J-S85011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
TYREE GAINES                             :
                                         :
                   Appellant             :   No. 577 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-0012297-2010


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                               FILED MAY 14, 2018

      Tyree Gaines appeals from the order dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

      In its opinion, the PCRA court set forth the factual background of the

case as follows:

            [T]he 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 Amir Ferguson 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
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      asked him to look around the area.     [T.J.] did not see anyone
      and returned to [A.H.’s] residence.

            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.
      [Appellant] and Ferguson 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 Woodward,
      who had been standing by the patio door with an assault rifle,
      yelled that the police had arrived. The men ran upstairs.

           Shots were fired at the police from inside the house and
      the officers returned fire. [Appellant] ran back downstairs,
      where he was able to escape out the front door.

             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 Ferguson were
      able to escape the police, but were apprehended several days
      later.

Trial Court Opinion, 6/1/17, at 2-4.

      The criminal cases against Appellant, Ferguson, and Woodward were

consolidated for trial.   Ultimately, a jury convicted Appellant of second-

degree murder, robbery, and other related offenses.          The trial court

sentenced him to life in prison on the murder conviction, and no further

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penalty for the remaining convictions.           This Court affirmed Appellant’s

judgment of sentence on May 22, 2013, and our Supreme Court denied

allowance of appeal on October 29, 2013. See Commonwealth v. Gaines,

81 A.3d 1002 (Pa.Super. 2013) (unpublished memorandum), appeal denied,

78 A.3d 1089 (Pa. 2013).

       Appellant filed a timely pro se PCRA petition on October 27, 2014.1

The PCRA court appointed counsel, who filed an amended petition.             After

issuing notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed the

petition without a hearing. This timely appeal followed.

       Appellant raises the following issues for our review:

       1. Whether trial counsel gave ineffective assistance for failing to
          object that Appellant’s right to a public trial pursuant to
          Pennsylvania and United States Constitutions was violated?

       2. Whether trial counsel gave ineffective assistance of counsel
          for failing to object to Detective [Margaret] Sherwood’s
          testimony that a videotape showed that an officer was telling
          Appellant to drop his gun?

       3. Whether the trial counsel gave ineffective assistance for
          failing to object to Detective Sherwood’s comment on
          Appellant’s right to silence?

Appellant’s brief at 4.

       Our standard of review of an order dismissing a PCRA petition is well-

____________________________________________


1 Appellant sent a PCRA petition to the district attorney’s office on
September 22, 2014, but did not file the petition with the PCRA court. The
document filed by Appellant on October 27, 2014, is entitled “Brief in
Support of PCRA Petition.”



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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).

      Additionally, 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-

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



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      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.

Travaglia,      661   A.2d   352,   357   (Pa.   1995)   (citing   Strickland   v.

Washington, 466 U.S. 668, 697 (1984)).

      In his first issue, Appellant asserts that his trial counsel was ineffective

because he failed to object when the trial court ordered that the courtroom

doors be locked during the playing of his taped confession, and again when

it recharged the jury as to second and third-degree murder.             Appellant

claims that the trial court’s orders to lock the courtroom doors prevented

members of the public from entering the courtroom, and therefore violated

his right to a public trial, as guaranteed by the Fifth and Sixth Amendments

to the United States Constitution, and Article I, Section 9 of the Pennsylvania

Constitution.    Appellant further claims because the trial court’s orders

constitute structural error, he need not demonstrate that he was prejudiced

by his counsel’s ineffectiveness.




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       A violation of the right to a public trial is a structural error.2    See

Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017). However, not

every public trial violation will lead to a fundamentally unfair trial, and the

failure to object to that violation does not always deprive the defendant of a

reasonable probability of a different outcome.        Id. at 1911.     Thus, a

defendant raising a public trial violation via an ineffective assistance claim

must satisfy the prejudice prong of the ineffectiveness test by showing either

a reasonable probability of a different outcome in the case, or that the

particular violation was so serious as to render the trial fundamentally

unfair. Id.

       Here, the PCRA court addressed Appellant first issue as follows:

       As the record reflects, the audiotape of [Appellant’s] confession
       began to play and this [c]ourt noticed it was difficult to hear, so
       it interrupted the playback and asked that the courtroom doors
       be locked to prevent distractions for the jury. Similarly, it has
       been this [c]ourt’s practice . . . for over 30 years to lock the
       courtroom doors during jury instructions to prevent spectator
       movement from distracting the jurors. . . . [T]he record reflects
       that in both the audiotape playback and re-charge situations,
       this [c]ourt did not ask any spectators to leave the courtroom
       before the doors were locked. Rather, the record clearly reflects
       that this [c]ourt only locked the courtroom doors in certain
       limited situations where audio quality was poor and juror
       attention was paramount.
____________________________________________


2 Certain errors are deemed “structural,” and require reversal because they
cause fundamental unfairness, either to the defendant in the specific case or
by pervasive undermining of the systemic requirements of a fair and open
judicial process. On direct review, if an error is “structural,” the government
is not entitled to deprive the defendant of a new trial by showing that the
error was harmless beyond a reasonable doubt. Weaver, supra at 1911.



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PCRA Court Opinion, 6/1/17, at 7.

      Here, we are not persuaded that a public trial violation did, in fact,

occur.   See Commonwealth v. Hartman, 638 A.2d 968, 972 (Pa. 1994)

(rejecting appellant’s argument that the trial court’s order to briefly lock the

courtroom doors during the charge to the jury constituted a public trial

violation, where all who were present were permitted to remain, and the

closure was simply to ensure that the jury would not be distracted by the

coming and going of courtroom spectators).               However, even if we were to

assume that a public trial violation did occur, Appellant has offered no

evidence suggesting either a reasonable probability of a different outcome

but   for   trial   counsel’s   failure   to   object,    or   that   counsel’s   alleged

shortcomings led to a fundamentally unfair trial. The proceedings were not

conducted in secret or in a remote place, and no member of the public was

asked to leave the courtroom. This is not a situation where a potential juror

during voir dire, or a witness on the stand, might have behaved differently

had the public been present. Rather, the public was permitted to remain in

the courtroom if they so desired. Moreover, the closure decision was made

by the judge in an effort to prevent distraction and noise caused by people

entering or leaving the courtroom, in order to ensure that the jurors could

hear the audiotape and concentrate on the instructions provided during

recharging. Thus, even assuming a public trial violation occurred, Appellant

has failed to establish, by a preponderance of the evidence, that, in light of

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his audiotaped confession to police and the surveillance videotape showing

him fleeing from the scene with a firearm, the outcome of the proceedings

would have been different had trial counsel objected to the trial court’s

orders to briefly lock the courtroom doors. Accordingly, his first issue lacks

merit.

      In his second issue, Appellant contends that trial counsel was

ineffective for failing to object to Detective Sherwood’s testimony that a

silent surveillance videotape showed a police officer verbally telling Appellant

to drop his gun.   Appellant points to the following testimony during which

Detective Sherwood, who had recovered the surveillance videotape, explains

its contents to the jury:

      At 3:22:02 you’ll see [Officers Nicholas] Papa and [Tim] Matson
      chasing after Ferguson, and then [Officer] Papa now turns
      around, and he’s coming back, and at this point in this area
      he’s telling [Appellant] to drop his weapon. He’s running
      for cover or what cover he can get to the left, and he’s
      ordering [Appellant] and engaging [Appellant].

Appellant’s brief at 18 (emphasis in original) (quoting N.T. Trial, 8/29/11-

9/2/11, at 500). Appellant claims that because Detective Sherwood was not

present at the scene, and the videotape had no audio component, she was

not permitted to testify regarding the officer’s instructions to Appellant.

Appellant baldly asserts that he suffered prejudice as a result of counsel’s

failure to object to the detective’s testimony.

      We cannot agree with Appellant’s assertion.          Here, Officer Papa

testified at Appellant’s trial prior to Detective Sherwood.         During his

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testimony, Officer Papa provided detailed testimony regarding his encounter

with Appellant and the events depicted in the videotape.     Notably, Officer

Papa told the jurors that, during the encounter, he and Officer Matson

identified themselves as police officers and instructed Appellant to drop his

gun multiple times, but Appellant refused to do so. See id. at 263-265. As

the trial court explained,

      Detective Sherwood’s testimony regarding the video was merely
      cumulative of [Officer] Papa’s own testimony. Detective Papa
      had already testified to the circumstances of his encounter with
      [Appellant] as he fled the scene; the surveillance video
      confirmed and corroborated [Officer] Papa’s testimony regarding
      the interaction. The detective who recovered the surveillance
      video was permitted to testify regarding its contents to aid the
      jury in their understanding of the footage. She did not provide
      any new substantive testimony regarding Officer Papa’s
      interaction with [Appellant]. Again, because the admission of
      Detective Sherwood’s testimony in this regard was proper and
      within this [c]ourt’s discretion, counsel was not ineffective for
      failing to object to such a meritless claim.

Trial Court Opinion, 6/1/17, at 12.

      As noted above, 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. See Gibson, supra at 1128. Here, Officer Papa had already

testified that he repeatedly ordered Appellant to drop his weapon, and that

Appellant refused to do so. Thus, we cannot see how Appellant suffered any

prejudice when Detective Sherwood told the jurors what they had already

heard directly from Officer Papa.     See Commonwealth v. Wallace, 724

A.2d 916, 923 (Pa. 1999) (holding that even if appellant’s claim that


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testimony was improperly admitted was meritorious, appellant could not

prevail on an ineffectiveness claim because the allegedly improper testimony

was merely cumulative of other properly admitted evidence). As Appellant

has failed to demonstrate that there is a reasonable probability that the

outcome of the proceedings would have been different but for trial counsel’s

inaction, his second issue warrants no relief.

      Appellant’s third issue concerns a potential violation of his absolute

right not to testify at his own trial. At trial, the Commonwealth presented a

sweatshirt which appeared to depict a photograph of Appellant and Ferguson

standing next to each other and holding guns. During cross-examination of

Detective Sherwood, trial counsel attempted to elicit testimony from the

detective that the photograph on the sweatshirt 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 [Ferguson], despite what he told
            detectives when he gave them a statement, knew
            [Appellant], right?

      A.    If we go by everything else you just asked me, no. They
            could have been photoshopped together.

      Q.    Exactly.

      A.    Yeah, I mean-

      Q.    So there is no authentication          whatsoever    of   this
            photograph; is there?

      A.    Not unless [Appellant] or [Ferguson] want to do that.

Appellant’s brief at 20-21 (citing N.T. Trial, 8/29/11-9/2/11, at 517).

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      Appellant   contends    that   Detective    Sherwood’s    final   comment

impermissibly called attention to his failure to testify, and impermissibly

infringed on his constitutional right to remain silent, as protected by the Fifth

Amendment to the United States Constitution, and Article 1, Section 9 of the

Pennsylvania Constitution. Appellant claims that, had trial counsel objected

to the detective’s testimony, there is a reasonable probability that the

outcome of his trial would have been different.

      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.    See Gibson, supra. Although any 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 his trial 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 Ferguson knew each other because it

could have been photoshopped, and that Detective Sherwood was unable to


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authenticate it. See PCRA Court Opinion, 6/1/17, at 17-18. In other words,

Detective Sherwood’s overall 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

comment in any way.     See PCRA Court Opinion, 6/1/17, at 18; 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 the comment was harmless,

as “[t]he evidence of Appellant’s guilt was overwhelming[,] and included

[Appellant’s] own confession that he was present at the scene and had a


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firearm with him[, and a] surveillance video [showing Appellant] running

from the scene.” PCRA Court Opinion, 6/1/17, at 18. Our review confirms

that the jury was presented with an audiotaped confession made to police by

Appellant, wherein he admitted that he was at A.H.’s house with a gun, as

well as the surveillance video showing him fleeing from the scene with a

firearm. 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

previously heard testimony that Appellant was not always silent, and had

made a taped confession 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

audiotaped confession to police and the surveillance videotape showing him


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fleeing from the scene with a firearm, 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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