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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIR FERGUSON :
:
Appellant : No. 537 WDA 2017
Appeal from the PCRA Order March 15, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012295-2010
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY BOWES, J.: FILED MAY 14, 2018
Amir Ferguson appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
In Appellant’s prior appeal, this Court set forth the factual background
of the case as follows:
The evidence presented at trial established that [A.H.] and
her four (4)[-]year[-old son, [K.], lived at 2340 East Hills Drive
in the City of Pittsburgh. [A.H.’s] boyfriend . . . stayed at the
house occasionally, but was known to keep drugs and money in
the house.
In the early morning hours of July 11, 2010, [Appellant],
along with two other men, co-[d]efendants Tyree Gaines and
Richard Woodward, broke into [A.H.’s] residence for the purpose
of stealing the drugs and money they knew to be in the house.
The three (3) men initially approached the front door and
knocked, then left. [A.H.], who was at home watching movies
with her friends and son, looked out of the peep-hole in the door
and saw the men wearing black clothing and scarves over their
faces. She called another friend, [T.J.], who had just left, and
asked him to look around the area. [T.J.] did not see anyone
and returned to [A.H.’s] residence.
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Approximately fifteen minutes later, the three men
knocked again. This time [T.J.] looked out the peep-hole and
after seeing the three (3) men, he instructed everyone to go
upstairs and hide and to call the police. The group hid in [K.’s]
room, some inside the closet and some behind the bed. [A.H.]
was on the phone with 911 when the men broke the front door
down and entered the house. The men searched the downstairs
level of the home, but were unable to find the drugs and money.
Two (2) of the men went upstairs and broke down the door of
the bedroom where everyone was hiding. They demanded that
[A.H.] tell them where the drugs and money were, and when she
did not, they grabbed [K.], put [a] gun to his head and asked
him where the items were. [K.] directed them to an air vent,
where they found some money. They then let [K.] go, but put
[a] gun to [A.H.’s] head and forced her to take them to the
drugs. [A.H.] and the men went downstairs, when [Appellant],
who had been standing by the patio door with an assault rifle,
yelled that the police had arrived. The men ran upstairs.
[One or more of the intruders fired shots at the police from
an upstairs window] and the officers returned fire. Downstairs,
City of Pittsburgh Police Officer Steven Sywyj had entered the
house in pursuit of the men. He encountered [A.H.] and told her
to get out of the house. As she fled, she was [fatally wounded
by] a bullet fired from the house. [T.J.] came out of the room in
an attempt to find and aid [A.H.,] and was shot in the hand.
Eventually, [Appellant] and Gaines jumped out of upstairs
windows and were able to escape the police, but both were
apprehended several days later. Woodward was shot while
trying to escape and was apprehended at the scene.
Commonwealth v. Ferguson, 96 A.3d 1085 (Pa.Super. 2014)
(unpublished memorandum at *1-3) (quoting Trial Court Opinion, 7/11/13,
at 3-4).
The criminal cases against Appellant, Gaines, and Woodward were
consolidated for trial. At the conclusion of the Commonwealth’s case, the
trial court granted Appellant’s motion for judgment of acquittal as to first-
degree murder. Ultimately, a jury convicted Appellant of second-degree
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murder, robbery, and other related offenses. The trial court sentenced him
to life in prison on the murder conviction, and no further penalty for the
remaining convictions. Appellant did not file a post-sentence motion or a
direct appeal.
On September 24, 2012, Appellant timely filed a pro se petition
pursuant to the PCRA, seeking reinstatement of his direct appeal rights nunc
pro tunc. The PCRA court granted relief. Thereafter, this Court affirmed
Appellant’s judgment of sentence, and our Supreme Court denied allowance
of appeal. See Commonwealth v. Ferguson, 96 A.3d 1085 (Pa.Super.
2014) (unpublished memorandum), appeal denied, 94 A.3d 1007 (Pa.
2014).
On May 5, 2015, Appellant filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended petition. The PCRA
court subsequently issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
the petition without a hearing, and on March 15, 2017, dismissed the
petition. Appellant timely filed a notice of appeal, and a court-ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Thereafter,
the PCRA court entered its Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises the following issues for our review:
1. Was [Appellant’s] claim for relief properly cognizable under
the [PCRA]?
2. Did the lower court abuse its discretion in denying the petition
alleging counsel’s ineffectiveness without a hearing, where
[Appellant] established the merits of the claim that trial
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counsel was ineffective for conceding during closing argument
that [Appellant] was a co-conspirator and/or an accomplice in
the robbery, and that he shot the victim while attempting to
flee after the robbery?
3. Did the lower court abuse its discretion in denying the petition
alleging counsel’s ineffectiveness without a hearing, where
[Appellant] established the merits of the claim that trial
counsel was ineffective for failing to object to or request an
immediate curative instruction when Detective [Margaret]
Sherwood commented on [Appellant’s] silence in the face of
incriminating evidence?
Appellant’s brief at 4 (capitalization omitted).
Our standard of review of an order dismissing a PCRA petition is well-
settled:
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. Further, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012) (citations
omitted).
When a petitioner alleges trial counsel’s ineffectiveness in a PCRA
petition, he must prove by a preponderance of the evidence that his
conviction or sentence resulted from ineffective assistance of counsel “which,
in the circumstances of the particular case, so undermined the truth-
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determining process that no reliable adjudication of guilt or innocence could
have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
To prevail on a claim of ineffective assistance of counsel, a
PCRA petitioner must … demonstrate: (1) that the underlying
claim has arguable merit; (2) that no reasonable basis existed
for counsel’s actions or failure to act; and (3) that the petitioner
suffered prejudice as a result of counsel’s error. To prove that
counsel’s chosen strategy lacked a reasonable basis, a petitioner
must prove that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.
Regarding the prejudice prong, a petitioner must demonstrate
that there is a reasonable probability that the outcome of the
proceedings would have been different but for counsel’s action or
inaction. Counsel is presumed to be effective; accordingly, to
succeed on a claim of ineffectiveness[,] the petitioner must
advance sufficient evidence to overcome this presumption.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (internal
citations and quotation marks omitted). “If it is clear that Appellant has not
met the prejudice prong of the ineffectiveness standard, the claim may be
dismissed on that basis alone and the court need not first determine whether
the first and second prongs have been met.” Commonwealth v. Gibson,
951 A.2d 1110, 1128 (Pa. 2002) (citing Commonwealth v. Travaglia, 661
A.2d 352, 357 (Pa. 1995)).
In his first claim, Appellant asserts that his ineffectiveness claims are
cognizable under the PCRA because his petition was timely, he is currently
serving a sentence of imprisonment, and his claims were not previously
litigated or waived. We agree. See 42 Pa.C.S. § 9545. Although neither
the PCRA court not the Commonwealth have challenged Appellant’s claims
on this basis, his concern presumably stems from his prior PCRA filing. See
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42 Pa.C.S. § 9544(b) (providing that “an issue is waived if the petitioner
could have raised it but failed to do so . . . in a prior state postconviction
proceeding.”). Notably, Appellant’s prior PCRA petition sought only to
reinstate his direct appeal rights. As that petition was granted, and
Appellant pursued his direct appeal rights nunc pro tunc, we treat the instant
petition as his first PCRA petition. See Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa.Super. 2007) (holding that a PCRA petition brought after
an appeal nunc pro tunc is considered an appellant’s first PCRA petition).
In his second issue, Appellant contends that trial counsel rendered
ineffective assistance by conceding in his closing argument that Appellant,
while fleeing after committing a robbery, shot and killed the victim, acted
with malice, and was complicit in the other crimes charged. According to
Appellant, trial counsel’s comments essentially supported a finding of
second-degree murder, thereby relieving the Commonwealth of its burden of
proving guilt beyond a reasonable doubt. Appellant claims that trial counsel
had no reasonable strategy in making such comments, and denied Appellant
a fair trial by arguing against his interests.
In its opinion, the PCRA court concluded that Appellant’s second claim,
lacked merit for the following reasons.
At trial, the Commonwealth presented a theory of the case
that [Appellant] fired the fatal shot[,] and . . . Woodward and
. . . Gaines were his co-participants and co-conspirators in the
robbery of [A.H’s] house. In support of that theory, the
Commonwealth presented evidence that [A.H.] was killed with a
bullet fired from a .9mm Glock that evening. The
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Commonwealth also presented [Appellant’s] own statements
admitting his presence at the scene and his involvement in the
robbery.
At the close of the Commonwealth’s case, [Appellant’s]
motion for judgement of aquittal was granted as to first-degree
murder only. Thereafter, in his closing argument, trial counsel
attempted to present an argument that the robbery was
complete by the time the fatal shot was fired and that
[Appellant’s] actions in firing four (4) shots were reckless such
that a verdict of guilty as to third-degree murder was the
appropriate result.
After hearing all of the evidence presented at trial, this
court can state with certainty that a complete acquittal was not
possible. Having admitted his presence and participation in the
robbery and with the ballistics and DNA evidence identifying
[Appellant] as the shooter, [Appellant] was certain to be
convicted of murder, be it second degree or third degree.
Counsel’s argument recognized that reality and was directed to
attempting to mitigate the verdict downward to third-degree
murder, and thus to spare his client the mandatory life sentence.
That he was ultimately not successful does not mean his
strategy was not the best available argument, (which, in fact,
this court believes it was), nor does it mean that the execution
of the closing argument was bungled (which this court believes it
was not). Given the overwhelming forensic evidence placing
[Appellant] at the scene and identifying him as the shooter,
[Appellant] has failed to establish that the verdict would have
been different had counsel not conceded that he was the shooter
in his closing argument.
Trial Court Opinion, 6/29/17, at 5-6 (unnecessary capitalization omitted).
Based on our review, we conclude that the PCRA court’s determination
that Appellant suffered no prejudice due to his counsel’s chosen strategy in
making his closing argument is supported by the record and free of legal
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error. See id. Accordingly, we affirm on the basis of the PCRA court’s
opinion as to Appellant’s second issue.1
Appellant’s third claim concerns a potential violation of his absolute
right not to testify at his own trial. The contested statement occurred during
cross-examination of Detective Sherwood by Gaines’ counsel. The
Commonwealth presented a sweatshirt which appeared to depict a
photograph of Appellant and Gaines standing next to each other and holding
guns. During cross-examination of Detective Sherwood, Gaines’ counsel
attempted to elicit testimony from the detective that the photograph could
not be authenticated. It is in this context that the following exchange
occurred.
Q. The only thing factually in this case that photo proves is
that presumptively [Appellant], despite what he told
detectives when he gave them a statement, knew Tyree
Gaines, right?
____________________________________________
1 In his brief, Appellant also argues that, while trial counsel informed the
jury in his opening remarks that Appellant was high on marijuana, cocaine,
heroin, and ecstasy at the time of the robbery, counsel nevertheless failed to
develop a “diminished capacity” defense. Appellant claims that, if trial
counsel had established a diminished capacity defense, Appellant’s murder
conviction would have been reduced to third-degree murder. Initially, we
note that this claim is waived, as Appellant failed to raise it in his concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b)(4)(vii)
(providing that “[i]ssues not included in the Statement . . . are waived.”).
Moreover, even if Appellant had preserved the issue for our review, we
would have determined that it lacks merit for the reason that diminished
capacity is available only as a defense to first-degree murder, of which
Appellant was acquitted at the conclusion of the Commonwealth’s case. See
Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.Super. 2007).
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A. If we go by everything else you just asked me, no. They
could have been photo-shopped together.
Q. Exactly.
A. Yeah, I mean-
Q. So there is no authentication whatsoever of this
photograph; is there?
A. Not unless Tyree or [Appellant] want to do that.
Appellant’s brief at 22 (citing N.T. Trial, 8/31/11, at 517).
Appellant contends that Detective Sherwood’s final comment
impermissibly called attention to his failure to testify. Appellant claims his
counsel should have objected to the comment, or requested an immediate
curative instruction, as the comment infringed on his constitutional right to
remain silent. Although the trial court provided a “no adverse inference”
instruction to the jury at the conclusion of trial, Appellant claims that the
charge did not cure the harmful effects of Detective Sherwood’s comment.
As noted above, to prevail on a claim of ineffective assistance of
counsel, Appellant must demonstrate: (1) that the underlying claim has
arguable merit; (2) that no reasonable basis existed for counsel’s actions or
failure to act; and (3) that Appellant suffered prejudice as a result of
counsel’s error. See Johnson, supra. Even assuming that Appellant could
satisfy the first two prongs of the ineffectiveness test, we conclude that
Appellant has not established that he suffered prejudice as a result of trial
counsel’s failure to object to the detective’s comment. Although any
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reference to an accused’s decision to invoke the right to remain silent is a
clear violation of the constitutional right to remain silent, even an explicit
reference to silence is not reversible error where it occurs in a context not
likely to suggest to the jury that silence is the equivalent of a tacit admission
of guilt. See Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998).
Here, the PCRA court determined that Detective Sherwood’s comment
was harmless. As the PCRA court observed, the comment was made in
response to a question by co-defense counsel and was designed to elicit
the very response that was provided, i.e., that the photograph on the
sweatshirt did not establish that Appellant and Gaines knew each other
because it could have been photo shopped, and that Detective Sherwood
was unable to authenticate it. See PCRA Court Opinion, 6/29/17, at 11. In
other words, Detective Sherwood’s response was favorable to Appellant, as
she discounted the evidentiary value of the photograph. Detective
Sherwood’s comment did not suggest that Appellant’s silence was evidence
of his guilt; but, rather, that the Commonwealth could not authenticate the
photograph without confirmation from the individuals purportedly depicted
therein. Thus, the comment was made in a context unlikely to suggest to
the jury that Appellant’s silence was the equivalent of a tacit admission of
guilt. See Whitney, supra.
The PCRA court additionally noted that the Commonwealth did not
solicit, or otherwise repeat, refer to, or capitalize on Detective Sherwood’s
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comment in any way. See PCRA Court Opinion, 6/29/17, at 11; see also
Commonwealth v. Gbur, 474 A.2d 1151, 1155 (Pa.Super. 1984);
Commmonwealth v. Anderjack, 413 A.2d 693, 699 (Pa.Super. 1979).
Thus, the sole reference to Appellant’s decision not to testify at trial was
limited to Detective Sherwood’s brief comment about how the photograph
could be authenticated. See Gbur, supra, at 1156 (“[T]he reference was
an inadvertent slip by the witness that was not purposely elicited or
exploited by the prosecutor.”).
The PCRA court further determined that “[t]he evidence of Appellant’s
guilt was overwhelming[,] and included DNA and ballistics evidence
identifying [Appellant] as the shooter[,] and his own confession that he was
present at the scene and had a firearm with him.” PCRA Court Opinion,
6/29/17, at 11-12. Our review discloses that the jury was presented with a
taped statement made to police by Appellant, wherein he admitted that he
was at A.H.’s house with a gun to extort drugs. Additionally, Appellant’s
blood was found on the .9 mm Glock from which ballistics established the
fatal bullet was shot. We conclude that ample proof was presented to
convict Appellant, effectively neutralizing any minimal prejudicial effect from
the detective’s improper comment. See Commonwealth v. Boone, 862
A.2d 639, 646 (Pa.Super. 2004).
Further, in the instant case, the improper reference could not have
seriously prejudiced Appellant in the eyes of the jury, since the jury had
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previously heard testimony that Appellant was not always silent, and had
made a taped statement to police. See Anderjack, supra, at 699. Finally,
the trial court gave a “no adverse inference” charge to the jury prior to its
deliberations, instructing its members that they “must not draw any
inference of guilt or any other inference adverse to [Appellant] from the fact
that [he] did not testify.” See. N.T. Trial, 9/2/11, at 587; see also
Commonwealth v. Hannibal, 156 A.3d 197, 217 (Pa. 2016) (holding that
juries are presumed to follow instructions).
Given these considerations, we conclude that Appellant has failed to
establish, by a preponderance of the evidence, that, in light of his taped
statement to police and the forensic evidence linking him to the murder
weapon, the outcome of the proceedings would have been different had trial
counsel objected to Detective Sherwood’s comment. See Boone, supra;
Whitney, supra. Accordingly, we affirm the PCRA court’s ruling as to
Appellant’s third issue.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/2018
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