J-S54010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TRACY A. JORDAN,
Appellant No. 2308 EDA 2014
Appeal from the PCRA Order July 1, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0305001-2005
BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 14, 2015
Tracy A. Jordan appeals pro se from the order entered on July 1, 2014,
wherein the trial court denied post-conviction relief. We affirm.
On November 8, 2006, a jury convicted Appellant of second degree
murder, robbery, and possessing an instrument of crime (“PIC”). The
convictions stem from the 2004 robbery and murder of the owner of Cash
Plus Check Cashing Agency in Philadelphia, Pennsylvania. The trial court
imposed life imprisonment for the murder conviction and a concurrent term
of two and one-half to five years for PIC. The robbery merged with second-
degree murder for the purpose of sentencing. We affirmed the judgment of
sentence. Commonwealth v. Jordan, 961 A.2d 1277 (Pa.Super. 2008)
(unpublished memorandum).
*
Former Justice specially assigned to the Superior Court.
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On December 8, 2008, Appellant filed a timely PCRA petition. Counsel
was appointed, and he filed an amended PCRA petition leveling a litany of
ineffective assistance of counsel claims, including inter alia, that trial counsel
should have filed a motion to suppress the verbatim written statement that
Appellant provided to the police on November 18, 2004, and the evidence
that flowed from Appellant’s consent to search his residence. The petition
was dismissed without a hearing.1 This Court affirmed, in part, and
remanded for the trial court to conduct “a hearing limited to [Appellant’s]
claim of ineffective assistance of counsel regarding trial counsel’s failure to
file a suppression motion.” See Commonwealth v. Jordan, 82 A.3d 1063
(Pa.Super. 2013) (unpublished memorandum at 14.)
On December 13, 2013, the PCRA court conducted an evidentiary
hearing consistent with our directive. Trial counsel, Gregory Pagano,
Esquire, was the only witness presented during the hearing. He testified
that Appellant’s November 18, 2004 statement to police was not only
voluntary and consensual, but also exculpatory and consistent with the
agreed-upon defense strategy of highlighting Appellant’s cooperation with
the police throughout the investigation as militating in favor of finding that
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1
After the filing of the notice of appeal, Appellant filed a motion to proceed
pro se. The trial court held a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1988), and permitted Appellant to represent
himself. He continues pro se representation in this appeal.
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he was innocent and wrongly accused. N.T., 12/19/13, at 10, 11-12, 17,
31, 33-34). Following the hearing and the submission of post-hearing briefs,
the PCRA court entered the above-referenced order denying relief. This
timely appeal followed.
Appellant presents the following questions for our review:
I. Under what federal or state legal authority [did] the police
[have] to hold Appellant at their headquarters while his home
was being searched?
II. Under the federal and state categories of interaction
between citizens and police, where does the encounter with
Appellant fall?
III. Can trial counsel be considered competent when he
exhibits an extreme lack of legal knowledge or legal precedent?
IV. Can trial counsel[’]s strategy be considered reasonable
under prevailing professional norms?
Appellant’s brief at 3.
We have previously held that:
This Court’s standard of review regarding an order denying a
petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of
legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2
(Pa. 2005). The PCRA court’s findings will not be disturbed
unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.
2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007).
As it relates specifically to Appellant’s challenge to trial counsel’s
stewardship in this case, in order to prevail on a PCRA claim for ineffective
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assistance of counsel, Appellant must establish by a preponderance of the
evidence: (1) that the underlying claim has merit; (2) that there was no
reasonable basis for counsel’s conduct or lack thereof; and (3) that Appellant
suffered prejudice as a result of counsel’s conduct or lack thereof.
Commonwealth v. Laird, __ A.3d__, 2015 WL 4401561 at *3 (Pa. 2015).
Counsel is presumed effective, and the burden of establishing counsel’s
ineffectiveness always lies with Appellant. Commonwealth v. Balodis, 747
A.2d 341, 334 (Pa. 2000). As our Supreme Court observed in
Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011), “Failure to establish
any prong of the test will defeat an ineffectiveness claim.”
Notwithstanding the four articulated issues listed in Appellant’s brief,
the crux of his argument is that trial counsel provided ineffective assistance
in failing to file an omnibus pretrial motion seeking to invalidate his consent
to search his home and suppress the evidence derived from his November
18, 2004 police interview after they failed to advise him of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). The following legal principles
guide our review. Generally, “[s]tatements made during custodial
interrogation are presumptively involuntary, unless the accused is first
advised of her Miranda rights.” Commonwealth v. Williams, 941 A.2d
14, 30 (Pa.Super. 2008) (en banc) (citations omitted). A custodial
interrogation is defined as “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of her
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freedom of action in any significant way.” Id. (citations and internal
quotations omitted).
In Williams, we continued, “In evaluating whether Miranda warnings
were necessary, a court must consider the totality of the circumstances. In
conducting the inquiry, we must also keep in mind that not every statement
made by an individual during a police encounter amounts to an
interrogation.” Id. Conversely, however, “volunteered or spontaneous
utterances by an individual are admissible even without Miranda warnings.”
Id.
We summarize Appellant’s factual basis for his ineffectiveness claim as
follows. See Appellant’s brief at 4-5. On November 18, 2004, Philadelphia
Homicide Detective James Griffin and his partner Detective Cruz2 interacted
with Appellant at his home. Detective Cruz went to the rear of the residence
to guard the back door while Detective Griffin advanced toward the front
door with his firearm drawn. Detective Griffin did not holster his weapon
until Appellant admitted both detectives into the home. After questioning
Appellant briefly and advising him that his fingerprints had been discovered
at the murder scene, the detectives requested that Appellant accompany
them to the police station for additional questioning.
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2
The certified record does not reveal Detective Cruz’s Christian name.
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Appellant continues that the detectives refused his request to drive his
own vehicle to the police interview, and, when he arrived at the police
station, the police removed his cell phone, wallet, and keys. He asserts that
police questioned him without providing a Miranda warning.3 He also
contends that, prior to providing written consent for the police to search his
home for a computer that was stolen from the decedent during the
homicide, they rejected his request to be present during the search and
rebuffed his attempt to contact his wife so that she would not be alarmed
when the police arrived at their home. Thereafter, the police locked
Appellant in the interrogation room for two hours while they executed the
search. The search was not fruitful, and the police released Appellant from
custody. Two days later, the police obtained a warrant to seize the service
weapon registered to Appellant’s wife, a police officer with the Philadelphia
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3
In pertinent part, Appellant’s statement indicated that he was at the check
cashing agency two days prior to the murder, he owns a .22 caliber pistol,
and that his wife uses a .40 caliber Smith and Wesson service weapon as a
police officer for the Philadelphia Housing Authority. Appellant also noted
that while no one in the household had recently acquired a laptop computer
or carrying case, his son owns a Dell brand laptop. Appellant consented to
the search of his residence for the computer that was stolen from the victim
during the robbery. Significantly, in contrast to the assertions in Appellant’s
brief, there was nothing in the verified statement regarding cellular
telephone records, subpoenas or warrants relating to those records, or a
witness identified as Julius Peurifor. See Commonwealth Exhibit 1,
Investigation Interview Record, 11/18/04, at 1-5.
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Housing Authority.4 Four days after the gun was seized pursuant to the
warrant, Appellant was arrested and charged with the robbery and homicide.
He believes that the foregoing factual scenario necessitated that Attorney
Pagano file a pretrial suppression motion to prevent the admission of
evidence flowing from the police interview and the search of his residence.
In rejecting Appellant’s claim, the trial court determined that Appellant
failed to establish the second and third prong of the test to determine
ineffective assistance of counsel, i.e., whether a reasonable basis existed for
counsel’s conduct and whether Appellant suffered prejudice. Specifically, the
trial court concluded that Attorney Pagano credibly testified that Appellant’s
statement was voluntary, exculpatory, and consistent with the information
that Appellant had provided to him. He also believed that the statement
supported the agreed-upon defense strategy of highlighting Appellant’s
cooperation with the homicide investigation and consenting to the search of
his home as evidence of him being wrongfully accused. Moreover, Attorney
Pagano testified that Appellant did not inform him that, during the initial
exchange at Appellant’s home, Detective Cruz had been posted at his rear
door while Detective Griffin approached the front of the residence with his
gun drawn.
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4
Police interviewed Appellant’s wife separately, and she surrendered her
duty weapon to detectives at the police station pursuant to the warrant
dated November 20, 2004.
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The trial court observed that Attorney Pagano’s recollection was
consistent with Appellant’s prior testimony during the jury trial.
Specifically, Appellant had testified that the statement was voluntary. He
also neglected to mention the detectives’ respective behaviors in staking out
the rear of the residence and brandishing a sidearm while approaching the
home. Based upon these facts, the trial court found that Appellant failed to
demonstrate by a preponderance of the evidence that Attorney Pagano
lacked a reasonable basis to forego challenging the interview in an omnibus
suppression motion.
As it relates to the prejudice prong, the trial court further stressed that
Appellant failed to establish prejudice. The court observed that Appellant’s
claim is based upon general challenges to counsel’s stewardship in failing “to
subject the prosecution’s case to any meaningful adversarial testing” and to
protect his basic federal and state constitutional rights. Trial Court Opinion,
10/3/14, at 4. We agree with the trial court’s assessment on both accounts.
The certified record sustains the trial court’s findings and
determinations of credibility relating to Attorney Pagano’s reasonable trial
strategy. During the evidentiary hearing, Attorney Pagano testified that he
has handled several thousand cases, including forty homicide jury cases, in
his twenty years of practice. N.T., 12/16/13, at 8. He explained that after
reading Appellant’s verbatim statement and discussing the situation and trial
strategy with Appellant, he declined to file a motion to suppress the
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statement. Id. at 9-12, 33-34. Specifically, he doubted that the lack of a
Miranda warning in this case violated Appellant’s 5th Amendment rights
because the statement and concomitant consent to search his home were
given voluntarily. Id. at 11, 23, 34. More important to our review, Attorney
Pagano believed that the statement was exculpatory, consistent with
Appellant’s defense, and unlikely to be used by the Commonwealth as
evidence. Id. at 10-11. Further, noting that Appellant testified during trial
that he provided the statement to police voluntarily, Attorney Pagano
stressed that Appellant’s cooperation with the investigation, voluntary
statement, and consent to the search all bolstered his assertion that he was
innocent and had been wrongfully accused. Id. at 11-12.
During cross-examination, Attorney Pagano further explained that he
was in possession of Appellant’s verbatim statement since the outset of this
case and immediately knew that the police had obtained the statement
without a Miranda warning. He investigated the circumstances surrounding
the interview and discussed all aspects of the statement with Appellant and
his family. Id. at 18-19, 29-30. Indeed, Attorney Pagano testified that he
“investigated everything that [Appellant] asked [and] put a tremendous
amount of time and effort into this case[.]” Id. at 30. However, he denied
that Appellant had informed him that Detective Griffin approached the home
with a drawn weapon or that Detective Cruz covered the rear of the
residence to prevent his flight. Id. at 19. Attorney Pagano also did not
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recall the particulars concerning when the police removed Appellant’s wallet,
keys, and telephone, but he added that the information that was adduced in
the verbatim statement was consistent with what Appellant had told the
detectives during the prior voluntary exchange at his residence. Id. at 21.
Similarly, Attorney Pagano testified that while he did not remember whether
Appellant had indicated to him that the police locked Appellant in the
interrogation room or rebuffed his request to be present during the search of
his residence, Attorney Pagano’s “recollection was that [Appellant’s] wife . . .
also cooperated with police and . . . allowed them to search the home.” Id.
at 23-24, 26.
As the foregoing testimony supports the PCRA court’s findings of fact
and credibility determination in favor of Attorney Pagano and against
Appellant, we will not disturb it. For this reason, we find that the certified
record sustains the trial court’s determination that Attorney Pagano’s stated
strategy to use the verified statement and Appellant’s cooperation in the
investigation to bolster the agreed-upon defense strategy was not so
unreasonable that no competent attorney would have chosen it.
Appellant misapprehends the significance that Attorney Pagano
ascribed to the fact that the verified statement was exculpatory. Appellant
accurately states that for the purposes of determining whether a Miranda
warning is warranted, it makes no difference whether the challenged
statement is inculpatory or exculpatory. Hence, he intimates that Attorney
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Pagano provided ineffective assistance in finding that the exculpatory nature
of the verified statement would have foreclosed suppression under 5 th
Amendment jurisprudence. Unfortunately for Appellant, this argument
mischaracterizes Attorney Pagano’s reasoning. Rather than concluding that
an exculpatory statement could not be subject to suppression, Attorney
Pagano referred to the statement’s exculpatory nature, as well as its
consistency with the defense strategy, and the unlikelihood that the
Commonwealth would invoke the statement against Appellant, as grounds to
decline to suppress it. That is, the references to the statement being
exculpatory related to the reasonableness of Attorney Pagano’s decision to
forego suppression and not the validity of the custodial statement proffered
without a Miranda warning. Stated another way, even to the extent that
the statement could be considered constitutionally infirm, its admissibility
inured to Appellant’s benefit.
Additionally, the record confirms the trial court’s determination that
Appellant failed to satisfy the prejudice prong of the test for ineffectiveness.
Stated plainly, Appellant neglected to explain how the Commonwealth used
the verified statement against him. In fact, to the extent that Appellant
references statements that the Commonwealth allegedly introduced at trial,
that information did not flow from the verified statement that formed the
basis of his ineffective assistance of counsel claim. Likewise, as it relates to
the allegedly infirm consent that he provided to police to search his home,
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Appellant does not identify what evidence was obtained during the search
that lead to his conviction. Indeed, Appellant concedes that the search that
was based upon his consent was not fruitful and that the police only seized
the purported murder weapon after interviewing his wife, who previously
consented to the search of the residence, and obtaining a warrant to seize it
from her. Appellant fails to assert how the lack of a Miranda warning on
November 18, 2004, tainted the seizure of evidence from his wife’s person
pursuant to a warrant issued two days later. Thus, Appellant’s attempt to
assail Attorney Pagano’s stewardship for failing to suppress the statements
is ineffectual.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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