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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DANIEL CHAVIOUS, :
:
Appellee : No. 2063 MDA 2013
Appeal from the Order Entered October 23, 2013,
In the Court of Common Pleas of Dauphin County,
Criminal Division, at No. CP-22-CR-0002415-2009.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 29, 2014
The Commonwealth appeals from the order granting Daniel Chavious,
Pa.C.S.A. §§ 9541 9546. For the reasons that follow, we vacate and
remand.
The PCRA court summarized the factual and procedural history of this
case as follows:
Following a trial held December 14-16, 2009, a jury found
[Appellee] guilty of three counts of unlawful delivery of a
alleged sale of crack cocaine on two occasions to a confidential
informant and on a third occasion to an undercover officer.
Following trial, I sentenced [Appellee] to an aggregate term of
66 to 240 months confinement. [Appellee] filed a timely appeal
to the superior court arguing that this court erred by failing to
give a missing witness instruction and also that the evidence was
insufficient. The superi
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his request for discretionary review before the supreme court
was subsequently denied. Commonwealth v. Chavious, No. 158
MDA 2010 (Pa. Super. Feb. 2, 2011 (mem.); petition for
allowance of appeal denied, No. 138 MAL 2011 (Pa. July 12,
2011).
***
[Appellee] filed a timely pro se PCRA petition on May 15,
2012. His attorney Jennifer Tobias later filed a motion to
withdraw which I denied on the basis that counsel had not
reviewed all of the claims asserted in the pro se petition. I
directed that she fully address them in a supplemental filing. In
response, Ms. Tobias filed a PCRA petition April 3, 2013 seeking
an evidentiary hearing for the purpose of determining whether
ve for having failed to
obtain phone records, which would have presumably and
definitively revealed that the phone number which [Appellee]
allegedly used to contact the confidential informant and
Detective Dickerson had not been activated until a month after
the alleged drug deals. [Appellee] claimed that the evidence
supporting his convictions was completely fabricated and these
sought an evidentiary hearing in order to determine whether
[Appe
any merit. PCRA counsel had not sought to obtain the phone or
the phone records. Therefore, following the evidentiary hearing,
I issued an order, August 2, 2103, directing that the record be
held
would make all reasonable efforts to obtain any and all phone
alleging ineffective assistance of trial counsel for failure to obtain
said reco
[sic] phone numbers and/or records relevant to the three drug
briefs on the phone record issue.[1]
1
AND NOW, this 2nd day of August, 2013, following an
evidentiary hearing, this Court directs that the record be held
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***
PCRA hearing, and pursuant to my order, she reviewed Detective
recorded in his paperwork that the phone number allegedly used
by [Appellee] during the drug buys was 717-370-8630. These
worksheets had been identified as Commonwealth Exhibits (#1-
attorney further noted that she contacted the cell phone
provider, Boost Mobile, but was informed that it stores records
for only eighteen months and thus no longer had access to
them; however, it would have had the records from the alleged
drug transaction calls, made in February 2009, at the time of
trial, held in December 2009.
phone so she could attempt to obtain records of all phone calls
made to and from the phone (as well as its period of activation),
which are recorded on a chip in the phone. Police had
Incredibly, counsel was informed that the phone had been
destroyed just one week prior to her request. The
attorney is directed to make all reasonable efforts to obtain any
PCRA claim alleging ineffective assistance of trial counsel for
failure to obtain said records. The Commonwealth is further
direc
evidence available to it of phone numbers and/or records
relevant to the three drug transactions at issue. This court
(limited to the phone record issue) on or before, September 6,
September 16, 2013.
Order, 8/2/13, at 1.
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Commonwealth has not disputed that the phone was destroyed
in the manner represented by Attorney Tobias.6
6
In its brief, the Commonwealth failed to address
ad destroyed
the phone. My staff thereafter contacted the
attorney who represented the Commonwealth at the
PCRA hearing by email and requested if he could
confirm that the phone had been destroyed as
indicated by Ms. Tobias. The email response
provided by the Commonwealth attorney was that he
The destruction of the phone could be
considered [to] be in direct violation of my August 2,
2013 Order, by which I directed that the
all relevant evidence available to it of phone
numbers and/or records relevant to the three drug
Commonwealth acted in contempt of my order has
been assigned to President Judge Todd Hoover for
resolution. Furthermore, even absent court order,
the fact that [Appellee] had a pending request for
PCRA relief, including a request for a new trial, was
easily discoverable to those within the criminal
justice system and should have precluded such
destruction. The principle that any relevant evidence
should not be destroyed in a pending case is beyond
obvious.
PCRA Court Opinion, 10/23/13, at 1-6 (internal citations and some internal
footnotes omitted).
The PCRA court then granted Appellee
following reasoning:
Inasmuch as the Commonwealth is responsible for depriving
[Appellee] of the only means to prove his claim, and given the
applicable inference that the fact finder can consider that the
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destroyed evidence would have been unfavorable to the
Commonwealth, I grant his request for a new trial and vacate his
judgment of sentence.
PCRA Court Opinion, 10/23/13 at 1. The Commonwealth timely appealed.
Both the Commonwealth and the PCRA court complied with Pa.R.A.P. 1925.
In its brief, the Commonwealth presents the following issues for our
review:
A. Whether the trial court erred in finding Appellee received
ineffective assistance of counsel since he failed to show his
underlying claim has any arguable merit, and/or that there was
a reasonable probability that, but for the alleged error of
counsel, the outcome of the trial would have been different.
B. Whether the trial court erred in failing to conduct an
evidentiary hearing concerning the destruction of Appe
phone?
Our standard of review in an appeal from the grant or denial of PCRA
relief requires us to determine whether the ruling of the PCRA court is
supported by the record and is free from legal error. Commonwealth v.
Lesko
disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing
Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super. 2001)).
issue first. The Commonwealth acknowledges that a PCRA court need not
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a court
Commonwealth maintains that in this situation, however, an evidentiary
hearing was necessary because the merits of the issue could not be
adequately reviewed based upon the record. Id. The Commonwealth
contends that following submission of the briefs, the PCRA court made no
ne. Id. The Commonwealth asserts that
the PCRA court erred in failing to conduct an evidentiary hearing concerning
Id. at 32.
There is no right to an evidentiary hearing on a PCRA petition.
Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). Rule
907(2) of the rules of criminal procedure provides:
(2) A petition for post-conviction collateral relief may be
granted without a hearing when the petition and answer show
that there is no genuine issue concerning any material fact and
that the defendant is entitled to relief as a matter of law.
Pa.R.Crim.P. 907(2). On review, we examine the issues raised in the
petition in light of the record to determine whether the PCRA court erred in
concluding that there were no genuine issues of material fact. Jordan, 772
A.2d at 1014.
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In this case, as noted, the Commonwealth has asserted that a hearing
was necessary to probe the circumstances surrounding the alleged
agree. Our review of the record reveals that there was a genuine issue
concerning the circumstances surrounding the alleged destruction of the
mobile phone. As outlined previously, the PCRA court stated that it granted
prove his claim, and given the applicable inference that the fact finder can
consider that the destroyed evidence would have been unfavorable to the
to conclude that the PCRA court made this decision without adequate inquiry
into the circumstances surrounding the asserted destruction of the cell
phone.
counsel that the police had told her that the phone had been destroyed, the
P via email, inquiring as
again via email, that he could not confirm or deny this claim. Id. Thus, on
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petition.
without conducting a hearing as to the circumstances surrounding the
alleged destruction of the cell phone, was reversible error. The
Commonwealth should have been afforded the opportunity to investigate the
matter and present any information relevant to the circumstances
surrounding the confiscated phone, phone records and the assertion that it
had been recently destroyed.
lution of
this issue on the existing record, we are remanding this matter for an
evidentiary hearing regarding the circumstances surrounding the destruction
of the cell phone and the existence of any relevant phone records. Upon
remand, both parties shall be given the opportunity to establish their
respective positions at the hearing. Thus, we vacate the order of the PCRA
court and remand this matter to the PCRA court for further proceedings
consistent with this memorandum.2
Order vacated. Matter remanded. Jurisdiction relinquished.
2
claim.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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