J-S68042-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DERRICK EDMUNDS
Appellee No. 189 EDA 2015
Appeal from the PCRA Order December 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000066-2007
CP-51-CR-0801971-2006
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 01, 2015
The Commonwealth appeals from the December 17, 2014 order
granting the petition for relief, filed by Appellee, Derrick Edmunds, pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After
careful review, we vacate and remand.
A prior panel of this Court set forth the facts and procedural history of
Appellee’s underlying conviction as follows.
[Appellee] appeals from the December 15,
2008 judgment of sentence of life imprisonment,
plus a consecutive term of 12 to 24 years’
imprisonment, imposed after a jury found him guilty
of first-degree murder, attempted murder,
conspiracy to commit murder, aggravated assault,
possessing an instrument of crime (PIC), and
violating the Uniform Firearms Act (VUFA).1 The
charges arose after it was alleged that [Appellee]
and co-defendant Eric Bundy opened fire on a parked
vehicle in which victims Jason Bryan and Kevin
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Robertson were seated[, case number 66-2007];
[Appellee] was also charged with shooting victim
Michael Ferrell one month later[, case number
801971-2006]. …
On April 7, 2006, at approximately 10:45pm,
Jason Bryan (victim/decedent) and his cousin
Kevin Robertson drove to the 100 block of N.
60th Street in the City and County of
Philadelphia to meet Kevin’s girlfriend Samara
Dennis. Robertson double-parked his cousin’s
silver Cadillac near Samara’s house. Samara,
who had been dating Robertson for about two
(2) months, walked over to the car and got
into the back seat.2 After a few minutes,
Samara exited the car and began to walk to
her house, where her brother and Samara’s
daughter were waiting for her.
Robertson began to pull away as Eric Bundy
started to run up to the driver’s side door while
pulling a firearm from his waistband.
Robertson saw Bundy approach in the rearview
mirror, pulled out his firearm, and while
hanging out of the driver’s side window
shouted, “I’ve got something too!” Bundy
stepped back, and gestured with one hand that
he was backing away, while sliding the firearm
back into his waistband. At the same time as
Bundy backed away from the car, [Appellee]
approached the passenger side and began
firing into the car. Robertson quickly ducked
back into the car and pulled away. Bundy
began firing at the car as it drove off.
Neighbors at the block party quickly fled the
area.
Robertson drove approximately eight (8)
blocks to 61st and Landsdowne Streets and
parked. Robertson noticed that he was shot in
the right hand and arm, and felt a pain in his
head. Bryan was slumped forward in his seat
and unresponsive as Robertson called out to
him. Robertson pulled Bryan’s body back into
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the seat and noticed two (2) bullet wounds to
his head. He called 911. As police arrived and
approached the car, the driver’s side door was
open and the engine was running. Robertson
staggered over to the police in a blood soaked
shirt and was transported to the hospital for
treatment. Bryan was pronounced dead at the
scene. He sustained two (2) fatal gunshot
wounds to the head.
An investigation of the Cadillac revealed that
the rear window had a bullet hole in it, which
caused the window to shatter, and there were
five (5) bullet holes in the front passenger side
door. Seven (7) fragments of ballistic evidence
were discovered inside the car. It was
determined that all of the shots were fired into
the vehicle at the scene of the shooting. Eight
(8) .45 caliber fired cartridge casings (“FCC”)
were found on the street at the scene of the
shooting. The casings matched the ballistic
evidence extracted from the decedent’s body.
The FCC’s and the bullets were all fired from
the same .45 caliber weapon.
On May 3, 2006, approximately four (4) weeks
following the murder of Jason Bryan, Eric
Bundy, was walking with Michael Ferrell
(“Ferrell”) on the 200 block of South Frazier
Street, to meet [Appellee]. Bundy saw an
undercover police car on the street and placed
“something” into his front waistband. As the
detectives approached and identified
themselves, the group, including [Appellee]
dispersed and ran down the street. Detectives
heard a single gunshot and followed the sound.
[Appellee] was found hiding in the back seat of
a parked vehicle with a Glock 17, nine
millimeter under the passenger seat. The rear
passenger window of the car was shot out.
Ferrell was standing next to the vehicle with a
gunshot wound to his face. [Appellee] was
arrested at the scene for the May 3rd shooting.
The handgun recovered from [Appellee] on
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May 3rd matched the ballistic evidence from the
April 7th shooting, and was in fact the weapon
which killed Jason Bryan.
When confronted with the ballistics evidence,
[Appellee] provided a full statement to police
detailing his involvement in the murder of
Jason Bryan.
2
Kevin was driving and Jason was in the
passenger seat.
Trial Court Opinion, 8/6/09, at 2-4 (footnote and
citations omitted; emphasis in original).
[Appellee] was arrested and charged in connection
with both the April 7, 2006 and May 3, 2006
shootings. During an interview with police, he
implicated co-defendant Eric Bundy in the murder of
Jason Bryan. [Appellee] and Bundy were tried
together before a jury, and [Appellee] was found
guilty of the first-degree murder of Jason Bryan, as
well as the attempted murder and aggravated
assault of Kevin Robertson and the aggravated
assault of Michael Ferrell.
[Appellee] was sentenced on December 15,
2008, and his post-sentence motions were denied on
January 22, 2009. A timely notice of appeal was
filed on February 3, 2009[.]
1
18 Pa.C.S.A §§ 2502(a), 905, 901, 2702, 907 and
6106(a)(1), respectively.
Commonwealth v. Edmunds, 998 A.2d 1011 (Pa. Super. 2010),
(unpublished memorandum at 1-4) (footnote omitted), appeal denied, 9
A.3d 627 (Pa. 2010). On April 16, 2010, this Court affirmed Appellee’s
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judgment of sentence in the Bryan matter, case 66-2007.1 Id. at 26. The
Pennsylvania Supreme Court denied Appellee’s petition for allowance of
appeal on October 20, 2010. Id. Appellee did not file a petition for a writ of
certiorari with the United States Supreme Court, and accordingly, his
judgment of sentence became final on January 18, 2011, when the time for
filing such a petition expired. See generally 42 Pa.C.S.A. § 9545(b)(3);
U.S. S. Ct. R. 13(1).2
On June 13, 2011, Appellee filed a timely pro se PCRA petition, and
the PCRA court appointed counsel. On March 15, 2014, Appellee’s counsel
____________________________________________
1
As noted above, Appellee was charged in two cases, which were
consolidated for trial, but proceeded on separate appellate tracks. Appellee
filed a single post-sentence motion as to both cases. The trial court order
denying the post-sentence motion contained only docket number 66-2007,
relating to the Bryan shooting. Further, Appellee’s notice of appeal
purported to appeal only docket number 66-2007. Therefore, this Court
affirmed the judgment of sentence in docket number 66-2007 only.
2
On November 24, 2009, Appellee filed a PCRA petition in docket number
801971-2006. On March 25, 2010, the PCRA court granted relief in the form
of reinstatement of Appellee’s appellate rights nunc pro tunc, and Appellee
filed a timely notice of appeal to this Court. On February 23, 2012, this
Court affirmed Appellee’s judgment of sentence, and our Supreme Court
denied Appellee’s petition for allowance of appeal on December 27, 2012.
Commonwealth v. Edmunds, 46 A.3d 824 (Pa. Super. 2012) (unpublished
judgment order), appeal denied, 60 A.3d 534 (Pa. 2012). Appellee did not
file a petition for a writ of certiorari with the United States Supreme Court,
and accordingly, his judgment of sentence in docket number 801971-2006
became final on March 27, 2013. See generally 42 Pa.C.S.A.
§ 9545(b)(3); U.S. S. Ct. R. 13(1).
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filed an amended petition.3 On December 17, 2014, the PCRA court granted
the petition based on trial counsel’s failure to request a “no adverse
inference” charge.4 On January 8, 2015, the Commonwealth filed a timely
notice of appeal.5
The Commonwealth presents the following issue for our review.
Did the PCRA court err in granting a new trial
on the basis of trial counsel’s failure to request a “no
adverse inference” instruction in the absence of
actual prejudice?
Commonwealth’s Brief at 6.
____________________________________________
3
Appellee’s current pro se PCRA petition, which sought relief on both docket
numbers, was prematurely filed as to docket number 801971-2006 because
his judgment of sentence did not become final until March 27, 2013. While
the trial court did not have jurisdiction to address the prematurely filed pro
se PCRA petition as to docket number 801971-2006, Appellee’s appointed
counsel filed an amended PCRA petition on March 15, 2014 as to both of
Appellee’s cases within one year of Appellee’s judgment of sentence in
docket number 801971-2006 becoming final. Accordingly, we will treat the
amended petition as a timely first PCRA petition in docket number 801971-
2006.
4
Appellee included an ineffectiveness of counsel claim in his amended PCRA
petition, based on counsel’s failure to preserve a weight of the evidence
claim for direct appeal. The PCRA court’s order did not explicitly deny
Appellee’s petition on that ground. However, at the PCRA hearing, the PCRA
court stated it “agree[d] with the Commonwealth’s assertion that as to the
weight of the evidence it’s clear that that argument is denied.” N.T.,
12/17/14, at 3.
5
On January 8, 2015, the Commonwealth also filed a statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court filed its Rule 1925(a) opinion on April 2,
2015.
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Our standard of review requires us to “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 court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Further, in order to be eligible for PCRA relief, a petitioner must plead
and prove by a preponderance of the evidence that his conviction or
sentence arose from one or more of the errors listed at Section 9543(a)(2)
of the PCRA. 42 Pa.C.S.A. § 9543(a)(2). These errors include
ineffectiveness of counsel. Id. § 9543(a)(2)(ii). The issues raised in a PCRA
petition must be neither previously litigated nor waived. Id. § 9543(a)(3).
When reviewing a claim of ineffectiveness, we apply the following test,
first articulated by our Supreme Court in Commonwealth v. Pierce, 527
A.2d 973 (Pa. 1987).
[C]ourts presume that counsel was effective, and
place upon the appellant the burden of proving
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otherwise. Counsel cannot be found ineffective for
failure to assert a baseless claim.
To succeed on a claim that counsel was
ineffective, Appellant must demonstrate that: (1) the
claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or
inaction; and (3) counsel’s ineffectiveness prejudiced
him.
…
[T]o demonstrate prejudice, appellant must
show there is a reasonable probability that, but for
counsel’s error, the outcome of the proceeding would
have been different.
Commonwealth v. Michaud, 70 A.3d 862, 867 (Pa. Super. 2013) (internal
quotation marks and citations omitted). “Failure to establish any prong of
the test will defeat an ineffectiveness claim.” Commonwealth v.
Birdsong, 24 A.3d 319, 329 (Pa. 2011).
The PCRA court found that trial counsel misinterpreted the law
regarding the “no adverse inference” jury instruction. PCRA Court Opinion,
4/2/15, at 11. The PCRA court further concluded that the trial court’s
instruction was per se prejudicial because it apprised the jury that they could
make no adverse inference from Appellee’s co-defendant’s silence while
implying that Appellee was not entitled to that same inference. Id. at 8.
The PCRA court explained Appellee was entitled to a new trial because “the
trial court’s improper charge prejudiced the [Appellee] by encroaching on his
constitutional rights [against self-incrimination].” Id. at 10. In this appeal,
the Commonwealth contends that the PCRA court misapplied the Pierce test
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because “the PCRA court granted [Appellee] a new trial solely on its finding
that trial counsel unprofessionally failed to request a jury instruction, without
any analysis of whether correcting that error would likely have led to an
acquittal.” Commonwealth’s Brief at 16.
We begin our analysis by noting “[a] no-adverse-inference instruction
directs the jurors that they may not draw any derogatory insinuation from a
defendant’s failure to testify on his own defense, because the defendant has
the unqualified right not to take the stand if he so chooses.”
Commonwealth v. Perez, 103 A.3d 344, 348 (Pa. Super. 2014) (citation
omitted), appeal denied, 116 A.3d 604 (Pa. 2015). A defendant is entitled
to such an instruction under both the Fifth Amendment to the United States
Constitution and Article I, Section 9 of the Pennsylvania constitution.
Commonwealth v. Khamphouseane, 642 A.2d 490, 497 (Pa. Super.
1994), appeal denied, 649 A.2d 669 (Pa. 1994). Our Supreme Court has
held that a trial court must give the “no adverse inference” instruction unless
the defendant expressly waives his right to the instruction in an on-the-
record colloquy. Commonwealth v. Thompson, 674 A.2d 217, 221 (Pa.
1996).
In this case, Appellee was tried with a co-defendant. Appellee’s trial
counsel stated that Appellee had waived his right to the “no adverse
inference” instruction as follows.
[Trial Court]: Alright. [Appellee], you too have the
same right as Mr. Bundy[, the co-defendant,] to
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have the [“no adverse inference”] instruction where I
tell the jury that you have the right to remain silent
and you chose to do that and they should not think
badly of you for choosing that. Do you want that
instruction?
[Trial Counsel]: Judge[,] if I may intervene, my
position on this respectfully is that he did waive his
right by giving a statement[, in the form of a
confession to the police,] so I would ask that the
instruction not be given.
[Trial Court]: I won’t give it on his behalf if that’s
your interpretation.
[Trial Counsel]: That’s my interpretation.
[The Court]: Very good. So I will not give it on your
behalf. Alright?
[Appellee]: Okay.
N.T., 11/24/08, at 236-237. When charging the jury, the trial court gave
the following “no adverse inference” instruction.
Now, ladies and gentlemen, a citizen who is accused
of a crime has absolutely no obligation to present
evidence or to testify or to do anything in their own
defense but when a citizen chooses to present
evidence, you have the obligation to consider that
evidence and to weigh it in your assessment as to
whether the Commonwealth has met its burden.
Ladies and gentlemen, part and parcel and
consistent with this presumption of innocence is the
right to remain silent. Now, Eric Bundy chose to
remain silent. It is his absolute constitutional right
to remain silent. You must not draw any inference of
guilt or any other inference that is negative to
Derrick—Eric Bundy, forgive me, I apologize. This
instruction is applicable to Eric Bundy only. It is
entirely up to him to decide whether to testify or not.
He chose not to testify. You must not draw any
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inference negative to him because he chose not to
testify in this proceeding.
N.T., 11/25/08, at 143-144.
Thus, from the record, it is apparent that the basis for Appellee’s
waiver of the “no adverse inference” instruction was trial counsel’s faulty
advice that Appellee had waived the instruction by giving a pre-trial, out-of-
court statement to the police. Our Supreme Court has held that trial
counsel’s failure to request a “no adverse inference” instruction is not per se
ineffectiveness. Commonwealth v. Howard, 645 A.2d 1300, 1308 (Pa.
1994). Further, because the failure to request a “no adverse inference”
instruction is not prejudicial per se, the waiver of that instruction on
improper grounds also cannot constitute prejudice per se. See Perez,
supra at 349. Therefore, even if the PCRA court was correct that this claim
has arguable merit, we must proceed to determine whether trial counsel’s
alleged error prejudiced Appellee. See Thompson, supra at 221
(reasoning that counsel will not be deemed ineffective for failing to request
the “no adverse inference” instruction or for failing to conduct a colloquy
specifically waiving the instruction unless there is a showing of prejudice).
The PCRA court erred by concluding Appellee was per se prejudiced by trial
counsel’s deficient advice and the trial court’s subsequent instruction.
Accordingly, we must proceed to determine whether trial counsel’s
error prejudiced Appellee. We conclude that Appellee was not prejudiced
because the Commonwealth presented overwhelming evidence of Appellee’s
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guilt. Appellee confessed to shooting at individuals inside Bryan’s vehicle.
N.T., 11/24/08, at 72-83. Further, Appellee was arrested in connection with
the accidental shooting of Ferrell less than a month later. N.T., 11/19/08, at
99-100. Ferrell identified Appellee as the one who dropped the gun that
accidentally discharged and grazed his face. Id. at 100. Ballistics evidence
proved that the fatal shots in the Bryan shooting were fired from the gun in
Appellee’s possession when he was arrested for the shooting of Ferrell. N.T.,
11/21/08, at 168. Moreover, this Court determined in Appellee’s direct
appeal that said evidence was sufficient to establish Appellee’s specific intent
to kill. See Edmunds, supra at 22. In light of this evidence, we conclude
that even if the trial court gave a “no adverse inference” instruction as to
Appellee, there is no reasonable probability that the outcome of Appellee’s
trial would have been different. Accord Perez, supra at 349-350. Because
Appellee cannot show prejudice, trial counsel’s improper waiver of the “no
adverse inference” instruction cannot be deemed ineffective. See
Birdsong, supra.
Based on the foregoing, we conclude that the PCRA court erred as a
matter of law by granting Appellee a new trial based on trial counsel’s
ineffectiveness. See Fears, supra. However, because the PCRA court’s
order did not expressly dispose of Appellee’s alternate ground for relief, we
vacate the PCRA court’s December 17, 2014 order and remand with
instructions to the PCRA court to dispose of Appellee’s remaining claim.
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Order vacated. Remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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Com. v. Edmunds, D.
Combined Opinion