J-S65040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TYREEK BYRD

                            Appellant                No. 638 EDA 2015


                   Appeal from the PCRA Order March 6, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011530-2009


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED NOVEMBER 10, 2015

        Tyreek Byrd appeals from an order dismissing his timely petition

seeking relief under the Post Conviction Relief Act (“PCRA”).1 We affirm.

        Byrd shot an unarmed man in the shoulder on a residential street. A

jury convicted Byrd of aggravated assault2 and related offenses. On March

25, 2011, the trial court sentenced Byrd to 7-20 years’ imprisonment for

aggravated assault and no further penalty for the remaining convictions.

Byrd did not file a direct appeal, electing instead to file a timely PCRA

petition on July 8, 2011.



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1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2702(a)(1).
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      New counsel was appointed and filed an amended petition challenging

the effectiveness of trial counsel. On March 6, 2015, after a limited

evidentiary hearing, the PCRA court dismissed defendant’s petition. This

timely appeal followed.     Both Byrd and the PCRA court complied with

Pa.R.A.P. 1925.

      Byrd’s sole issue in this appeal is: “Did the PCRA Court err in

determining that Appellant was not prejudiced by trial counsel's failure to

object when Appellant's assertion of his right to remain silent was elicited at

trial?” Brief For Appellant, at 4. In other words, Byrd claims that defense

counsel was ineffective for failing to object during trial to passing references

by a Commonwealth witness to Byrd’s post-arrest silence.

      Our standard of review is well-settled.     “In reviewing the denial of

PCRA relief, we 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


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court’s legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa.Super.2014) (citation omitted).

       Counsel is presumed to have rendered constitutionally effective

representation. See Strickland v. Washington, 466 U.S. 668, 689 (1984).

“To plead and prove ineffective assistance of counsel a petitioner must

establish: (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act.” Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa.Super.2013) (en banc). If the petitioner fails to meet

any of these prongs, his claim fails.   Id.   Arguable merit exists when the

factual statements are accurate and “could establish cause for relief.” Id. at

707.    Whether the “facts rise to the level of arguable merit is a legal

determination.” Id. In considering whether counsel acted reasonably, we

look to “whether no competent counsel would have chosen that action or

inaction, or, the alternative, not chosen, offered a significantly greater

potential chance of success.”   Id. “Counsel’s decisions will be considered

reasonable if they effectuated his client’s interests. We do not employ a

hindsight analysis in comparing trial counsel’s actions with other efforts he

may have taken.” Id. Lastly, prejudice occurs where “there is a reasonable

probability that, but for counsel’s errors, the result of the proceeding would

have been different.” Id. This probability is sufficient when it “undermines

confidence in the outcome of the proceeding.” Id.


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       A brief review of the evidence will place Byrd’s argument in proper

context. On July 13, 2009, the victim, Derrick Churchwell, was walking with

his friends, Sharika Gibson and Marissa Hamilton, on Rodman Street in

Philadelphia. They were going to drop off Gibson’s 5 year old daughter,

Akira, at her grandmother’s house. As they were walking, Akira “playfully”

hit Churchwell by tapping his hands and legs and taunting him to hit her

back. Churchwell told her to stop, but Akira ignored him and continued to

hit him. Churchwell asked Gibson to intervene, but Gibson disregarded his

request. After Akira’s misbehavior continued for several minutes, Churchwell

grabbed Akira’s arm to stop her. Akira began to cry. N.T., 1/25/11, at 27-

33, 178-182.

       Gibson had been on the phone with Akira’s father when Akira began to

cry.   Gibson saw Akira crying and told Akira’s father what happened, but

assured him that everything was “okay” because she knew that Churchwell

would not intentionally hurt Akira. Gibson dropped off Akira at her

grandmother’s house and argued with Churchwell as they walked back to

Gibson’s home. N.T., 1/25/11, at 27-33, 178-182.

       As they approached Gibson’s home, Gibson’s sister, Taja, stopped

Churchwell and asked what was going on. Churchwell was talking with Taja

near Gibson’s house when a car pulled up. Byrd and an unidentified man

got out of the car and struck up a conversation with Gibson.     Byrd, also




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known as “Tita,” was Akira’s uncle. Gibson pointed at Churchwell and said,

“[T]here he is right there.” N.T., 1/25/11, at 33-35, 181-183.

     Byrd approached Churchwell, demanding to know if Churchwell “hit his

niece” and whether Churchwell thought he was “tough.” Before Churchwell

had an opportunity to explain, Byrd lifted up his shirt and revealed a gun

tucked in the waistband of his pants.     Byrd’s friend came up behind the

victim and grabbed his arms, and Byrd pointed the gun at Churchwell’s face

and chest. Churchwell heard a gunshot and fell to the ground, feeling pain

in his shoulder and hearing people scream. Only after he saw blood on his

shirt did he realize that he had been shot. By that time, Byrd and his friend

had fled. N.T., 1/25/11, at 35-43, 113-120, 151-153, 183-186.

     Churchwell was rushed to the hospital with a gunshot wound to the

shoulder. He told police in the emergency room that he had been shot by a

man known to him as “Tita.” The next day, he gave a formal statement to

the police identifying Byrd as the shooter and picked out Byrd from a photo

array. Police also interviewed Gibson, who likewise identified Byrd as the

shooter. She picked out the photograph of Byrd that police used to compile

the photo array. N.T., 1/25/11, at 47-51, 186-188, 206-213; N.T., 1/26/11,

at 7-14, 18-21.

     Byrd was arrested and charged with aggravated assault. At trial, the

Commonwealth presented seven witnesses, including Churchwell’s mother,

Stephanie Coaxum, and her friend, Robert Jackson. Ms. Coaxum had been


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standing in front of her house, only six doors away from Gibson’s, when she

saw two men approach her son. She heard a gunshot, ran over, and found

her son bleeding on the ground. Jackson corroborated her account. N.T.,

1/25/11, at 113-120, 151-153.

     On cross-examination, defense counsel asked questions that seemed

to challenge the thoroughness of the police investigation. Accordingly, the

Commonwealth also called the assigned detective, Robert Kerwin, to testify

about the investigation. N.T., 1/25/11, at 133-135, 216-223.

     On direct examination, Detective Kerwin made two unprompted

references to defendant’s post-arrest silence. When the prosecutor asked

Detective Kerwin if the “investigation [was] complete” when he arrested

defendant, Detective Kerwin testified that he had “still [been] trying to

identify” the second person who was present during the shooting. The

prosecutor clarified his original question, asking if the investigation was

complete “with regards to information just as to Mr. Byrd.” Detective Kerwin

responded: “Well, once he is brought back to my division I explain to him

what he is being charged with, I give him a chance if he wants to give his

side of the story or not. He chose not to. And at that point I just did the

arrest paperwork and then he was processed through our system.” Defense

counsel did not raise an objection. N.T., 1/26/11, at 24-25.

     Shortly thereafter, the following exchange took place:

     COMMONWEALTH: . . .You said at one point you continued your
     investigation of the incident; is that correct?

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        DETECTIVE KERWIN: Yes.

        COMMONWEALTH: But you were finished with investigating Mr.
        Byrd?

        DETECTIVE KERWIN: Yes. Well, since it was a second person
        that was involved, not that that person actually shot Derrick
        Churchwell, but from the interview he held on to him and
        wouldn’t let him run that led to his being shot. We were trying to
        identify him. And since Mr. Byrd wouldn’t tell us anything, I
        couldn’t get any information from him . . .

This time, defense counsel raised an objection.           N.T., 1/26/11, at 28-29.

The court did not instruct the jury at this time that it could not draw any

adverse inference from Byrd’s silence. The court did, however, instruct the

jury in its opening remarks and closing instructions that Byrd had a right to

remain silent, and that the jury could not draw any adverse inference if he

did not take the witness stand during trial.            N.T., 1/25/11, at 6; N.T.,

1/26/11, at 104.3

        Byrd argues that defense counsel was ineffective for “failing to object

when the Commonwealth elicited testimony” regarding Byrd’s post-arrest

silence. Brief for Appellant, at 8.       Initially, we note that defense counsel did

object the second time that Detective Kerwin mentioned Byrd’s post-arrest

silence.   Moreover, the Commonwealth did not “elicit” any testimony from

Detective Kerwin regarding Byrd’s post-arrest silence. Detective Kerwin

offered the testimony, unprompted, in response to a question from the
____________________________________________


3
    Byrd did not present any evidence.



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prosecutor about the completeness of the investigation. Specifically, the

prosecutor asked the detective if his “investigation [was] complete” when he

arrested defendant “with regards to information just as to Mr. Byrd.”          He

could not reasonably have anticipated that Detective Kerwin would respond

by indicating that defendant had opted not to “give his side of the story” to

the police.    N.T., 1/26/11, at 24-25.      The prosecutor’s question was not

designed to bring forth any information regarding Byrd’s exercise of his right

to remain silent.

        More importantly, for several reasons, Byrd suffered no prejudice from

the detective’s references to his post-arrest silence. The prosecutor did not

exploit the detective’s testimony in any way.        He did not mention Byrd’s

failure to give a statement in his closing argument or otherwise suggest that

it was a tacit admission of his guilt.        In addition, the trial court twice

instructed the jury not to use Byrd’s silence against him.        This instruction

cured    any   possible   prejudice   from   the   detective’s   testimony.   See

Commonwealth v. Williams, 615 A.2d 716, 722 (Pa.1992) (rejecting

ineffectiveness claim because “any conceivable prejudice arising [from

comment on appellant’s post-arrest silence] was cured by the ‘no-adverse

inference’ instructions given the trial court”); see also Commonwealth v.

Speight, 854 A.2d 450, 458 (Pa.2004) (“it is presumed the jury follows the

court’s instructions,” so any prejudice created in the minds of certain jurors

due to counsel’s statement “was cured by the judge’s instructions”). Finally,


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the evidence against Byrd was overwhelming. Both Churchwell and Gibson

identified Byrd as the shooter.      Two other eyewitnesses corroborated

Churchwell’s account by testifying that they observed the shooting, ran over

and found Churchwell bleeding on the ground. Byrd presented no evidence

in his defense. Thus, there is no reasonable probability that the outcome of

trial would have changed had Detective Kerwin refrained from mentioning

Byrd’s post-arrest silence.   See Commonwealth v. Bishop, 936 A.2d

1136, 1141 (Pa.Super.2007) (trial counsel was not ineffective for eliciting

detective’s reference to defendant’s silence; “there was no prejudice as the

evidence of Appellant’s guilt was overwhelming, and there is no reasonable

probability that the outcome of the trial would have been different absent

counsel’s question to Detective Rush”); see also Commonwealth v.

Philistin, 53 A.3d 1, 32 (Pa.2012) (defendant not entitled to new jury in

penalty phase of capital case where police officers attended trial in uniform

during guilt phase; officers’ presence did not prejudice defendant because

“the overwhelming evidence against him showed he shot two police officers

in the head at close range with a handgun”).

     For these reasons, the PCRA court properly denied Bryd relief under

the PCRA.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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