State v. Appiah

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
) I.D. No. 1808022193
v. )
)
KENNETH APPIAH, )
)
Defendant. )

Submitted: March 3, 2025
Decided: May 30, 2025

ORDER

On Defendant’s Motion for Post Conviction Relief – SUMMARILY DENIED
On Defendant’s Motion Requesting Expansion of the Record – DENIED
On Defendant’s Motion for Appointment of Counsel – DENIED

On this 30 day of May, 2025, having considered Defendant’s Motion for

Postconviction relief,1 Motion for Appointment of Counsel, 2 Motion Requesting

Expansion of the Record,3 and the entire record in the case, it appears to the Court

that:

1. Appiah was charged with Home Invasion, Burglary First Degree, five

counts of Possession of a Firearm During the Commission of a Felony (hereinafter

“PFDCF”), Attempted Robbery First Degree, three counts of Reckless Endangering

1
Superior Court Criminal Docket, ID No. 1808022193, Docket Item (“D.I.”) 165.
2
D.I. 166.
3
D.I. 167.
First Degree, and Criminal Mischief following a December 13, 2017, shooting at the

home of Appiah’s former roommate, Aruna Kanu.4 The facts of this case are as

found by the Delaware Supreme Court in Appiah’s direct appeal of his conviction:

(2) Aruna Kanu, his girlfriend Aimee Kamara, and their son rented an
apartment in Newark, Delaware. They sub-let a second bedroom in the
apartment to Appiah. Appiah paid Kanu a security deposit and received
two keys to the apartment. After living in the apartment for only two
weeks of the agreed seven-month rental term, Appiah told Kanu that he
accepted a job in Philadelphia and left the apartment. Kanu refused to
return Appiah's security deposit after Appiah moved out. After Appiah
left, Kanu rented the apartment's spare bedroom to Ricardo Campbell.
Appiah never returned the two keys to the apartment. Appiah
unsuccessfully tried to involve the police to get the security deposit
back. Appiah also continued to text and email Kanu demanding his
security deposit. In a final October 16, 2017 text, Appiah told Kanu
“you need to stop playing with me.”

(3) On December 13, 2017, Kanu, Kamara, and their son were home at
the apartment when a man in a black outfit and black mask entered the
apartment using a key and pointed a gun at Kanu and gestured like he
was demanding money. Kanu went into the bedroom, shut the door, and
yelled for Kamara to call 911. While Kanu was on the floor, the man
shot two times through the bedroom door. The gunshots did not hit
anyone but damaged the child's crib. At trial, Kanu testified that the
man was Appiah.

(4) Appiah fled the apartment before police arrived. Police collected
two spent .32 caliber shell casings from outside the bedroom door and
projectiles from the baby's crib and the wall. An officer's body camera
from the night of the incident showed an officer going into Campbell's
room, saying that the room smelled like drugs, and pointing out a drug
scale and drug packaging.

(5) Police interviewed Appiah that night but did not arrest him. Appiah
was wearing black clothes when the police conducted the interview.

4
State v. Appiah, 2019 WL 6647806, at *1 (Del. Super. Nov. 26, 2019); D.I. 52.
Two days later, police interviewed Appiah again. He admitted that he
owned a .32 caliber handgun. Police arrested Appiah, seized the gun,
and had the gun tested. A forensics expert testified that the shell casings
from the apartment were consistent with having come from Appiah's
gun, though the examiner could neither identify nor eliminate the
projectiles as having been fired from Appiah's gun.

(6) The State charged Appiah with Home Invasion, Burglary in the First
Degree, five counts of Possession of a Firearm during the Commission
of a Felony, Attempted Robbery in the First Degree, three counts of
Reckless Endangering in the First Degree, and a misdemeanor count of
Criminal Mischief. After a three-day trial, a Superior Court jury
convicted Appiah of all charges, except Home Invasion and instead of
Attempted Robbery in the First Degree, of the lesser-included offense
of Aggravated Menacing. The Superior Court judge sentenced Appiah
to seventeen years at Level V, followed by probation. 5

2. Prior to sentencing, on March 26, 2019, Appiah filed a pro se Motion

for New Trial. 6 The motion was rejected, per policy, as Appiah was represented by

Counsel. 7 Appiah then re-filed a Motion for New Trial, now through Counsel,

alleging the prosecutorial misconduct due to remarks made in closing concerning

the ballistics analysis. 8 That motion was denied on November 26, 2019. 9 Appiah

was thereafter sentenced on January 10, 2020, to a total of seventeen (17) years of

unsuspended Level V time.10

5
Appiah v. State, 224 A.3d 681 (TABLE), 2020 WL 7625353, *1-2 (Del. Supr.
Dec. 20, 2020) (internal citations omitted).
6
D.I. 38.
7
Id; D.I. 39.
8
D.I. 44.
9
See Appiah, 2019 WL 6647806.
10
D.I. 69.
3. On January 23, 2020, Appiah appealed his convictions. In his direct

appeal, he argued his Sixth Amendment rights were violated when the Superior

Court denied his last-minute request for new trial counsel, that the Superior Court

erred in various evidentiary rulings. 11 The Supreme Court affirmed Appiah’s

conviction, finding no error.12

4. On February 5, 2021, Appiah filed his first pro se Motion for

Postconviction Relief. 13 On February 10, 2021, he filed a Motion for Appointment

of Counsel. 14 Prior to any ruling, on March 11, 2021, Appiah amended his pro se

Motion for Postconviction Relief.15 In it, he raised five claims, including ineffective

assistance of counsel claims related to Appiah’s alibi defense.16 Appiah contended

Counsel should have requested an identification instruction and incident

reports/body-worn camera footage of the officers who initially reported to Appiah’s

residence before another officer arrived to check out Appiah’s alibi. 17

11
D.I. 53.
12
See Appiah, 2020 WL 7625353. The ruling also affirmed the Superior Court’s
denial of Appiah’s requests to proceed pro se, one made the week before trial and
the other on the second day of trial; D.I. 78.
13
D.I. 80. This Motion was later amended. See D.I. 81; D.I.108.
14
D.I. 79.
15
D.I. 81.
16
Id.
17
Id.
5. On April 26, 2021, the Court granted Appiah’s request for counsel and

issued an Order for Appointment of Counsel pursuant to Rule 61(E)(2).18

Postconviction Counsel was appointed, but ultimately moved to withdraw following

a “thorough review of the record” failed to reveal any meritorious postconviction

claims.19 The Motion to Withdraw was later granted in Court’s August 28, 2023

Memorandum Opinion Denying Appiah’s motion for Postconviction Relief.20

6. On August 15, 2022, before the Court issued a decision on the pending

motions, Appiah filed his second Motion for Postconviction relief, pro se. 21 In this

motion, Appiah raised ten (10) grounds for relief, one of which alleged Counsel was

ineffective for failing to request a Lolly/Deberry instruction for “missing evidence.”

Appiah claimed an instruction on missing evidence was necessary because the police

did not seek a DNA comparison between the shell casings found in Kanu’s apartment

and a black glove allegedly found outside Kanu’s apartment. 22

7. On August 18, 2022, the Court issued an Order Directing Expansion of

the Record and, because Appiah’s second postconviction motion raised additional

ineffective assistance of counsel claims, ordered trial counsel and appellate counsel

18
D.I. 84.
19
D.I. 97.
20
D.I. 139.
21
D.I. 95, 96, 108. Postconviction counsel was afforded an extension of the filing
deadline.
22
Id.
to file affidavits in response to the specific claims against them, respectively. 23 Both

Affidavits were subsequently filed.24

8. Prior to a ruling on his second postconviction relief motion, Appiah

filed a pro se “Motion Seeking DNA and Gunshot Residue Testing of Evidence, Rule

61 Discovery,” on December 8, 2022.25

9. Given the “increasingly convoluted record in light of Appiah’s Third

and Fourth Postconviction Filings,” the Court held a teleconference.26 The Court

indicated it would construe Appiah’s additional pro se filings as responses to

Postconviction Counsel’s Motion to Withdraw and requested Postconviction

Counsel address why two of Appiah’s newly raised claims lacked merit.27 Upon

receipt of the requested response, the Court issued a Postconviction Scheduling

Order on March 7, 2023.28

10. On August 28, 2023, the Court denied Appiah’s Motion for

Postconviction Relief, finding “[h]is ineffective assistance of counsel claims do not

23
D.I. 109 and 110. The Order was corrected on August 25, 2022 to correct a
scrivener’s error.
24
D.I. 116 and 121.
25
D.I. 113.
26
State v. Appiah, 2023 WL 5608927, at *6 (Del. Super. Aug. 28, 2023); D.I. 139.
27
Id. The requested response was filed on January 27, 2023.
28
D.I. 124.
demonstrate that Trial or Appellate Counsel were objectively unreasonable. His Due

Process claims are similarly meritless.” 29

11. Appiah appealed the Court’s decision on September 21, 2023. 30 On

April 16, 2024, the Delaware Supreme Court affirmed the Superior Court’s

judgment.31

12. In the summer of 2024, Appiah resumed his filings in Superior Court:

on June 10, 2024, Appiah filed a letter requesting access to the suspect glove for

DNA testing; 32 on July 11, 2024, Appiah filed a Motion for Modification of

Sentence;33 and on July 22, 2024, Appiah filed a Motion to Compel a response to his

June 10th letter.34 Both his Motion to Compel and Motion for Modification were

denied.35 Appiah’s letter seeking access to the glove was deemed moot because the

Court had already mailed Appiah the 2022 forensic report and addendum.36

29
D.I. 139.
30
D.I. 141.
31
D.I. 146. The Delaware Supreme Court’s Order read, “[a]fter consideration of the
parties’ briefs and the record on appeal, we find it evident that the judgment below
should be affirmed on the basis of and for the reasons cited by the Superior Court in
its August 28, 2023, memorandum opinion denying the appellant’s first motion for
postconviction relief.”
32
D.I. 147.
33
D.I. 148.
34
D.I. 149.
35
D.I. 160.
36
Id; D.I. 158. Appiah filed a Reply following the Court’s Order, which was also
deemed moot based on the Court’s November 1, 2024 Order denying the pending
motions.
13. On August 9, 2024, Appiah filed a pro se Petition for Writ of Habeas

Corpus. 37 This Petition was denied on August 13, 2024.38

14. On September 19, 2024, Appiah filed a Writ of Mandamus requesting

the Court require the State to provide Appiah with access to the suspect glove, DNA

swabs, and gunshot residue tests.39 The Court denied his Writ on October 28, 2024,

reasoning the issue presented had already been raised and denied in Appiah’s Motion

for Postconviction Relief. 40 The denial was later affirmed by the Delaware Supreme

Court.41

15. Most recently, on January 23, 2025, Appiah filed a pro se Motion for

Leave of the Court to File a Brady Claim.42 On April 16, 2025, the Court denied this

Motion because “Appiah’s request seeks to address a matter previously decided by

the Court on multiple occasions.”43

37
D.I. 150.
38
D.I. 153.
39
One Mandamus, Case Number N24M-09-102, Trans ID 74365737 (Sept. 19,
2024).
40
Order Upon Initial Review of Complaint is Dismissed, Case Number N24M-09-
102, Trans ID 74883400 (Oct. 28, 2024).
41
Id.
42
D.I. 163.
43
D.I. 170. By the time of this decision, the original judge retired and a new judge
was assigned to decide his motion.
16. On March 3, 2025, Appiah filed the instant pro se Motion for

Postconviction Relief under Superior Court Criminal Rule 61(d)(2)(i), a Motion for

Appointment of Counsel, and a Motion Requesting Expansion of the Record.44

Motion for Postconviction Relief

17. Beginning with Appiah’s Postconviction Motion, he sets forth two

grounds for relief. Appiah first contends his due process rights were violated

because “[p]olice collected two shell casens, [sic] a bullet and a black glove from

the crime scene. On postconviction Appiah requested but denied access to the glove

for DNA and gunshot residue testing to prove innocence under Del Rule

61(d)(2)(i).”45 Appiah also brings an ineffective assistance of counsel claim for trial

counsel’s failure to call witnesses who Appiah contends would have corroborated

his alibi.46

18. Superior Court Criminal Rule 61 governs motions for postconviction

relief. Before addressing the merits of a postconviction motion, the Court must

examine whether any of the Rule 61 procedural bars apply. 47 A motion for

postconviction relief can be procedurally barred as untimely, repetitive, for failing

to raise a claim in the proceedings leading to the judgment of conviction, and for

44
D.I. 165, 166, and 167. Appiah’s instant motions were reassigned to yet another
judge.
45
D.I. 165.
46
Id.
47
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
being formerly adjudicated.48 An applicable procedural bar precludes a reviewing

court from addressing the merits of a Rule 61 claim, to “protect the procedural

integrity” of the Court Rules. 49

19. The Court has engaged in the preliminary consideration of Appiah’s

current application under Rule 61. Consistent with Rules 61(i)(3) and (i)(4),

Appiah’s claims are procedurally barred. Accordingly, his motion is summarily

dismissed. His current Ground One has been previously adjudicated and barred

pursuant to Rule 61(i)(4), and Rule 61(i)(3) bars Appiah’s Ground Two, as he could

have, but failed to raise this claim in an earlier proceeding and has not presented

excusal for his failure to do so in his motion.

20. Summary dismissal is appropriate if it plainly appears from the motion

for postconviction relief and the record of prior proceedings in the case that the

movant is not entitled to relief.” 50 It plainly appears from Appiah’s motion, after

reviewing the entirety of the record and prior proceedings in this case, that he is not

entitled to relief.

48
Super. Ct. Crim. R. 61(i)(1)-(4).
49
State v. Page, 2009 WL 1141738, at *13 (Del. Super.); see also State v. Chao,
2006 WL 2788180, at *5 (Del. Super. Sept. 25, 2006) (“to protect the integrity of
the procedural rules, the Court should not consider the merits of a postconviction
claim where a procedural bar exists”).
50
State v. Reed, 2024 WL 2746694 at *2, citing Sup. Ct. Crim. R. 61(d)(5).
21. Rule 61(i)(4) provides “[a]ny ground for relief that was formerly

adjudicated, whether in the proceedings leading to the judgment of conviction, in an

appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is

thereafter barred.”51

22. Ground One argues Appiah was denied “Due Process of Law under

Brady and under Del. const. art I. §7” because a black glove allegedly recovered

near the crime scene was not tested for DNA and gunshot residue. 52 This argument

has been raised and denied on numerous occasions. 53 In fact, this Court previously

ruled:

[a]s to the gunpowder residue – the State did not have a duty to collect
and preserve gunpowder residue under Rule 16 because the State did
not intend to use it in its case-in-chief, and the record does not show
that gunpowder reside was material to the preparation of Appiah’s
defense. Nor did the State have a duty to collect and preserve
gunpowder residue under Brady, because the State had no reasons to
believe it would have been exculpatory. The remainder of Appiah’s
‘missing evidence’ argument fails because there is no duty to test
evidence.54

23. The Court’s 2023 analysis controls here. Further, this Court has already

denied Appiah’s January 23, 2025 pro se motion again requesting relief on the basis

that the black glove was not tested, because Appiah “seeks to address a matter

51
Super. Ct. Crim. R. 61(i)(4).
52
D.I. 165.
53
D.I. 170.
54
Appiah, 2023 WL 5608927, at *11.
previously decided by the Court on multiple occasions.” 55 The Court will not

address the same evidentiary issue again. Therefore, Appiah’s Ground One is

procedurally barred under 61(i)(4) and no further analysis is required.

24. Ground Two of Appiah’s Motion for Postconviction Relief contends

Counsel was ineffective for failing to properly investigate his alibi. 56 Specifically,

Appiah asserts “Appiah told police that he was at home helping his children with

their homework…At trial, counsel failed to call Appiah’s children to testify in

support of Appiah’s alibi defense.”57 This Ground is also procedurally barred.

25. Rule 61(i)(3) states that any ground for relief “not asserted in the

proceedings leading to the judgment of conviction” is procedurally barred unless the

movant can show “cause for relief from the procedural default” and “prejudice from

[the] violation of the movant’s rights.”58

26. Appiah does not show cause for relief from the procedural default or

prejudice from the violation of his rights to justify considering the merits of his

argument. To date, Appiah has filed four prior motions seeking various kinds of

postconviction relief.59 Within those motions, Appiah raised more than ten

55
D.I. 163 and 170.
56
D.I. 165.
57
Id.
58
Super. Ct. Crim. R. 61(i)(3); see also Reed, 2024 WL 2746694, *1.
59
D.I. 80, 81, 108, and 113.
ineffective assistance of counsel claims, some of which involved his alibi defense.60

Any further claims Appiah brings alleging Trial Counsel was ineffective for

inadequately pursuing his alibi defense, such as failing to call Appiah’s children as

witnesses, should have been brought in an earlier proceeding. Appiah failed to do

so and provides no explanation for why the instant argument was not included in an

earlier proceeding.

27. Appiah has not shown the required prejudice to excuse this procedural

default. To excuse the default, Appiah must demonstrate a substantial likelihood

that, had he raised the instant ineffective claim earlier, the outcome of his case would

have been different; that had he asserted the challenge, “he might not have been

convicted.” 61 Appiah has not made the requisite showing. In fact, it appears this

Court and the Delaware Supreme Court have afforded Appiah ample opportunity to

address the plethora of post-trial issues raised; none have been fruitful. Since his

conviction in March of 2019, Appiah has filed a motion for new trial, directly

appealed his sentence, filed numerous motions and letters with the Court seeking

postconviction relief, submitted a Petition for Writ of Habeas Corpus, and filed a

60
Appiah, 2023 WL 5608927, at *5. Appiah alleged Counsel was ineffective for
“not requesting incident reports and body-worn camera footage of all officers who
reported to Appiah’s residence before Officer Przeworski arrived to check out
Appiah’s alibi.”
61
Flamer v. State, 585 A.2d 736, 748 (Del. 1990), citing Reed v. Ross, 468 U.S. 1,
12 (1984).
Writ of Mandamus. All were unsuccessful. Given the exhaustive record in this case,

and in the interest of preserving the integrity of Rule 61’s procedural bars, the Court

will not address the merits of Appiah’s fourth postconviction filing.62 Thus,

Appiah’s Motion for Postconviction relief is summarily denied, and no further

analysis is necessary.

Motion for Expansion of the Record

28. In denying Appiah’s Motion for Postconviction relief, his current

Motion to Expand the Record becomes moot. Rule 61(g)(1) permits the Court to

expand the record to include additional materials relevant to the determination of the

merits of the motion.63 Given that Appiah’s postconviction request is denied, no

additional materials are necessary. Appiah’s motion once again requests access to

the glove and additional DNA testing on the basis that “this Court denied Appiah’s

Motion for Postconviction Relief and Motion Seeking Access to DNA and gunshot

residue on the suspect glove,” in its August 28, 2023 Memorandum Opinion.64

29. Appiah’s request continues that he “twice requested but [was] denied

access to the suspect glove, sample swabs collected from the shell casens [sic] for

DNA and gunshot residue testing to prove actual innocence,” and asks “the Court

62
Chao, 2006 WL 2788180, at *5.
63
Super. Ct. Crim. R. 61(g)(1).
64
D.I. 167.
direct the State to expand the record and include any materials and test results

relevant to the merits of Appiah’s postconviction claim.” 65

30. As already discussed, Appiah’s motion is moot. Further, the Court

declines to grant Appiah’s request for the same reasons outlined in the August 28,

2023 Opinion: the State does not have a duty to test evidence or to seek out

exculpatory evidence.66 The State’s duty to preserve exculpatory evidence does not

require the State to run additional testing, outside of what is necessary for its case-

in-chief, that might reveal exculpatory evidence.67 Therefore, Appiah’s repetitive

request seeking access to the glove for further testing is DENIED.

Motion for Appointment of Counsel

31. Finally, Appiah’s Motion for Appointment of Counsel is also denied.

When a defendant files a second or subsequent motion under Rule 61, this Court

may appoint counsel for an indigent defendant only if the judge determines the

second or subsequent motion satisfies the pleading requirements of Rule 61(d)(2).68

To meet the requirements of Rule 61(d)(2), a defendant must plead with particularity

(i) that new evidence exists that creates a strong inference that the defendant actually

is innocent of the charges of which he was convicted; or (ii) that a new rule of

65
D.I. 167.
66
Appiah, 2023 WL 5608927, at n.186 (citing Coleman v. State, 289 A.3d 619, 627
(Del. 2023)).
67
Coleman, 289 A.3d at 627.
68
Super. Ct. Crim. R. 61(e)(5).
constitutional law, made retroactive to cases on collateral review by the United States

Supreme Court or the Delaware Supreme Court, applies to Appiah’s case and renders

the conviction invalid.

32. Appiah’s Motion for Counsel does not plead either of these two

elements. While Appiah contends DNA and gunshot residue tests on the recovered

glove will reveal his innocence, nothing in the record substantiates that belief. In

fact, the record indicates testing the glove was immaterial to preparing Appiah’s

defense. Because Appiah failed to create a strong inference that he is innocent of

his crimes, and because the Court is unaware of any new rule of law rendering his

conviction invalid, Appiah’s Motion for Appointment of Counsel is DENIED. 69

IT IS SO ORDERED.

_________________________
Danielle J. Brennan, Judge

cc: Matthew Bloom, Deputy Attorney General
Kenneth Appiah, Defendant

69
Appiah, 2023 WL 5608927, at *11; D.I. 134.