J-S26020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ERIC DESHANN D. FLOYD                    :
                                          :
                    Appellant             :   No. 31 EDA 2017

               Appeal from the PCRA Order December 9, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0005974-2008,
            CP-51-CR-0005976-2008, CP-51-CR-0005981-2008


BEFORE:    BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 11, 2018

      Eric Deshann Floyd appeals from the denial of his PCRA petition. We

affirm.

      We previously set forth the facts underlying Appellant’s convictions in

our memorandum affirming his judgment of sentence, which we adopt herein.

      In the spring of 2008, co-conspirator Howard Cain developed a
      plan to rob a Bank of America branch located inside a Philadelphia
      supermarket. Mr. Cain recruited Appellant and others to carry out
      the plan, which began with a series of separate robberies to obtain
      weapons and a getaway vehicle.

      On March 31, 2008, Appellant, Mr. Cain, and two others
      committed a home invasion robbery at the residence of Anthony
      Brown. During the robbery, the bandits tied up Mr. Brown and his
      family. The bandits also wore “Muslim apparel,” including a burqa
      that fully covered one of the unidentified robbers’ faces. Appellant
      and Mr. Cain did not cover their faces, and Mr. Brown later
      identified them.     Significantly, the proceeds of the robbery
      included an SKS assault rifle.


____________________________________
* Former Justice specially assigned to the Superior Court.
J-S26020-18


     On May 2, 2008, Appellant, Mr. Cain, and Mr. Cain’s uncle
     committed the gunpoint carjacking of Aaron Savage. At the time,
     Mr. Savage was operating an unlicensed taxicab in North
     Philadelphia.    Mr. Cain’s uncle approached Mr. Savage and
     requested a ride for himself and “two Muslim sisters.” In reality,
     the sisters were Appellant and Mr. Cain, who had disguised
     themselves in burqas. Mr. Savage accepted the passengers and
     began to drive them to their stated destination. After traveling
     for less than a block, Mr. Cain brandished a handgun, demanded
     that Mr. Savage pull over near some abandoned houses, and
     ordered Mr. Savage out of the vehicle. Fearing for his life, Mr.
     Savage fled on foot. Appellant, Mr. Cain, and Mr. Cain’s uncle
     drove off in Mr. Savage’s vehicle, a blue Jeep Liberty.

     On the morning of May 3, 2008, Appellant and Mr. Cain met with
     codefendant Levon Warner to consummate the planned bank
     robbery. Prior to departing for the bank, Appellant and Mr. Cain
     again disguised themselves in burqas. Mr. Warner wore a wig,
     glasses, and a dust mask to obscure his face. Appellant drove the
     men to the supermarket in the stolen Jeep. Upon arriving at the
     supermarket parking lot, Appellant parked the vehicle, picked out
     a shopping cart, and placed a box inside the cart. The box
     contained the stolen assault rifle. When the co-conspirators
     entered the supermarket, Appellant stood with the shopping cart
     near the door to the bank.

     With Appellant serving as a lookout, Mr. Cain and Mr. Warner
     entered the bank, stood in the back, and watched a bank manager
     unlock the gate to the teller area. With the gate unlocked, Mr.
     Cain rushed toward the manager, grabbed her, dragged her into
     the teller area, brandished a handgun, and demanded that the
     tellers place money into a bag he was carrying. Armed with a
     handgun, Mr. Warner paced in front of the teller windows as the
     tellers complied with Mr. Cain’s demands. The tellers placed
     approximately $50,000.00 into Mr. Cain’s bag, along with a GPS
     tracking device. The tracking device activated at 11:27 a.m.,
     when the thieves exited the bank.

     After the robbery, Appellant, Mr. Cain, and Mr. Warner returned
     to the Jeep. Appellant served as the getaway driver. Within
     minutes, calls went out over police radio relaying information
     about the robbery and the suspects. Philadelphia Police Sergeant
     Stephen Liczbinski received the call, spotted the getaway car, and
     commenced a pursuit. During the chase, someone in the Jeep

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     said, “Bang him.” At that point, Mr. Cain asked Mr. Warner for
     the assault rifle, which Mr. Warner handed to him. Appellant
     stopped the Jeep, and Mr. Cain exited with the assault rifle.
     Sergeant Liczbinski stopped his vehicle behind the Jeep, exited,
     and approached the Jeep. Before Sergeant Liczbinski could draw
     his service weapon, Mr. Cain opened fire with the assault rifle and
     killed the sergeant.

     After the shooting, Mr. Cain reentered the Jeep; and Appellant
     drove to a second getaway vehicle, a minivan, parked nearby. Mr.
     Warner drove the minivan a short distance before Mr. Cain
     ordered him to pull over. Mr. Warner pulled over, and the
     suspects exited and split up. Later that day, Mr. Cain died during
     a shootout with police. Police subsequently arrested Mr. Warner,
     and he provided a statement detailing his participation in the
     robbery. Police did not arrest Appellant until May 7, 2008, when
     a tipster led them to the abandoned house where Appellant was
     hiding. On May 8, 2008, Appellant provided an inculpatory
     statement regarding his own participation in the bank robbery.

Commonwealth v. Floyd,

2013 WL 11299434

 at *1-2 (Pa.Super. 2013).

     Appellant was charged at three separate dockets with various crimes,

including robbery, robbery of a vehicle, conspiracy to commit homicide,

homicide, and related offenses.     Appellant was convicted of, inter alia,

first-degree murder.   We affirmed,

id.,

 and Appellant filed a petition for

allowance of appeal, which was denied on July 25, 2013. Commonwealth v.

Floyd,

70 A.3d 809

 (Pa. 2013).

     Appellant thereafter filed a timely pro se PCRA petition on May 9, 2014.

Counsel was appointed, who filed an amended PCRA petition on April 7, 2016,

followed by a supplemental petition on April 20, 2016. Each petition raised

one claim:

     [Appellant]’s appellant [sic] defense counsel was ineffective on on
     [sic] allocatur was ineffective [sic] because he failed to raise all

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     the issues addresse[d] by the Superior Court on appeal. Five
     issues were addressed by the Superior Court and counsel only
     raised two of these issues on allocatur to the State Supreme
     [Court]. As a result of this fai[l]ure by counsel the defendant was
     denied his right to effective assistance of counsel on allocatur to
     the State Supreme Court. This issue has not been waived because
     it is the first time that [Appellant] can raise it.

Amended PCRA Petition, 4/7/16, at 2.

     [Appellant] was denied his rights under the 6th Amendment of the
     U.S. Constitution and Art. I sec. 9 of the State Constitution when
     the Commonwealth introduced the redacted confession of the co-
     defendant, Levan Warner[,] who did not testify at trial because he
     asserted his right to remain silent. Form [sic] this redacted
     confession the jury was able to reasonably infer that it was the
     defendant who said “Bang Him” before the victim was shot and
     killed and therefore the jury could reasonably infer that the
     defendant had specific intent to kill. To the extent that trial
     defense counsel did not object to this prejudicial unconstitutional
     evidence, counsel was ineffective and the defendant is entitled to
     a new trial. This issue has not been waived because it is the first
     time that [Appellant] can raise it.

Supplemental Amended PCRA Petition, 4/20/16, at 2.

     On November 4, 2016, the PCRA court issued a notice of intent to

dismiss. Appellant did not respond, and the PCRA court thereafter dismissed

the petition. Appellant filed a timely notice of appeal, and the PCRA court

prepared a Pa.R.A.P. 1925(a) opinion responding to the two claims in lieu of

requiring a concise statement. Appellant presents the following three issues.

     I. Was trial defense counsel ineffective in failing to object to the
     redacted statement of the co-defendant that was introduced at
     trial which inferred that the appellant told a third co-conspirator
     to kill the victim because this evidence violated appellant’s State
     and Federal Constitutional right to confront evidence against him?

     II. Is the appellant is [sic] entitled to a reinstatement of his right
     to file allocat[u]r to the State Supreme Court nunc pro tunc from


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      the judgment of the Superior Court affirming the judgment of
      sentence in the trial court because appellant [sic] counsel was
      ineffective in presenting only two of the five issues that were
      presented in the Superior Court to the State Supreme Court on
      allocat[u]r?

      III. Was trial defense counsel ineffective in not objecting to the
      trial court’s instruction of proof beyond a reasonable doubt
      because the charge allowed the jury to convict appellant on a
      burden of proof less that beyond a reasonable doubt thereby
      den[y]ing appellant of Due Process?

Appellant’s brief at 2.

      Appellant’s first issue concerns the introduction of co-defendant

Warner’s statement at their joint trial. The content of this statement was set

forth in our direct appeal memorandum.

      After we had all the money we exited the bank. Then we got into
      the Jeep and fled to the next car that we parked a few blocks
      away. On the way to the next car a Police car was coming down
      the same street that we were on. The Police car started to slow
      down as he drove past us and then it looked like he was making
      a U-turn so the boy drove away real fast. That’s when the Officer
      started following us with his lights and sirens on. That lasted for
      a few blocks and then the young boy almost flipped the Jeep over
      and the officer had caught up to us and was right on the side of
      our Jeep. The boy that was driving the car started yelling, “Bang
      him.” Then [Mr. Cain] told me, “Give me the gun.” I handed [Mr.
      Cain] the rifle I was holding and the boy slowed down and stopped
      the car. That’s when [Mr. Cain] got out and started shooting at
      the cop. After the shooting stopped [Mr. Cain] got back in the car
      and the boy pulled off.

Floyd,

2013 WL 11299434

 at *7 (alterations in original, footnote omitted).

      The statements referencing the driver did not facially refer to Appellant;

however, Appellant’s own statement, which was introduced at trial, inculpated

him as the driver. Id. at *6 (“In his statement, Appellant admitted driving


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the Jeep to the bank . . . and driving the Jeep away from the premises after

the bank robbery.”).     Thus, Warner’s statement inferentially established

Appellant as the man who said, “Bang him.”

      That linkage prompted trial counsel to file a motion to sever Appellant’s

trial. “Prior to trial, Appellant insisted that the court should sever his case

from Mr. Warner’s, because ‘the jury [would] conclude that the words and

actions attributed to ‘the boy’ in Mr. Warner’s statement will be attributed to

[Appellant].’” Id. at *7 (citation omitted). The trial court denied the motion,

but redacted Warner’s statement as follows.

      After we had all the money, we exited the bank. Then we got into
      the jeep and fled to the next car that we parked a few blocks
      away.

      On the way to the next car, a police car was coming down the
      same street that we were on. The police car started to slow down
      as he drove past us, then it looked like he was making a U-turn.
      So the other guy drove away real fast. That's when the officer
      started following us with the lights on and sirens on. That lasted
      for a few blocks and then the other guy almost flipped the jeep
      over and the officer had caught up to us and was right on the side
      of our jeep. Someone started yelling bang him, then [Mr.
      Cain] told me give me the gun. I handed [Mr. Cain] the rifle I
      was holding and the other guy slowed down and stopped the car.
      That's when [Mr. Cain] got out and started shooting at the cop.

Id. (emphasis in original).

      Trial counsel did not object to the introduction of this statement at trial.

On direct appeal, Appellant argued that the trial court erroneously denied his

severance motion. Appellant’s argument invoked Bruton v. United States,

391 U.S. 123

 (1968), and its progeny, Richardson v. Marsh,

481 U.S. 200



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(1987), and Gray v. Maryland,

523 U.S. 185

 (1998), which generically

concern the introduction of a co-defendant’s statement against another

defendant. We quote our analysis of that claim.

     “Under the Confrontation Clause of the Sixth Amendment, a
     criminal defendant has a right to confront witnesses against him.”
     Commonwealth v. Rivera,

565 Pa. 289, 299

773 A.2d 131, 137

     (2001), cert. denied,

535 U.S. 955

122 S.Ct. 1360

152 L.Ed.2d 355

 (2002). A defendant is deprived of his Sixth Amendment
     rights when his non-testifying co-defendant’s facially incriminating
     confession is introduced at their joint trial, even if the jury is
     instructed that the confession can be considered only against the
     confessing co-defendant.

Id.

 Nevertheless, “[i]f a confession can
     be edited so that it retains its narrative integrity and yet in no way
     refers to [the non-confessing] defendant, then use of it does not
     violate the principles of Bruton.” Commonwealth v. Travers,

564 Pa. 362, 368

768 A.2d 845, 848

 (2001) (quoting
     Commonwealth v. Johnson,

474 Pa. 410, 412

378 A.2d 859, 860

 (1977)).

     In Travers, our Supreme Court held that the redaction of a non-
     testifying co-defendant’s confession in a joint trial, which replaced
     any direct reference to the non-confessing co-defendant with a
     neutral pronoun, when accompanied by an appropriate cautionary
     charge, sufficiently protected the non-confessing defendant’s
     Sixth Amendment rights.

Travers, supra

 at 372–73,

768 A.2d at 851

. The Travers Court observed Pennsylvania law is now
     clear that redacted statements trigger confrontation clause
     concerns under Bruton only if the redacted statement on its face
     ties the defendant to the crime, but not if the incrimination arises
     from linkage to other evidence in the case.

Id.

 at 372 n. 2,

768 A.2d at 850

 n. 2 (citing Gray v. Maryland,

523 U.S. 185

118 S.Ct. 1151

140 L.Ed.2d 294

 (1998)).

Floyd,

2013 WL 11299434

 at *6 (emphasis in original, footnote omitted).

     Thus, we held that the redacted statement did not violate Bruton as

interpreted by our Supreme Court in Travers. Appellant maintains that trial




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counsel was ineffective for failing to object to the introduction of this

statement, despite our ruling on the motion to sever.

      The PCRA court and the Commonwealth assert that the issue is

unreviewable as it has been previously litigated. The PCRA statute states that

a petitioner is eligible for relief only if, inter alia, “the allegation of error has

not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). In turn,

an issue is deemed “previously litigated” if “the highest appellate court in

which the petitioner could have had review as a matter of right has ruled on

the merits of the issue[.]” 42 Pa.C.S. § 9544(a)(2). In Commonwealth v.

Collins,

888 A.2d 564

 (Pa. 2005), our Supreme Court examined the meaning

of the word “issue,” and concluded that “a Sixth Amendment claim of

ineffectiveness raises a distinct legal ground for purposes of state PCRA review

under § 9544(a)(2).” Id. at 573.

      The instant facts are largely identical to the situation examined in

Commonwealth v. Gribble,

863 A.2d 455

 (Pa. 2004). Gribble and his co-

defendant, his girlfriend Kelly O’Donnell, killed and dismembered Eleftherios

Eleftheriou.   Each defendant confessed and took sole responsibility for the

crimes. According to Gribble, he saw Mr. Eleftheriou groping O’Donnell, which

enraged Gribble and prompted him to beat the victim to death with a hammer.

O’Donnell, on the other hand, said that she killed the victim with the hammer

because he was “slimy” and had previously rubbed his penis on her.

Id.

 at




                                        -8-
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458 n.1. Trial counsel filed a motion to sever, but withdrew it. Gribble and

O’Donnell were jointly tried non-jury, and both statements were introduced.

     Gribble received the death penalty, and on direct review to our Supreme

Court he argued that the admission of his co-defendant’s confession violated

his Sixth Amendment right to confront witnesses against him pursuant to

Bruton.   The Court concluded that the statement did not violate Bruton,

because the co-defendant’s statement did not inculpate Gribble, but actually

exonerated him.

     During collateral proceedings, Gribble alleged that trial counsel

ineffectively withdrew the motion to sever, on the grounds that O’Donnell’s

statement was antagonistic to his “heat of passion” defense.

Id. at 461

. The

Gribble Court concluded that the claim had been previously litigated.

     The allegation of error underlying appellant’s current
     ineffectiveness claim is very similar to the Bruton claim he
     litigated on direct appeal. Where appellant there complained of a
     confrontation clause issue arising from the admission of
     O’Donnell’s confession at the joint trial, he now alleges that
     counsel should have preempted the problem entirely by seeking
     severance. Severance (along with redaction of the confession,
     exclusion of the confession, limiting charges, etc.) is one of
     several theoretical ways in which the underlying confrontation/
     Bruton style issue may be addressed or remedied. Though the
     specific remedial precaution differs, the trial issue sought to be
     avoided is the same: i.e., the potential for spillover prejudice
     arising from admission of a non-testifying co-defendant’s
     confession in a joint trial. Thus, appellant’s litigation of the
     confrontation claim on direct appeal necessarily involved an issue
     that is also at the heart of appellant’s current underlying
     severance argument-i.e., that the admission of O’Donnell’s
     confession against her inculpated and thereby prejudiced
     appellant. . . . Since our finding on direct appeal was based upon
     an assessment of the effect of O’Donnell’s statement, and the

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        present claim of counsel ineffectiveness could only succeed if we
        reached a contrary determination that the statement was, in fact,
        prejudicial to appellant, the PCRA court did not err in finding this
        claim to be previously litigated.

Id.

 at 461–62.

        The same logic applies herein. The present claim of ineffectiveness can

succeed only if we hold that the introduction of the statement did, in fact,

violate Bruton, since the Bruton violation supplied the necessary basis to

object. Finding that the statement violates Bruton is precisely what our prior

memorandum precludes. Applying Gribble, this claim has been previously

litigated.

        However, post-Gribble law as cited supra requires viewing this claim

distinctly, since the underlying Sixth Amendment ineffectiveness claim has its

own standards and governing law.1                  Additionally, Gribble applied an

alternative analysis: “In any event, even if it is assumed that the instant claim,

which        sounds     in     counsel         ineffectiveness   rather   than   in

evidentiary/confrontation clause restrictions, is sufficiently distinct to escape



____________________________________________


1 Notwithstanding Commonwealth v. Collins,

888 A.2d 564

 (Pa. 2005), the
present claim may in fact be previously litigated. This is not a situation where
Appellant’s current claim implicates a broader set of considerations or legal
argument. Commonwealth v. Gribble,

863 A.2d 455, 477

 (Pa. 2004)
(“Although one aspect of the disposition of Appellant’s present claim certainly
involves consideration of the Court’s holding on direct appeal, the majority’s
alternative merits analysis demonstrates that the claim implicates a broader
inquiry into the character of the defenses at issue.”) (Saylor, J., concurring).
The inquiry herein is not broader; it is exactly the same.


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the effect of the statutory previous litigation bar, the claim fails on the merits.”

Id. at 462

.     Therefore, we will treat the claim as a distinct claim of

ineffectiveness.

      Appellant recognizes the distinct nature of the ineffectiveness claim, but

fails to explain how he is entitled to relief in light of our direct appeal holding.

Per Collins, the complaint that counsel should have objected to the admission

of Warner’s statement during the trial is indeed distinct from the claim

addressed on direct appeal, which considered only the propriety of trying

Warner and Appellant together. However, it is obvious that the core claim is

exactly the same in both situations, i.e., that Bruton does not permit the

introduction of Warner’s statement against Appellant.            Issues involving

Bruton can arise in a variety of contexts, including severance,

Gray, supra at 188

 (“The trial judge, after denying Gray’s motion for a separate trial

. . .”), and as evidentiary objections,

Marsh, supra at 203

 (“[T]he State

introduced (over respondent's objection) a confession given by Williams to the

police shortly after his arrest.”). Regardless of the particular context, it is

plain that the underlying issue involves Bruton. As Collins explained, the

resolution of that legal issue dooms the current ineffectiveness claim:

      Appellant now forwards his claim of ineffectiveness by relying on
      the Due Process Clause of the United States Constitution. By
      Appellant’s own admission, however, the factors to
      consider in assessing a due process claim when offenses
      have been joined is similar to the test we employed on
      direct appeal. See

id.

 In fact, according to Appellant, in applying
      the federal, due process test, the court must consider the same
      three factors that we considered on direct appeal in addition to

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      whether the trial court gave an adequate limiting instruction.
      Appellant’s Brief at 55. As we made clear in our discussion of
      “previously litigated” claims, although we will analyze a distinct
      claim of ineffectiveness that is based on the underlying issue that
      was litigated on direct appeal, in many cases, those claims will fail
      for the same reasons as they failed on direct appeal.

Collins, supra

 at 574–75 (emphasis added).

      Herein, the test for whether any objection to the introduction of the

statement would succeed is precisely the same as whether severance was

required: Does Burton permit the introduction of Warner’s statement? Our

prior memorandum holds that the answer is no. The PCRA court properly

denied relief based on this claim.

      Appellant’s second issue claims that appellate counsel ineffectively failed

to include, within his petition for allowance of appeal to the Supreme Court of

Pennsylvania, all five issues decided on direct appeal to this Court. The PCRA

court properly denied this claim, as Appellant failed to establish appellate

counsel’s ineffectiveness.

      In Commonwealth v. Rigg,

84 A.3d 1080

 (Pa.Super. 2014), we

summarized the law pertaining to ineffective assistance of counsel claims

concerning petitions of allowance of appeals as follows:

      On appeal, the Pennsylvania Supreme Court held that where
      appellate counsel informs his client that he will file a petition for
      allowance of appeal, but fails to do so in timely fashion, a
      cognizable claim of appellate counsel’s ineffectiveness exists. The
      Court further held that, in such an instance, a petitioner is not
      required to prove that the Pennsylvania Supreme Court would
      have granted the petition. Subsequent decisions by the
      Pennsylvania Supreme Court have confirmed that counsel is per
      se ineffective for failing to file a requested petition for allowance

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      of appeal. Commonwealth v. Reed,

601 Pa. 257

971 A.2d 1216, 1225

 (2009); Commonwealth v. Reaves,

592 Pa. 134

923 A.2d 1119, 1129

 (2007).

Id. at 1087.

      Appellate counsel filed a petition for allowance of appeal, which our

Supreme Court denied. Thus, this is not a case where counsel can be deemed

per se ineffective, as counsel sought review with our Supreme Court.

      Appellant asks us to adopt a heretofore unknown principle that appellate

counsel must seek review of all possible issues. Appellant’s brief at 9 (“There

was no reasonable basis for trial defense counsel [sic] to waive three of the 5

appellate issues that were raised in the Superior Court by not raising them in

the allocat[u]r petition to the State Supreme Court.”). Contrary to Appellant’s

argument, the hallmark of effective appellate advocacy is selecting those

issues which pose the greatest chance of success.

      While criminal defendants often believe that the best way to
      pursue their appeals is by raising the greatest number of issues,
      actually, the opposite is true: selecting the few most important
      issues succinctly stated presents the greatest likelihood of
      success. We concur with the view of an eminent appellate jurist,
      Judge Ruggero Aldisert, that the number of claims raised in an
      appeal is usually in inverse proportion to their merit and that a
      large number of claims raises the presumption that all are invalid.

Commonwealth v. Ellis,

626 A.2d 1137, 1140

 (Pa. 1993).

      Herein, Appellant has failed to even discuss the issues counsel pursued

to the exclusion of others, and his theory that counsel is obligated to present

every single issue to our Supreme Court finds no support in the law. Counsel

sought review of two issues, and therefore presumptive prejudice does not

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apply. See Commonwealth v. Halley,

870 A.2d 795, 801

 (Pa. 2005) (“The

difference in degree between failures that completely foreclose appellate

review, and those which may result in narrowing its ambit, justifies application

of the presumption in the more extreme instance.”). No relief is due.

      Appellant’s final issue is that trial counsel was ineffective for failing to

object to a flawed reasonable doubt instruction. This claim was not raised in

the PCRA petition, and was presented for the first time on appeal.

Commonwealth v. Santiago,

855 A.2d 682, 691

 (Pa. 2004) (claims not

raised in a PCRA petition cannot be raised for first time on appeal).         We

therefore decline to consider it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/18




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