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____________________________________ * Former Justice specially assigned to the Superior Court. NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC DESHANN D. FLOYD

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 1 1 , 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 affirmin g 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 t he 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 t he unidentified robbers ’ faces. Appellant and Mr. Cain did not cover their faces, and Mr. Brown later identified them. Significantly, the pro ceeds of the robbery included an SKS assault rifle.J

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On May 2, 2008, Appellant, Mr. Cain, and Mr. Cain ’ s uncle committed the gunpo int 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 stat ed 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 consu mmate 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 ve hicle, picked out a shopping cart, an d placed a box inside the cart. The box cont ained 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 approximate ly $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 get away 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 JeepJ

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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 ge taway 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 cha rged 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 peti tion 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 allJ

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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 Cour t. This issue has not been waived because it is the first time that [Appellant] can raise it.

Amended PCRA Pe tition, 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 Consti tution 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 tha t 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 t o 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 [Appellan t] 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 noti ce of appeal, and the PCRA court
prepared a Pa.R.A.P. 1925(a) opinion responding to the two claim s in lieu of
requiring a concise statement. Appellant presents the following three issues.
I. Was trial defense counsel ineffective in failing to object to th e 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 ag ainst 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 fromJ

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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 p roof 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 de n[y] ing appellant of Due Process?
Appellant ’ s brief at 2.
Appellant ’ s first issue concerns the int roduction 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, f ootnote omitted).

The statement s referencing the driver did not facially refer to Appellant;
however, Appellant ’ s own statement, which was introduced at trial, i nculpated

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

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the Jeep to the bank . . . and driving the Jeep away from the p remises after
the bank robbery .”). Thus, W a rner ’ s statement inferentially established
Appellant as the man who said, “Bang him.”

T hat 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 ‘ t he 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 stre et that we were on. The police car started to slow down as he drove past us, then it look ed 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 fo r 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, Appella nt argued that the trial court erroneously denied his
severance motion. Appellant ’ s argum ent invoked Bruton v. United States , 391 U. S. 123 (1968), and its progeny, Richardson v. Marsh , 481 U.S. 200J

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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 again st the confessing co

- defendant. Id

. Nevertheless, “[i]f a confession can be edited so that it retains its narrative integrity an d 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 confrontatio n 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 trialJ

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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.

T he PCRA court and the Commonwealth assert that the issue is
unreviewable as it has been previous ly 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. § 954 4(a)(2). In Commonwealth v.

Collins , 888 A.2d 564 (Pa. 2005), our Supreme Court examined the meaning

o f 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

.
T he 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 h ad p revi ously rubbed his penis on her. Id . atJ

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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 a rgued 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 ap peal. 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
severan ce. 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 issu e 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 cla im 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 fin ding on direct appeal was based upon an assessment of the effect of O ’ Donnell ’ s statement, and theJ

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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 supplie d the necessary basis to
object. Finding that the statement violates Bruton is precisely what our prior

memora ndum 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 a nd 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 t he 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 inquir y herein is not broader; it is exactly the same.J

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

Id . at 462. Therefore, we wil l treat the claim as a distinct claim of

ineffectiveness

. Appellant recognizes the distinct nature of the i neffectiveness c laim, 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

Wa rner 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 o f contexts, including s everance, 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 con sidered on direct appeal in addition toJ

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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 ineffectivenes s that is based on the underlying issue that was litigated on direct appeal, in many cases, those claims will fail for the same reasons a s 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
requi red: Does Burton permit the introduction of Warner’s statement? O ur prior memor a ndum holds that the answer is no

. The PCRA court properly

denied relie f 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 assis tance of counsel claims
concerning pe titions 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 allowanceJ

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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

.
A ppellate 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 heretofo re 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 o f 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 pre sumption 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 Cour t finds no support in the law. Counsel
sought review of two issues, and therefore presumptive prejudice does notJ

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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. Th is 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