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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DAVID EUGENE RICHARDSON :
:
Appellant : No. 360 EDA 2021
Appeal from the PCRA Order Entered December 21, 2020
In the Court of Common Pleas of Chester County Criminal Division at No(s):
CP-15-CR-0002065-2016
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 19, 2021
David Eugene Richardson appeals from the order denying his Post
Conviction Relief Act (“PCRA”) petition.1 Richardson argues his trial counsel
was ineffective for failing to file post-trial motions, file a motion to preclude
the admission of certain evidence, and object to the Commonwealth’s
alleged Brady2 violation. We affirm.
A jury found Richardson guilty of Persons not to Possess Firearms,
Possession of a Controlled Substance with the Intent to Distribute (“PWID”),
Possession of a Controlled Substance, and Possession of Drug
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546.
2 Brady v. Maryland, 373 U.S. 83 (1963).
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Paraphernalia.3 The facts underlying his convictions have been previously
summarized by this Court:
On March 17, 2016, Detective John DiBattista applied for a
search warrant for a house located on Union Street in West
Chester, Chester County. . . .
Detective DiBattista met with a CI who advised Detective
DiBattista that he or she had purchased cocaine from multiple
people inside the Union Street house over a period of several
years.
Between the dates of March 6, 2016 and March 8, 2016,
Detective DiBattista met with the CI to conduct a controlled buy
at the Union Street house. Detective DiBattista provided $40 in
pre-recorded currency. While under surveillance, the CI entered
the Union Street house. Upon exiting he or she met Detective
DiBattista at a pre-determined location. The CI provided two
small plastic bags containing a white rock like substance
suspected to be crack cocaine, which he or she had purchased at
the Union Street house in exchange for the pre-recorded
currency. The suspected crack field tested positive for crack
cocaine.
Between March 9, 2016 and March 11, 2016, Detective
DiBattista again met with the CI for a controlled buy. Detective
DiBattista provided the CI with $20 in pre-recorded buy money.
While under surveillance, the CI arrived at the Union Street
house and entered. When he or she exited, the CI met Detective
DiBattista at a predetermined location. The CI turned over a
small sealed plastic bag containing suspected crack cocaine. The
substance field tested positive for crack cocaine.
On March 16, 2016, Detective DiBattista again met with
the CI to conduct a controlled buy. Detective DiBattista provided
the CI with $20.00 in pre-recorded money. While under
surveillance, the CI went to the Union Street house and entered.
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3 18 Pa.C.S.A. § 6105(a)(1) and 35 P.S. §§ 780-113(a)(30), 780-
113(a)(16), and 780-113(a)(32), respectively.
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After exiting, the CI met Detective DiBattista at a predetermined
location, where he or she turned over a bag of suspected
cocaine. The substance field tested positive for cocaine.
The CI informed Detective DiBattista that he or she
purchased the controlled substances from a different person for
each controlled buy.
Based on the information provided in the Affidavit, the
magistrate district judge granted the application for a search
warrant.
The police executed the warrant on March 18, 2016. In the
front third-floor bedroom, the police recovered a 9 mm handgun
with an obliterated serial number, a plastic bag of suspected
crack cocaine, small plastic baggies, digital scales, latex gloves,
and a plate with a razor blade and cocaine residue. N.T.,
8/23/17, at 56, 64, 66, 97, 117, 130. The police also recovered
prescription medication bottles with Richardson’s name and his
leather jacket from the front bedroom, id. at 62, 95, and found
Richardson’s wife sleeping in the bedroom. Id. at 184. The police
found Richardson and his father sleeping in the rear third-floor
bedroom. Id. at 53. Richardson claimed that he only sometimes
stayed at the house. Id. at 155-56.
The police arrested Richardson and charged him with the
above-referenced offenses. The charges were based on the
narcotics, paraphernalia, and firearm found while executing the
search warrant. Information, filed 6/27/16. Richardson filed a
motion to suppress, claiming the search warrant was not
supported by probable cause. He further filed a motion to
disclose the identity of the CI. The trial court denied the
motions.
Commonwealth v. Richardson, 294 EDA 2018, unpublished memorandum
at 2-3 (Pa.Super. filed Mar. 26, 2019).
After he was convicted and sentenced, Richardson filed a timely direct
appeal. This Court affirmed on March 26, 2019. Richardson did not seek
review with the Pennsylvania Supreme Court and therefore Richardson’s
judgment of sentence became final in April 2019. He filed his instant timely
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pro se PCRA petition, his first, in March 2020. The PCRA court appointed
counsel who filed a no-merit letter4 and request to withdraw. The court
granted appointed counsel’s request to withdraw on May 14, 2020.
Thereafter, Richardson obtained private counsel who filed an amended
PCRA petition, and in August 2020, the court issued Pa.R.A.P. 907 notice of
intent to dismiss the petition without a hearing. PCRA counsel filed a
response requesting a hearing. The PCRA court granted the request and at a
hearing in November 2020, Richardson presented the testimony of his trial
counsel Anthony Hassan. The court ultimately denied Richardson’s PCRA
petition. Richardson obtained new counsel who filed the instant timely
appeal. The PCRA court and Richardson both complied with Pa.R.A.P. 1925.
Richardson raises the following issues:
I. Whether trial counsel (Anthony Hassan, Esq.) was
constitutionally ineffective for abandoning his client and
failing to file post sentence motions?
II. Whether trial counsel was constitutionally ineffective
for failing to file a motion to preclude admission of text
messages on the grounds that admission violated the
marital privilege, and violated the rule that text messages
must be properly authenticated?
III. Whether the state violated the due process clause of
the constitution of the United States, the Brady rule,
and/or Commonwealth v. Bagnall, 235 A.3d 1075 (Pa.
2020) when it failed to disclose the video surveillance of
125 East Union Street, West Chester, PA?
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4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Richardson’s Br. at 2.
We assess an order denying PCRA relief under a well-settled standard
of review. Our task is to determine whether the conclusions of the PCRA
court are “supported by the record and free of legal error.” Commonwealth
v. Anderson, 234 A.3d 735, 737 (Pa.Super. 2020) (citation omitted).
Richardson claims, in all three of his issues, that his trial counsel was
ineffective. A petitioner who raises a claim of ineffective assistance of
counsel must overcome the presumption that counsel is effective. See
Commonwealth v. Mason, 130 A.3d 601, 618 (Pa. 2015). To do so, the
petitioner must plead and prove all of the following: “(1) the legal claim
underlying the ineffectiveness claim has arguable merit; (2) counsel’s action
or inaction lacked any reasonable basis designed to effectuate petitioner’s
interest; and (3) counsel’s action or inaction resulted in prejudice to
petitioner.” Id. (citation omitted). “Failure to prove any prong of this test
will defeat an ineffectiveness claim.” Commonwealth v. Fears, 86 A.3d
795, 804 (Pa. 2014).
In his first issue, Richardson argues that his trial counsel was
ineffective for failing to file post-sentence motions on his behalf. He
contends that although Hassan testified that Richardson told him that other
counsel would be filing post-sentence motions, Hassan should have known
that as counsel of record it was his responsibility to file such motions within
10 days of the imposition of sentence. Richardson avers that Hassan’s failure
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to file post-sentence motions prejudiced him by preventing him from
challenging the sufficiency of the evidence and the weight of the evidence.
A defendant claiming counsel was ineffective for failing to file a post-
sentence motion must prove prejudice to obtain relief. Commonwealth v.
Liston, 977 A.2d 1089, 1092 (Pa. 2009); Commonwealth v. Reaves, 923
A.2d 1119, 1127–32 (Pa. 2007). Further, a weight of the evidence claim
must be preserved either in a post-sentence motion, by a written motion
before sentencing, or orally prior to sentencing. See Pa.R.Crim.P. 607.
In this case, the trial court properly concluded that Richardson failed to
prove that his trial counsel was ineffective for failing to file post-sentence
motions. First, as noted by the trial court, Richardson did not meet the first
prong of the ineffectiveness test by establishing that his claim had
underlying merit. Mason, 130 A.3d at 618. While he is correct that his
weight claim was not preserved because a post-sentence motion was not
filed on his behalf, he fails to explain either the factual or legal basis his trial
counsel would have had to file a motion challenging either the weight or the
sufficiency of the evidence. As such, Richard failed to prove not only
arguable merit but also prejudice. See id. Richardson’s first issue lacks
merit.
In his second issue Richardson maintains that his trial counsel was
ineffective for failing to file a motion to suppress certain text messages. He
claims that text messages between his wife and himself were not properly
admissible because they were protected by marital privilege. Richardson
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acknowledges that the court admitted the hostile text messages to provide
an explanation regarding why Richardson and his wife were not found
sleeping in the same bedroom, which contained the contraband at issue. He
also avers that his trial counsel should have objected to the admission of the
messages because they were not properly authenticated because the
Commonwealth presented no testimony that he was the sender of the
messages.
We review a trial court’s ruling on the admissibility of evidence for an
abuse of discretion. See Commonwealth v. Belknap, 105 A.3d 7, 9-10
(Pa.Super. 2014). An abuse of discretion occurs where there is an
“overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill will or partiality,
as shown by the evidence of record.” Id. at 10 (citation omitted).
In Pennsylvania, a spouse cannot testify in a criminal proceeding about
confidential communications from one spouse to the other during the
marriage, absent consent of the other spouse:
§ 5914. Confidential communications between spouses –
Except as otherwise provided in this subchapter, in a criminal
proceeding neither husband nor wife shall be competent or
permitted to testify to confidential communications made by one
to the other, unless this privilege is waived upon the trial.
42 Pa.C.S.A. § 5914; Commonwealth v. McBurrows, 779 A.2d 509, 514
(Pa.Super. 2001) (en banc).
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However, the privilege does not shield written correspondence
between spouses that the prosecution obtained from an independent third
party, and not from the defendant’s spouse. See Commonwealth v.
Skibicki, 586 A.2d 446, 449-50 (Pa.Super. 1991) (holding letter defendant
had written to wife was admissible at trial where the letter was left in a car
and a third party produced it). But see Commonwealth v. Fisher, 70 A.
865 (Pa. 1908) (holding letters from defendant husband to wife could not
“be produced by the wife and offered into evidence as coming from her,” as
violative of marital privilege).
In this case, the police discovered the text messages at issue while
searching Richardson’s phone pursuant to a valid warrant. See PCRA Ct.
Op., 12/21/20, at 10. The Commonwealth thereafter introduced the
messages at trial to demonstrate the hostile relationship the couple had at
the time he was found sleeping in a separate room away from his wife and
the contraband. The Commonwealth did not receive the text messages from
Richardson’s wife but instead from law enforcement due to a criminal
investigation. Therefore, the text messages were properly admissible at trial.
Accordingly, Richardson’s trial counsel cannot be deemed ineffective for
failure to object to the admission of the messages on the basis of the marital
privilege, because the underlying claim had no merit. See Mason, 130 A.3d
at 618.
Richardson also claims that his trial counsel was ineffective for not
objecting to the admission of the text messages because the Commonwealth
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failed to properly authenticate them. He contends that the Commonwealth
did not provide any proof that he was the author of the messages.
Richardson cites Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa.Super.
2011), affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014), for
the proposition that access to a device alone does not prove that an
individual is the author of text messages.
For evidence to be admissible, it must be properly authenticated.
Pa.R.E. 901(a); see Commonwealth v. Talley, 236 A.3d 42, 59 (Pa.Super.
2020). To achieve authentication, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it
is. Pa.R.E. 901(a). Such evidence can be purely circumstantial evidence.
Pa.R.E. 901(b). “A proponent of a document need only present a prima facie
case of some evidence of genuineness in order to put the issue of
authenticity before the factfinder.” Gregury v. Greguras, 196 A.3d 619,
633 (Pa.Super. 2018) (en banc) (citation omitted).
“[E]mails and text messages are documents and subject to the same
requirements for authenticity as non-electronic documents generally.” Koch,
39 A.3d at 1004. The question of the admissibility of electronic
communication must be “evaluated on a case-by-case basis as any other
document to determine whether or not there has been an adequate
foundational showing of their relevance and authenticity.” In re F.P., 878
A.2d 91, 96 (Pa.Super. 2005).
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Here, we conclude that Koch is factually distinguishable. In that case,
the Commonwealth admitted that the messages at issue were likely written
by multiple individuals, not just the defendant. Koch, 39 A.3d at 1003-05.
Therefore, if the messages at issue there were admitted, the jury would be
misled and/or confused about their origins. Id. Conversely, in the instant
case the trial court aptly noted the circumstantial evidence was sufficient to
meet the low threshold of authentication:
Detective Battista testified at trial that he discovered an LG cell
phone in the front right pocket of a brown leather jacket
recovered from the third floor, front bedroom. This leather jacket
belonged to [Richardson]. [Richardson] indicated to Detective
Battista that the jacket was his along with anything in the
pockets. Detective Battista further testified as to the text
messages discovered on [Richardson’s] cell phone. Indeed, in at
least two messages, the author identifies himself as
[Richardson], and attaches photos of himself.
PCRA Ct. Op., 12/21/20, at 13 (record citations omitted).
We conclude that the text messages here had ample evidence
supporting the PCRA court’s determination that the messages were properly
authenticated. See In re F.P., 878 A.2d at 96; Murray, 174 A.3d at 1157.
Therefore, trial counsel was not ineffective for failure to object to the
admission of the messages on the basis of authentication. There is no merit
to the underlying contention. See Mason, 130 A.3d at 618. Hence,
Richardson’s second issue also warrants no relief.
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In his third issue, Richardson argues his trial counsel was ineffective
for failing to allege a Brady violation.5 He points to testimony during trial
that police had surveillance video of the outside of the Union Street property
where Richardson and the contraband were found.6 Richardson asserts that
trial counsel was ineffective in failing to request a copy of the videotape
because “the videotape could have been used by a skilled lawyer to show
that many people had access to the property, and could have planted the
evidence used to convict [Richardson].” Richardson’s Br. at 20.
“[T]o establish a Brady violation, an appellant must prove three
elements: (1) the evidence at issue is favorable to the accused, either
because it is exculpatory or because it impeaches; (2) the evidence was
suppressed by the prosecution, either willfully or inadvertently; and (3)
prejudice ensued.” Commonwealth v. Spotz, 47 A.3d 63, 84 (Pa. 2012)
(citation omitted). As to Brady claims advanced under the PCRA, a
defendant must demonstrate that the alleged Brady violation “so
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5 While Richardson’s question presented does not reference ineffective
assistance of counsel, his argument is fashioned under that rubric.
Therefore, we will address his issue by considering his contention that his
trial counsel was ineffective in relation to a potential Brady violation.
6 To the extent that Richardson argues that counsel was ineffective for not
asserting a Brady violation in connection with a 911 call, such claim is
waived due to his failure to include it in his Pa.R.A.P. 1925(b) statement.
See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are
waived”).
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undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place.” Commonwealth v. Ly, 980
A.2d 61, 76 (Pa. 2009) (citation and internal quotation marks omitted).
In the instant case, the PCRA court concluded that the underlying
Brady claim lacked arguable merit:
The video did not show the cocaine sales. The video did not
show any portion of the interior of the house where the search
warrant was executed. The video merely would have shown
confidential informant’s entry and exit from the residence.
[Richardson] argues that he may not have been charged with
the controlled buys, but nevertheless, the jury was free to deem
this evidence exculpatory if they chose. Notwithstanding the fact
that this argument makes no sense, [Richardson] fails to meet
his burden in establishing the favorability or materiality of such
evidence. This evidence is neither favorable nor unfavorable to
[Richardson]; rather, it is irrelevant for purposes of proving the
crimes charged. Further, the burden of proof is not that the jury
may have deemed such evidence as exculpatory, but that there
exists a reasonable probability that the result of the trial would
have been different. The mere possibility of a different outcome
is insufficient. For these reasons, [Richardson] cannot establish
that he was prejudiced by the Commonwealth’s alleged
suppression of video evidence. Thus, [Richardson’s] Brady claim
lacks arguable merit.
PCRA Ct. 1925(a) Op., 3/2/21, at 10-11.
We conclude that the record supports the court’s determination that
Richardson failed to establish that the video tape at issue was exculpatory in
nature, let alone sufficiently prejudicial to find a reasonable probability that
its production would have caused a different result at trial. See Spotz, 47
A.3d at 84. As such, we once again hold that trial counsel was not ineffective
for failing to raise a meritless claim. See Mason, 130 A.3d at 618.
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Accordingly, we affirm the PCRA court’s order dismissing Richardson’s PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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