J-S29007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MALIK ANDERSON : : Appellant : No. 1645 EDA 2020
Appeal from the PCRA Order Entered August 3, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011782-2013
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 28, 2022
Malik Anderson appeals from the Philadelphia Court of Common Pleas’
order dismissing his first petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546, without holding an evidentiary
hearing. In his petition, Anderson raised multiple claims of counsel’s
ineffectiveness. Those claims included Anderson’s allegation that trial counsel
had been ineffective for failing to seek suppression of the derivative evidence
obtained from an initial statement Anderson made to police during the
investigation of the murder of Daquan Crump, a crime for which Anderson was
later convicted. Counsel did file a motion to suppress the statement itself, but
the trial court denied that motion. On direct appeal, this Court determined
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* Former Justice specially assigned to the Superior Court. J-S29007-21
that the court erred by failing to suppress Anderson’s initial statement because
it had been a product of an unconstitutional interrogation, but we also
concluded that no relief was due because the error had been harmless.
Anderson now asserts that counsel should have also filed a motion to
suppress all derivative evidence obtained from that initial statement as it “led
to the bulk of the evidence the Commonwealth presented at trial.”
Commonwealth’s Brief at 43. The Commonwealth concedes that this
ineffectiveness claim is “most problematic” and asks this Court to remand to
the PCRA court to hold an evidentiary hearing on the claim. Commonwealth’s
Brief at 3. We agree that Anderson is entitled to an evidentiary hearing on this
issue, and therefore reverse that part of the PCRA court’s order dismissing
this claim without a hearing. However, we also agree with the Commonwealth
and the PCRA court that the remainder of Anderson’s ineffectiveness claims
lack merit and therefore affirm that portion of the PCRA court’s order
dismissing those claims.
In order to fully understand Anderson’s first ineffectiveness claim, and
why it requires a remand for a hearing, a detailed recitation of both the facts
and the procedural history of this case is necessary. On August 19, 2013,
construction workers discovered Crump’s body at a construction site in
Northeast Philadelphia (“the construction site”). Crump had been shot multiple
times in the head.
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Police spoke to Crump’s sister on August 20, 2013. She told them that
“Quil Banga,” later determined to be Sirrieah-Mean Jharquil, had been
threatening Crump on Facebook. She also told police she had called a number
her brother often used to contact her, and that person, later determined to be
Anderson, told Crump’s sister that he had been with Crump the night before
his murder (August 18, 2013) and had last seen him around midnight. The
police suspected Jharquil of Crump’s murder but wanted to speak with
Anderson in connection with the shooting.
Philadelphia Police Detective James Griffin asked Anderson to come to
the station, and Anderson’s parents took Anderson to the police station around
12:20 p.m. on August 20, 2013, for what Detective Griffin described as an
“informal interview.” N.T. Motion Volume I, 10/6/14, at 11. Anderson was the
first person to be interviewed in connection with the murder. Detectives Griffin
and Henry Glenn did not read Anderson his Miranda1 rights, but they did keep
and question him for more than 30 hours. During that time, Anderson’s
parents retained an attorney, who contacted the police station as well as
Detective Griffin directly. Detective Griffin, however, did not relay the
information to Anderson that his parents had retained an attorney because,
according to Detective Griffin, Anderson never asked for an attorney.
1 See Miranda v. Arizona, 384 U.S. 436 (1966).
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During the questioning, Anderson gave information to the detectives
and eventually signed a statement. Anderson denied any involvement in the
murder. He told the detectives that he and Crump, who Anderson identified
as his best friend, were hanging out with three of their friends at Anderson’s
house on the evening of August 18, 2013. Anderson identified those friends
as James Thompson, Ryan Farrell and Darrell Holmes.
According to Anderson, Crump announced to the group that he was
going to Frankford, and Anderson, Thompson, Holmes and Farrell then got in
Farrell’s car and went to Farrell’s house. Anderson claimed he last saw Crump
around midnight, standing outside of Anderson’s house. Sometime around
three a.m., Anderson said, he received a call from his parents to come home,
and he and Thompson left Farrell’s house to walk back to Anderson’s house.
Anderson took a shortcut through the construction site while Thompson took
a longer route. Anderson stated that once they got back to Anderson’s house,
the two of them went to sleep. Anderson also told the detectives about the
dispute Crump had with Jharquil, and the threats Jharquil had made to Crump
on Facebook.
Based on this information from Anderson, the detectives obtained
photos of Farrell, Thompson and Holmes. Anderson helped the detectives find
Thompson’s photo on Facebook. Police then interviewed Farrell and Holmes
separately at the police station on August 21, 2013, and both gave statements
with a narrative similar to Anderson’s. They stated that they had last seen
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Crump around midnight at Anderson’s house on August 19, 2013. Neither
implicated Anderson in the murder.
Police released Anderson around 8:40 p.m. on August 21, 2013, more
than 30 hours after they brought him in for questioning. Anderson met with
his attorney the following day, August 22, 2013. Anderson’s attorney
repeatedly told Anderson not to say anything to police about the shooting
unless he was present.
Meanwhile, also on August 22, 2013, Detectives Ohmarr Jenkins and
Fred Mole interviewed Jharquil who told police that he had last seen Crump in
July of 2013 when they had a dispute over missing jeans. He also told the
detectives that Anderson had shown him a .22 caliber gun in May of 2013.
Jharquil maintained that he had been at his mother’s office at the time Crump
was shot. Police were able to confirm this alibi and therefore excluded Jharquil
as a suspect.
On August 23, 2013, Detective Gregory Santamala prepared an affidavit
of probable cause for a warrant to search Anderson’s house. A search warrant
was issued that same day, and at approximately 2:45 p.m., Detective
Santamala went to Anderson’s house to conduct the search. As Detective
Santamala was beginning the search, he received a call from Detective Edward
Tolliver. Detective Tolliver told Detective Santamala to look for a gun in a
waffle box in the kitchen freezer based on information he had just learned
during an interview with Thompson.
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Detective Tolliver had picked Thompson up to question him on August
22, 2013, but because Thompson was under the influence of drugs, detectives
were not able to interview Thompson at that time. Police kept Thompson
overnight and Detectives Tolliver and Charles Grebloski began interviewing
Thompson at approximately 2:15 p.m. on August 23, 2013. During that
interview, Thompson ultimately gave a statement implicating Anderson in
Crump’s murder. Thompson told the detectives that Crump had actually gone
with the group from Anderson’s house to Farrell’s house in the early morning
hours of August 19, 2013.
Thompson said that at around five a.m., he, Anderson and Crump left
Farrell’s house to go back to Anderson’s house. However, Thompson stated
that he did not want to take the shortcut to Anderson’s house through the
construction site, so he took a longer route to Anderson’s house, while
Anderson and Crump took the shortcut. According to Thompson, he heard
gunshots coming from the construction site and Anderson arrived home
without Crump. He and Anderson then went to sleep.
Thompson recounted that later in the morning on August 19, 2013,
Anderson told him that he had shot and killed Crump. Thompson stated that
he saw Anderson with a black .22 caliber gun, which Anderson hid in a crate
in the basement of Thompson’s girlfriend’s neighbor's house. Thompson then
told the detectives that a day or two later, Anderson showed Thompson an
Eggo waffle box while they were in Farrell’s basement and told Thompson he
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was going to hide the gun in the box in his kitchen freezer until he could bury
the gun.
Based on this information, Detective Tolliver called Detective Santamala
and told him to look for that waffle box in Anderson’s kitchen freezer.
Detective Santamala searched the freezer, and he found a family pack Eggo
waffle box inside the freezer in the bottom of a freezer drawer. He picked up
the box, turned it, and saw an undershirt sticking out from the box. Inside the
box, wrapped in the undershirt, was a black .22 caliber gun. The gun was later
determined to be the murder weapon.
Detectives then re-interviewed Farrell on August 23, 2013 and Holmes
on August 24, 2013. Farrell changed his version of events from the one he
had given in his first statement. Specifically, Farrell stated that the group had
not separated from Crump in the early morning hours of August 19, 2013, as
he had previously maintained, but that Crump had actually come to Farrell’s
house with the rest of the group. Sometime between three and five a.m. on
August 19, 2013, Anderson, Thompson and Crump left Farrell's house for
Anderson’s house. Farrell recounted that Anderson later confessed to shooting
Crump and that Anderson subsequently met with Farrell, Thompson and
Holmes to make sure that their stories all aligned.
Holmes also implicated Anderson in his second statement. Holmes
stated that, contrary to his first statement, Crump did go to Farrell’s house
with the group and that it was at Farrell's house, not Anderson’s house, where
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Holmes last saw Crump. According to Holmes, Anderson told Holmes on
August 19, 2013, to say that he last saw Crump at Anderson’s house around
midnight. Holmes said he had seen Anderson with a .22 Ruger gun, and he
saw that gun in a duffel bag Anderson was carrying the day after the shooting.
Detective Griffin arrested Anderson on August 28, 2013. According to
Detective Griffin, he read Anderson his Miranda rights and Anderson waived
his rights. Anderson then signed a second statement. In this statement,
Anderson shared that he and Crump “hung out all day Sunday and smoked
weed and drank at my house.” Investigation Interview Record of Malik
Anderson, 8/28/13, at 2. He conceded that Crump had gone to Farrell’s house
with the group and that “[e]arly Monday morning” he and Crump left Farrell’s
house. Id. He stated that he had been angry at Crump for single-handedly
stealing and selling a game system from Farrell that he and Crump had
planned on stealing and selling together. He confessed to shooting Crump in
the construction site, admitting that he “stood over him and pulled the trigger
and shot him in the face until the gun stopped.” Id. Anderson was charged
with, inter alia, first-degree murder.
The Commonwealth later offered Anderson a plea with a recommended
sentence of 32 to 64 years in exchange for a guilty plea to third-degree
murder, a firearms offense, conspiracy to commit burglary and false reports
to police. Following two separate colloquies, Anderson rejected the plea and
expressed his desire to go to trial.
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Counsel filed a motion to suppress both of Anderson’s statements to the
police, and the court held a hearing on the suppression motion. 2 Detective
Griffin and Anderson both testified and gave vastly different accounts of what
occurred prior to the recitation of each statement. As for the first statement,
Anderson testified that he was held for over 30 hours at the station but was
not offered any food or given the opportunity to sleep during that time.
Detective Griffin denied this. As for the second statement, Anderson said he
never gave or signed a statement, was never Mirandized and per his very
specific instructions by his lawyer, repeatedly asked for his lawyer.
The trial court denied the motion to suppress, and the case proceeded
to trial.3 A jury found Anderson guilty of first-degree murder, possession of an
instrument of crime and firearms not to be carried without a license. The court
immediately sentenced Anderson to the mandatory term of life imprisonment
2In the motion, counsel also generally sought to suppress all physical evidence seized by law enforcement. See Omnibus Pre-trial Motion General Allegations, 10/14/13, at 1-2 (unpaginated). However, counsel did not argue for that during the hearing, instead limiting his argument to the suppression of the statements. See N.T., Motion Volume I, 10/6/14, at 3. 3 During trial, counsel raised the issue that the suppression of the physical evidence aspect of the suppression motion remained outstanding, though counsel conceded that he had not really argued that during the suppression hearing. See N.T. Trial, 10/10/14, at 73-74 (“I don’t recall you ruling on my four corners motion with regard to physical evidence only”). The trial court agreed that “there was really no argument made” on the suppression of the physical evidence, but denied the motion on the record. Id. This discussion clearly references the written motion’s arguments regarding the search warrant for Anderson’s home and not any request for suppression of any derivative physical evidence based on the unconstitutional interrogation.
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for the first-degree murder conviction, and gave lesser sentences, to run
concurrently on the remaining convictions.
Anderson filed a notice of appeal with this Court, but that appeal was
quashed as untimely. Anderson’s appellate rights were subsequently
reinstated nunc pro tunc, and Anderson again filed a notice of appeal with this
Court. In considering his appeal, we agreed with Anderson that the trial court
had erred by not granting his motion to suppress his initial statement to police
because it had been the product of a coercive custodial interrogation and
Anderson had not been read his Miranda rights. See Commonwealth v.
Anderson, 425 EDA 2018, 2019 WL 6911357, at *6 (Pa. Super. 2019) (non-
precedential decision). The Court, however, found that the error had been
harmless and did not warrant any relief because the first statement given by
Farrell to police, which had properly been admitted at trial, “contained
substantially similar information” as that contained in Anderson’s initial
statement. Id. We rejected Anderson’s remaining claims, and affirmed
Anderson’s judgment of sentence. Our Supreme Court denied Anderson’s
petition for allowance of appeal.
Anderson filed a timely pro se PCRA petition, raising 12 claims of
ineffectiveness of counsel. Appointed counsel filed a Finley/Turner4 no-merit
4 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
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letter and an application to withdraw from representation. Anderson filed an
opposition to the Finley/Turner letter, followed by two pro se supplemental
PCRA petitions raising additional ineffectiveness claims. The PCRA court filed
a Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA petition without a
hearing. On March 10, 2020, Anderson filed a response to the Rule 907 notice,
as well as a request for an evidentiary hearing on his ineffectiveness claims.
Shortly thereafter, the courts closed due to the COVID-19 pandemic, and it
was therefore not until August 3, 2020 that the PCRA court entered an order
dismissing Anderson’s PCRA petition.5
Anderson filed a pro se notice of appeal, followed by several applications
seeking to proceed pro se on appeal. This Court eventually remanded for a
Grazier6 hearing, see Per Curiam Order, 1/19/21 (single page), and the PCRA
court held a hearing and entered an order granting Anderson’s request to
5 Although counsel filed a Finley/Turner letter and an application to withdraw from representation, there is no order disposing of that application by the PCRA court. Indeed, appointed PCRA counsel filed an application to withdraw with this Court, stating that although the “PCRA court accepted the Finley letter … an order granting [the application to withdraw] was not entered on the [PCRA court’s] docket at the time of PCRA dismissal.” Motion to Withdraw as Counsel, 9/17/20, at 1. He urged this Court to grant the motion given that Anderson has filed all filings as pro se since the dismissal of the PCRA petition. See id. at 2. This Court denied the application to withdraw “without prejudice to Appellant’s right to apply to the PCRA court for the requested relief.” See Per Curiam Order, 10/26/20 (single page).
6 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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proceed pro se on April 8, 2021. Anderson then filed his pro se brief with this
Court, claiming that the PCRA court erred by rejecting his claims of
ineffectiveness and dismissing his petition without a hearing.
Our review of an order dismissing a PCRA petition is limited to examining
whether the PCRA court’s determinations are supported by the record and the
court’s decision is free of legal error. See Commonwealth v. Shaw, 217
A.3d 265, 269 (Pa. Super. 2019). Although we give great deference to the
factual findings of the PCRA court and will not disturb those findings unless
they have no support in the record, we apply a de novo standard of review to
the PCRA court’s legal conclusions. See Commonwealth v. Benner, 147
A.3d 915, 919 (Pa. Super. 2016).
Further, the PCRA court is not required to hold an evidentiary hearing
prior to dismissing a petition as a petitioner is not entitled to a PCRA hearing
as a matter of right. See Shaw, 217 A.3d at 269. The PCRA court can decline
to hold a hearing if there is “no genuine issue concerning any material fact,
the petitioner is not entitled to PCRA relief, and no purpose would be served
by any further proceedings.” Id. This Court is therefore tasked on appeal with
examining each challenged issue to determine whether the PCRA court erred
in its conclusion that there were no genuine issues of material fact in
controversy and in denying relief without conducting a hearing. See
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014).
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Anderson raises multiple claims challenging trial counsel’s
ineffectiveness. Counsel is presumed to have been effective. See
Commonwealth v. Brooks, 839 A.2d 245, 248 (Pa. 2003). In order to
overcome that presumption and prevail on a claim of ineffectiveness,
Anderson must establish that: (1) the underlying claim has arguable merit;
(2) counsel had no reasonable basis for his conduct; and (3) he was prejudiced
by counsel’s ineffectiveness, i.e. there is a reasonable probability that because
of the act or omission in question, the outcome of the proceeding would have
been different. See id.
As noted above, Anderson’s first claim alleges that trial counsel was
ineffective for failing to file a motion to suppress the evidence the police
derived from his initial statement to police, which this Court has confirmed
was illegally obtained. Specifically, Anderson argues this claim has arguable
merit as there was clearly significant evidence acquired from the illegally-
obtained statement. See Commonwealth v. Santiago, 209 A.3d 912, 924
(Pa. 2019) (stating that the general exclusionary rule, which requires
exclusion of all evidence unlawfully obtained, extends to the indirect and direct
products of the illegality under the fruit of the poisonous tree doctrine). He
further avers that counsel could not possibly have had a reasonable basis for
failing to seek to suppress this evidence as it made up much of the
Commonwealth’s case against him, and that the prejudice from this failure is
clear.
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In response, the Commonwealth concedes that Anderson is entitled to
a PCRA hearing on this claim, which it describes in the following way:
[Anderson] argues that because he was the first person of interest the police interviewed, but for his illegally obtained statement the police would not have been led to the bulk of the evidence the Commonwealth presented at trial. [See] Brief for Appellant [at] 29. [Anderson] lists the pieces of evidence he claims are fruits of the poisonous tree, including the identities of Farrell, Holmes, Thompson, and Jharquil, whose interviews formed the basis for probable cause for the search warrant, which led to the discovery of the murder weapon, which in turn led to [Anderson’s] arrest and his eventual allegedly false confession. [See] id. at 29. Counsel did not seek suppression of all of the evidence derived from [Anderson’s] custodial interrogation. [See] Omnibus Pre- Trial Motion, 10/14/13, 1-3 (unpaginated).
Commonwealth’s Brief at 43 (emphasis in original).
The Commonwealth, in effect, recognizes that counsel should have done
so. However, the Commonwealth essentially argues that, even had the more
comprehensive suppression motion been filed, it may not have garnered relief
as the Commonwealth may have presented evidence that it had an
independent source, outside of Anderson’s statement, for the information
derived from Anderson’s illegally-obtained statement. To that end, the
Commonwealth states:
The record does not reflect whether police had an independent source for the information [Anderson] now claims counsel should have moved to suppress. See [ ] Santiago, 209 A.3d [at] 923 [ ] (citing Nix v. Williams, 467 U.S. 431, 442-443 (1984) for the proposition that the independent source and inevitable discovery doctrine purges the taint of illegally obtained evidence). Of particular concern is whether Thompson’s only statement incriminating [Anderson] and informing detectives where to find the gun, and Farrell[’s] and Holmes’[s] second statements, were fruit of the poisonous tree. The evidence [Anderson] claims should
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have been suppressed includes much of the evidence the Commonwealth presented at trial.
Commonwealth’s Brief at 43-44. “Because much of the Commonwealth’s trial
evidence is at issue”, the Commonwealth asks this Court to remand for an
evidentiary hearing on this issue. See id. at 45.
We agree that an evidentiary hearing is warranted. At this juncture, we
are unable to say that there is no genuine issue of material fact regarding this
claim or that Anderson is not entitled to relief on the basis of counsel’s failure
to seek a motion to suppress the derivative evidence obtained from the
unconstitutionally-coerced statement. A hearing will provide a forum to
answer these questions, and therefore there is a clear purpose to be served
by such further proceedings. See Shaw, 217 A.3d at 269.
We note that the PCRA court did not address this specific claim in its
opinion. Rather, the PCRA court rejected Anderson’s suppression claim on the
basis that counsel did, in fact, file a motion to suppress. While there is no
dispute that counsel filed a motion to suppress, that motion sought
suppression of the statements Anderson gave to police. It also sought, in a
separate heading, suppression of the evidence seized from Anderson’s house
based on an argument that the search warrant was defective.
The omnibus pre-trial motion did not seek suppression of the substantial
evidence the police derived from Anderson’s initial and unconstitutional
statement he gave to police, which is what forms the basis of Anderson’s
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particular claim of ineffectiveness here.7 In the end, we agree with the
Commonwealth that the factual and procedural landscape of this case,
detailed above, leaves open the question of whether counsel was ineffective
for failing to seek suppression of the fruit derived from Anderson’s initial and
unconstitutional statement to police. We therefore reverse the part of the
PCRA court’s order dismissing this claim without a hearing, and remand to the
PCRA court to hold such a hearing.
We must now turn to the five other ineffectiveness claims raised by
Anderson to determine whether those claims merit any relief. Anderson
essentially argues in his second claim that counsel was ineffective for allowing
Anderson to reject the Commonwealth’s plea offer with a recommended
sentence of 32 to 64 years before ensuring that Anderson was aware that he
would receive a mandatory sentence of life imprisonment should he proceed
to trial and be convicted of first-degree murder. Anderson insists he would
have accepted the plea if he understood this. This claim fails.
7 The PCRA court also noted that, in addition to its belief that counsel had already litigated this claim, this Court had previously reviewed this issue and found that although Anderson’s statement had been unconstitutionally obtained, the error was harmless because Farrell’s initial statement contained substantially similar information. However, Anderson’s claim here is essentially that police learned of Farrell’s identity through Anderson’s initial, unconstitutionally-obtained statement, which led to the police interviewing Farrell and ultimately obtaining his statement. To be sure, Detective Griffin explicitly stated that “we did not know of [Farrell] … until we spoke to [ ] Anderson.” See N.T. Motion Volume I, 10/6/14, at 47-48.
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Counsel has a duty to communicate and explain the advantages and
disadvantages of a plea offer to his client. See Commonwealth v. Martinez,
777 A.2d 1121, 1124 (Pa. Super. 2001). “Failure to do so may be considered
ineffectiveness of counsel if the defendant is sentenced to a longer prison term
than the term he would have accepted under the plea bargain.” Id. In order
to obtain relief, a petitioner must show that the ineffective assistance of
counsel caused him to reject the plea. See Commonwealth v. Steckley, 128
A.3d 826, 832 (Pa. Super. 2015).
Here, the Commonwealth offered Anderson a recommended sentence of
32 to 64 years in exchange for a guilty plea to third-degree murder, a firearms
offense, conspiracy to commit burglary, and false reports to police. The court
colloquied Anderson twice regarding his decision on whether or not to accept
the guilty plea. The court held the first plea colloquy on September 23, 2014.8
At that colloquy, the following exchange took place:
THE COURT: The charges against you are what we refer to as murder generally, which would include first-degree murder, and certain gun charges. If you go to trial and are convicted of first-degree murder, the mandatory sentence is life in prison. Do you understand that? ____________________________________________
8 The notes of testimony from the September 23, 2014 colloquy were not in the certified record. All appellants, even those proceeding pro se, are responsible for making sure the record forwarded to this Court contains that which is needed for the Court to properly review any particular claim brought by the appellant. See Commonwealth v. Shreffler, 249 A.3d 575, 584 (Pa. Super. 2021). Notwithstanding Anderson’s failure to do so here, upon informal inquiry, our Prothonotary was able to secure the notes of testimony and include them in the record, enabling us to undertake a more complete assessment of this claim.
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[ANDERSON]: Yes, sir.
THE COURT: There can be no other sentence. It’s life in prison without parole. Do you understand that, sir?
N.T. Hearing, 9/23/14, at 5. The court then went on to explain the plea that
the Commonwealth had offered him, including the recommended sentence of
32 to 64 years, and Anderson acknowledged that those terms had been
explained to him. See id. at 5-6. Anderson rejected the offer at that time. The
court, however, gave him additional time to consider the plea.
This exchange in and of itself shows that Anderson was made aware
that, should he go to trial and be convicted of first-degree murder, he would
face a mandatory sentence of life imprisonment. His claim fails for that reason
alone.
However, counsel’s involvement in making sure Anderson understood
the terms of the plea and the consequences of not accepting that plea did not
end there. Following this colloquy, on October 1, 2014, counsel sent Anderson
a letter memorializing what Anderson and his family had discussed regarding
the plea given the “serious ramifications involved” in this case. Attorney/Client
Correspondence, 10/1/14, at 1 (unpaginated). The letter, in no uncertain
terms, urged Anderson to accept the plea. The letter recounted the
incriminating evidence the Commonwealth had against Anderson, including
his confession, his admission to his friends that he had killed Crump, and the
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fact that the murder weapon was found in his freezer. See id. at 1-2. It was,
counsel admitted, the “most difficult set of facts [he had] ever been given.”
Id. at 2. Counsel predicted that if Anderson went to trial, he would be
convicted of murder in the first degree and he therefore implored him to
accept the plea offer. Id. at 2. The letter stated:
Obviously, none of this is new news to you, as I have explained this all to you in person, which you readily rejected. I am hoping that perhaps if you see it in black and white, you will see how difficult a task you have been given… I do care about my clients, especially at the tender age of 19.
Id. at 2.
Anderson then appeared in court on October 6, 2014, and the court held
a second plea colloquy. In that colloquy, the court recounted how it had
previously discussed with Anderson the terms and the recommended sentence
of the Commonwealth’s plea, and that Anderson had rejected the plea at that
time. See N.T. Trial, 10/6/14, at 5-6. The court stated that it was its
understanding that Anderson had again discussed the plea with counsel and
family as recently as that morning. Anderson acknowledged that he had the
opportunity to discuss the plea with his family and counsel, but that he still
did not want to accept the plea. See id. at 6.
Based on all of the above, it is clear that counsel was not ineffective for
failing to ensure Anderson was aware that he faced a mandatory sentence of
life if he proceeded to trial and in turn, that the Commonwealth’s plea offered
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a lesser sentence than life. Anderson’s acknowledgement that he understood
this is on the record.
Anderson asserts in his next claim that counsel was ineffective for urging
Anderson to take the plea because it included charges that were not included
in the bill of information. Specifically, Anderson notes that the plea agreement
would have required him to plead guilty to conspiracy to commit burglary and
false reports to the police, and neither of these charges were included in the
bill of information.9 He appears to argue that the inclusion of these charges in
the plea confused him, counsel did not clarify the matter for him, and this
confusion caused him to reject the plea. This claim fails.
The prosecutor has the power to select the criminal charges to be filed
against a defendant and to negotiate plea bargains. See Commonwealth v.
Cosby, 252 A.3d 1092, 1131 (Pa. 2021). As for the propriety of the terms of
a plea agreement, we have stated:
The terms of plea agreements are not limited to the withdrawal of charges, or the length of a sentence. Parties may agree to - and seek enforcement of - terms that fall outside these areas. Moreover, even though a plea agreement arises in a criminal context, it remains contractual in nature and is to be analyzed under contract law standards.
Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013)
(internal citation omitted). Of course, unlike a typical contract, a plea
9 In addition to murder, Anderson was charged with firearms not to be carried without a license, possession of a firearm prohibited, and possession of an instrument of crime.
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agreement consented to by the parties does not become binding and valid
until accepted by the trial court. See Commonwealth v. Martinez, 147 A.3d
517.
Here, Anderson does not allege that the trial court would not have
accepted the plea offered to him if Anderson himself had first chosen to accept
it. In fact, in rejecting this claim below, the PCRA court stated:
It is clear to this court that [Anderson] was not given additional charges in his plea agreement. Instead, the plea agreement replaced charges, such as replacing first-degree murder with third[-]degree murder. The number of charges remained the same: the only difference was the severity of some of the charges. The most significant change was that the plea involved third- degree murder, not first-degree murder, meaning that [Anderson] did not automatically face life imprisonment and instead faced an aggregate term of [32 to 64] years for those charges. Any claim that [Anderson’s] attorney negotiated for additional or illegal charges is incorrect.
PCRA Court Opinion, 10/22/20, at 15.
We see no error in the court’s conclusion that counsel was not ineffective
for advocating that Anderson take a plea that included lesser charges than
those included in his bill of information. We note that Anderson does not cite
to any case supporting his assertion that the plea offer was invalid because it
included uncharged but lesser offenses than the ones he had been charged
with in the bill of information. As the Commonwealth points out, the bill of
information could have been amended to include the lesser charges.
Moreover, again as the Commonwealth points out, the facts of this case “were
sufficient to support the offenses offered in the plea, meaning the plea was
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valid.” Commonwealth’s Brief at 51; see Commonwealth v. Vaughn, 326
A.2d 393, 394 (Pa. 1974) (holding that a guilty plea should not be accepted if
the facts of the case do not support the plea). Anderson does not dispute this.
We also add that while counsel absolutely has a duty to explain the
terms of a plea offer to the client, if the client is confused by those terms, as
Anderson suggests he was here, it is incumbent upon the client to ask for
further clarification. That way, counsel has the opportunity to try to explain
the terms of a plea offer in a way the client better understands. Although
Anderson now seems to claim he was confused by the plea offer, he does not
allege that he asked counsel to try to defuse that confusion or that counsel
refused to do so. No relief is due on this claim.
Next, Anderson claims counsel was ineffective for failing to object to five
statements the prosecutor made during closing arguments. Although the PCRA
court did not specifically address each individual statement Anderson
challenges, the court did conclude in its opinion that Anderson was not entitled
to any relief on the basis of his claim of prosecutorial misconduct. We see no
error in that conclusion.
A prosecutor’s comments constitute reversible error only “where their
unavoidable effect is to prejudice the jury, forming in their minds a fixed bias
and hostility toward the defendant such that [the jury] could not weigh the
evidence objectively and render a fair verdict.” Commonwealth v. Tedford,
960 A.2d 1, 33 (Pa. 2008) (citation omitted). A prosecutor is permitted to
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respond to arguments made by the defense. See id. Therefore, if defense
counsel attacks the credibility of a witness, the prosecutor may respond to
counsel’s argument and address the credibility of the witness. See
Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009). Moreover,
comments based on the evidence, or proper inferences derived from that
evidence, or ones that amount to mere oratorical flair, do not amount to
prosecutorial misconduct. See Tedford, 960 A.2d at 33. Any prejudice
stemming from a prosecutor's factual misstatement during closing arguments
may be cured by the court’s instruction that the attorneys’ arguments are not
evidence and the jury is the sole fact-finder. See Commonwealth v.
Simmons, 662 A.2d 621, 639-640 (Pa. 1995)
The first prosecutorial statement Anderson challenges is “James
Thompson, you had to love James Thompson. He was the most credible
witness in this case.” N.T. Trial, 10/15/14, at 62. Anderson complains that this
statement amounted to improper witness bolstering in violation of the ABA
Standards for Prosecutors. However, we agree with the Commonwealth that
the statement was not improper as defense counsel questioned Thompson’s
credibility during his closing argument, see N.T., 10/15/14, 52-54, and
Anderson fails to show that the challenged statement was not a fair response
to defense counsel’s argument in that regard. See Judy, 978 A.2d at 1020.
As a result, Anderson has not demonstrated that counsel was ineffective for
failing to object to this statement.
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Next, Anderson asserts that counsel was ineffective for failing to object
when the prosecutor argued to the jury that the murder was a “gruesome
thing. Daquan Crump is shot in the head ten times. He’s left to die in that
construction site like a dog” and Anderson “let his friend die like a dog over
$60.” N.T. Trial, 10/15/14, at 64-65, 71. Anderson complains these comments
constituted an improper appeal to the passions and prejudices of the jury.
However, we agree with the Commonwealth that these statements “exhibited
oratorical flair supported by the evidence that [Crump] was shot in the head
ten times” over a dispute regarding the proceeds from the sale of a stolen
game system. Commonwealth’s Brief at 57; see also Tedford, 960 A.2d at
33. They do not, contrary to Anderson’s allegations, constitute prosecutorial
misconduct and Anderson has therefore not met his burden of showing counsel
was ineffective for failing to object.
Third, Anderson claims that the prosecutor misstated the evidence when
he argued to the jury that “Well, yeah James Thompson is down at Homicide
because Quil Banga gives him information that [Anderson] has a .22. Huh,
how about that link.” N.T., 10/15/14, at 72-73. We agree with Anderson that
the prosecutor’s statement is not supported by the record. However, Anderson
has not shown that the unavoidable effect of this statement was to prejudice
the jury by forming in their minds a fixed bias and hostility toward Anderson,
thus impeding their ability to weigh the evidence objectively. See Tedford,
960 A.2d at 33. This is especially true in light of the fact that the trial court
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specifically instructed the jury twice that the statements made by counsel are
not evidence. See N.T. Trial, 10/6/14, at 136; N.T. Trial, 10/15/14, at 100;
Simmons, 662 A.2d at 639-640. As such, Anderson has failed to show that
this claim has arguable merit, and therefore that counsel’s failure to object to
this statement amounted to ineffective assistance.10
We also do not agree with Anderson that counsel was ineffective for
failing to object to the prosecutor’s statement that Anderson and Crump had
been fighting since the Friday or Saturday before the murder. While the
Commonwealth concedes there was no testimony at trial supporting the
prosecutor's assertion in this regard, we note that Thompson did testify that
Anderson had told him he was angry at Crump for stealing the game system
without him and acting stingy. See N.T. Trial, 10/10/14, at 92-93. As such,
we agree with the Commonwealth that the “misstatement was minor, and any
prejudice [was] cured by the court’s instruction to the jury that the
attorney[s’] arguments are not evidence. Simmons, 662 A.2d at 639-40.”
Commonwealth’s Brief at 59. Moreover, Anderson does not allege that the
prosecutor deliberately misrepresented the testimony, nor does a review of
10 Anderson also summarily asserts that the prosecutor’s statement was an attempt to divert the jury’s attention away from the fact that Thompson went to the police station intoxicated and with the intent to lie. Anderson does not explain or develop this bald assertion any further, and it is consequently waived. See Commonwealth v. Treiber, 121 A.3d 435, 467 (Pa. 2015) (stating that ineffectiveness claims that are not properly developed are waived).
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the record show evidence of such intent. See Simmons, 662 A.2d at 639-640
(holding that prosecutor’s misstatement of testimony was not prosecutorial
misconduct when there was no evidence the misstatement was deliberate).
Therefore, Anderson has failed to show counsel was ineffective.
The final prosecutorial statement Anderson claims counsel was
ineffective for failing to object to is the statement “That’s when the body is
found. James Thompson, I don’t know what time it was, 3:30, 4:30. It was
somewhere around there. He called his parents. You know he called his
parents. Finally, they’re like, Where are you? That’s how come he knows what
time it was.” N.T. Trial, 10/15/14, at 77-78. Anderson argues this statement
was improper because Thompson did not testify that he called his parents that
morning. As the Commonwealth notes, however, this statement was likely a
mix-up with Anderson’s statement that his parents called him around three
a.m. to come home. Indeed, Anderson does not allege, nor does the record
reflect, that the misstatement was deliberate. We agree with the
Commonwealth that this was an unintentional and minor inconsistency, and
any prejudice was cured by the court’s jury instructions, given twice, that the
attorney’s comments are not evidence. See Simmons, 662 A.2d at 639-40.
Therefore, this particular claim also does not support a finding that counsel
was ineffective.
In the end, we see no error in the PCRA court’s conclusion that none of
these instances of alleged prosecutorial misconduct provide a basis of relief
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for Anderson. He has not shown that counsel was ineffective for failing to
object to any of these statements, either because the comments were proper
responses to defense counsel’s arguments, represented oratorical flair
supported by the evidence, or were factual misstatements with any resulting
prejudice being cured by the court’s specific instruction that the attorneys’
arguments are not evidence. No relief is due.
In his fourth claim, Anderson takes issue with counsel’s actions
regarding the diminished capacity/intoxication charge given by the court.
Anderson acknowledges that counsel asked for a diminished
capacity/intoxication charge based on the evidence that Anderson smoked
marijuana on the day of the murder, and the court gave such a charge. See
N.T. Trial, 10/15/14, at 120-121, 123. He contends, however, that counsel
should have also requested that the charge include the fact that Anderson
“drank” on the day of the murder. In support of this contention, Anderson
points to his second statement to police in which he claimed that he and
Crump “smoke and drank” all day prior to the murder. He proposes that
“drank” could possibly mean that he took some type of oral medication, and
speculates that a toxicology report of Crump could support this. 11 In the
alternative, he argues that “drank” refers to alcohol consumption. Either way,
11 We note that the record does include a toxicology report performed on Crump. However, Anderson in no way makes any meaningful effort to tie that toxicology report to his claim here.
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he summarily asserts that counsel should have requested that the diminished
capacity/intoxication charge include a reference that he had also “drank” on
the day of the murder. This claim is meritless.
A diminished capacity instruction due to voluntary intoxication is only
warranted where the record contains evidence that the defendant was
intoxicated to the point of losing his faculties or sensibilities. See
Commonwealth v. Padilla, 80 A.3d 1238, 1263 (Pa. 2013). Evidence that a
defendant merely ingested alcohol or drugs, without more, does not warrant
a voluntary intoxication instruction. See id.
Here, we agree with the PCRA court’s conclusion that Anderson has not
demonstrated that counsel was ineffective as it relates to his request for a
diminished capacity instruction. As the Commonwealth aptly explains:
The court instructed the jury on diminished capacity because there was evidence that [Anderson] smoked marijuana. The only evidence that [Anderson] drank alcohol is a passing reference in his confession. Moreover, there was no evidence that [Anderson] was intoxicated to the point of losing his faculties or sensibilities.
Commonwealth’s Brief at 62 (citations to notes of testimony omitted).
As such, it is questionable whether Anderson has shown that he was
entitled to any diminished capacity instruction, though the court granted
counsel’s request and gave one as it related to Anderson’s marijuana use. In
any event, because the record does not contain evidence that would warrant
the giving of a diminished capacity instruction for use of an unidentified oral
medication or alcohol, Anderson has failed to demonstrate that counsel was
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ineffective for requesting a diminished capacity instruction that included the
ingestion of those substances. No relief is due.
In his final claim, Anderson argues that counsel breached his duty of
loyalty to Anderson, and labored under a conflict of interest, because counsel
did not, according to Anderson, believe Anderson’s version of the events
surrounding Crump’s murder. In support of this assertion, he points to
excerpts from counsel’s letter urging him to take the plea as well as to
statements made by counsel during trial and his opening argument. He
appears to allege that all of the above ineffectiveness claims are a result of
counsel’s hostility towards him and his subsequent breach of loyalty, and that
he is therefore entitled to relief based on the cumulative prejudice emanating
from those claims. This claim is also without any merit.
The duty of loyalty is the obligation of counsel to avoid actual conflicts
of interest that would adversely affect counsel’s ability to perform on behalf
of their client. See Commonwealth v. Washington, 880 A.2d 536, 543 (Pa.
2005). To establish a breach of this duty, the client must show there was an
actual conflict of interest and that the conflict adversely affected the outcome
of the client’s case. See id. When a client claims that counsel was ineffective
because personal animosity caused a conflict of interest, the client must show
a direct correlation between the animosity and the deprivation of his right to
a fair trial. See id. at 545. At the same time, counsel’s strict belief in a client’s
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innocence is not a requisite of effective representation. See Commonwealth
v. Gardner, 378 A.2d 465, 469 (Pa. Super. 1977).
Anderson first argues that counsel’s letter, referenced in detail above,
demonstrates that counsel breached his duty of loyalty to him. We agree with
the PCRA court that this is simply not the case. Rather, it is clear that counsel
“wrote the letter to give [Anderson] a realistic outlook of his trial prospects,
not as proof of abandoning his client.” PCRA court opinion, 10/22/20, at 26.
The reality outlined by counsel was that, in light of the extensive evidence the
Commonwealth had against Anderson, it was counsel’s belief that Anderson
would be convicted of first-degree murder if he went to trial. Counsel made
clear in this letter that he was actually looking out for Anderson’s interests by
recommending that he take the plea to avoid a first-degree murder conviction.
Anderson complains, however, that the letter demonstrated counsel had
a conflict of interest and did not believe his side of the story given that the
letter documented that the murder weapon had been found in his freezer,
Anderson had spoken to police against counsel’s advice, and that he was the
last person to be seen with Crump. Of course, as both the Commonwealth and
the PCRA court point out, counsel’s letter was merely reciting the evidence
the Commonwealth had to support its prosecution of Anderson for first-degree
murder. In any event, even if counsel “actively believed” that Anderson
confessed to and was guilty of the murder, as Anderson maintains, “[c]ounsel
does not have to believe in their client’s innocence to effectively represent
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him, so absent a demonstration of how this belief directly affected the
outcome of trial, counsel did not breach his duty of loyalty.” Commonwealth’s
Brief at 65 (citing Washington 880 A.2d at 545; Gardner, 378 A.2d at 469).
In the same vein, Anderson complains that counsel’s statements during
trial that Anderson stayed home on the night of August 19, 2013, rather than
going to Farrell’s house with the rest of the group, represented a breach of
loyalty because it contradicted the record and his version of events. Again,
Anderson has not shown that counsel made these statements out of hostility
towards him or out of any conflict of interest, or that the statements served
to deprive him of a fair trial. See Washington, 880 A.2d at 545.
Anderson also insists that counsel acted contrary to his interests when
he stated in his opening remarks that “If what was just said [by the prosecutor
in her opening remarks, outlining all of the evidence the Commonwealth had
against Anderson] was the situation, we don’t even need a trial. We just need
a noose.” N.T. Trial, 10/8/14, at 146. However, Anderson neglects to put this
statement in context. After he made that statement, defense counsel
continued:
This defendant suffered a tremendous loss when his friend was killed. They were friends a long time. They were really good friends. And so much so that when the deceased, Daquan Crump, needed a place to live, he brought him in.
Id.
As the Commonwealth explains, “[c]ounsel made [the challenged]
statement in the context of setting up the defense theory that [Anderson] had
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no motive to desire the death of [Crump] because they were best friends. In
this instance, [the challenged] statement was not prejudicial.”
Commonwealth’s Brief at 65.
We agree, and conclude that Anderson has not shown that this
statement demonstrates counsel was hostile towards him or was laboring
under a conflict of interest, nor has he shown that the statement deprived him
of a fair trial. See Washington, 880 A.2d at 545. We also note that to the
extent Anderson makes the overarching claim that all of the ineffectiveness
claims he presents in this appeal stemmed from counsel’s hostility towards
him or some other conflict of interest, and that he is therefore entitled to relief
based on the cumulative effect of all of those claims, we reject this claim. “No
number of failed claims may collectively warrant relief if they fail to do so
individually.” Tedford, 960 A.2d at 56 (citations omitted). While we agree
with Anderson that his first claim merits relief, we have given him relief based
on that one meritorious claim. The rest of his ineffectiveness claims do not
warrant relief, individually or cumulatively.
In sum, we conclude that Anderson is entitled to an evidentiary hearing
on his claim that counsel was ineffective for failing to file a motion to suppress
the evidence derived from his initial, unconstitutionally-obtained statement to
police. We therefore reverse the portion of the PCRA court order denying that
claim without a hearing. We also agree with the PCRA court that the remainder
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of Anderson’s ineffectiveness claims lack merit, and affirm that portion of its
order dismissing those claims without a hearing.
Order reversed in part, and affirmed in part. Matter remanded to the
PCRA court to hold a hearing, limited to Anderson’s claim that counsel was
ineffective for failing to file a motion to suppress the evidence derived from
Anderson’s initial statement to police. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/28/2022
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