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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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