J-S55032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TODD RICHARD FERRY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 402 WDA 2020

Appeal from the PCRA Order Entered February 26, 2020

In the Court of Common Pleas of Bedford County Criminal Division at 

No(s): CP-05-CR-0000177-2015

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 19, 2021

Todd Richard Ferry appeals from the order that denied his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm. 

Appellant’s underlying convictions relate to his attempt to kidnap J.Z., 

a member of the local Mennonite community who was a minor at the time. 

Appellant was arrested after giving interviews to Trooper Dana Martini and, 

on the same day after a ninety-minute wait at the police station, Corporal 

Edward Mahalko. In his omnibus pretrial motion, among other things 

Appellant sought to suppress his statements during the interviews, contending 

that he had been subjected to a custodial interrogation without receiving 

warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). On direct 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S55032-20

- 2 -

appeal, this Court affirmed the trial court’s refusal to suppress Appellant’s 

statements, as the record reflected that Appellant had been advised of his 

Miranda rights prior to both interviews. See Commonwealth v. Ferry, 193 

A.3d 1062 (Pa.Super. 2018) (unpublished memorandum at 18-19). Appellant 

also argued on appeal that the trial court erred in not giving his trial counsel 

sufficient time to review the transcripts of his interviews with Trooper Martini 

and Corporal Mahalko, but we determined that Appellant had waived the claim 

by not including it in his Pa.R.A.P. 1925(b) statement. See id. (unpublished 

memorandum at 19 n.7). Our Supreme Court denied Appellant’s petition for 

allowance of appeal. See Commonwealth v. Ferry, 199 A.3d 342 (Pa. 

2018).

Appellant filed a timely pro se PCRA petition, and counsel was appointed. 

Appellant also filed an amended PCRA petition, in which he asserted the two 

issues he raises in this appeal, namely (1) a violation of Brady v. Maryland, 

373 U.S. 83 (1963), alleging that the recordings of the interviews with Trooper 

Martin and Corporal Mahalko were wrongfully suppressed; and (2) a claim that 

the transcripts of the interviews reveal that Appellant had asserted his rights 

to counsel and to remain silent, but his rights were ignored and the interviews 

continued. See Amendment to PCRA Petition, 11/9/19, at unnumbered 1-3. 

Appellant’s PCRA counsel opined that the claims lacked merit and sought to 

withdraw, but his no-merit letter was not delivered to Appellant by prison 

authorities. However, Appellant eventually received a copy and was given the 
J-S55032-20

- 3 -

opportunity to respond to it and make oral arguments in support of his position 

at a PCRA hearing on February 20, 2020.1 The PCRA court agreed with PCRA 

counsel’s assessment of the claims, allowed him to withdraw, and denied 

Appellant’s petition.

Appellant filed a timely notice of appeal, and both Appellant and the 

PCRA court complied with Pa.R.A.P. 1925.2 Appellant presents the following 

questions for our consideration:

I. [Whether t]he PCRA court committed error by finding 

Appellant’s claim that the evidence at trial constituted a Brady

violation lacked legal merit?

II. Whether the PCRA court committed legal error by failing to 

find that the Appellant’s Fifth Amendment constitutional claim 

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), was 

controlling as to compel the Appellant’s conviction and judgment 

of sentence illegal and unconstitutional under both the state and 

federal constitution?

____________________________________________

1 Counsel filed his petition to withdraw with the PCRA court, but did not attach 

his no-merit letter to Appellant to the filing, as he believed, and the PCRA 

court agreed, that it was subject to privilege. See N.T. PCRA Hearing 

2/20/2020, at 11. Our case law is clear that counsel seeking to withdraw from 

PCRA representation must “file” the no-merit letter with the court, be it the 

PCRA court or the appellate court, to make a record for the court’s 

independent assessment. See, e.g., Commonwealth v. Rykard, 55 A.3d 

1177, 1184 (Pa.Super. 2012). Since Appellant does not challenge the 

sufficiency of PCRA counsel’s no-merit letter, counsel’s failure to file it does

not impact this appeal. 

2 The PCRA court did not author an opinion, but pointed to the transcript from 

the PCRA hearing for an explanation of its reasoning. 
J-S55032-20

- 4 -

Appellant’s brief at 13, 17.3 

We begin with a review of the applicable legal principles. 

This Court’s standard of review regarding an order denying a 

petition under the PCRA is whether the determination of the PCRA 

court is supported by the evidence of record and is free of legal 

error. The PCRA court’s findings will not be disturbed unless there 

is no support for the findings in the certified record. 

Commonwealth v. Allison, 235 A.3d 359, 362 (Pa.Super. 2020) (internal 

quotation marks omitted). Further, “[i]t is an appellant’s burden to persuade 

us that the PCRA court erred and that relief is due.” Commonwealth v. 

Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up).

To be eligible for PCRA relief, a petitioner must plead and prove, inter

alia, that his conviction or sentence resulted from one of the enumerated 

errors or defects, such as ineffective assistance of counsel or an illegal 

sentence, that the claim has not been previously litigated or waived, and that 

____________________________________________

3 Appellant’s brief lacks a separate statement of questions involved as well as 

several other sections specified by the Rules of Appellate Procedure. While 

Pa.R.A.P. 2101 permits this Court to dismiss an appeal if briefing defects are 

substantial, we have held that dismissal is not appropriate where the 

omissions do not impede our review. See, e.g., Commonwealth v. Levy, 

83 A.3d 457, 461 n.2 (Pa.Super. 2013). Indeed, while Pa.R.A.P. 2116 goes 

so far as to state that this Court will not consider a question that is not included 

in a statement of questions involved, this Court has held that “such a defect 

may be overlooked where an appellant’s brief suggests the specific issue to 

be reviewed and appellant’s failure does not impede our ability to address the 

merits of the issue.” Werner v. Werner, 149 A.3d 338, 341 (Pa.Super. 2016) 

(cleaned up). Although Appellant’s brief does not conform with the rules, we 

conclude that the defects in his brief do not impede our ability to review his 

two appellate questions, which are readily discerned from the headings to the 

argument sections of Appellant’s brief. 
J-S55032-20

- 5 -

the failure to litigate the claim earlier could not have been a tactical decision 

by counsel. See 42 Pa.C.S. § 9543(a)(2)-(4). An issue is 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; or . . . it has been 

raised and decided in a proceeding collaterally attacking the conviction or 

sentence.” 42 Pa.C.S. § 9544(a). “[A]n issue is waived if the petitioner could 

have raised it but failed to do so before trial, at trial, during unitary review, 

on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). 

With these principles in mind, we first address Appellant’s claim that the 

PCRA court erred in denying him relief for a violation of his Miranda rights. 

Appellant maintains that, during his interview with Trooper Martini, he 

unambiguously and unequivocally invoked his constitutional rights to counsel 

and to remain silent, requiring the suppression of the statements he made 

thereafter, as well as DNA evidence that was subsequently collected, since 

Trooper Martini proceeded with the interview rather than immediately ceasing 

questioning. See Appellant’s brief at 17-23.

Appellant does not couch his claim in terms of the effectiveness of trial 

or direct appeal counsel; rather, he contends that the PCRA court should have 

held that the violations entitle Appellant to a new trial at which the evidence 

will be precluded. Id. at 24. Since Appellant could have raised his claim 

before his judgment of sentence became final, it is waived and not an eligible 
J-S55032-20

- 6 -

basis for PCRA relief. See 42 Pa.C.S. § 9543(a)(3). Hence, Appellant’s 

Miranda claim merits no relief. 

Appellant’s contention that the PCRA court erred in rejecting his Brady 

claim is also unavailing. The evidence that he complains was withheld are his 

statements supposedly invoking his rights to counsel and to remain silent, 

which he claims that the Commonwealth improperly suppressed by failing to 

turn over the recordings of his interview with Trooper Martini. See Appellant’s 

brief at 14-16. Appellant further asserts that the trial court suppressed this 

evidence at the conclusion of the hearing on his pre-trial motions, yet he also

acknowledges that the recordings were provided to his trial counsel at that 

hearing. Id. at 13. Moreover, he recognizes that his direct appeal counsel 

“obviously reviewed [the] entire police interviews.” Id. at 15. Nonetheless, 

Appellant maintains that the trial court, as well as the prosecution, his trial 

counsel, and his appellate counsel, all committed Brady violations by 

wrongfully keeping from him the evidence that he had invoked his Miranda

rights during the interview. Id. at 15-16. 

We disagree. “A defendant claiming a Brady violation must plead and 

prove: the prosecution suppressed the evidence, either willfully or 

inadvertently; the evidence is favorable to the defense; and the evidence is 

material.” Commonwealth v. Lynch, 242 A.3d 339, 350 (Pa.Super. 2020) 

(cleaned up, emphasis added). Appellant cannot satisfy the first prong, as 

the record reflects that the prosecution provided the recordings to Appellant’s 
J-S55032-20

- 7 -

trial counsel at the hearing on his pretrial motions.4 See N.T. Omnibus Pretrial 

Motion Hearing, 10/2/15, at 117. Trial counsel acknowledged having belatedly 

received the recordings, requested time to determine whether they provided 

additional bases to support his suppression motion, and informed the trial 

court that he would file an additional brief if necessary.5 Id. at 118. Counsel 

did file a subsequent motion on other pretrial matters, and thus had the 

opportunity to utilize the recordings of Appellant’s interviews to seek 

suppression but did not avail himself of that opportunity. 

To the extent that Appellant complains that trial and appellate counsel 

should have used the statements in question to support his suppression 

argument, his claim sounds in ineffective assistance of counsel, not Brady. 

To prevail on such a claim, Appellant was required to separately plead and 

prove not only that the claim of error had arguable merit, but also that counsel 

had no reasonable basis for the omission and that Appellant was prejudiced. 

See, e.g., Commonwealth v. Bond, 819 A.2d 33, 40 (Pa. 2002) (explaining 

that PCRA petitioner must purse a distinct ineffectiveness claims to circumvent 

the waiver of the underlying claim of trial court error that could have been 

____________________________________________

4 Aside from the fact that the trial court is not the prosecution, we note that 

the court did not keep the evidence from Appellant but rather declined to 

suppress Appellant’s statements made during the interviews. See N.T. 

Omnibus Pretrial Motion Hearing, 10/2/15, at 117-20. 

5 The trial court did not, as Appellant suggests, suppress the statements; it 

denied Appellant’s request to suppress them, and they were admitted into 

evidence at trial. See N.T. Omnibus Pretrial Motion Hearing, 10/2/15, at 119. 
J-S55032-20

- 8 -

previously litigated). However, Appellant did not raise an ineffectiveness claim 

in the PCRA court, and thus may not argue it for the first time on appeal. See, 

e.g., Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004) (“[A] claim 

not raised in a PCRA petition cannot be raised for the first time on appeal.”). 

Therefore, Appellant’s second issue merits no relief. 

Appellant has failed to sustain his burden of establishing that the PCRA 

court erred and that relief is due. See Stansbury, supra at 161. 

Accordingly, we affirm the order denying his petition.

Order affirmed. 

Judge McCaffery joins the memorandum.

Judge Colins concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2021