J-S16022-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LARRY CARTER : : Appellant : No. 1595 EDA 2023
Appeal from the PCRA Order Entered May 18, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0014438-2011
BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY LANE, J.: FILED JULY 15, 2024
Larry Carter (“Carter”) appeals from the order dismissing his petition for
relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 We affirm.
In June 2011, Carter shot Albert Young-El (“Young-El”) in his back while
he was riding his bicycle in a residential area of Philadelphia. As a result of
his injuries, Young-El was transported to the hospital where he remained in
critical condition. Nydira Price (“Price”), a resident of the neighborhood who
knew Carter by the name “El-Train,” witnessed the shooting and contacted
police to report the incident. Police subsequently apprehended Carter and
took him in for questioning. Carter told police that he did not know anything
about the shooting. When asked to provide a formal statement, Carter
refused, and was subsequently released. When Young-El was stable enough ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546. J-S16022-24
to speak with police, he informed them that El Train, whom he had known for
years, shot him. Young-El additionally confirmed Carter’s identity as the
shooter by photo array. Several months later, police arrested Carter and
charged him with criminal attempted murder, aggravated assault, and related
offenses.
The matter proceeded to a bifurcated non-jury trial at which the
Commonwealth presented the testimony of Young-El, who underwent seven
surgeries and is paralyzed from the waist down as a result of the shooting.
Young-El identified Carter in the courtroom and testified that he was the man
who shot him in the back. See N.T., 11/26/13, at 10-13.
The Commonwealth also presented the testimony of Price, who had
known Carter since 2010 and identified him in the courtroom. See N.T.,
1/15/14, at 10, 26. Price testified that she saw Carter shoot Young-El while
he was on his bike, and then walk away. See id. at 9-11. Price stated that
when officers arrived at the scene, she heard Young-El emphatically tell the
officers that “El Train did it. That f**ken El Train did it.” Id. at 31. On cross-
examination by trial counsel, Price provided the following testimony:
[Trial Counsel]: You never saw my client do anything violent, prior to that evening; correct?
[Price]: Oh, yes.
[Trial Counsel]: Okay. With a gun?
[Price]: No.
[Trial Counsel]: Never seen him with a gun?
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[Price]: Not until the day of the shooting.
[Trial Counsel]: Okay. Never saw him with a gun until the day of the shooting; understood.
Id. at 28-29. On redirect by the prosecutor, Price testified as follows:
[Prosecutor]: Ma’am, what other violent things have you seen El Train do?
[Price]: Beat people up, sell drugs, this shooting.
[Prosecutor]: Another shooting?
[Price]: I said this shooting.
[Prosecutor]: Okay. Where did you see [him] sell drugs?
[Price]: In my neighborhood.
Id. at 36-37. On re-cross-examination, trial counsel attempted to minimize
Price’s testimony and elicited the following testimony from her:
[Trial Counsel]: Okay. Despite the fact that you say you saw my client get into fights, you’re 100 percent certain you said you never seen him with a gun; right?
[Trial Counsel]: Just that one day now you see him with a gun on the day of the shooting?
[Price]: Yes.
[Trial Counsel]: Nothing prior to that; right?
Id. at 40.
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The Commonwealth also presented the testimony of Detective Edward
Keppol, who was one of the officers that initially questioned Carter regarding
the shooting. On cross-examination, Detective Keppol provided the following
testimony:
[Trial Counsel]: What was the next step in your investigation?
[Detective Keppol]: We were inside Central Detectives where the defendant in this case, . . . Carter, was brought in for investigation.
[Trial Counsel]: Did you speak with . . . Carter, at that time?
[Detective Keppol]: Spoke with him briefly, yes; asked if he knew anything about the shooting. He said he didn’t know anything about it. He refused to give a formal statement.
[Trial Counsel]: So what was done with [Carter], at that time?
[Detective Keppol]: After we talked to him for a little while and we got no information from him, he was released.
Id. at 111-12.
At the conclusion of trial, the court convicted Carter of attempted
murder, aggravated assault, and related offenses. On April 25, 2014, the trial
court imposed an aggregate sentence of thirty and one-half to sixty-one years’
incarceration. This Court affirmed the judgment of sentence, and our
Supreme Court denied allowance of appeal on February 23, 2016. See
Commonwealth v. Carter, 131 A.3d 103 (Pa. Super. 2015) (unpublished
memorandum), appeal denied, 132 A.3d 456 (Pa. 2016). Carter did not seek
further review in the United States Supreme Court.
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On July 8, 2016, Carter filed the instant, timely pro se PCRA petition.2
The PCRA court appointed counsel, who filed an amended petition raising
claims that trial counsel was ineffective for: (1) improperly eliciting
inadmissible character evidence from Price; and (2) failing to object to
Detective Keppol’s testimony that Carter refused to provide a formal
statement. On June 28, 2022, the PCRA court conducted an evidentiary
hearing at which trial counsel testified. On May 18, 2023, the PCRA court
entered an order dismissing Carter’s petition. Carter filed a timely notice of
appeal. The PCRA court did not require Carter to file a Pa.R.A.P. 1925(b)
concise statement. In lieu of authoring a Rule 1925(a) opinion, the PCRA
court referred this Court to its May 18, 2023 opinion.
Carter raises the following issues for our review:
1. Did the trial court err in dismissing [Carter’s] PCRA petition after an evidentiary hearing when trial counsel was ineffective for eliciting unduly prejudicial and inadmissible character evidence by asking an alleged eye-witness to the crime in question whether or not she ever “saw my client do anything violent, prior to that evening” to which the witness responded “[o]h, yes” and then was allowed to elaborate on re-direct from the district attorney that she had previously seen [Carter]
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2 Under the PCRA, a petition must be filed within one year after the judgment
of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). Carter’s judgment of sentence became final on May 23, 2016, after the time in which he could have sought review in the United States Supreme Court expired. See U.S. Sup. Ct. R. 13 (stating appellant must file a petition for writ of certiorari with the United States Supreme Court within ninety days after entry of judgment by a state court of last resort). Thus, Carter had until May 23, 2017, to timely file a PCRA petition. Since the instant petition was filed on July 8, 2016, it is timely.
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“beat people up, sell drugs, this shooting.” [N.T.], 1/15/14, [at] 28, 36-37[.]
2. Did the trial court err in dismissing [Carter’s] PCRA petition after an evidentiary hearing when trial counsel was ineffective for failing to object when . . . Detective Keppol, testified on direct examination that [Carter] “refused to give a formal statement” in violation of the Fifth Amendment of the United States Constitution and Article I[,] § 9 of the Pennsylvania Constitution. [N.T.], 1/15/14, [at] 112[.]
Carter’s Brief at 2 (unnecessary 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).
To prevail on a claim of ineffective assistance of counsel, a PCRA
petitioner must satisfy the performance and prejudice test set forth by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984). Accordingly, to prove that counsel was ineffective, the petitioner
must demonstrate:
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(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.
We need not analyze the prongs of an ineffectiveness claim in any particular order. Rather, we may discuss first any prong that an appellant cannot satisfy under the prevailing law and the applicable facts and circumstances of the case. Finally, counsel cannot be deemed ineffective for failing to raise a meritless claim.
Commonwealth v. Johnson, 139 A.3d 1257, 1272 (Pa. 2016) (some
citations and quotation marks omitted). The failure to satisfy any one prong
of the ineffectiveness test is fatal to a petitioner’s claim. See
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009).
In his first issue, Carter argues that trial counsel provided ineffective
assistance when he elicited testimony from Price regarding Carter’s prior
instances of violence. The concern for error as it relates to the admissibility
of witness testimony is minimized in a non-jury trial where the trial court,
sitting as the trier of fact, “is presumed to know the law, ignore prejudicial
statements, and disregard inadmissible evidence.” Commonwealth v.
Smith, 97 A.3d 782, 788 (Pa. Super. 2014); see also Commonwealth v.
Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016). Furthermore, in order to
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constitute reversible error, an error in the admission of evidence must have
contributed to the verdict. See Konias, 136 A.3d at 1022.
Carter explains that trial counsel asked Price on cross-examination,
“[y]ou never saw [Carter] do anything violent, prior to that evening.” Carter’s
Brief at 7 (quoting N.T., 1/15/14, at 28). Carter points to Price’s response to
that question, “[o]h, yes.” Id. (quoting N.T., 1/15/14, at 28). Carter claims
that Price’s answer to trial counsel’s question was inadmissible as character
evidence, and was unfavorable, exceedingly prejudicial, and devoid of
probative value. Carter further argues that trial counsel’s error opened the
door for the Commonwealth to question Price on redirect about the specific
instances of violence that she had seen Carter engage in prior to the shooting
in question. Carter claims that, as a result of counsel’s error, the
Commonwealth elicited Price’s further testimony that she had seen Carter
“beat people up, sell drugs, this shooting.” Id. (quoting N.T., 1/15/14, at 36-
37).
Carter characterizes trial counsel’s question to Price as ill-advised and
extremely risky, and maintains that he satisfied all three prongs of the test
for ineffectiveness. First, Carter argues that his ineffectiveness claim has
arguable merit since trial counsel sought to elicit improper character evidence,
and in doing so, only brought in additional evidence against his own client’s
character. Second, Carter contends that trial counsel lacked a reasonable
strategic basis to ask the question because counsel was aware of Carter’s
previous conviction for simple assault, and counsel had no reason to believe
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that Price’s answer would be favorable. Finally, Carter maintains that he was
prejudiced since trial counsel’s question resulted in the fact-finder hearing
testimony that Carter had engaged in other acts of violence, including beating
people up, and selling drugs, during a trial in which he was accused of shooting
someone over a drug debt.
The PCRA court considered Carter’s first ineffectiveness claim and
determined that he failed to satisfy the arguable merit prong of the
performance and prejudice test. See PCRA Court Opinion, 5/18/23, at 11. In
so ruling, the court noted that the character evidence elicited from Price was
“inadmissible,” “irrelevant,” and “unduly prejudicial.” Id. The court
additionally noted that the inadmissible character evidence “did not singularly
persuade this court.” Id.
As explained above, when reviewing a ruling on an ineffectiveness claim,
this Court need not analyze the three prongs of the performance and prejudice
test in any particular order. See Johnson, 139 A.3d at 1272. Instead, we
may discuss first any prong that an appellant cannot satisfy under the
prevailing law and the applicable facts and circumstances of the case. Id.
Moreover, this Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Id. Thus, although the trial court determined that Carter
failed to satisfy the first prong of the performance and prejudice test, we
choose instead to consider whether Carter satisfied the third prong of the
test—which required him to prove that he suffered prejudice as a result of trial
counsel’s error.
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Here, the PCRA court judge was the same judge that presided over
Carter’s non-jury trial. As such, when presiding over Carter’s non-jury trial,
the judge sat both as fact-finder and as gatekeeper for the admission and
exclusion of evidence. See Commonwealth v. Dent, 837 A.2d 571, 582 (Pa.
Super. 2003) (holding “[i]t is of the essence of the judicial function to hear or
view proffered evidence, whether testimonial or in exhibit form, and to decide
whether or not it should be admitted into evidence, or if admitted initially or
provisionally, should later be excluded or disregarded”). In its opinion, the
PCRA court determined that the testimony elicited from Price was
“inadmissible,” “irrelevant,” and “unduly prejudicial.” See PCRA Court
Opinion, 5/18/23, at 11. As this was a non-jury trial, the trial court judge was
presumed to know the law regarding the admissibility of Price’s comments,
presumed to disregard any of Price’s comments which constituted inadmissible
character evidence, and presumed to ignore Price’s comments to the extent
that they were inadmissible or unduly prejudicial. See Smith, 97 A.3d at
788; see also Konias, 136 A.3d at 1022. Accordingly, as these presumptions
preclude Carter from establishing that trial counsel’s question resulted in the
admission of evidence which contributed to the verdict, it follows that Carter
cannot establish that there is a reasonable probability that the outcome of the
proceedings would have been different but for trial counsel’s question. See
Johnson, 139 A.3d at 1272.
Moreover, given that the Commonwealth presented the testimony of two
eyewitnesses to the shooting, both of whom had known Carter for years and
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one of whom was the victim, Carter has failed to convince this Court that there
is a reasonable probability that the outcome of the trial would have been
different but for trial counsel’s question. See id. Thus, as the PCRA court’s
determination that Carter cannot satisfy all three prongs of the performance
and prejudice test is supported by evidence of record and is free of legal error,
we conclude that Carter’s first issue merits no relief.
In his second issue, Carter argues that trial counsel was ineffective for
failing to object or seek curative measures when Detective Keppol referenced
Carter’s refusal to provide a formal statement to police. Where the defendant
does not testify at trial, the Fifth Amendment precludes the government from
using a defendant’s post-arrest silence as substantive evidence of
consciousness of guilt. See Commonwealth v. DiNicola, 866 A.2d 329, 335
(Pa. 2005). However, mere reference to a defendant’s silence does not
necessarily impinge constitutional rights when guilt is not implied. See
Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014). As our Supreme
Court has explained:
While we have interpreted the constitutional right against self-incrimination generally to prohibit prosecutors from referencing a defendant’s silence as substantive evidence of guilt, this Court has also concluded that the right against self- incrimination is not burdened when the reference to silence is circumspect and does not create an inference of an admission of guilt. . . . [E]ven 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.
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Id. (citations and quotation marks omitted) (considering a detective’s trial
testimony that defendant “had nothing to say” when interviewed by law
enforcement and concluding that such testimony did not unconstitutionally
burden defendant’s right against self-incrimination because the reference was
contextual, brief, and did not highlight defendant’s silence as evidence of
guilt). The mere revelation of silence does not establish innate prejudice for
ineffectiveness purposes and, instead, the reference to the defendant’s silence
must be weighed against the strength of the evidence. See DiNicola, 866
A.2d at 335; see also Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa.
1998) (holding that defendant failed to show prejudice from counsel’s failure
to object to a reference to defendant’s pre-arrest silence “in light of the
testimony of . . . two living witnesses and the officers themselves, and the
evidence of the deceased victim’s blood on appellant and the victims’ stolen
items on appellant’s person”).
Carter claims that Detective Keppol’s statement, that Carter “refused to
give a formal statement,” improperly highlighted the invocation of his right to
remain silent, thereby violating the Fifth Amendment of the U.S. Constitution,
and Article I, § 9, of the Pennsylvania Constitution. Carter’s Brief at 9 (quoting
N.T., 1/15/14, at 112). Carter asserts that trial counsel was ineffective for
failing to object to this testimony or seek any curative measures following the
detective’s statement. According to Carter, trial counsel had no reasonable
strategy for failing to object to this statement, and he suffered prejudice as a
result of counsel’s failure.
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The PCRA court considered Carter’s second ineffectiveness claim and
determined that it lacked merit. Although the PCRA court determined that
Carter’s claim had arguable merit and that trial counsel had no reasonable
basis not to object to the detective’s testimony, the court nevertheless
concluded that Carter failed to satisfy the prejudice prong of the
ineffectiveness test. See PCRA Court Opinion, 5/18/23, at 12. Specifically,
the court determined that Carter was unable to show that he suffered
prejudice due to the detective’s comment because “there was eyewitness
evidence of his criminal acts for the incident in question.” Id.
Based on our review, we conclude that the PCRA court’s determination
is supported by evidence of record and is free of legal error. Initially, we
conclude that Carter failed to meet the first prong of the performance and
prejudice test by demonstrating that his claim had arguable merit. The
detective’s reference to Carter’s “silence” was made in the context of the
detective’s explanation that he “[s]poke with [Carter] briefly, . . asked [him]
if he knew anything about the shooting[, h]e said he didn’t know anything
about it[, and h]e refused to give a formal statement.” N.T., 1/15/14, at 111-
12. Given that Carter told law enforcement that he did not know anything
about the shooting, the detective’s testimony regarding Carter’s refusal to
give a formal statement occurred in a context not likely to suggest to the fact-
finder that Carter’s silence was the equivalent of a tacit admission of guilt.
See Adams, 104 A.3d at 517. Rather, the reference to Carter’s refusal to
provide a formal statement was contextual, brief, and suggested that the
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reason for his silence was his lack of any knowledge regarding the shooting.
Id. at 518. Notably, trial counsel came to this same conclusion when
considering whether to object to the detective’s testimony. During the
evidentiary hearing conducted in this matter, trial counsel explained that he
decided not to object to the detective’s testimony because he believed that
the testimony was “probably admissible,” since the detective was “simply
clarifying [that Carter] gave an oral statement, but he didn’t give a written
statement.” N.T., 6/28/22, at 27. Thus, we conclude that Carter’s second
ineffectiveness claim lacked arguable merit because the detective’s testimony
did not unconstitutionally burden Carter’s right against self-incrimination.
Moreover, the record supports the PCRA court’s determination that
Carter failed to satisfy the third prong of the performance and prejudice test
in relation to his second ineffectiveness claim. Given that the Commonwealth
presented the testimony of two eyewitnesses to the shooting, both of whom
had known Carter for years and one of whom was the victim, Carter has failed
to convince this Court that there is a reasonable probability that the outcome
of the trial would have been different but for trial counsel’s failure to object to
the detective’s statement. Thus, we conclude that Carter cannot establish
that he suffered prejudice as a result of counsel’s failure to object to the
detective’s statement.
In sum, as the record supports the PCRA court’s determination that
Carter failed to satisfy all three prongs of the performance and prejudice test
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for either of his ineffectiveness claims, we affirm the order dismissing his PCRA
petition.
Order affirmed.
Date: 7/15/2024
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