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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

TRACY A. JORDAN,

                          Appellant                   No. 2308 EDA 2014


                   Appeal from the PCRA Order July 1, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0305001-2005


BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 14, 2015

       Tracy A. Jordan appeals pro se from the order entered on July 1, 2014,

wherein the trial court denied post-conviction relief. We affirm.

       On November 8, 2006, a jury convicted Appellant of second degree

murder, robbery, and possessing an instrument of crime (“PIC”).           The

convictions stem from the 2004 robbery and murder of the owner of Cash

Plus Check Cashing Agency in Philadelphia, Pennsylvania.       The trial court

imposed life imprisonment for the murder conviction and a concurrent term

of two and one-half to five years for PIC. The robbery merged with second-

degree murder for the purpose of sentencing. We affirmed the judgment of

sentence.    Commonwealth v. Jordan, 961 A.2d 1277 (Pa.Super. 2008)

(unpublished memorandum).


*
    Former Justice specially assigned to the Superior Court.
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       On December 8, 2008, Appellant filed a timely PCRA petition. Counsel

was appointed, and he filed an amended PCRA petition leveling a litany of

ineffective assistance of counsel claims, including inter alia, that trial counsel

should have filed a motion to suppress the verbatim written statement that

Appellant provided to the police on November 18, 2004, and the evidence

that flowed from Appellant’s consent to search his residence. The petition

was dismissed without a hearing.1              This Court affirmed, in part, and

remanded for the trial court to conduct “a hearing limited to [Appellant’s]

claim of ineffective assistance of counsel regarding trial counsel’s failure to

file a suppression motion.” See Commonwealth v. Jordan, 82 A.3d 1063

(Pa.Super. 2013) (unpublished memorandum at 14.)

       On December 13, 2013, the PCRA court conducted an evidentiary

hearing consistent with our directive.           Trial counsel, Gregory Pagano,

Esquire, was the only witness presented during the hearing.          He testified

that Appellant’s November 18, 2004 statement to police was not only

voluntary and consensual, but also exculpatory and consistent with the

agreed-upon defense strategy of highlighting Appellant’s cooperation with

the police throughout the investigation as militating in favor of finding that

____________________________________________


1
  After the filing of the notice of appeal, Appellant filed a motion to proceed
pro se. The trial court held a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1988), and permitted Appellant to represent
himself. He continues pro se representation in this appeal.



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he was innocent and wrongly accused. N.T., 12/19/13, at 10, 11-12, 17,

31, 33-34). Following the hearing and the submission of post-hearing briefs,

the PCRA court entered the above-referenced order denying relief.            This

timely appeal followed.

      Appellant presents the following questions for our review:

      I.   Under what federal or state legal authority [did] the police
      [have] to hold Appellant at their headquarters while his home
      was being searched?

      II.   Under the federal and state categories of interaction
      between citizens and police, where does the encounter with
      Appellant fall?

      III. Can trial counsel be considered competent when he
      exhibits an extreme lack of legal knowledge or legal precedent?

      IV.  Can trial counsel[’]s strategy be considered reasonable
      under prevailing professional norms?

Appellant’s brief at 3.

      We have previously held that:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the
      PCRA court is supported by the evidence of record and is free of
      legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2
      (Pa. 2005). The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.
      Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.
      2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007).

      As it relates specifically to Appellant’s challenge to trial counsel’s

stewardship in this case, in order to prevail on a PCRA claim for ineffective



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assistance of counsel, Appellant must establish by a preponderance of the

evidence: (1) that the underlying claim has merit; (2) that there was no

reasonable basis for counsel’s conduct or lack thereof; and (3) that Appellant

suffered prejudice as a result of counsel’s conduct or lack thereof.

Commonwealth v. Laird, __ A.3d__, 2015 WL 4401561 at *3 (Pa. 2015).

Counsel is presumed effective, and the burden of establishing counsel’s

ineffectiveness always lies with Appellant. Commonwealth v. Balodis, 747

A.2d    341,   334   (Pa.   2000).       As   our   Supreme   Court   observed   in

Commonwealth v. Walker, 36 A.3d 1, 7 (Pa. 2011), “Failure to establish

any prong of the test will defeat an ineffectiveness claim.”

        Notwithstanding the four articulated issues listed in Appellant’s brief,

the crux of his argument is that trial counsel provided ineffective assistance

in failing to file an omnibus pretrial motion seeking to invalidate his consent

to search his home and suppress the evidence derived from his November

18, 2004 police interview after they failed to advise him of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966).             The following legal principles

guide    our   review.      Generally,   “[s]tatements   made    during   custodial

interrogation are presumptively involuntary, unless the accused is first

advised of her Miranda rights.”          Commonwealth v. Williams, 941 A.2d

14, 30 (Pa.Super. 2008) (en banc) (citations omitted).                A custodial

interrogation is defined as “questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of her

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freedom of action in any significant way.”               Id. (citations and internal

quotations omitted).

        In Williams, we continued, “In evaluating whether Miranda warnings

were necessary, a court must consider the totality of the circumstances. In

conducting the inquiry, we must also keep in mind that not every statement

made      by   an   individual   during    a   police   encounter   amounts   to   an

interrogation.”     Id.    Conversely, however, “volunteered or spontaneous

utterances by an individual are admissible even without Miranda warnings.”

Id.

        We summarize Appellant’s factual basis for his ineffectiveness claim as

follows. See Appellant’s brief at 4-5. On November 18, 2004, Philadelphia

Homicide Detective James Griffin and his partner Detective Cruz2 interacted

with Appellant at his home. Detective Cruz went to the rear of the residence

to guard the back door while Detective Griffin advanced toward the front

door with his firearm drawn.         Detective Griffin did not holster his weapon

until Appellant admitted both detectives into the home.             After questioning

Appellant briefly and advising him that his fingerprints had been discovered

at the murder scene, the detectives requested that Appellant accompany

them to the police station for additional questioning.


____________________________________________


2
    The certified record does not reveal Detective Cruz’s Christian name.



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       Appellant continues that the detectives refused his request to drive his

own vehicle to the police interview, and, when he arrived at the police

station, the police removed his cell phone, wallet, and keys. He asserts that

police questioned him without providing a Miranda warning.3           He also

contends that, prior to providing written consent for the police to search his

home for a computer that was stolen from the decedent during the

homicide, they rejected his request to be present during the search and

rebuffed his attempt to contact his wife so that she would not be alarmed

when the police arrived at their home.           Thereafter, the police locked

Appellant in the interrogation room for two hours while they executed the

search. The search was not fruitful, and the police released Appellant from

custody. Two days later, the police obtained a warrant to seize the service

weapon registered to Appellant’s wife, a police officer with the Philadelphia


____________________________________________


3
  In pertinent part, Appellant’s statement indicated that he was at the check
cashing agency two days prior to the murder, he owns a .22 caliber pistol,
and that his wife uses a .40 caliber Smith and Wesson service weapon as a
police officer for the Philadelphia Housing Authority. Appellant also noted
that while no one in the household had recently acquired a laptop computer
or carrying case, his son owns a Dell brand laptop. Appellant consented to
the search of his residence for the computer that was stolen from the victim
during the robbery. Significantly, in contrast to the assertions in Appellant’s
brief, there was nothing in the verified statement regarding cellular
telephone records, subpoenas or warrants relating to those records, or a
witness identified as Julius Peurifor.       See Commonwealth Exhibit 1,
Investigation Interview Record, 11/18/04, at 1-5.




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Housing Authority.4       Four days after the gun was seized pursuant to the

warrant, Appellant was arrested and charged with the robbery and homicide.

He believes that the foregoing factual scenario necessitated that Attorney

Pagano file a pretrial suppression motion to prevent the admission of

evidence flowing from the police interview and the search of his residence.

       In rejecting Appellant’s claim, the trial court determined that Appellant

failed to establish the second and third prong of the test to determine

ineffective assistance of counsel, i.e., whether a reasonable basis existed for

counsel’s conduct and whether Appellant suffered prejudice. Specifically, the

trial court concluded that Attorney Pagano credibly testified that Appellant’s

statement was voluntary, exculpatory, and consistent with the information

that Appellant had provided to him.            He also believed that the statement

supported the agreed-upon defense strategy of highlighting Appellant’s

cooperation with the homicide investigation and consenting to the search of

his home as evidence of him being wrongfully accused. Moreover, Attorney

Pagano testified that Appellant did not inform him that, during the initial

exchange at Appellant’s home, Detective Cruz had been posted at his rear

door while Detective Griffin approached the front of the residence with his

gun drawn.
____________________________________________


4
  Police interviewed Appellant’s wife separately, and she surrendered her
duty weapon to detectives at the police station pursuant to the warrant
dated November 20, 2004.



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      The trial court observed that Attorney Pagano’s recollection was

consistent   with   Appellant’s   prior   testimony        during   the   jury    trial.

Specifically, Appellant had testified that the statement was voluntary.             He

also neglected to mention the detectives’ respective behaviors in staking out

the rear of the residence and brandishing a sidearm while approaching the

home. Based upon these facts, the trial court found that Appellant failed to

demonstrate by a preponderance of the evidence that Attorney Pagano

lacked a reasonable basis to forego challenging the interview in an omnibus

suppression motion.

      As it relates to the prejudice prong, the trial court further stressed that

Appellant failed to establish prejudice. The court observed that Appellant’s

claim is based upon general challenges to counsel’s stewardship in failing “to

subject the prosecution’s case to any meaningful adversarial testing” and to

protect his basic federal and state constitutional rights. Trial Court Opinion,

10/3/14, at 4. We agree with the trial court’s assessment on both accounts.

      The    certified   record   sustains   the   trial     court’s   findings    and

determinations of credibility relating to Attorney Pagano’s reasonable trial

strategy. During the evidentiary hearing, Attorney Pagano testified that he

has handled several thousand cases, including forty homicide jury cases, in

his twenty years of practice. N.T., 12/16/13, at 8. He explained that after

reading Appellant’s verbatim statement and discussing the situation and trial

strategy with Appellant, he declined to file a motion to suppress the

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statement. Id. at 9-12, 33-34. Specifically, he doubted that the lack of a

Miranda warning in this case violated Appellant’s 5th Amendment rights

because the statement and concomitant consent to search his home were

given voluntarily. Id. at 11, 23, 34. More important to our review, Attorney

Pagano believed that the statement was exculpatory, consistent with

Appellant’s defense, and unlikely to be used by the Commonwealth as

evidence. Id. at 10-11. Further, noting that Appellant testified during trial

that he provided the statement to police voluntarily, Attorney Pagano

stressed that Appellant’s cooperation with the investigation, voluntary

statement, and consent to the search all bolstered his assertion that he was

innocent and had been wrongfully accused. Id. at 11-12.

     During cross-examination, Attorney Pagano further explained that he

was in possession of Appellant’s verbatim statement since the outset of this

case and immediately knew that the police had obtained the statement

without a Miranda warning. He investigated the circumstances surrounding

the interview and discussed all aspects of the statement with Appellant and

his family. Id. at 18-19, 29-30. Indeed, Attorney Pagano testified that he

“investigated everything that [Appellant] asked [and] put a tremendous

amount of time and effort into this case[.]” Id. at 30. However, he denied

that Appellant had informed him that Detective Griffin approached the home

with a drawn weapon or that Detective Cruz covered the rear of the

residence to prevent his flight.   Id. at 19.   Attorney Pagano also did not

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recall the particulars concerning when the police removed Appellant’s wallet,

keys, and telephone, but he added that the information that was adduced in

the verbatim statement was consistent with what Appellant had told the

detectives during the prior voluntary exchange at his residence. Id. at 21.

Similarly, Attorney Pagano testified that while he did not remember whether

Appellant had indicated to him that the police locked Appellant in the

interrogation room or rebuffed his request to be present during the search of

his residence, Attorney Pagano’s “recollection was that [Appellant’s] wife . . .

also cooperated with police and . . . allowed them to search the home.” Id.

at 23-24, 26.

      As the foregoing testimony supports the PCRA court’s findings of fact

and credibility determination in favor of Attorney Pagano and against

Appellant, we will not disturb it. For this reason, we find that the certified

record sustains the trial court’s determination that Attorney Pagano’s stated

strategy to use the verified statement and Appellant’s cooperation in the

investigation to bolster the agreed-upon defense strategy was not so

unreasonable that no competent attorney would have chosen it.

      Appellant   misapprehends    the   significance   that   Attorney   Pagano

ascribed to the fact that the verified statement was exculpatory. Appellant

accurately states that for the purposes of determining whether a Miranda

warning is warranted, it makes no difference whether the challenged

statement is inculpatory or exculpatory. Hence, he intimates that Attorney

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Pagano provided ineffective assistance in finding that the exculpatory nature

of the verified statement would have foreclosed suppression under 5 th

Amendment jurisprudence.         Unfortunately for Appellant, this argument

mischaracterizes Attorney Pagano’s reasoning. Rather than concluding that

an exculpatory statement could not be subject to suppression, Attorney

Pagano referred to the statement’s exculpatory nature, as well as its

consistency with the defense strategy, and the unlikelihood that the

Commonwealth would invoke the statement against Appellant, as grounds to

decline to suppress it.    That is, the references to the statement being

exculpatory related to the reasonableness of Attorney Pagano’s decision to

forego suppression and not the validity of the custodial statement proffered

without a Miranda warning. Stated another way, even to the extent that

the statement could be considered constitutionally infirm, its admissibility

inured to Appellant’s benefit.

      Additionally, the record confirms the trial court’s determination that

Appellant failed to satisfy the prejudice prong of the test for ineffectiveness.

Stated plainly, Appellant neglected to explain how the Commonwealth used

the verified statement against him.     In fact, to the extent that Appellant

references statements that the Commonwealth allegedly introduced at trial,

that information did not flow from the verified statement that formed the

basis of his ineffective assistance of counsel claim. Likewise, as it relates to

the allegedly infirm consent that he provided to police to search his home,

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Appellant does not identify what evidence was obtained during the search

that lead to his conviction. Indeed, Appellant concedes that the search that

was based upon his consent was not fruitful and that the police only seized

the purported murder weapon after interviewing his wife, who previously

consented to the search of the residence, and obtaining a warrant to seize it

from her. Appellant fails to assert how the lack of a Miranda warning on

November 18, 2004, tainted the seizure of evidence from his wife’s person

pursuant to a warrant issued two days later. Thus, Appellant’s attempt to

assail Attorney Pagano’s stewardship for failing to suppress the statements

is ineffectual.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015




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