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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NAFIS PENNINGTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3373 EDA 2019

Appeal from the PCRA Order Entered October 24, 2019

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

No(s): CP-51-CR-0013565-2012

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COMMONWEALTH OF PENNSYLVANIA

v.

NAFIS PENNINGTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3374 EDA 2019

Appeal from the PCRA Order Entered October 24, 2019

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

No(s): CP-51-CR-0013566-2012

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 29, 2021

Nafis Pennington appeals from the order, entered in the Court of 

Common Pleas of Philadelphia, dismissing without a hearing his petition filed 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546,

following his convictions for aggravated assault,1 conspiracy,2 and related 

weapons offenses.3 After careful review, we affirm.4

We have previously set forth the facts of this case as follows:

The instant matter arose out of two gang-related shootings in the 

fall of 2011 and the summer of 2012. The Commonwealth 

charged [Pennington] in both shootings, but the jury acquitted 

him of all charges related to the June 11, 2012 shooting.*

* Since the jury acquitted [Pennington] of all charges arising 

out the June 2012 shooting, we need not discuss it 

further, except to note that certain of the 

Commonwealth witnesses testified about both shootings, 

while others only testified regarding one shooting. One 

of the witnesses who only testified about the June 2012 

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1 18 Pa.C.S.A. § 2702(a).

2 18 Pa.C.S.A. § 903(c).

3 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 6108, and 907(a).

4 By filing two separate notices of appeal with one docket number on each 

notice, Pennington has complied with the dictates of Commonwealth v. 

Walker, 185 A.3d 969 (Pa. 2018), which held that “where a single order 

resolves issues arising on more than one docket, separate notices of appeal 

must be filed for each of those cases.” See Pa.R.A.P. 341(a); see also 

Commonwealth v. Johnson, 236 A.3d 1141, ---- (Pa. Super. filed July 9, 

2020) (en banc) (concluding that “in so far as [Commonwealth v. Creese, 

216 A.3d 1142 (Pa. Super. 2019)] stated ‘a notice of appeal may contain only 

one docket number[,]’ . . . that pronouncement is overruled.”); 

Commonwealth v. Larkin, 235 A.3d 350, ---- (Pa. Super. filed July 9, 2020) 

(en banc) (recognizing that Johnson “expressly overruled Creese to the 

extent that Creese interpreted Walker as requiring the Superior Court to 

quash appeals when an appellant, who is appealing from multiple docket 

numbers, files notices of appeal with all of the docket numbers listed on each 

notice of appeal.”). Therefore, we shall proceed with our review of 

Pennington’s appeal.
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shooting was Detective Mary Kuchinsky, who stated that 

she took a statement from a witness to the incident.

In 2011, there was a rivalry between two groups in the West 

Philadelphia neighborhood known as “the Bottom.” [Pennington] 

and co-defendant Kiyon Grant associated with a crew that 

congregated on Mt. Vernon Street between 35th and 38th Streets. 

The victims, Randy Brown and Garren Tyler, associated with a 

faction that gathered around 32nd and Brandywine Streets.

On November 9, 2011, Brown and Tyler were walking to Brown’s 

house. At the intersection of 32nd and Mt. Vernon Streets, 

[Pennington], co-defendant Grant, and Jeffrey Johnson walked to 

within three car lengths of Brown and Tyler. The trio pulled out 

guns and fired on them. One bullet hit Brown’s left thigh, causing 

him to fall. Tyler attempted to flee but a bullet hit his ankle.

Detective Craig Fife arrived at the scene and recovered five fired 

cartridge casings. He saw a trail of blood leading to the doorway 

of Brown’s house, one-half block from the scene of the shooting. 

He saw another blood trail leading to the doorway of Tyler’s aunt’s 

house.

Brown refused to cooperate with police. While Tyler initially 

refused to cooperate with police, he gave a statement to them in 

April 2012, after being arrested on an unrelated matter.

On June 13, 2012, Detective Frank Mullen took a statement from 

India Tyler; in the statement[,] she said that she saw codefendant Grant and Jeffrey Johnson shoot her cousin. She also 

stated that [Pennington] and co-defendant Grant associated with 

people from 35th Street. She further discussed a history of 

disagreements between the 35th Street group and the 32nd Street 

and Brandywine Avenue group.

Ms. Tyler testified that Eli Boyd was not associated with either 

group. Mr. Boyd testified that, on June 29, 2012, he gave a 

statement to the police. In his statement, he described animosity 

between the two neighborhood groups over drugs and territory. 

Boyd also told police that [Pennington], co-defendant Grant, and 

Johnson[] shot Tyler and Brown in November 2011.

On July 2, 2012, police officers executed a search warrant at 3421 

Wallace Street, the residence of Whitley Kelly, the mother of 

[Pennington]’s child. They recovered a Hi-Point semiautomatic 
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handgun, which was loaded, several bills in [Pennington]’s name, 

and a receipt showing that [Pennington] had paid rent to Kelly. 

Subsequent testing demonstrated that the gun was operable, and 

that it had fired all five shell casings recovered from the scene of 

the shooting.

On November 28, 2012, the Commonwealth filed a criminal

information. A jury trial began on January 29, 2015.

At trial, Tyler testified in accordance with the statement he gave 

to police, stating that [Pennington] and co-defendant Grant shot 

him and Brown. However, India Tyler recanted her previous 

statement with respect to the shooting. Boyd also recanted his 

statement to the police.

Detective Matthew Carey, a detective with significant experience 

in the neighborhood, testified, without objection, that 

[Pennington] and co-defendant Grant were from the area of 35th

Street to 38th Street on Mt. Vernon Street. However, Brown and 

his friends lived in the area of 32nd Street and Brandywine and 

Haverford Avenues. Tyler associated with Brown and his friends. 

Detective Carey stated that Boyd was friends with both groups. 

He noted that India Tyler was related to Garren Tyler. When the 

Commonwealth attempted to question Detective Carey about “the 

relationship between the groups that hang at 32nd and 33rd and 

the group that hangs at 35th and 36th,” [Pennington] objected, 

claiming that this called for a “speculative opinion.”**

** At that point, the trial broke for the day. The next 

morning, [Pennington]’s counsel admitted that he had no 

law to support a contention that a police officer possessing 

sufficient familiarity with an area could not testify about 

neighborhood rivalries. [Pennington] did not renew his 

objection that the testimony was speculative. Rather, he 

asked that the trial court conduct an in camera hearing to 

lay a foundation about Detective Carey’s familiarity with the 

neighborhood before allowing the jury to hear the 

testimony, stating if “he has expertise and then, if Your 

Honor says ‘I believe he’d be qualified to talk about that,’ 

then we’ll let the jury hear the testimony.” The trial court 

then ruled that Detective Carey could not mention any 

criminal activities or gangs. [Pennington’s counsel] noted 

that evidence regarding a relationship between 

[Pennington] and co-defendant Grant was already in the 

record and that they were not disputing that they knew each 
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other. The trial court ruled that Detective Carey could 

testify that he had seen [Pennington] and co-defendant 

Grant together and with others in a group and that[] he had 

seen the victims with a group that congregated in a different 

area.

Ultimately, Detective Carey testified that [Pennington] and codefendant Grant “associated with 35th Street to 38th Street on Mt. 

Vernon Street and Melon Street, exclusively.” He continued that 

“these guys primarily stay on those blocks, they don’t go to 32

nd

Street and [33rd Street and] hang out[.]” He reiterated that the 

victims were part of the 32nd and 33rd Street group[s] and that 

the two groups did not co[m]mingle.

Detective Craig Fife, the assigned detective with respect to the 

November 2011 shooting[,] testified as to his role in the 

investigation. On cross-examination, when asked by codefendant Grant’s counsel how he ascertained that his client lived 

at a certain address, Detective Fife stated that he obtained the 

address through probation or parole.

Commonwealth v. Pennington, 1364 EDA 2015 at 2-6 (Pa. Super. filed 

Feb. 8, 2017) (unpublished memorandum decision) (internal citations 

omitted).

On February 4, 2015, the jury convicted Pennington of the above-stated 

offenses. On April 16, 2015, the trial court sentenced Pennington to an 

aggregate term of incarceration of twenty-six to sixty years. Pennington did 

not file any post-sentence motions; he filed a timely notice of appeal on May 

14, 2015. On February 8, 2017, this Court affirmed his judgment of sentence. 

See id.

On August 28, 2018, Pennington filed the instant counseled PCRA 

petition. On December 12, 2018, the Commonwealth filed a motion to 

dismiss, and the PCRA court issued notice of its intent to dismiss the petition 
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within twenty days pursuant to Rule 907 of the Pennsylvania Rules of Criminal 

Procedure. Ultimately, after the court granted several continuances, 

Pennington filed an amended PCRA petition on April 2, 2019. On July 11, 

2019, the Commonwealth filed a supplemental motion to dismiss. On 

September 26, 2019, the PCRA court issued its Rule 907 notice of intent to 

dismiss the petition within twenty days. On October 24, 2019, the PCRA court 

issued an order dismissing Pennington’s PCRA petition.

On November 12, 2019, Pennington timely filed the instant notice of 

appeal followed by a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. In the single issue presented in his Rule 1925(b) 

statement, Pennington alleged generally that the PCRA court erred in denying 

his petition without a hearing because “there were many errors of law at trial, 

including ineffective assistance of counsel, which biased him[.]”. Appellant’s 

Rule 1925(b) Statement, 12/17/19. In its Rule 1925(a) opinion, the PCRA 

court stated that Pennington waived any arguments related to ineffective 

assistance of counsel, and that no genuine issues of fact existed warranting 

an evidentiary hearing:

[Pennington], in his complaint, generally alleges that “there were 

many errors of law at trial, including ineffective assistance of 

counsel[.].” Without any reference to the basis of th[is] 

assertion[], the [c]ourt is left with the dilemma of only being able 

to guess at that to which he refers. As is his wont, [Pennington] 

raised numerous complaints in his amended petitions, but has 

utterly failed to address them in his statement of errors. 

Consequently, [Pennington] has failed to even remotely address 
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his burden as established by Strickland/Pierce[5] and its 

progeny. Therefore, the [c]ourt deems these complaints to have 

been waived. Thus, the only issue before the [c]ourt is 

[Pennington’s] complaint that the [c]ourt erred in denying him an 

evidentiary hearing. . . . [T]o justify a hearing, [Pennington] 

must prove that there is a genuine issue of material fact which 

could entitle him to relief. Commonwealth v. Clark, 961 A.2d 

80, 84 (Pa. 2008); Commonwealth v. D’Amato, 856 A.2d 806, 

820 (Pa. 2004); Pa.R.Crim.P. 908(A)(2).

. . . [Pennington] has failed to articulate which of [his] issues 

gives rise to the need for an evidentiary hearing. . . . The [c]ourt 

finds [Pennington] has failed to raise a genuine issue of fact which, 

if resolved in his favor, would entitle him to relief. [Pennington] 

has not met, nor even attempted to address, his burden under 

Strickland/Pierce.

PCRA Court Opinion, 1/29/20, at 5-6.

In his appellate brief, Pennington raises one issue for our review: “Did 

the [PCRA] court err, abuse its discretion, and/or make a mistake of law when 

it denied [Pennington]’s [PCRA] petition for relief, on October 24, 2019, 

without an evidentiary hearing?” Brief of Appellant, at 2. Pennington 

maintains only that the PCRA court should have held an evidentiary hearing 

on his claim for ineffective assistance of counsel. See id. at 11-12, 14-17.

It is well-settled that there is no absolute right to an evidentiary hearing 

on a PCRA petition. Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. 

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5 See Strickland v. Washington, 466 U.S. 668, 694 (1984) (ineffective 

assistance mandates relief only where defendant establishes “a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.”); Commonwealth v. Pierce, 527 

A.2d 973 (Pa. 1987) (counsel’s performance is evaluated in light of 

reasonableness if it is determined that underlying claim of ineffective 

assistance has arguable merit).
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Super. 2019). If the PCRA court can determine from the record that no 

genuine issues of material fact exist, then no hearing is necessary. Id. We 

will reverse a PCRA court’s decision to dismiss a petition without a hearing 

only where an appellant shows “that he raised a genuine issue of fact which, 

if resolved in his favor, would have entitled him to relief, or that the court 

otherwise abused its discretion in denying a hearing.” Commonwealth v. 

Hanible, 30 A.3d 426, 452 (Pa. 2011).

We agree with the PCRA court’s determination that Pennington waived 

his right to challenge counsel’s effectiveness by failing to preserve the issue 

in his Rule 1925(b) statement. Rule 1925(b) directs that an appellant’s 

statement of errors “shall concisely identify each error that the appellant 

intends to assert with sufficient detail to identify the issue to be raised for the 

judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the Statement 

and/or not raised in accordance with the provisions of this paragraph (b)(4) 

are waived.” Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord, 

719 A.2d 308, 309 (Pa. 1998) (issues not addressed in Rule 1925(b) 

statement are waived); Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. 

Super. 2001) (Rule 1925(b) statement “which is too vague to allow the court 
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to identify the issues raised on appeal is the functional equivalent of no 

Concise Statement at all.”).6

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6 Even if Pennington had preserved this issue, it would entitle him to no relief. 

The law presumes that counsel was effective, and it is the burden of the 

defendant to prove otherwise to the PCRA court. Hanible, supra at 439. In 

order to establish ineffective assistance, a petitioner must show that his claim 

is of arguable merit, his counsel’s performance lacked a reasonable basis, and 

counsel’s performance caused him prejudice—i.e., but for counsel’s error, the 

outcome of the proceeding would have been different. Commonwealth v. 

Brooks, 839 A.2d 245 (Pa. 2003).

Pennington argues that counsel was ineffective for “not objecting to the 

improper allowance of gang/group rivalry testimony and all the charged 

persons[’] relationships thereto[,] nor consulting an expert about this 

subject.” Brief of Appellant, at 15-16. Neither claim has been presented 

sufficiently to entitle him to relief.

In his brief, Pennington does not specifically identify what testimony was 

improperly admitted, the location in the record of that testimony, or where he 

preserved this claim for purposes of appeal; he does not cite to any legal 

authority to support his claim that the testimony was improperly admitted, 

nor articulate a legal basis for the exclusion of such evidence. See Brief of 

Appellant, at 15-17. As we warned Pennington on direct appeal, “[t]his Court 

will not act as counsel and will not develop arguments on behalf of an 

appellant. . . . Moreover, it is not this [C]ourt’s responsibility to comb 

through the record seeking the factual underpinnings of Appellant’s 

claim.” Commonwealth v. Pennington, 1364 EDA 2015 at 2-6 (Pa. Super. 

filed Feb. 8, 2017) (unpublished memorandum decision) (internal citations 

omitted). We find, therefore, that the PCRA court properly rejected this 

undeveloped claim of ineffective assistance of counsel. See 42 Pa.C.S.A. § 

9543 (PCRA petitioner bears burden of establishing entitlement to relief by 

preponderance of evidence).

Similarly, the PCRA court acted within its discretion in rejecting Pennington’s 

undeveloped ineffective assistance claim related to counsel’s failure to consult 

an “expert regarding gangs, criminal organizations, or persons affiliate[ed] 

with them.” Brief of Appellant, at 16. Pennington did not identify to the PCRA 

court any existing, available, and willing expert who could have offered 
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In light of the foregoing, we conclude that the PCRA court properly 

dismissed Pennington’s PCRA petition without a hearing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/29/21

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favorable testimony for the defense. Accordingly, he has failed to meet the 

burden of establishing entitlement to relief. See Commonwealth v. 

Washington, 927 A.2d 586, 599 (Pa. 2007) (to prove trial counsel was 

ineffective for not calling a witness, a defendant must show that: (1) the 

witness existed; (2) the witness was available to testify for the defense; (3) 

counsel knew or should have known that the witness existed; (4) the witness 

was willing to testify for the defense; and (5) the absence of the witness’s 

testimony was so prejudicial as to have denied defendant a fair trial).

Furthermore, this claim is meritless because the trial court precluded 

Commonwealth witnesses from referring to Pennington’s group and their rival 

group as “gangs,” discussing the rivalry between the two groups, or discussing 

either group’s criminal history. N.T. Jury Trial, 1/30/15, at 13. After an 

extensive discussion outside the presence of the jury, the trial court permitted 

Detective Carey, to testify regarding his personal observations that Brown 

and Tyler congregated in a different area than Pennington and Grant. Id. at 

17; N.T. Jury Trial, 1/29/15, at 172.