Com. v. Ferguson, M.
418 WDA 2017
| Pa. Super. Ct. | Jan 9, 2018Background
- Michael D. Ferguson was convicted by jury of simple assault and multiple counts related to three armed robberies in July 2012 and sentenced to an aggregate term of 34–71 years after resentencing in 2015.
- On direct appeal this Court affirmed convictions but vacated the original sentence and remanded for resentencing due to Alleyne issues; resentencing occurred February 24, 2015 and that sentence was later affirmed on direct appeal.
- Ferguson filed a timely pro se PCRA petition (Feb. 2016); counsel was appointed and an amended petition was filed June 10, 2016. The PCRA court issued a Rule 907 notice and then dismissed the petition without an evidentiary hearing on Feb. 2, 2017.
- Ferguson raised six ineffective-assistance claims in the amended petition but pursued four on appeal: (1) failure to move to suppress a pretrial photographic identification; (2) failure to investigate/obtain evidence of a plea offer to co-defendant/witness Harry Boyer; (3) failure to move to suppress based on an allegedly defective search-warrant return; and (4) failure to obtain expert enhancement of surveillance video.
- The PCRA court dismissed each claim as waived, inadequately supported, or lacking prejudice; the Superior Court affirmed, finding no genuine issue of material fact warranting an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Failure to move to suppress pretrial photo identification | Ferguson: counsel should have suppressed an out-of-court ID from a suggestive photo array (three photos allegedly all of Ferguson). | Commonwealth: record lacks preliminary hearing transcript/photo-array; claim waived; failure to show prejudice given overwhelming evidence and independent basis for in-court ID. | Waived for lack of record and undeveloped on prejudice; no relief. |
| 2. Failure to investigate/obtain plea-offer evidence from co-defendant Boyer | Ferguson: counsel failed to uncover evidence that Boyer received a lenient plea deal that should have been used to impeach him (Brady claim). | Commonwealth: only an undated newspaper article supports the claim; appellant waived any Brady argument on direct appeal; trial counsel impeached Boyer on many points; no prejudice shown. | Meritless/waived and no prejudice; no relief. |
| 3. Failure to move to suppress based on defective search-warrant paperwork | Ferguson: discrepancy in times between warrant issuance and return justifies suppression. | Commonwealth: allegation is a bald/scrivener-error claim; appellant failed to specify what was seized or show prejudice; no legal authority cited. | Insufficiently specific, waived/meritless; no relief. |
| 4. Failure to obtain expert video enhancement | Ferguson: counsel failed to get enhancement of Owl’s Nest surveillance video. | Commonwealth: counsel attempted enhancement but was told it was not possible; appellant failed to identify an expert willing to help or what evidence would result. | Claim fails for lack of proof of available expert/evidence; no relief. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance: performance and prejudice)
- Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009) (PCRA ineffective-assistance framework and burden)
- Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014) (PCRA court may dismiss without hearing if petition is patently frivolous)
- Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006) (claims of ineffectiveness are not self-proving)
- Commonwealth v. Travaglia, 661 A.2d 352 (Pa. 1995) (courts may dispose on prejudice prong alone)
- Commonwealth v. Bryant, 855 A.2d 726 (Pa. 2004) (when alleging failure to present expert, appellant must identify available witness/evidence)
- Commonwealth v. Gwynn, 943 A.2d 940 (Pa. Super. 2008) (same principle for expert-witness ineffectiveness claims)