Com. v. Buford, N. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NASIR BUFORD :
:
Appellant : No. 1616 EDA 2020
Appeal from the PCRA Order Entered November 17, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007423-2011
BEFORE: LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED OCTOBER 26, 2021
Nasir Buford (Buford) appeals from the order entered in the Court of
Common Pleas of Philadelphia County (PCRA court) dismissing, without a
hearing, his first petition filed pursuant to the Post-Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Buford claims that trial counsel was
ineffective relating to the trial court’s jury instructions and the
Commonwealth’s closing argument to the jury. We affirm.
I.
A.
On July 23, 2012, a jury convicted Buford of first-degree murder,
possession of an instrument of a crime and firearms not to be carried without
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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a license. The charges stemmed from the September 18, 2010 shooting death
of 21 year-old Nathaniel Palmer (Palmer) in a Philadelphia alleyway resulting
from a drug dispute. Buford was a neighborhood drug dealer and he
suspected that Palmer had stolen drugs from his residence. In the presence
of witnesses, Buford shot Palmer three times, in the right shoulder, back and
chest. One of these witnesses, Yvonne Henderson (Henderson), died before
Buford’s trial. However, her preliminary hearing testimony identifying Buford
as the shooter was read to the jury.
During closing argument, defense counsel largely focused on the
conduct of Philadelphia Police in general and on the officers involved in this
case:
The violence in Philadelphia is out of control and we’re sick
of it, but just convicting Nasir Buford because of the violence in
Philadelphia doesn’t fix it. How do we fix it? Some District
Attorneys could argue harsher punishments, more gun control;
and some of the cynical defense attorneys will say get those dirty
cops off the force. That’s all wrong. It’s all wrong. You hire more
cops, you hire more detectives so they can do their job and not
go through the motions; so they can uncover every stone so then
the criminals would be, like, man, they’re getting the phone
records, they’re getting this, they’re getting that. Maybe then
they’ll be afraid to commit a crime.
* * *
Detectives wanted a quick resolution and they got it. Per
the detective, we got a quick resolution. . . .
* * *
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Now, Detective [Joseph] Bamberski[1] is nice as can be, but
it’s not a question about whether he’s nice or not, whether you
like him or not. He’s a professional witness. He’s testified many,
many times. Nathaniel Palmer and Nasir Buford deserve better.
If this wasn’t an alleged crack dealer shooting another alleged
crack dealer, the accused wasn’t a crack dealer, we would have
these tests, these stones would be uncovered. I’ve had 911 tapes
played, given to me. The victim and the accused were not crack
dealers.
* * *
I am not nitpicking at every little thing just to nitpick, but
where there’s smoke there’s fire. That is the smoke to the fire of
a poor investigation, one that went through the motions. . . . You
have an answer for everything. There’s always an answer for
everything. Nobody is going to get up here and say I didn’t do
my job, I didn’t do my job.
* * *
Now, what is the remedy? If this is a police brutality case,
the remedy is you sue them in civil court. This is a reasonable
doubt. Because the detective has already made his decision and
hasn’t given you all of the evidence. The remedy is here, the
remedy is now. He sits up here and laughs. This isn’t funny.
Maybe some of the questions the Jury is like, all right, well, that’s
not that big of a question or good of a question. You can't possibly
think that some of the cell phone records or the bigger points are
not relevant. It’s not funny. Detective Bamberski is not the Jury;
you are. His decision has been made. Nathaniel Palmer and Nasir
Buford deserve better.
(N.T. Trial, 7/20/12, 114-15, 127, 130-31, 133).
In response, the Assistant District Attorney (ADA) made the following
argument:
____________________________________________
1 Detective Bamberski was assigned to this case and responded to the scene
of the shooting.
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Good afternoon, ladies and gentlemen. You know, the
hardest part of my job─ well, I should say one of the hardest
parts─ is to sit here almost every case I try anymore and listen to
these fine men to be maligned for the jobs they do. I know the
job they do. And after sitting here, maybe you could appreciate
a little bit more the job that they do and how difficult it is. They
are out on the streets at 1:30, 2:30, 3:30 in the morning picking
up evidence; picking up dead bodies; notifying families that their
sons, daughters, husbands, wives are dead; doing the things that
most of us wouldn’t want to do even if we got paid to do it.
So it’s pretty outrageous to sit here and to listen to
what I just heard. But it’s okay because that’s my job and that’s
their job. And it rolls off their back most of the time. I don’t know
how, but it does, but it’s not fair. And you can say, well, he’s
defending his client, he’s arguing what he has to argue. That’s all
well and good. But sometimes it goes a little too far. To say that
that man didn’t do his job because this was one drug dealer
killing another is outrageous. It’s disgusting. And that’s not
fair to that family who’s sitting here today who lost their son.
And Detective Bamberski, I think for being a detective for
31 years, he told you I handle this investigation the way I handle
them all. And he did that in this case. They had their killer within
two days. Within two days. And the Judge told you in the
beginning, this isn’t TV. This is far from TV, believe me. Because
we live this every day. We in this CJC and the Philadelphia Police
Department and the District Attorney’s Office, we live what you
watch on CSI and Special Victims. We live it. And I am sorry to
say, but those people live it too. It’s realty.
And he wants to talk about the violence in Philadelphia. I
am not going to talk about the violence in Philadelphia because
that’s not what I am here for. I am here to prosecute Nasir Buford
for what he did that night, for the crime he committed that night
against Nathaniel Palmer. And that’s what you’re here to decide;
not whether the murder rate is too high, there’s too many guns,
there’s not enough police. That’s for other people to decide; that's
not for you to decide. You’re to decide did he do it, do we have
the right guy?
And I submit to you from the evidence that you heard
from up here and some of the evidence you didn’t hear from
up there, we have the right guy. Let’s see the evidence that
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we do have in this case. Because I am going to focus on that.
Counsel didn’t want to focus on that. I am going to focus on that.
(Id. at 134-136) (emphases added to challenged comments).
At the conclusion of trial, the court instructed the jury as follows
regarding the elements of first- and third-degree murder:
The defendant, Nasir Buford, is charged with both murder
in the first degree and murder in the third degree.
First degree murder. In order to convict the defendant of
first degree murder, you must find the following three elements
beyond a reasonable doubt: One, that the defendant killed the
victim, Nathaniel Palmer; two, that the defendant specifically
intended to kill the victim and; three, that the defendant acted
with malice.
Specific intent to kill means the killer intends to kill, that he
does so deliberately, willfully and with premeditation. That means
he thought about it long enough to be aware of his own intention.
How much time does it take to premeditate and reach that
intention to kill? There is no particular length of time needed or
any planning or previous thought. It can happen in a fraction of
a second.
All that is needed is enough time so that the defendant can
and does completely form the intent to kill and is aware of that
intent to kill. Think about the defendant’s words, actions, and
all the surrounding circumstances in deciding what the
defendant’s intent was. If you believe the defendant intentionally
used a deadly weapon on a vital part of the victim’s body, you
may, if you choose, use that as evidence of a specific intent to kill.
Now, malice in the law, ladies and gentlemen, means
something a little different than what it means in ordinary speech.
It does not mean nasty or spiteful. It means more than hatred,
spite or ill will. It means the defendant had the state of mind bad
enough to make a killing a murder. It means there was intent
to kill or intent to inflict serious bodily injury or a wicked
disposition, hardness of heart, cruelty, a disregard of
consequences for social duty that shows both a disregard
for the facts that his act would probably cause death or
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serious bodily injury and an extreme indifference to the
value of human life.
Again, in deciding if the defendant acted with malice,
consider his words and actions and all the surrounding
circumstances. If you believe the defendant intentionally used a
deadly weapon on a vital part of the victim’s body, you may, if
you choose, use that as evidence of malice. If you are satisfied
that the three elements of first degree murder have been proven
beyond a reasonable doubt, you should find the defendant guilty
of first degree murder. Otherwise, you must find the defendant
not guilty of this crime.
Third degree murder. Third degree murder is a killing with
malice that is not first or second degree murder. Understand,
ladies and gentlemen, second degree is not involved in this case.
I mention it here only because that is how third degree murder is
defined. Accordingly, in order to find the defendant guilty of third
degree murder, you must find the following two elements beyond
a reasonable doubt: One, that the defendant killed the victim,
Nathaniel Palmer and; two, that the defendant acted with malice.
The definition of malice here is the same as I just defined
for you when I defined first degree murder. If you are satisfied
that the two elements of third degree murder have been proven
beyond a reasonable doubt, you should find the defendant guilty
of third degree murder. Otherwise, you must find the defendant
not guilty of this crime.
In summary, as you just heard, the two elements of third
degree murder are also elements of first degree murder. The
difference between these two crimes is that first degree murder
contains an additional element, that the defendant specifically
intended to kill the victim.
(Id. at 167-170) (emphases added to challenged portion of instructions).
The court also issued a “no-adverse-inference” instruction directing the
jury that it may not draw any negative inference from Buford’s decision not to
testify on his own defense at trial because a defendant has the unqualified
constitutional right not to testify. (See id. at 154).
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B.
After the jury found Buford guilty of the aforementioned offenses, the
trial court sentenced him to life imprisonment. Buford appealed his judgment
of sentence and raised seven issues for review. We affirmed the judgment of
sentence on October 8, 2014, in a published opinion. (See Commonwealth
v. Buford, 101 A.3d 1182 (Pa. Super. 2014)). The Pennsylvania Supreme
Court denied Buford’s petition for allowance of appeal on May 1, 2015. (See
Commonwealth v. Buford, 114 A.3d 415 (Pa. 2015)).
Buford timely filed the instant PCRA petition on June 27, 2016, and the
Commonwealth filed a response in May 2017. The PCRA court issued its order
dismissing the petition without a hearing on November 17, 2017. Buford did
not appeal the order at that time but sought reinstatement of his right to do
so in May 2019. The PCRA court entered an order reinstating his right to
appeal the denial of PCRA relief nunc pro tunc on August 5, 2020. Buford
timely appealed and he and the PCRA court complied with Rule 1925. See
Pa.R.A.P. 1925(a)-(b).2
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2 In reviewing the denial of PCRA relief, our standard of review is limited to
whether the record supports the PCRA court’s factual determinations and
whether its decision is free of legal error. See Commonwealth v. Lopez,
249 A.3d 993, 998 (Pa. 2021). We apply a de novo standard of review to the
PCRA court’s legal conclusions. See id. “The PCRA court’s findings and the
evidence of record are viewed in the light most favorable to the
Commonwealth as the winner before the PCRA court.” Id. (citation omitted).
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II.
Buford presents four issues for review, all of which allege ineffective
assistance of trial counsel. Buford claims counsel was ineffective for failing to
object to certain language the trial court used in its closing instructions to the
jury, which he claims was erroneous and prejudicial. Buford also challenges
counsel’s failure to object to portions of the ADA’s closing argument which, in
his view, constituted prosecutorial misconduct. Buford maintains that, at a
minimum, he is entitled to an evidentiary hearing on his petition.
It is well-settled that we presume counsel has rendered effective
assistance. See Commonwealth v. Sarvey, 199 A.3d 436, 452 (Pa. Super.
2018). “To prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no reasonable basis for
his action or inaction; and (3) the petitioner suffered actual prejudice as a
result.” Id. (citation omitted). “If a petitioner fails to prove any of these
prongs, his claim fails.” Id. (citation omitted). Counsel cannot be deemed
ineffective for failing to lodge a meritless objection. See Commonwealth v.
Epps, 240 A.3d 640, 649 (Pa. Super. 2020), appeal denied, 2021 WL 2550503(Pa. filed June 22, 2021).
Additionally, there is no absolute right to an evidentiary hearing on a
PCRA petition, and a hearing is not necessary if the PCRA court can determine
from the record that no genuine issues of material fact exist. See
Commonwealth v. Maddrey, 205 A.3d 323, 328 (Pa. Super. 2019), appeal
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denied, 218 A.3d 380 (Pa. 2019). “To obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” Id. (citation omitted).
A.
Buford first contends trial counsel was ineffective for failing to object to
the trial court’s legally incorrect and confusing jury instruction explaining the
mens rea necessary for a first-degree murder conviction. He asserts the
instruction included “diluted” language defining malice that allowed for a first-
degree murder conviction based on a finding that he merely acted with the
intent to inflict serious bodily injury rather than with the specific intent to kill.
(See Buford’s Brief, at 25-26).
A trial court has broad discretion in instructing the jury and can choose
its own wording so long as the law is clearly and accurately presented. See
Commonwealth v. Vucich, 194 A.3d 1103, 1111 (Pa. Super. 2018). When
reviewing a jury instruction, we must “consider the entire charge as a whole,
not merely isolated fragments, to ascertain whether the instruction fairly
conveys the legal principles at issue.” Commonwealth v. Reid, 2021 WL
4303595, at *26 (Pa. filed Sept. 22, 2021) (citation omitted). “An instruction
will be upheld if it clearly, adequately and accurately reflects the law.” Id.(citation omitted). Additionally, “it is well settled that the jury is presumed to
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follow the trial court’s instructions.” Vucich, supra at 1113 (citation
omitted).
In this case, the trial court was tasked with instructing the jury regarding
the elements of both first- and third-degree murder. “A criminal homicide
constitutes murder of the first-degree when it is committed by an intentional
killing.” 18 Pa.C.S. § 2502(a). “To sustain a conviction for first-degree
murder, the Commonwealth must establish beyond a reasonable doubt that:
(1) a human being was unlawfully killed; (2) the defendant was responsible
for the killing; and (3) the defendant acted with malice and the specific intent
to kill.” Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017)
(citation omitted). In contrast, “[t]hird-degree murder occurs when a person
commits a killing which is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice.” Commonwealth
v. Akhmedov, 216 A.3d 307, 322 (Pa. Super. 2019), appeal denied, 224
A.3d 364 (Pa. 2020) (citation omitted). “Malice is a legal term, which
encompasses not only a particular ill-will, but every case where there is
wickedness of disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty, although a particular
person may not be intended to be injured.” Id. (citation omitted). “Malice
may be found where the actor consciously disregards an unjustified and
extremely high risk that the actor’s conduct might cause death or serious
bodily injury.” Id. (citation omitted).
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The trial court instructed the jury as follows: “In order to convict the
defendant of first-degree murder, you must find the following three elements
beyond a reasonable doubt: One, that the defendant killed the victim,
Nathaniel Palmer; two, that the defendant specifically intended to kill the
victim and; three, that the defendant acted with malice.” It then explained
the meaning of specific intent to kill, the amount of time needed to formulate
this intent and that use of a deadly weapon on a vital part of the body─ here,
a bullet from a firearm into the chest ─can be considered as evidence of
specific intent. The court emphasized: “the two elements of third-degree
murder are also elements of first-degree murder. The difference between
these two crimes is that first-degree murder contains an additional
element, that the defendant specifically intended to kill the victim.
(N.T. Trial, 7/20/12, at 167, 170).
As can be seen, the record reflects that the trial court clearly and
repeatedly informed the jury that a first-degree murder conviction required a
finding of specific intent to kill, while a third-degree murder conviction did not
require such finding. We presume that the jury followed this directive. See
Vucich, supra at 1113. Because the instruction viewed as a whole instead
of in insolated fragments properly informed the jury of the mens rea necessary
for a first-degree murder conviction, trial counsel was not ineffective for failing
to raise a meritless objection thereto.
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B.
Buford also claims trial counsel was ineffective for failing to challenge
the trial court’s instruction directing the jury to: “Think about the defendant’s
words, actions and all the surrounding circumstances in deciding what the
defendant’s intent was.” (Buford’s Brief, at 45) (quoting N.T. Trial, 7/20/12
at 168) (emphasis in brief). Buford characterizes this excerpt as an improper
reference to his decision not to testify in his defense at trial and “permitted
the jury to use [his] silence against him.” (Id. at 44).
The PCRA court explained its use of this language:
Once again, Buford draws an insupportable conclusion by
carefully selecting an isolated remark and divorcing it from the
totality of the Court’s instruction. This he cannot do. The Court
at least three times issued the standard instruction warning the
jury that no negative inference could be drawn from Buford’s
constitutional right not to testify. (N.T. Trial, [7]/18/12, at 20-
21; N.T. Trial, 7/20/12, at 154). Buford cites no authority for the
proposition that juries will ignore such an instruction and offers no
basis for suggesting that the jury did so in this case. Buford’s
counsel had no basis for objecting to the Court’s statement.
(PCRA Court Opinion, 4/09/21, at 13) (case citation omitted).
We agree with the PCRA court that, when viewing the challenged
language in the context of the entire instruction, which included a “no-
adverse-inference” directive advising the jury of Buford’s constitutional right
to remain silent and to draw no negative inference therefrom, counsel had no
basis for objecting to the court’s statement. The jury is presumed to have
followed the court’s instruction not to consider Buford’s silence in rendering
its verdict and counsel cannot be deemed ineffective for failing to object to
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the court’s general reference to his “words.” Buford’s claim to the contrary
merits no relief.
C.
Buford’s two remaining issues assert trial counsel was ineffective for
failing to object to the ADA’s prosecutorial misconduct during her closing
argument to the jury. Buford maintains that the ADA acted improperly by:
(1) expressing her personal opinion regarding the good character of
Commonwealth witnesses and her personal views on the “outrageous” defense
strategy; and (2) referring to evidence not in the trial record that the jury
“didn’t hear from up there.” (Buford’s Brief, at 37, 40).
It is well established that a prosecutor is free to argue that
the evidence leads to guilt and is permitted to suggest all
favorable and reasonable inferences that arise from the evidence.
A prosecutor also may argue h[er] case with logical force and
vigor.
* * *
This Court has explained that comments made by a
prosecutor to a jury during closing argument will not form the
basis for granting a new trial unless the unavoidable effect of such
comments would be to prejudice the jury, forming in their minds
fixed bias and hostility toward the defendant so they could not
weigh the evidence objectively and render a true verdict. Like the
defense, the prosecution is accorded reasonable latitude and may
employ oratorical flair in arguing its version of the case to the jury.
Prosecutorial misconduct will not be found where the comments
were based on the evidence or derived from proper inferences.
Generally speaking, a prosecutor commits misconduct by
improperly bolstering the credibility of a Commonwealth witness
when the following two factors are met: (1) the prosecutor must
assure the jury the testimony of the government witness is
credible, and (2) this assurance must be based on either the
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prosecutor’s personal knowledge or other information not
contained in the record. We further observe that a prosecutor
may make fair comment on the admitted evidence and may
provide fair rebuttal to defense arguments. Even an
otherwise improper comment may be appropriate if it is in
fair response to defense counsel’s remarks. Any challenge
to a prosecutor’s comment must be evaluated in the
context in which the comment was made. In addition, we
must presume that the jury followed the trial court’s
instructions.
Reid, supra at *20, 23-24 (citations and quotation marks omitted; emphasis
added).
In this case, as previously quoted extensively, the ADA did refer to the
police officers who investigated this case as “fine men” and cast them in a
positive light, while describing the defense theory that the police did not
thoroughly investigate this case because it involved two drug dealers as
“disgusting.” (N.T. Trial, 7/20/12, at 135). Although Buford claims that these
comments unfairly bolstered the Commonwealth’s case, he cannot in good
faith assert that defense counsel did not open the door for the ADA’s response
to the repeated assertion that the police did not “do [their] job[s],” that the
lead detective was a “professional witness” and that the case was improperly
handled because it involved “an alleged crack dealer shooting another alleged
crack dealer.” (Id. at 130-31). Indeed, defense counsel’s closing argument
largely focused on the conduct of the Philadelphia Police in general and the
investigation led by Detective Bamberski in particular, which the defense
represented was tainted and not treated with professionalism because it
involved drug dealers.
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Additionally, in its charge to the jury, the trial court repeatedly
emphasized the jury was the sole factfinder and judge of the witnesses’
credibility; and the jury’s recollection of the facts and circumstances of the
case controlled their assessments. (See id. at 152-53). Again, we must
presume the jury followed these instructions. See Vucich, supra at 1113.
Based on the forgoing, we conclude the challenged comments made by
the ADA during closing argument did not rise to the level of prosecutorial
misconduct because they did not have the unavoidable effect of prejudicing
the jurors “forming in their minds fixed bias and hostility toward the defendant
so they could not weigh the evidence objectively and render a true verdict.”
Reid, supra at *23. Thus, we agree with the PCRA court’s determination that
Buford’s claim of ineffective assistance of counsel for failure to object to the
prosecutor’s comments lacks arguable merit.
D.
Buford next contends trial counsel was ineffective for failing to object to
the ADA’s reference during closing argument to “some of the evidence you
didn’t hear from up there.” (Buford’s Brief, at 40) (quoting N.T. Trial, 7/20/12,
at 136). Buford claims this comment invited the jury to “engage in wild
speculation about the evidence it did not hear” in the courtroom and to
“surmise about whether the evidence it did not hear also was inculpatory.”
(Buford’s Brief, at 42).
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The PCRA court determined that when read in context, the ADA’s
comment was plainly a reference to the fact that eyewitness Henderson died
prior to trial and that the jury was, therefore, unable to hear her testimony
directly. The court found Buford’s argument “untenable” as “[t]he
prosecutor’s remarks say absolutely nothing about withheld evidence; there
is nothing in the language that permits such an inference.” (PCRA Ct. Op. at
12).
Further, the trial court repeatedly instructed the jury throughout trial
that arguments of counsel are not evidence. (See N.T. Trial, 7/18/12, at 29;
7/19/12, at 106; 7/20/12 at 112, 162). Again, the jury is presumed to have
followed this instruction with regard to the ADA’s isolated reference to
“evidence you didn’t hear.”
After review of the prosecutor’s comment in the context of Henderson’s
absence from trial and in light of the trial court’s instruction that counsels’
arguments are not evidence, we agree with the PCRA court’s conclusion that
Buford’s claim that defense counsel should have objected to the ADA’s
statement is meritless. Additionally, based on the foregoing, we are in
agreement with the PCRA court that Buford has failed to raise any genuine
issue concerning a material fact warranting an evidentiary hearing. See
Maddrey, supra at 328. We discern no abuse of discretion in the court’s
denial of the PCRA petition without a hearing.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
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