J-S85010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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