does 

not support a theory that the knife was drawn or held because 

Pender believed the deceased was armed, and Pender does not 

8
which he stated that he had been fully advised of his right to 

testify and chose not to do so. 

 Finally, Pender cites other alleged shortcomings that he 

claims affected the outcome of his trial, including trial 

counsel's failure to present evidence of the deceased's delay 

in seeking medical help after the stabbing, as well as trial 

counsel's failure to adequately investigate witnesses who may 

have seen the deceased take the $100 bill from Pender just 

prior to the chase. Again, such evidence does not relate to 

or contradict the facts that formed the basis of the trial 

court's finding of an intent to kill. 

In summary, none of the evidence or other claims asserted 

in the habeas proceeding relate to the facts that formed the 

basis of the trial court's conclusion that Pender formed an 

intent to kill during the chase. Pender admitted to the 

persons present at the stabbing and to the investigating 

officer that he stabbed the deceased, and he confessed that he 

chased the deceased because the deceased had taken drugs and 

money from him and two associates. The trial court was 

entitled to base its conclusion on this evidence. 

"Premeditation and formation of an intent to kill seldom can 

be proved by direct evidence. A combination of circumstantial 

 

claim he should have been allowed to give this testimony at 

the criminal trial. 

9
factors may be sufficient." Rhodes, 238 Va. at 486, 384 

S.E.2d at 98, citing Epperly v. Commonwealth, 224 Va. 214, 

232, 294 S.E.2d 882, 892-93 (1982). 

The habeas court found that these facts entitled the 

trial court in the criminal case to find Pender guilty of 

first degree murder and that the evidence at the habeas 

proceeding did not support a finding that any errors of 

counsel in the criminal trial presented issues or facts that 

"would render the result of the petitioner's criminal trial 

unreliable or unfair." Based on our review of the record, we 

concur and will affirm the judgment of the circuit court 

denying the relief sought by Pender and dismissing the 

petition for a writ of habeas corpus. 

Affirmed.

10