J-S50028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KAIRI HARRIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2933 EDA 2019

Appeal from the PCRA Order Entered June 30, 2017

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

No(s): CP-51-CR-0000498-2012

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED MARCH 16, 2021

Appellant, Kairi Harris, appeals nunc pro tunc from the order entered on 

June 30, 2017, denying his petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

In our disposition of Appellant’s direct appeal, a prior panel of this Court 

set forth the relevant facts of this case, as follows:

Appellant and his cousin were sitting outside Appellant’s house at 

441 E. Rittenhouse Street in Philadelphia on the afternoon of 

December 23, 2011. While they were sitting on the porch, Durrell 

Hall and Samuel Evans drove by Appellant’s house in a vehicle. 

When their vehicle reached the stop sign directly in front of 

Appellant’s house, Appellant and his cousin opened fire at Hall and 

Evans who were inside the vehicle. As the vehicle sped away 

eastbound on Morton Street, Appellant and his cousin continued 

to fire at the vehicle. Hall and Evans were sitting in the front seats 

of the vehicle. Appellant and his cousin fired a total of 12 shots 

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* Retired Senior Judge assigned to the Superior Court.
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from two guns: ten .40 caliber rounds and two 9 millimeter 

rounds.

At least one of the bullets did not hit the intended victims or the 

vehicle. Instead, this stray bullet sailed halfway down the block 

and entered the second floor window of the residence of 

Gwendolyn Knox, who lived at 5817 Morton Street. Knox was in 

her upstairs bedroom watching over a one-year old child when she 

heard the gunshots. As Knox sat up in her bed, the stray bullet 

struck her in her face. The bullet entered Knox’s jaw, travelled 

through her head and neck, and ultimately lodged in her spine. 

Police officers carried Knox down her steps in a bed sheet and 

rushed her to the Albert Einstein Medical Center. Knox entered the 

hospital in critical condition, and she spent nearly two weeks there 

in recovery. Knox suffered fractured vertebrae at the base and 

center of her neck, painful and permanent nerve damage, a 

broken jaw in two places, a severed artery in her neck, and a nonparalytic stroke. Doctors placed a stent in her neck to repair her 

severed artery. Doctors removed the bullet ten months later. Knox 

still receives therapeutic services as a result of her injuries.

Immediately after the shooting, Appellant and his cousin ran into 

Appellant’s house. A few minutes later, a car pulled up to 

Appellant’s house and picked up both Appellant and his cousin who 

then fled the scene of the shooting.

* * *

Otis Thompson was the only eyewitness who testified at trial. 

Thompson knew Appellant, his cousin, and the intended shooting 

victims (Durrell Hall and Samuel Evans) from previous encounters 

in the neighborhood over the past fifteen years. Thompson never 

had a problem with Appellant or his cousin, and in fact, considered 

them as friends. At the time of the shooting, Thompson was sitting 

across the street by a statue and observed the entire shooting 

from the beginning (Hall and Evans driving towards Appellant’s 

house) to the end (Appellant and his cousin getting into a car and 

fleeing the scene). The shooting occurred in broad daylight, and 

nothing obstructed Thompson’s view of the shooting.

At trial, Thompson testified that:

• He heard 12 shots, which was the exact same number of fired 

cartridge cases recovered by detectives at the scene.
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• One week before the shooting, Appellant showed Thompson a 9 

mm Taurus gun, which was the same caliber as two of the fired 

cartridge cases recovered from the scene of the shooting.

• Around the time of the shooting, males from Mechanic Street 

were beefing with the males from Rittenhouse Street because 

Durrell Hall (one of the intended shooting victims in the vehicle) 

owed money to Appellant.

A few hours after the shooting on December 23, 2011, Thompson 

was arrested for illegally possessing a gun. Approximately 12 

hours after the shooting and while he was in custody for his own 

gun case, Thompson gave a statement to detectives implicating 

Appellant and Appellant’s cousin in the shooting. Thompson 

testified that the District Attorney’s office and detectives made no 

promises to him in exchange for any of his statements to 

detectives or his testimony in court. Following Thompson’s 

statement, detectives said they would try to move Thompson to a 

different county prison due to Thompson’s concern regarding 

witness intimidation. On the date he was arrested for his gun case, 

Thompson was on probation for another gun case. The parties 

stipulated that the gun allegedly possessed by Thompson on the 

night of December 23, 2011, was not the same caliber of gun as 

the 12 fired cartridge casings recovered from the shooting.

* * *

While Appellant was incarcerated, [he] made numerous phone 

calls from the prison, which were recorded and introduced as 

evidence at trial. Among other things, Appellant made phone calls 

attempting to locate Thompson in the prison system and 

describing threats made from the audience to Thompson during 

the preliminary hearing. Among other things captured on 

audiotape, Appellant was upset that Thompson was talking to the 

detectives....

Commonwealth v. Harris, 113 A.3d 349, 1662 EDA 2013 (Pa. Super. filed 

November 14, 2014) (unpublished memorandum at *1-2) (quoting Trial Court 

Opinion, 1/2/14, at 1–4) (internal citations, footnotes, quotation marks, and 

emphases omitted).
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On November 9, 2012, a jury found Appellant guilty of attempted 

murder, conspiracy to commit murder, aggravated assault, conspiracy to 

commit aggravated assault, possession of a firearm by a prohibited person, 

possession of a firearm without a license, carrying a firearm in public in 

Philadelphia, and possession of an instrument of crime (“PIC”).

1

 

On January 28, 2013, the trial court sentenced Appellant to a term of 

twenty to forty years of incarceration for attempted murder pursuant to the 

sentencing enhancement in 18 Pa.C.S. § 1102(c), and a consecutive term of 

five to ten years of incarceration for possession of a firearm by a prohibited 

person. N.T. (Sentencing), 1/28/13, at 39-40. Additionally, the trial court 

imposed sentences of three and one-half to seven years of incarceration for 

possession of a firearm without a license, two and one-half to five years of 

incarceration for carrying a firearm in public in Philadelphia, and two and onehalf to five years of incarceration for PIC. Id. at 40. The sentences for 

possession of a firearm without a license, carrying a firearm in public in 

Philadelphia, and PIC were ordered to be served concurrently with each other 

and concurrently with the sentence for attempted murder. Id. The 

convictions for conspiracy to commit murder, aggravated assault, and 

conspiracy to commit aggravated assault merged for sentencing purposes. 

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1 18 Pa.C.S. §§ 901(a), 903, 2702(a), 903, 6105(a)(1), 6106(a)(1), 6108, 

and 907(a), respectively.
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Id. at 6. This resulted in an aggregate sentence of twenty-five to fifty years 

of incarceration. Id. at 40. 

On January 30, 2013, Appellant filed a timely post-sentence motion that 

the trial court denied on May 7, 2013. On June 6, 2013, Appellant filed a 

timely appeal, and on November 14, 2014, this Court affirmed Appellant’s 

judgment of sentence. Harris, 1662 EDA 2013 (unpublished memorandum 

at *1-2). Appellant did not file a petition for allowance of appeal in our 

Supreme Court.

On November 3, 2015, Appellant filed his first PCRA petition. On June 

30, 2017, the PCRA court dismissed Appellant’s petition. In the order, the 

PCRA court incorrectly directed that Appellant “may proceed pro se or with 

retained counsel; no new counsel is to be appointed.” Order, 6/30/17, n.1. 

The denial of counsel was erroneous because Appellant had a right to counsel 

to pursue an appeal from the order denying his first PCRA petition. See

Pa.R.Crim.P. 904(C), (F)(2) (explaining that the PCRA court shall appoint 

counsel to represent an indigent defendant on his first PCRA petition, and the 

appointment shall continue through any appeal from the disposition of the 

PCRA petition); see also Commonwealth v. Robinson, 970 A.2d 455 (Pa. 

Super. 2009) (en banc) (discussing the rule-based right to counsel on a first 

PCRA petition and stressing the importance of counsel in litigating a first PCRA 

petition). Despite the denial of counsel, Appellant filed a timely pro se appeal 
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on July 12, 2017. However, on March 16, 2018, our Court dismissed 

Appellant’s pro se appeal due to his failure to file a brief.

On January 31, 2019, Appellant filed a pro se PCRA petition asserting 

that by denying Appellant his right to counsel, the PCRA court interfered with 

his right to pursue an appeal from the June 30, 2017 order denying his first 

PCRA petition. PCRA Petition, 1/31/19. Appellant contended that the PCRA 

court’s interference satisfied an exception to the timing requirements of the 

PCRA pursuant to 42 Pa.C.S. § 9545(b)(1)(i).2 PCRA Petition, 1/31/19. On 

October 1, 2019, the PCRA court granted Appellant’s PCRA petition and 

reinstated Appellant’s right to appeal the June 30, 2017 order denying his 

PCRA petition nunc pro tunc.

3

 In a separate order filed on October 1, 2019, 

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2 A PCRA petition must be filed within one year of the date that the judgment 

of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence 

“becomes final at the conclusion of direct review, including discretionary 

review in the Supreme Court of the United States and the Supreme Court of 

Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S. 

§ 9545(b)(3). However, the jurisdictional time bar can be overcome only by 

satisfaction of one of the three statutory exceptions codified at 42 Pa.C.S. § 

9545(b)(1)(i)-(iii). Herein, the exception Appellant asserted was the 

governmental interference exception, which provides as follows: “the failure 

to raise the claim previously was the result of interference by government 

officials with the presentation of the claim in violation of the Constitution or 

laws of this Commonwealth or the Constitution or laws of the United States[.]”

42 Pa.C.S. § 9545(b)(1)(i).

3

 We note that in his January 31, 2019 PCRA petition, Appellant averred that 

he filed a petition for a writ of habeas corpus in federal court after he learned 

that this Court dismissed his PCRA appeal for failure to file a brief on March 

16, 2018. Appellant states that in response to his filing in federal court

(Harris v. Marsh, 18-CV-2293), the Commonwealth conceded Appellant was 
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the PCRA court appointed counsel to represent Appellant in his appeal. On 

October 8, 2019, Appellant filed a counseled notice of appeal nunc pro tunc

from the June 30, 2017 order denying his PCRA petition. Both the PCRA court 

and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant abandoned the issues raised in his Pa.R.A.P. 

1925(b) statement of errors complained of on appeal, and he instead presents

the following issue for our consideration:

1. Did the [PCRA] court err and abuse its discretion when [it] 

dismissed [Appellant’s] PCRA petition, though the trial court’s 

sentence was illegal?

Appellant’s Brief at 5 (full capitalization omitted). 

Generally, any issue not raised in a Pa.R.A.P. 1925(b) statement is 

waived on appeal. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 

2005); Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). However, 

issues related to the legality of a sentence are not subject to waiver and may 

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entitled to counsel and should have his appellate rights reinstated. PCRA 

Petition, 1/31/19, at ¶ 8; Exhibit C (Commonwealth’s Response to Petition for 

Habeas Corpus). Appellant asserted that on January 11, 2019, the federal 

court stayed the habeas corpus proceedings to allow the underlying PCRA 

petition to proceed in the PCRA court. Id. In its brief on appeal, the 

Commonwealth does not challenge Appellant’s contentions regarding the 

action in federal court. The PCRA court provides no details surrounding its 

conclusion that Appellant’s January 31, 2019 PCRA petition was timely or that 

it satisfied an exception to the filing requirements in 42 Pa.C.S. § 

9545(b)(1)(i)-(iii). However, based on the record before us, we discern no 

basis upon which to conclude that the PCRA court erred in concluding that 

Appellant’s PCRA petition satisfied an exception enumerated in 42 Pa.C.S. § 

9545(b)(1), or in restoring Appellant’s PCRA appeal rights nunc pro tunc. 

Accordingly, we proceed with our discussion. 
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be considered sua sponte. Commonwealth v. Bezick, 207 A.3d 400, 402 

n.2 (Pa. Super. 2019) (citations omitted). Because Appellant challenges the 

legality of his sentence, we proceed with our discussion.

Our standard of review of an order denying PCRA relief is whether the 

record supports the PCRA court’s determination and whether the PCRA court’s 

ruling is free of legal error. Commonwealth v. Staton, 184 A.3d 949 (Pa. 

2018). We consider the record in the light most favorable to the prevailing 

party in the PCRA court. Commonwealth v. Mason, 130 A.3d 601 (Pa. 

2015). We grant great deference to the PCRA court’s findings that are 

supported in the record and will not disturb them unless they have no support 

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. 

Super. 2014).

Herein, Appellant contends that the sentence of twenty to forty years of 

incarceration for attempted murder was illegal. Appellant’s Brief at 9-10. The 

determination as to whether the trial court imposed an illegal sentence is a 

question of law; our scope of review is plenary, and our standard of review is 

de novo. Commonwealth v. Derrickson, 242 A.3d 667, 673 (Pa. Super. 

2020). 

As noted, the trial court sentenced Appellant to a term of twenty to forty 

years of incarceration for his conviction of attempted murder pursuant to 18 

Pa.C.S. § 1102(c). Section 1102(c) provides, in relevant part, as follows:

(c) Attempt, solicitation and conspiracy.-- ... a person who 

has been convicted of attempt ... to commit murder ... where 
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serious bodily injury results may be sentenced to a term of 

imprisonment which shall be fixed by the court at not more than 

40 years. Where serious bodily injury does not result, the person 

may be sentenced to a term of imprisonment which shall be fixed 

by the court at not more than 20 years.

18 Pa.C.S. § 1102(c) (emphasis added). Appellant asserts that before a court 

may impose a maximum sentence of forty years of incarceration, the 

Commonwealth must prove that “serious bodily injury” resulted from the 

attempted murder. Appellant’s Brief at 10 (citing Commonwealth v. 

Barnes, 167 A.3d 110 (Pa. Super. 2017)). Moreover, Appellant argues that 

the Commonwealth must provide notice of its intention to prove the existence 

of serious bodily injury before the forty-year maximum sentence applies. Id.

Appellant contends that the Commonwealth charged him with 

attempted murder, but the criminal information did not reference 18 Pa.C.S. 

§ 1102(c) or include that the victim, Gwendolyn Knox (“Knox”), suffered 

serious bodily injury. Appellant’s Brief at 10. Therefore, Appellant claims he 

did not have notice that the Commonwealth sought to prove serious bodily 

and pursue the forty-year maximum. Id. Further, Appellant asserts that the 

“jury was never presented with, nor rendered a decision on, the question of 

whether a serious bodily injury resulted from the attempted murder.” Id. at 

10-11. 
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In Barnes, this Court held that pursuant to Apprendi v. New Jersey, 

530 U.S. 466 (2000),4 serious bodily injury is a fact that must be proven 

before a maximum sentence of forty years may be imposed for attempted 

murder, and the defendant must be put on notice when the Commonwealth 

seeks a forty-year maximum sentence. Barnes, 167 A.3d at 116 (citing 

Commonwealth v. Reid, 867 A.2d 1280 (Pa. Super. 2005)). Additionally, 

this Court explained that the jury’s finding of serious bodily injury for the 

separate crime of aggravated assault may not be used to infer a finding of 

serious bodily injury relative to attempted murder. Barnes, 167 A.3d at 119. 

After review, we conclude that Appellant’s claim that the jury never 

addressed or rendered a decision on the issue of serious bodily injury relative 

to attempted murder is specious. First, the record reflects that Appellant 

stipulated that Knox sustained a gunshot wound to her face, required the 

placement of a stent in her carotid artery, and suffered a broken jaw, fractured 

vertebrae, brain bleeding, and a non-paralytic stroke. N.T. (Trial), 11/6/12, 

73-79. The stipulation also included that Knox requires ongoing physical 

therapy due to the injuries she suffered. Id. at 79. 

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4

In Apprendi, the Supreme Court of the United States held that “[o]ther than 

the fact of a prior conviction, any fact that increases the penalty for a crime 

beyond the prescribed statutory maximum must be submitted to a jury, and 

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
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Moreover, in rendering its guilty verdict on the charge of attempted 

murder, the jury specified that it found Knox suffered serious bodily injury:

COURT CRIER: May the foreperson please rise. Would the 

defendant please rise. Mr. Foreperson, has the jury reached a

verdict?

THE FOREPERSON: Yes, we have.

COURT CRIER: Have all 12 of you agreed on the verdict?

THE FOREPERSON: Yes, we have.

COURT CRIER: To this CP-51-CR-000498-2012, charging 

[Appellant] with a [sic] attempted murder what is verdict, 

guilt[y] or not guilty?

THE FOREPERSON: Guilty.

THE COURT: And if you find guilty of attempted murder was 

serious bodily injury caused to Gwendolyn Knox? What is 

the verdict, yes or no.

THE FOREPERSON: Yes.

N.T. (Trial), 11/9/12, at 76 (emphases added). In light of the jury’s specific 

finding and Appellant’s stipulation, we conclude that the Commonwealth 

presented proof beyond a reasonable doubt that Knox suffered serious bodily 

injuries as a result of the attempted murder.

With respect to notice, we agree with Appellant that the criminal 

information failed to inform Appellant of the Commonwealth’s intention to 

prove serious bodily injury and seek a maximum sentence of forty years of 

incarceration. However, although the criminal information was deficient with 

respect to notice, we conclude that this flaw was not fatal. 
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In Commonwealth v. King, 234 A.3d 549 (Pa. 2020), our Supreme 

Court addressed a similar scenario. In King, the criminal information failed 

to provide the defendant notice of the Commonwealth’s intention to pursue 

the forty-year maximum sentence due to serious bodily injury and made no 

reference to 18 Pa.C.S. § 1102(c). King, 234 A.3d at 553. In that case, the 

Commonwealth averred that any deficiency in the criminal information was 

harmless because “the evidence of serious bodily injury was ‘overwhelming 

and uncontested,’” because the parties stipulated to the severity of the 

victim’s injuries. Id. at 559. Additionally, the Commonwealth asserted that 

the defense was not impaired by a lack of formal notice because the 

defendant’s strategy was that another individual committed the shooting. Id.

After review, our Supreme Court agreed with the Commonwealth that 

the failure to provide notice regarding Section 1102(c) was harmless:

Having found that the criminal information failed to 

adequately apprise King of the Commonwealth’s intention, we 

turn to the question of remedy. As acknowledged by both parties, 

the element of serious bodily injury in connection with attempted 

murder was indeed submitted to the jury and found beyond a 

reasonable doubt as indicated on the jury’s verdict sheet. The 

question becomes whether the absence of that fact from the 

indictment or information requires a finding that the resulting 

sentence for the aggravated crime was illegal.

We hold that it does not. That the Commonwealth’s 

information was insufficient as a matter of due process notice does 

not resolve whether the conviction at trial was illegally secured. 

As previously noted, the indictment sets the stage for trial and 

what the Commonwealth intends to prove. ... [W]e conclude that 

King was adequately apprised through other means of the 

Commonwealth’s intentions and that the charging error was 

harmless beyond a reasonable doubt.
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King, 234 A.3d at 563.

After review, we conclude that any error with respect to deficiencies in

the criminal information was harmless beyond a reasonable doubt. Similar to 

the circumstances evident in King, in the instant case, Appellant had “de 

facto” notice that Knox suffered serious bodily injuries as a result of the 

attempted murder. See King, 234 A.3d at 566 (“King received de facto

notice, at various points before trial, that the Commonwealth was seeking the 

enhancement. For example, the factual summaries in the charging documents 

made clear that [the victim] suffered serious bodily injury.”). Herein, the 

complaint and affidavit of probable cause supporting Appellant’s arrest 

warrant reveal that the Commonwealth alleged Appellant shot Knox in the 

face and that Knox remained in critical condition at Albert Einstein Medical 

Center. Affidavit of Probable Cause, 12/27/11; Complaint, 12/27/11.

Additionally, as in King, the evidence of serious bodily injury was both 

overwhelming and uncontroverted. King, 234 A.3d at 566. Herein, Appellant 

stipulated to the severity of Knox’s injuries, and more importantly, the jury 

concluded that the Commonwealth proved serious bodily injury beyond a 

reasonable doubt. N.T. (Trial), 11/6/12, at 73-79; 11/9/12, at 76. Moreover, 

similar to King, Appellant’s defense at trial was that Appellant was not the 

shooter, and trial counsel’s focus was on assailing the credibility of the 

Commonwealth’s witnesses. N.T. (Trial), 11/6/12, at 39-44. Thus, the

Commonwealth’s failure to provide formal notice of its intent to seek the 
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enhanced sentence did not affect Appellant’s defense. See King, 234 A.3d at 

566 (“We also find persuasive the Commonwealth’s point that its failure to 

provide formal notice of its intent to seek the enhanced sentence did not affect 

King’s choice of defense ... considering King stipulated to [the victim’s] injuries 

and instead sought to demonstrate that another unknown individual 

committed the crime.”). Finally, Appellant never argued that Knox did not 

suffer serious bodily injury, and Appellant did not challenge the range of 

applicable sentences. In light of our Supreme Court’s holding in King, and 

after our review of the record, we conclude that the deficient criminal 

information was harmless error. King, 234 A.3d at 566. 

For the reasons set forth above, we conclude that serious bodily injury 

was established beyond a reasonable doubt. Any deficiency in the criminal 

information was harmless beyond a reasonable doubt, and “the harmless 

nature of the error precludes a finding that the sentence was illegally 

imposed.” King, 234 A.3d at 566. Therefore, we discern no basis upon which 

to disturb Appellant’s sentence for attempted murder. Accordingly, Appellant 

is entitled to no relief, and we affirm the June 30, 2017 order denying his 

PCRA petition. 

Order affirmed.

Judge Strassburger did not participate in the consideration or decision 

of this case.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2021