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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

 WILLIAM FERGUSON,

                          Appellant                  No. 3271 EDA 2018


           Appeal from the PCRA Order Entered October 19, 2018
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003810-2012

BEFORE:    BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                          FILED JULY 26, 2019

      Appellant, William Ferguson, appeals from the post -conviction court's

order denying his timely -filed petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      This Court previously summarized the facts and procedural history of

Appellant's case, as follows:

            On December, 7, 2011, Sylvain Middleton and Appellant
      were drinking beer and smoking marijuana. They decided to
      purchase cocaine, and so Mr. Middleton called Keith Allen, a friend
      from whom Mr. Middleton had purchased cocaine previously. Mr.
      Middleton and Mr. Allen arranged to meet in the area of Rugby
      and Upsal Streets in Philadelphia.

           Mr. Middleton and Appellant drove to the area together in
      Mr. Middleton's car. However, Appellant exited the vehicle to
      meet an unknown person, and Mr. Middleton proceeded with Mr.
      Allen separately.
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            Mr. Middleton entered the front passenger seat of Mr. Allen's
     SUV to complete the drug transaction, whereupon Appellant
     entered the rear passenger seat, pointed a gun at Mr. Allen,
     demanded his money and drugs, and ordered Mr. Middleton out
     of the SUV. Mr. Allen placed drugs and money on the front seat.
     As Mr. Middleton exited the SUV, he heard multiple gunshots. He
     immediately left the area, driving away in his car.
            Contemporaneously, Vanderick Desper was driving on Upsal
     Street when he passed Mr. Allen's SUV on the wrong side of the
     street up against a pole. Believing that an accident had occurred,
     Mr. Desper backed his car up to get a closer look and observed
     the other driver of the SUV being assaulted by someone in the
     back seat. Mr. Desper parked nearby and called 911 to report the
     assault. Following his initial 911 call, Mr. Desper observed a flash
     of light coming from inside ... the SUV, so he called 911 a second
     time.
            Officers Jonathan Berryman and Daniel McMonagle received
     a radio call for an assault in progress at Upsal and Rugby Streets.
     Upon their arrival, they observed Appellant seated in the driver's
     seat of Mr. Allen's SUV. Appellant stated he was trying to get Mr.
     Allen to a hospital. The officers found Mr. Allen outside the vehicle,
     unresponsive, with multiple gunshot wounds. Mr. Allen was
     pronounced dead at the scene.
            Officer Berryman observed a firearm inside the vehicle.
     Officer McMonagle frisked Appellant and recovered a nine -
     millimeter, semi -automatic firearm, as well as multiple fired
     cartridge cases [(FCCs)] from the SUV.       Forensic evidence
     introduced at Appellant's trial established that the firearm
     recovered from the SUV was the murder weapon. On the night of
     the murder, Appellant tested positive for gunpowder residue on
     both of his hands.
          Tasheima King was the registered owner of the murder
     weapon.   Ms. King testified at Appellant's trial that she had
     purchased the firearm for another individual, but it went missing
     around the time Appellant visited her home in Columbia,
     Pennsylvania.
            DNA samples were taken from the murder weapon, a fired
     cartridge case [(FCC)], and the sweatband of a Philadelphia Eagles
     hat found in the SUV. For comparison purposes, DNA samples
     were also taken from both the Appellant and Mr. Middleton. The
     victim's DNA was not tested. Mr. Middleton was excluded as a
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        contributor to any of the DNA evidence collected from the murder
        scene. Appellant's DNA was found on the slide area of the firearm;
        results were inconclusive on the trigger, but included DNA from
        an unknown male.2 No discernible DNA was recovered from the
        [FCC].
            2Notably, Tammy Allen, the victim's wife, testified that the
            Eagles hat belonged to her husband.

              Appellant testified on his own behalf.           According to
        Appellant, he often engaged in drug transactions with the victim.
        On the night of the murder, Appellant and the victim drove
        together to complete a transaction. Upon their arrival at the
        predetermined location, Mr. Middleton entered the SUV with
        another person unknown to Appellant. According to Appellant,
        this unknown person assaulted and shot the victim but fled prior
        to the arrival of police. Appellant's father and cousin also testified
        on his behalf.

               Following his trial in October 2013, a jury convicted
        Appellant of murder of the first degree, robbery, and several
        weapons -related offenses. The court imposed an aggregate
        sentence of life imprisonment without parole. Appellant filed a
        post -sentence motion that was denied without a hearing.
              In April 2014, Appellant filed a petition seeking leave to
        appeal nunc pro tunc. The [PCRA] court granted his petition. In
        July 2014, Appellant appealed....
Commonwealth            v.   Ferguson,    No.    2061    EDA    2014,   unpublished

memorandum at 1-4 (Pa. Super. filed Dec. 1, 2015) (one footnote omitted).

On direct appeal, this Court affirmed Appellant's       judgment of sentence. Id.
He did not file a    petition for allowance of appeal with our Supreme Court.

        Instead, on February 17, 2016, Appellant filed      a   timely, pro se   PCRA

petition.       Counsel was appointed and an amended petition was filed on

Appellant's behalf raising three claims of trial counsel's ineffectiveness. At      a

brief hearing on September 20, 2018, the PCRA court stated its reasons for

concluding that Appellant's claims were meritless, and notified Appellant of its

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intent to dismiss his petition without an evidentiary hearing pursuant to

Pa.R.Crim.P. 907.               See N.T. Hearing, 9/20/18, at 3-8.              Appellant did not

respond.         On October 19, 2018, the court issued an order dismissing his

petition.

        Appellant filed             a   timely notice of appeal. The   PCRA    court did not order

him to file      a    Pa.R.A.P. 1925(b) statement, but it filed         a    Rule 1925(a) opinion

on December 20, 2018, referring to its statement at the September 20, 2018

hearing as supporting its dismissal of Appellant's petition.

        Herein, Appellant states three issues for our review:

        I. Did the [PCRA] court err in determining [that] trial counsel was
        not ineffective for failing to object to the prosecutor's comments
        on [Appellant's] post -arrest silence?

        II.    Did the [PCRA] court err in determining              that trial counsel was
        not ineffective for failing to object to the admission of cell phone
        records when the prosecution failed to lay an adequate foundation
        for their admission?
        III.                                    that trial counsel was not
               Did the [PCRA] court err in finding
        ineffective for failing to introduce photographs of [Appellant's]
        hands?

Appellant's Brief at 4.

        First,   "[t]his Court's standard of review from the grant or denial of post-
conviction           relief    is       limited   to   examining   whether    the   lower court's

determination           is   supported by the evidence of record and whether it          is   free of

legal error."          Commonwealth v. Morales, 701 A.2d 516, 520                      (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).




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Where, as here,    a   petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

        [A] PCRA petitioner will be granted relief only when he proves, by
        a preponderance of the evidence, that his conviction or sentence
        resulted from the "[i]neffective 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."             Generally, counsel's
        performance is presumed to be constitutionally adequate, and
        counsel will only be deemed ineffective upon a sufficient showing
        by the petitioner. To obtain relief, a petitioner must demonstrate
        that counsel's performance was deficient and that the deficiency
        prejudiced the petitioner. A petitioner establishes prejudice when
        he demonstrates "that there is a reasonable probability that, but
        for counsel's unprofessional errors, the result of the proceeding
        would have been different." ... [A] properly pled claim of
        ineffectiveness posits that: (1) the underlying legal issue has
        arguable merit; (2) counsel's actions lacked an objective
        reasonable basis; and (3) actual prejudice befell the petitioner
        from counsel's act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33                 (Pa. 2009) (citations

omitted).

        Appellant first argues that his trial counsel was ineffective for failing "to

object when the prosecutor improperly asked why [Appellant] had not

mentioned Middleton's involvement to police and later commented in closing

on [Appellant's] post -arrest silence." Appellant's Brief at 9-10.1 In rejecting



1 Appellant does not quote the specific remarks he challenges, but cites to
pages of the transcript wherein the prosecutor questioned him about whether
he told police officers at the scene, or the detectives who later interviewed
him, that it was Middleton who committed the murder. See N.T. Trial,
10/17/13, at 267-68, 270-71. Appellant also points to the prosecutor's
stressing, in closing remarks, that Appellant did not say to the responding


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this ineffectiveness claim, the PCRA court concluded that Appellant had

opened the door to these questions and arguments by the Commonwealth.

The court explained:

               [Appellant] testified at his trial. On direct[ -]examination,
        [Appellant] referred to what he said to police who arrived on the
        scene to find him trying to place the car in gear while the wounded
        victim lay outside the car on the ground next to the ... driver's side
        door. [Appellant] testified that he told the police that he was
        trying to get the victim to the hospital and that he repeatedly
        asked police to help him. [Appellant] further testified that he was
        trying to call 911, but that the victim's phone was locked and his
        phone was dead.
              Moreover, on direct examination, [Appellant] testified that
        he would not rat on the real perpetrator because it is against the
        street code. [The] [p]rosecutor then cross-examined [Appellant]
        about what he did and did not tell the police. For example, [the
        prosecutor questioned the fact that Appellant did not tell police]
        that he had just been robbed by two men who shot the victim and
        ran away. According to the law, where a prosecutor's reference
        to a defendant's silence is a fair response to a claim made by the
        defendant or his counsel at trial, there is no violation of the Fifth
        Amendment privilege against self-incrimination.
               In [Commonwealth v.] DiNicola[, 866 A.2d 329 (Pa.
        2005)], our Supreme Court explained that where defense counsel
        opens the door to commentary of the defendant's pre -arrest
        silence there's no Fifth Amendment proscription precluding the
        raising of that silence in fair response to the defense argument.
        [The] Pennsylvania Supreme Court has held [that] when a
        criminal defendant waives his right to remain silent and testifies
        at his own trial, neither the United States, nor the Pennsylvania
        Constitution[,] prohibit a prosecutor from impeaching a
        defendant's credibility by referring to his pre -arrest silence. [See
        id. at 335 (citing Jenkins v. Anderson, 447 U.S. 231, 238
        (1980)).]


police officers, "[s]ome man killed [the victim]. Some man tried to rob me.
Two men got away. He said nothing like that." N.T. Trial, 10/18/13, at 146.


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N.T. Hearing,    9/20/18, at 4-6.
         Appellant offers no counter to the PCRA court's conclusion that his

counsel opened the door to the at -issue comments by the prosecutor, which

were then admissible to impeach Appellant's credibility.2 Instead, Appellant's

entire     prejudice   argument     is   the   following   sentence:    "Further,   the

Pennsylvania Supreme Court has consistently found such remarks to be so

prejudicial as to warrant      a    new trial."     Appellant's Brief at 10 (citing

Commonwealth v. Costa, 742 A.2d 1076                  (Pa. 1999)).     Notably, Costa

involved un-elicited remarks by the prosecutor about Costa's post -arrest

silence, as did the other case briefly cited by Appellant, Commonwealth v.

Turner, 454 A.2d 537      (Pa. 1982). Appellant offers no discussion of the facts

or holdings of Costa or Turner, nor explains why those decisions control in

this case, where he testified about statements he made to responding officers

to support his defense that he was not the shooter and was trying to help the

victim get to the hospital. Accordingly, he has failed to demonstrate error in

the PCRA court's conclusion that his trial counsel opened the door to the at -

issue questions and arguments by the Commonwealth and, thus, counsel had

no   legitimate basis on which to object.

         Next, Appellant contends that his trial counsel ineffectively failed to

object to the Commonwealth's introduction of Appellant's and Middleton's

phone records.         Appellant insists that the records were not properly


2 Appellant also does not contend that his trial counsel acted ineffectively in
this regard.
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authenticated under the 'business records' exception to the rule precluding

hearsay, see Pa.R.E. 803(6), and they also did not "contain                   a     certification

page[,] which would permit their admission pursuant to Pa.R.E. 902(11)

[(allowing the admission of an original or        a   copy of   a   domestic record that

meets the requirements of Rule 803(6), as shown by                  a    certification of the

custodian or another qualified person that complies with Pa.R.C.P. 76)]."

Appellant's Brief at 11.

         The PCRA court again found that Appellant failed to demonstrate that

he was prejudiced by counsel's alleged error.         It explained:
              Had counsel objected, the Commonwealth would[ have]
         requested time to call the custodian of records and the [c]ourt
         would[ have] granted it.     [Appellant] does not question the
         authenticity of the records. They were obtained pursuant to a
         warrant and bore the company logo.
N.T. Hearing at 6-7. The PCRA court also observed               that Appellant used the
phone records to show      a   "lack of calls between [himself] and           ...   the witness

Tasheima King[,]" who testified that Appellant "stole [the] gun from her house

...   that[ was] the weapon used    in   the homicide."   Id. at    7.    Finally, the PCRA

court recognized that,

         as the Superior Court noted upon appellate review in this case,
         the evidence ... was overwhelming. [See Ferguson, No. 2061
         EDA 2014, unpublished memorandum at 8.]              There was
         eyewitness testimony identifying [Appellant] as the perpetrator.
         There was physical evidence of gun powder residue on
         [Appellant's] hands. There was DNA evidence from [Appellant]
         on the slide of the gun and circumstantial evidence that
         [Appellant] had stolen the gun from the apartment of ... Tasheima
         King.



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N.T. Hearing at 8.

        Appellant has offered no meaningful rebuttal to the PCRA court's

conclusion that he was not prejudiced by defense counsel's failure to object to

the Commonwealth's admission of the phone records.           Instead, he cursorily

claims that defense counsel's failure to object to the admission of these phone

records "was highly prejudicial since the Commonwealth used the records to

undermine [Appellant's] version of events[,]" and the jury must have found

the documents important as they requested to view them during deliberations.

Appellant's Brief at 11. However, Appellant does not explain why the phone

records would not have been admitted had counsel objected, nor argues that

the jury would have disregarded the strong evidence of his guilt and acquitted

him without that evidence.         Accordingly, we discern no error in the court's

conclusion that Appellant was not prejudiced by counsel's failure to object to

the admission of the phone records.

          Lastly, Appellant claims that his trial counsel erred by not introducing

"corroborative evidence" of photographs of his hands that were taken by

police.    Id. at     12. Appellant does not explicitly state what the photographs

would have shown, but the Commonwealth infers that the photographs would

have shown       a   wound, which "would have corroborated his testimony that he

obtained the wound while struggling for the gun with the man he alleged

committed the murder." Commonwealth's Brief at 14.

        Again, the PCRA court found the prejudice prong of the ineffectiveness

test unmet, explaining:

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         [Appellant] fails to show prejudice because the Commonwealth
         witnesses testified that [Appellant] struggled with someone in the
         car, the decedent. Mr. Desper, who was an eyewitness, testified
         to this. Also, Police Officer Berryman testified that he engaged in
         a struggle with [Appellant] while attempting to arrest him. As
         such, the photo[s] would not [have] further[ed] [Appellant's]
         particular version of events.
N.T. Hearing at 7-8.

         As with his other issues, Appellant offers no response to the court's

prejudice ruling, nor any discussion of why the jury's verdict would have

changed had the photographs of his hands been admitted. Therefore, he has

not demonstrated that the court erred in dismissing his final ineffectiveness

claim.

         Order affirmed.

Judgment Entered.




Jseph     Seletyn,
          D.
Prothonotary



Date: 7/26/19




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