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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYREEK BYRD
Appellant No. 638 EDA 2015
Appeal from the PCRA Order March 6, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011530-2009
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 10, 2015
Tyreek Byrd appeals from an order dismissing his timely petition
seeking relief under the Post Conviction Relief Act (“PCRA”).1 We affirm.
Byrd shot an unarmed man in the shoulder on a residential street. A
jury convicted Byrd of aggravated assault2 and related offenses. On March
25, 2011, the trial court sentenced Byrd to 7-20 years’ imprisonment for
aggravated assault and no further penalty for the remaining convictions.
Byrd did not file a direct appeal, electing instead to file a timely PCRA
petition on July 8, 2011.
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1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 2702(a)(1).
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New counsel was appointed and filed an amended petition challenging
the effectiveness of trial counsel. On March 6, 2015, after a limited
evidentiary hearing, the PCRA court dismissed defendant’s petition. This
timely appeal followed. Both Byrd and the PCRA court complied with
Pa.R.A.P. 1925.
Byrd’s sole issue in this appeal is: “Did the PCRA Court err in
determining that Appellant was not prejudiced by trial counsel's failure to
object when Appellant's assertion of his right to remain silent was elicited at
trial?” Brief For Appellant, at 4. In other words, Byrd claims that defense
counsel was ineffective for failing to object during trial to passing references
by a Commonwealth witness to Byrd’s post-arrest silence.
Our standard of review is well-settled. “In reviewing the denial of
PCRA relief, we examine whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Fears,
86 A.3d 795, 803 (Pa.2014) (internal quotation marks and citation omitted).
“The scope of review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to the prevailing party
at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014)
(citation omitted). “It is well-settled that a PCRA court’s credibility
determinations are binding upon an appellate court so long as they are
supported by the record.” Commonwealth v. Robinson, 82 A.3d 998,
1013 (Pa.2013) (citation omitted). However, this Court reviews the PCRA
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court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,
1084 (Pa.Super.2014) (citation omitted).
Counsel is presumed to have rendered constitutionally effective
representation. See Strickland v. Washington, 466 U.S. 668, 689 (1984).
“To plead and prove ineffective assistance of counsel a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel’s
actions lacked an objective reasonable basis; and (3) actual prejudice
resulted from counsel’s act or failure to act.” Commonwealth v. Stewart,
84 A.3d 701, 706 (Pa.Super.2013) (en banc). If the petitioner fails to meet
any of these prongs, his claim fails. Id. Arguable merit exists when the
factual statements are accurate and “could establish cause for relief.” Id. at
707. Whether the “facts rise to the level of arguable merit is a legal
determination.” Id. In considering whether counsel acted reasonably, we
look to “whether no competent counsel would have chosen that action or
inaction, or, the alternative, not chosen, offered a significantly greater
potential chance of success.” Id. “Counsel’s decisions will be considered
reasonable if they effectuated his client’s interests. We do not employ a
hindsight analysis in comparing trial counsel’s actions with other efforts he
may have taken.” Id. Lastly, prejudice occurs where “there is a reasonable
probability that, but for counsel’s errors, the result of the proceeding would
have been different.” Id. This probability is sufficient when it “undermines
confidence in the outcome of the proceeding.” Id.
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A brief review of the evidence will place Byrd’s argument in proper
context. On July 13, 2009, the victim, Derrick Churchwell, was walking with
his friends, Sharika Gibson and Marissa Hamilton, on Rodman Street in
Philadelphia. They were going to drop off Gibson’s 5 year old daughter,
Akira, at her grandmother’s house. As they were walking, Akira “playfully”
hit Churchwell by tapping his hands and legs and taunting him to hit her
back. Churchwell told her to stop, but Akira ignored him and continued to
hit him. Churchwell asked Gibson to intervene, but Gibson disregarded his
request. After Akira’s misbehavior continued for several minutes, Churchwell
grabbed Akira’s arm to stop her. Akira began to cry. N.T., 1/25/11, at 27-
33, 178-182.
Gibson had been on the phone with Akira’s father when Akira began to
cry. Gibson saw Akira crying and told Akira’s father what happened, but
assured him that everything was “okay” because she knew that Churchwell
would not intentionally hurt Akira. Gibson dropped off Akira at her
grandmother’s house and argued with Churchwell as they walked back to
Gibson’s home. N.T., 1/25/11, at 27-33, 178-182.
As they approached Gibson’s home, Gibson’s sister, Taja, stopped
Churchwell and asked what was going on. Churchwell was talking with Taja
near Gibson’s house when a car pulled up. Byrd and an unidentified man
got out of the car and struck up a conversation with Gibson. Byrd, also
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known as “Tita,” was Akira’s uncle. Gibson pointed at Churchwell and said,
“[T]here he is right there.” N.T., 1/25/11, at 33-35, 181-183.
Byrd approached Churchwell, demanding to know if Churchwell “hit his
niece” and whether Churchwell thought he was “tough.” Before Churchwell
had an opportunity to explain, Byrd lifted up his shirt and revealed a gun
tucked in the waistband of his pants. Byrd’s friend came up behind the
victim and grabbed his arms, and Byrd pointed the gun at Churchwell’s face
and chest. Churchwell heard a gunshot and fell to the ground, feeling pain
in his shoulder and hearing people scream. Only after he saw blood on his
shirt did he realize that he had been shot. By that time, Byrd and his friend
had fled. N.T., 1/25/11, at 35-43, 113-120, 151-153, 183-186.
Churchwell was rushed to the hospital with a gunshot wound to the
shoulder. He told police in the emergency room that he had been shot by a
man known to him as “Tita.” The next day, he gave a formal statement to
the police identifying Byrd as the shooter and picked out Byrd from a photo
array. Police also interviewed Gibson, who likewise identified Byrd as the
shooter. She picked out the photograph of Byrd that police used to compile
the photo array. N.T., 1/25/11, at 47-51, 186-188, 206-213; N.T., 1/26/11,
at 7-14, 18-21.
Byrd was arrested and charged with aggravated assault. At trial, the
Commonwealth presented seven witnesses, including Churchwell’s mother,
Stephanie Coaxum, and her friend, Robert Jackson. Ms. Coaxum had been
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standing in front of her house, only six doors away from Gibson’s, when she
saw two men approach her son. She heard a gunshot, ran over, and found
her son bleeding on the ground. Jackson corroborated her account. N.T.,
1/25/11, at 113-120, 151-153.
On cross-examination, defense counsel asked questions that seemed
to challenge the thoroughness of the police investigation. Accordingly, the
Commonwealth also called the assigned detective, Robert Kerwin, to testify
about the investigation. N.T., 1/25/11, at 133-135, 216-223.
On direct examination, Detective Kerwin made two unprompted
references to defendant’s post-arrest silence. When the prosecutor asked
Detective Kerwin if the “investigation [was] complete” when he arrested
defendant, Detective Kerwin testified that he had “still [been] trying to
identify” the second person who was present during the shooting. The
prosecutor clarified his original question, asking if the investigation was
complete “with regards to information just as to Mr. Byrd.” Detective Kerwin
responded: “Well, once he is brought back to my division I explain to him
what he is being charged with, I give him a chance if he wants to give his
side of the story or not. He chose not to. And at that point I just did the
arrest paperwork and then he was processed through our system.” Defense
counsel did not raise an objection. N.T., 1/26/11, at 24-25.
Shortly thereafter, the following exchange took place:
COMMONWEALTH: . . .You said at one point you continued your
investigation of the incident; is that correct?
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DETECTIVE KERWIN: Yes.
COMMONWEALTH: But you were finished with investigating Mr.
Byrd?
DETECTIVE KERWIN: Yes. Well, since it was a second person
that was involved, not that that person actually shot Derrick
Churchwell, but from the interview he held on to him and
wouldn’t let him run that led to his being shot. We were trying to
identify him. And since Mr. Byrd wouldn’t tell us anything, I
couldn’t get any information from him . . .
This time, defense counsel raised an objection. N.T., 1/26/11, at 28-29.
The court did not instruct the jury at this time that it could not draw any
adverse inference from Byrd’s silence. The court did, however, instruct the
jury in its opening remarks and closing instructions that Byrd had a right to
remain silent, and that the jury could not draw any adverse inference if he
did not take the witness stand during trial. N.T., 1/25/11, at 6; N.T.,
1/26/11, at 104.3
Byrd argues that defense counsel was ineffective for “failing to object
when the Commonwealth elicited testimony” regarding Byrd’s post-arrest
silence. Brief for Appellant, at 8. Initially, we note that defense counsel did
object the second time that Detective Kerwin mentioned Byrd’s post-arrest
silence. Moreover, the Commonwealth did not “elicit” any testimony from
Detective Kerwin regarding Byrd’s post-arrest silence. Detective Kerwin
offered the testimony, unprompted, in response to a question from the
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3
Byrd did not present any evidence.
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prosecutor about the completeness of the investigation. Specifically, the
prosecutor asked the detective if his “investigation [was] complete” when he
arrested defendant “with regards to information just as to Mr. Byrd.” He
could not reasonably have anticipated that Detective Kerwin would respond
by indicating that defendant had opted not to “give his side of the story” to
the police. N.T., 1/26/11, at 24-25. The prosecutor’s question was not
designed to bring forth any information regarding Byrd’s exercise of his right
to remain silent.
More importantly, for several reasons, Byrd suffered no prejudice from
the detective’s references to his post-arrest silence. The prosecutor did not
exploit the detective’s testimony in any way. He did not mention Byrd’s
failure to give a statement in his closing argument or otherwise suggest that
it was a tacit admission of his guilt. In addition, the trial court twice
instructed the jury not to use Byrd’s silence against him. This instruction
cured any possible prejudice from the detective’s testimony. See
Commonwealth v. Williams, 615 A.2d 716, 722 (Pa.1992) (rejecting
ineffectiveness claim because “any conceivable prejudice arising [from
comment on appellant’s post-arrest silence] was cured by the ‘no-adverse
inference’ instructions given the trial court”); see also Commonwealth v.
Speight, 854 A.2d 450, 458 (Pa.2004) (“it is presumed the jury follows the
court’s instructions,” so any prejudice created in the minds of certain jurors
due to counsel’s statement “was cured by the judge’s instructions”). Finally,
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the evidence against Byrd was overwhelming. Both Churchwell and Gibson
identified Byrd as the shooter. Two other eyewitnesses corroborated
Churchwell’s account by testifying that they observed the shooting, ran over
and found Churchwell bleeding on the ground. Byrd presented no evidence
in his defense. Thus, there is no reasonable probability that the outcome of
trial would have changed had Detective Kerwin refrained from mentioning
Byrd’s post-arrest silence. See Commonwealth v. Bishop, 936 A.2d
1136, 1141 (Pa.Super.2007) (trial counsel was not ineffective for eliciting
detective’s reference to defendant’s silence; “there was no prejudice as the
evidence of Appellant’s guilt was overwhelming, and there is no reasonable
probability that the outcome of the trial would have been different absent
counsel’s question to Detective Rush”); see also Commonwealth v.
Philistin, 53 A.3d 1, 32 (Pa.2012) (defendant not entitled to new jury in
penalty phase of capital case where police officers attended trial in uniform
during guilt phase; officers’ presence did not prejudice defendant because
“the overwhelming evidence against him showed he shot two police officers
in the head at close range with a handgun”).
For these reasons, the PCRA court properly denied Bryd relief under
the PCRA.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2015
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