Com. v. Hogue, D.

J-A13027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DON CARVICA HOGUE :
:
Appellant : No. 1727 EDA 2021

Appeal from the PCRA Order Entered August 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006741-2014

BEFORE: OLSON, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 15, 2022

Don Carvica Hogue (“Appellant”) appeals from the Order entered in the

Philadelphia County Court of Common Pleas denying without a hearing his

petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. He asserts that trial counsel provided ineffective assistance of

counsel by failing to object to the admission of an audio recording. After

careful review, we affirm.

We glean the relevant facts and procedural history from the PCRA

court’s December 10, 2021 Opinion filed pursuant to Pa.R.A.P. 1925(a). On

March 3, 2017, the trial court sentenced Appellant to, inter alia, a term of

incarceration of life without parole after a jury found him guilty of First-Degree
J-A13027-22

Aggravated Assault-Serious Bodily Injury and other offenses.1 This Court

affirmed the judgment of sentence on August 5, 2019, in a non-precedential

decision. Commonwealth v. Hogue, No. 1049 EDA 2017 (Pa. Super. filed

Aug. 5, 2019).

On September 27, 2019, Appellant filed a pro se PCRA petition. The

court appointed counsel, who filed an amended petition asserting trial

counsel’s ineffectiveness for failing to object to the admission of a portion of

a tape recording of a phone call that Appellant had with his daughter, Rashada

Siojo, which had been broadcasted over Ms. Siojo’s vehicle’s Bluetooth system

as she drove herself, her brother, and her mother, who was Appellant’s

paramour, away from Appellant’s home. The court issued a Pa.R.Crim.P. 907

notice on June 10, 2021. Appellant did not respond to the notice. The court

dismissed the Petition on August 19, 2021.

Appellant filed a Notice of Appeal. Both Appellant and the court

complied with Pa.R.A.P. 1925.

In his brief, Appellant raises three issues asserting that the court erred

in dismissing his petition without a hearing because trial counsel provided

ineffective assistance of counsel when:

A. He failed to object to the admission of the taped conversation
between Rashada Siojo and [Appellant] that allegedly took place on
March 17, 2014.
____________________________________________

1 The jury based its verdict on evidence that on March 16, 2014, Appellant
repeatedly stabbed a man under a train trestle in Philadelphia. Because this
was Appellant’s fifth conviction for a crime of violence, the court sentenced
Appellant to LWOP pursuant to 42 Pa.C.S. § 9714(a)(2).

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J-A13027-22

i) The chain of custody for the taped conversation was not
established;
ii) The taped conversation could not be authenticated; and
iii) The taped conversation violated the Wiretap Act further
delineated in 18 Pa.C.S. § 5703, and the exception found
in 18 Pa.C.S. § 5704(17) is not applicable to the facts at
hand.

Appellant’s Brief at 6-7.

We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)). “This Court grants great deference to the findings of the PCRA court

if the record contains any support for those findings.” Commonwealth v.

Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010). To be eligible for relief

under the PCRA, a petitioner must establish, inter alia, that his conviction or

sentence resulted from one or more of the enumerated errors or defects found

in 42 Pa.C.S. § 9543(a)(2), which include, relevant to this appeal, the

ineffective assistance of counsel. 42 Pa.C.S. §§ 9543(a)(2)(ii). In addition,

a petitioner must establish that the issues raised in the PCRA petition have

not been previously litigated or waived, and that “the failure to litigate the

issue prior to or during trial, during unitary review or on direct appeal could

not have been the result of any rational, strategic or tactical decision by

counsel.” Id. at § 9543(a)(3), (a)(4).

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J-A13027-22

There is no right to a PCRA hearing; a hearing is unnecessary where the

PCRA court can determine from the record that there are no genuine issues of

material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008). “With respect to the PCRA court’s decision to deny a request for an

evidentiary hearing, or to hold a limited evidentiary hearing, such a decision

is within the discretion of the PCRA court and will not be overturned absent

an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa.

2015).

We presume that counsel has rendered effective assistance.

Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019). In

order to overcome the presumption that counsel has provided effective

assistance, a petitioner must establish that: (1) the underlying claim has

arguable merit; (2) counsel lacked a reasonable basis for his act or omission;

and (3) petitioner suffered actual prejudice. Commonwealth v. Bradley,

261 A.3d 381, 390 (Pa. 2021). “Appellant bears the burden of proving each

of these elements, and his failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” See Jarosz, 152 A.3d

at 350.

Each of Appellant’s claims challenge the admission of a partial recording

of a telephone conversation that Appellant had with Ms. Sioja while she

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J-A13027-22

travelled in a vehicle with her mother and her younger brother.2 The PCRA

court observed:

During the June 17, 2016 evidentiary hearing [on Appellant’s
suppression motion], Rashada Siojo had been subjected to direct
and cross-examination concerning her memory of Appellant’s
verbal admissions both on and off the recording and the unique
circumstances surrounding the partial recording of her chaotic
quarrels with her father, the Appellant; she testified that all of the
conversations had been broadcasted via Bluetooth speaker in the
presence of her brother and her mother Lolita Moore, Appellant’s
paramour, while all of them traveled in Ms. Siojo’s vehicle to
escape the Appellant’s wrath and potential violence.

Notably, Ms. Siojo had driven to Appellant’s residence after
unrecorded verbal exchanges during which Appellant had said to
her and her mom, Ms. Moore,[3] that he had critically stabbed a
man over a lighter on the avenue. Ms. Moore’s daughter reported
that she had been quite fearful for the safety of herself and her
mother particularly after Appellant had demanded that Ms. Moore
handle and dispose of the knife that he had used in the stabbing.
She testified during the motion that she had independently
decided to use her brother’s cell phone to record part of the
telephone conversation because of her well-founded safety fears.
She further acknowledged in her verbatim statements provided to
law enforcement that she had provided the recording
simultaneously to law enforcement investigators after she had
driven her family members and herself from Appellant’s home to
the police station in a panicked state.

PCRA Ct. Op., 12/10/21, at 10-11.4
____________________________________________

2 The relevancy of the contents of the challenged recordings is not an issue in
this appeal.

3 Ms. Moore was at Appellant’s house during these initial, unrecorded
conversations that Ms. Sioja had with Appellant.

4 The PCRA court also observed: “Ms. Siojo had reluctantly testified during the
trial in front of Appellant, her father, and had partially altered her testimony
(Footnote Continued Next Page)

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J-A13027-22

Appellant first contends that counsel provided ineffective assistance by

not challenging the admission of the taped conversation on the basis of the

Commonwealth’s failure to establish chain of custody. Appellant’s Br. at 26.

He argues that the Commonwealth presented no evidence “as to which police

officer initially received the phone and taped conversation of March 17, 2014,

from Siojo’s brother” and proffered no evidence “that the phone and taped

conversation was even in the possession of the Commonwealth from the time

it was taken to the time of trial.” Id. at 27. Appellant next contends that

counsel erred in failing to object to the admission of the taped conversation

because it could not be authenticated. Id. at 27-28. Finally, Appellant

contends that counsel should have objected to the admission of the tape

recording because the telephone was used as a recording device and was,

therefore, included in the Wiretap Act’s definition of an “electronic, mechanical

or other device,” and the recording made with Ms. Sioja’s brother’s cell phone

was not subject to the exception provided in 18 Pa.C.S. 5704(17) because the

brother was not a victim or witness. Id. at 28-30. He concludes that “[b]ut

____________________________________________

to distance herself from her direct involvement in the taping of her
conversation with her brother’s cell phone. Her previous testimony during the
motion to suppress physical evidence had been far more detailed, less hostile,
and far more consistent with her written and adopted verbatim statement that
had also been admitted into evidence at trial as Commonwealth Exhibit #9.
Within her previous verbatim adopted inconsistent statements to
investigators, she had fully acknowledged her role with respect to the
recording as well as the preceding events that had included Appellant’s
admissions to her and to her mother that he had stabbed the man and the
reasons for the stabbing.” PCRA Ct. Op. at 16.

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J-A13027-22

for Counsel’s inactions, the outcome of the proceeding would have been

different, and he would have been found not guilty.” Id. at 31.

The PCRA court concluded that no PCRA hearing was required because

the issues raised had been vigorously litigated before and during trial.

Appellant’s claims as raised within the PCRA filings remain
factually flawed and legally unsound because Appellant’s trial
counsel had vigorously objected to the admission of the
referenced evidence within the pre-trial evidentiary hearing
concerning his motion to suppress and associated motion in limine
that had been conducted on June 17, 2016. Appellant’s trial
counsel also raised a similar objection to introduction [of]the same
recorded portion of the conversation during trial.

Tr. Ct. Op., dated 12/20/21, at 7.

The Hon. Anne Marie B. Coyle has authored a comprehensive, thorough,

and well-reasoned Opinion addressing each issue Appellant raises in this

appeal with citation to and discussion of the record and relevant case law.

See, e.g., id., at 13-18 (discussing, inter alia, Ms. Siojo’s testimony at trial

identifying her voice and Appellant’s voice from the recording, the admission

of a photograph of the brother’s cell phone, and “admitted documents [that]

additionally and independently verified authenticity and chain of custody of all

prosecution evidence including the recording at issue”); at 18-25 (addressing

the Wiretap Act, 18 Pa.C.S. §§ 5703, 5704(17), and relevant case law,

observing that (1) a telephone is exempt from the Act, factually distinguishing

Commonwealth v. Smith, 136 A.3d 170, 178 (Pa. Super. 2016); (2) even

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J-A13027-22

if a telephone is not exempted from the Wiretap Act’s definition of “device,”5

the Act provides an exception for witnesses to intercept communications

“when they have reasonable suspicion that the intercepted party . . . is about

to commit or has committed a crime of violence, and there is reason to believe

that evidence of the crime of violence may be obtained from the interception”

(citing 18 Pa.C.S. § 5704(17)); (3) the phone call was the continuation of a

previous conversation in which Appellant admitted to stabbing a man over a

lighter and had threatened Ms. Siojo and her mother; (4) even if the exception

provided in Section 5704(17) were not applicable, the admission the tape

recording was harmless error because it was cumulative of testimony

presented at trial from the victim and Ms. Sioja, and the outcome of the trial

would not have been different had counsel raised this specific challenge).

The PCRA court’s opinion is supported by the record. We discern no

abuse of discretion in the court’s denial of Appellant’s PCRA petition without a

hearing. We, thus, adopt the PCRA court’s Opinion as our own and affirm the

order dismissing Appellant’s petition.

We instruct the parties to annex a copy of the PCRA court’s December

20, 2021 Opinion to any future filings.

Order affirmed.

____________________________________________

5 This Court, in addressing Appellant’s direct appeal, rejected his argument
that a telephone is included in the Wiretap Act’s definition of “electronic,
mechanical or other device.” Commonwealth v. Hogue, No. 1045 EDA 2019
(Pa. Super. filed Aug. 5, 2019).

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J-A13027-22

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2022

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 Circulated 07/20/2022 11:56 AM

IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION

COMMONWEALTH OF CP-51-CR-0006741-2014
PENNSYLVANIA

vs.

SUPERIOR COURT
DON CARVICA HOGUE NO. 1727 EDA 2021

FILED
OPINION DEC 2 0 2021
Ap~als/Post Trial
Office of Judicial Records

COYLE,J. DECEMBER 20, 2021

Appellant, Don Carvica Hogue, as the above-named Defendant and Petitioner, seeks

review of the Order entered on August 19, 2021 by the Honorable Anne Marie B. Coyle as Judge

of the First Judicial District of Pennsylvania, Court of Common Pleas, hereinafter referred to as

"this Court," denying his petitions that had been filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S.A. §9541 et seq.

I. FACTUAL AND PROCEDURAL HISTORY

On March 18, 2014, Appellant was arrested and was charged with inter alia, Aggravated

Assault-Attempt/Cause Serious Bodily Injury 1, Simple Assault2, Recklessly Endangering

1
18 Pa. C.S.A. § 2702 (Fl)

2
18 Pa. C.S.A. § 270 I (M2)

1

0054_Opinion
 Another Person3 , and Possession of an Instrument of Crime4 for viciously and repeatedly

stabbing and nearly killing a man on March 16, 2014, in the vicinity of the 4600 block of

Frankford Avenue in the City and County of Philadelphia, following a minor disagreement over

the use of a cigarette lighter.

On June 17, 2016, an evidentiary hearing concerning the filed pre-trial motion to

suppress and related motion in limine was litigated before this Court. These defense motions

which had been related to the defense objection to the proposed trial admission of a partially

recorded telephone conversation were denied. Selection of the jury panel began with this Court

as the presiding jurist on December 13, 2016. At the conclusion of the jury trial, Appellant was

found guilty of the first-degree felony graded offense of Aggravated Assault-Serious Bodily

Injury Caused and Attempted, and misdemeanor offenses of Recklessly Endangering Another

Person, and Possession of an Instrument of Crime. The charge of Simple Assault was nolle

prosed. Sentencing was deferred pending preparation of the pre-sentence report and mental

health evaluation.

On March 3, 2017, after a full and fair evidentiary hearing, this Court, pursuant to 42 Pa.

C.S. §9714, imposed a sentence of life imprisonment without the possibility of parole on the

first-degree felony charge of Aggravated Assault-Serious Bodily Injury Caused. As to the

offense of Possessing an Instrument of Crime, a consecutive sentence of two and one half (2Yz)

to five (5) years of incarceration, followed by one (1) year to two (2) years of incarceration for

Recklessly Endangering Another Person was imposed. Mark W. Adams, Esquire represented

Appellant during pre-trial motions, trial and sentencing hearing.

3 18 Pa. R.C.A. § 2705 (M2)

4
18 Pa. C.S.A. § 907 (Ml)

2
 Attorney Adams filed a Notice of Appeal and a Motion to Withdraw as Counsel on

March 20, 2017. 5 Attorney Adams' motion to withdraw was granted on March 22, 2017 and

James Richard Lloyd, III, Esquire, was appointed as counsel. On November 8, 2017, Attorney

Lloyd filed a Statement of ElTors Complained of on Appeal. On November 13, 2017, the

Defendant was permitted to precede pro se after this Court had conducted full "Grazier"

colloquy and hearing and Attorney Lloyd was permitted to formally withdraw his representation.

On December 7, 2017, the Defendant filed a pro se Statement of Errors Complained of on

Appeal.

On August 5, 2019, the Superior Court of Pennsylvania affirmed judgment of sentence in

the Non-Precedential Memorandum Decision docketed under 1049 EDA 2017 and in so doing

adopted most of the trial court's factual recitation and upheld the trial court's decision to denying

the defense pre-trial suppression motion that had sought to preclude "the Commonwealth from

playing the cell phone recording made by his adult daughter, Rashada Siojo." The reviewing

Superior Court also specifically rejected the defense's direct appellate claim that the recorded

portion of the subject telephone conversation had been included within the definition of an

"electronic, mechanical or other device" of the Wiretap Act, 18 PA.C.SA. 5702 and upheld the

imposition of the Order of Sentence. No further appeal was filed.

On September 27, 2019, Petitioner filed a pro se handwritten petition seeking post-

conviction collateral relief. Attorney Lloyd was permitted to withdraw and Scott P. Sigman,

Esquire was appointed as Appellant's counsel. Attorney Sigman filed an Amended Petition

alleging counsel's ineffectiveness in failing to object to the admission of the taped conversation

between Rashada Siojo ("Siojo") and Appellant that had allegedly taken place on March 17,

5
On March 10, 2017, the Defendant filed a prose Post-Conviction Relief Act (PCRA) petition. This
petition was subsequently dismissed as prematurely filed on November 9, 2017.

3
 2014. According to Appellant, trial counsel was ineffective for filing to object to the tape's

introduction because: "(1) the chain of custody for the taped conversation had not been

established; (2) the taped conversation could not have been authenticated; and (3) the taped

conversation had violated the Wiretap Act as delineated in 18 Pa.C.S. § 5703; and that the

exception found in 18 Pa.C.S.A. §5704(17) had not been applicable to the facts at hand."

On April 13, 2021, the Commonwealth of Pennsylvania, by and through the District

Attorney of Philadelphia, and Assistant District Attorney Jonathon M. Frisby, Esquire, filed a

Motion to Dismiss. On April 14, 2021, Appellant filed a counseled brief in opposition to the

Commonwealth's motion to dismiss. After conducting a thorough review of the entire trial and

appellate record, this Court dismissed Appellant's requests for relief that had been filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S.A. §9541 et seq. on August 19, 2021. 6 Scott

Sigman, Esquire filed a timely Notice of Appeal and remains Appellant's counsel of record to

date.

II. STANDARD OF REVIEW

The law in Pennsylvania presumes that trial counsel was effective. Commonwealth v.

Rollins, 558 Pa. 532, 738 A.2d 435 (1999); Commonwealth v. Quier, 366 Pa.Super. 275, 531

A.2d 8, 9 (1987). Therefore, when a claim of ineffective assistance of counsel is made, it is the

petitioner's burden to prove such ineffectiveness; that burden does not shift. Commonwealth v.

Cross, 535 Pa. 38, 634 A.2d 173, 175 (1993), cert. denied, 115 S.Ct. 109, 130 L.Ed.2d 56 (Pa.

1994); Commonwealth v. Marchesano, 519 Pa. 1, 544 A.2d 1333, 1335-36 (1988);

Commonwealth v. Tavares, 382 Pa. Super. 317, 555 A.2d 199, 210 (1989), appeal denied, 571

6
The dismissal occurred more than twenty days after Petitioner was served with notice of the
forthcoming dismissal of his PCRA petition. Pa. R. Crim. P. 907.

4
 A.2d 382 (Pa. 1989).

In determining whether counsel rendered ineffective assistance, the reviewing court must

asce1iain whether the issue underlying the claim has arguable merit. This requirement is based

upon the principle that counsel will not be found ineffective for failing to pursue a frivolous

claim or strategy. Second, if the petitioner's claim does have arguable merit, the court must

determine whether the course chosen by counsel had some reasonable basis designed to serve the

best interest of the petitioner. If a review of the record reveals that counsel was ineffective, the

court must determine whether the petitioner has demonstrated that counsel's ineffectiveness

worked to his prejudice. Commonwealth v. Miller, 605 Pa. 1, 987 A.2d 638 (2009);

Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989); Commonwealth v. Pierce,

515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Pendola, 416 Pa.Super. 568, 611 A.2d 761

(1992), appeal denied, 629 A.2d 1378 (Pa. 1993). Failure to satisfy any prong of the test for

ineffectiveness will require rejection of the claim. Commonwealth v. Hudson, 2003 PA Super

104, 820 A.2d 720, 726 (2003).

In order to establish prejudice, a petitioner must show that "counsel's ineffectiveness

was of such magnitude that the verdict essentially would have been different absent counsel's

alleged ineffectiveness." Commonwealth v. Howard, 538 Pa. 86, 645 A.2d 1300, 1308. See

also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the

context of a PCRA claim, petitioner must not only establish ineffective assistance of counsel, he

must also plead and prove that counsel's stewardship "so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken place." See 42

Pa.C.S.A. §9543 (a)(2)(ii); Commonwealth v. Rowe, 411 Pa.Super. 363, 601A.2d833 (1992).

Counsel is never ineffective for failing to make a frivolous objection or motion.

5
Commonwealth v. Groff, 356 Pa.Super. 477, 514 A.2d 1382, 1386 (1986), appeal denied, 53 l

A.2d 428 (Pa. 1987); Commonwealth v. Davis, 313 Pa. Super. 355, 459 A.2d 1267, 1271 (1983).

Similarly, counsel is never ineffective for failing to raise a frivolous issue in post-verdict motions

or on appeal. Commonwealth v. Thuy, 424 Pa. Super. 482, 623 A.2d 327, 355 (1993);

Commonwealth v. Tanner, 410 Pa. Super. 398, 600 A.2d 201, 206 (1991).

When applying the reasonable standards of review set forth in this Commonwealth of

Pennsylvania, Appellant has failed to demonstrate any legitimate basis for the relief requested.

III. ISSUES ON APPEAL

Appellant raises the following issues on appeal (set forth verbatim):

1. The lower court erred in dismissing Defendant's Petition for Post-
Conviction Collateral Relief pursuant to the Pennsylvania Post-Conviction Relief
Act ("PCRA"), 42 Pa.C.S.A. §§ 9542-46, by Court Order of August 19, 2021,
without affording him an evidentiary hearing since Defendant's conviction and
sentence resulted from the ineffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.

2. The lower court eiTed in dismissing Defendant's Petition for Post-
Conviction Collateral Relief pursuant to the Pennsylvania Post-Conviction Relief
Act ("PCRA"), 42 Pa.C.S.A. §§ 9542-46, by Court Order of August 19, 2021,
without affording him an evidentiary hearing since, under the totality of
circumstances, there are genuine issues concerning material facts and legitimate
purposes would be served by such hearing.

3. The lower court erred in dismissing Defendant's Petition for Post-
Conviction Collateral Relief pursuant to the Pennsylvania Post-Conviction Relief
Act ("PCRA"), 42 Pa.C.S.A. §§ 9542-46, by Court Order of August 19, 2021,
without affording him an evidentiary hearing since Defendant's petition makes
out a prima facie case warranting such hearing where under the totality of
circumstances, trial counsel provided ineffective assistance that lacked any
reasonable basis which prejudiced the Defendant:
A. He failed to object to the admission of the taped conversation
between Rashada Siojo and the Defendant that allegedly took place
on March 17, 2014.
i) The chain of custody for the taped conversation
was not established;
ii) The taped conversation could not be

6
 authenticated; and
iii) The taped conversation violated the Wiretap Act
further delineated in 18 Pa.C.S. § 5703, and the
exception found in 18 Pa.C.S.A. § 5704(17) is not
applicable to the facts at hand.

IV. DISCUSSION

To support his demand for post-conviction relief, Appellant has presented several

interrelated claims of ineffective assistance of his former trial counsel, Mark Adams, Esquire.

Appellant contended that his trial counsel had failed to object to the admission of the

extrapolated portion of telephone conversations that had occurred on March 17, 2014 between

Appellant and his daughter, Rashada Siojo. Summarily, Appellant's claims as raised within the

PCRA filings remain factually flawed and legally unsound because Appellant's trial counsel had

vigorously objected to the admission of the referenced evidence within the pre-trial evidentiary

hearing concerning his motion to suppress and associated motion in limine that had been

conducted on June 17, 2016. Appellant's trial counsel also raised a similar objection to

introduction to the same recorded portion of the conversation during trial.

More importantly, the partially recorded telephone conversation did not violate the

referenced "Wiretap Act" because it had fallen well within the exception contained within the

statutory language of 18 PA. C.S.A. §5704 (17). Indeed, the trial court's legal conclusion and

supportive credibility finding that the subject recording had fallen within this statutory exception

had been upheld as a proper exercise of trial court discretion by the reviewing Pennsylvania

Superior Court in response to Appellant's first direct appeal. Commonwealth v. Hogue,

Unpublished Memorandum Opinion, 1049 EDA 2017, August 5, 2019.

It is firmly established that to prevail on a claim alleging counsel's ineffectiveness, a

petitioner must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's

7
course of conduct was without a reasonable basis designed to effectuate his client's interest; and

(3) that he was prejudiced by counsel's ineffectiveness. See Commonwealth v. Johnson, 2005

PA Super 59, 868 A.2d 1278 (2005); Commonwealth v. Douglas, 537 Pa. 588, 597, 645 A.2d

226, 230 (1994).

In order to meet the prejudice prong of the ineffectiveness standard, a petitioner must

show that there is a reasonable probability that but for the act or omission in question the

outcome of the proceeding would have been different. Commonwealth v. Kimball, 555 Pa. 299,

724 A.2d 326 (1999); Douglas, 537 Pa. at 597, 645 A.2d at 230. Such a showing effectively

demonstrates that counsel's ineffectiveness "so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place," as required by Section 9543

(a)(2)(ii) of the PCRA. Kimball, supra.

The right to an evidentiary hearing on a Post-Conviction Relief Act ("PCRA") petition

is not absolute. Commonwealth v. Miller, 2019 PA Super 188, 212 A.3d 1114 (2019).

A court has discretion to dismiss a PCRA petition without a hearing when the court is satisfied

there are no genuine issues concerning any material fact, the defendant is not entitled to post-

conviction collateral relief, and no legitimate purpose would be served by further proceedings.

Commonwealth v. Smith, 2020 PA Super 291, 2020 WL 7501859 (2020). It is within the

PCRA court's discretion to decline to hold an evidentiary hearing if a petitioner's claim is

patently frivolous and has no support either in the record or other evidence. Miller, supra.

The Superior Court's review of a PCRA court's decision is limited to examining whether

the PCRA court's findings of fact are supported by the record, and whether its conclusions of law

are free from legal error. An appellate court views the findings of the PCRA court and the

evidence of record in a light most favorable to the prevailing party. With respect to

8
the PCRA comi's decision to deny a request for an evidentiary hearing, such a decision is within

the discretion of the PCRA court and will not be overturned absent an abuse of discretion.

Commonwealth v. Mason, 634 Pa. 359, 130 A.3d 601, 617 (2015).

In the instant matter, Appellant argued that an evidentiary hearing should have been held

because, under the totality of circumstances there were "genuine issues concerning material facts

and counsel's actions (or inaction) so undermined the truth-determining process that no reliable

adjudication of guilt or innocence could have taken place." Specifically, Appellant maintained

that trial counsel had been ineffective for failing to object to the admission of the taped

conversation between himself and his daughter, Rashada Siojo that had taken place on March 17,

2014.

Appellant's trial counsel had however litigated the defense filed motion to suppress and

associated motion in limine during the pre-trial evidentiary hearing held before this Court on

June 17, 2016; The resulting testimonial evidence and ensued verbal debate effectively reflected

Appellant's desire to prospectively exclude the trial admission of the subject recorded portion of

the telephone conversation. As a genesis of his discussion, Appellant depended upon the tacit

acknowledgement of the conversation's authenticity and chain of custody. Trial counsel argued

that the conversation had been protected under the Fourth, Fifteenth, Fourteenth Amendment,

Article 1, Section 8, Section 9 of the Constitution and therefore should not be admitted into

evidence:

MR.ADAMS: Yes, Your Honor. It was going to be my motion
to suppress a certain recording made between
Mr. Hogue and a family member, specifically
!tis daughter.

Tlte recording was made by Rashada Siojo.
Also, part of tlte conversation involved !tis wife.

9
 He had protected privacy interests in the
conversation between his wife and daughter.

And this family conversation is protected by the
Fourth, Fifteenth, Fourteenth Amendment,
Article 1, Section 8, Section 9. There was a --
there is a reasonable expectation of privacy
among family conversations, and that recording
was in violation.

Also, there is a mention in a statement given by
the daughter that states that during the
conversation Ms. Nixon heard "my father" make
certain comments.

Ms. Nixon is an assistant district attorney, your
Honor. She was listening to part of the
conversation.

She did not make Mr. Hogue aware that she was
listening, and we believe that also violated his
Constitutional rights and his expectation of
privacy and also might have violated the Wiretap
Act.

And that's a recap of the argument made.

* * *
(N.T., 06/17/16, pp. 15-16). [emphasis added]

During the June 17, 2016 evidentiary hearing, Rashada Siojo had been subjected to direct

and cross-examination concerning her memory of Appellant's verbal admissions both on and off

the recording and the unique circumstances surrounding the partial recording of her chaotic

quarrels with her father, the Appellant; she testified that all of the conversations had been

broadcasted via Bluetooth speaker in the presence of her brother and her mother Lolita Moore,

Appellant's paramour, while all of them traveled in Ms. Siojo's vehicle to escape the Appellant's

wrath and potential violence.

10
 Notably, Ms. Siojo had driven to Appellant's residence after unrecorded verbal

exchanges during which Appellant had said to her and her mom, Ms. Moore, that he had

critically stabbed a man over a lighter on the avenue. Ms. Moore's daughter reported that she

had been quite fearful for the safety of herself and her mother particularly after Appellant had

demanded that Ms. Moore handle and dispose of the knife that he had used in the stabbing. She

testified during the motion that she had independently decided to use her brother's cell phone to

record part of the telephone conversation because of her well-founded safety fears. She further

acknowledged in her verbatim statements provided to law enforcement that she had provided the

recording simultaneously to law enforcement investigators after she had driven her family

members and herself from Appellant' home to the police station in a panicked state.

Upon conclusion of all evidence and arguments, the defense motion was denied.

Pursuant to Pa. R. Crim. P. 581(J), "If the court determines that the evidence shall not be

suppressed, such determination shall be final, conclusive, and binding at trial, except upon a

showing of evidence which was theretofore unavailable, but nothing herein shall prevent a

defendant from opposing such evidence at trial upon any ground except its suppressibility." Id.

Furthermore, at trial, counsel again raised the objection that the subject recording should

not be admitted or played for the jury as both Ms. Siojo and her mother, Ms. Moore (Appellant's

girlfriend) were present to testify:

MR.GRANT: Second issue, Judge, is we already had a motion to
suppress back in June related to the recording that was
made. I don't believe that -- we fleshed out pretty well
extensively the reason that that recording was made. I
don't believe that the motive behind recording the
conversation is at issue anymore in terms of a trial issue.
I don't believe it's relevant and I do believe it has the
potential to open up any sort of a history. And I don't
know what it is. I don't think that the relationship's at
issue are relevant for trial purposes. So I would be

11
 asking to limit the testimony related to a recording of
just that in that day I heard a conversation and I recorded
the conversation and this is the recording of that
conversation as opposed to the motive and the reason for
doing so.

MR. ADAMS: Your Honor, I would object to the recording be entered
in because site will be here to testify, Your Honor. Site
can testify to that. The actual recording --

(N.T. 12/12/16, pp. 8-9).

The point of a motion to suppress physical evidence is to eliminate certain tangible

evidence from the Commonwealth's trial atmamentarium, on grounds that the manner of the

government's acquisition of that evidence involved a violation of the defendant's constitutional

rights. Commonwealth v. Millner, 888 A.2d 680, 693 (Pa. 2005). As the Millner court further

explained, "[w]hether that evidence is to be suppressed does not depend upon ... how strong the

evidence is, or whether it is subject to trial contradiction, explanation or rebuttal; the focus is

upon its manner of acquisition, and how that manner of acquisition implicated the defendant's

constitutional rights." Id. Moreover, discrepancies concerning the evidence affect the weight of

the evidence given by the trier of fact but do not affect the admissibility of such evidence. Id.

Here, Appellant's trial counsel had fully reasoned that the Commonwealth had obtained

the tape recording in violation of his constitutional rights. However, following a full and fair

suppression hearing, this Court stated that it did "not find that [the taped recording was] overly

prejudicial and/or cumulative;" that it was probative to the facts at issue; and that the findings of

facts as testified to by the witnesses to be credible." (N.T., 06/17/2016, p. 69).

Thus, the PCRA court was correct in ruling that an evidentiary hearing based on the

admissibility of the recording would have been "frivolous" and therefore, unnecessary. This

Court reasonably applied Strickland to find that counsel could not have been ineffective for

12
 failing to pursue a frivolous motion. The initial appellate review had reflected adoption of the

Court's factual findings and legal reasoning within its affirming decision. See Commonwealth v.

Hogue, Unpublished Memorandum Opinion, 1049 EDA 2017, August 5, 2019, pp. 8-15. Thus,

no further development of salient facts following another evidentiary hearing concerning the

subsequent PCRA claims was deemed essential.

Further, Appellant's first two sub-issues regarding the recording - that the chain of

custody for the taped conversation was not established and that "it could not be authenticated,"

lacked factual and legal substance. Admission or exclusion of evidence is within the sound

discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, an

appellate court will only reverse a ruling by the trial court upon a showing that it abused its

discretion or committed an error of law.

Thus, an appellate court's standard of review is very narrow. To constitute reversible

error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the

complaining party. Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (quotation marks

and citation omitted). "Physical evidence may be properly admitted despite gaps in testimony

regarding custody." Commonwealth v. Witmayer, 144 A.3d 939, 950 (Pa. Super. 2016)

(citation omitted). Objections to the chain of custody are properly directed to the weight of the

evidence, not its admissibility. See Id. Even where the court rules evidence is admissible, the

party opposing the admission may still offer other evidence relevant to its weight or credibility.

See Pa.RE. 104(e).

Demonstrative evidence, like the recorded cell phone conversation here, "is tendered for

the purpose of rendering other evidence more comprehensible to the trier of fact."

Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa. Super. 2011) (quotation marks and citation

13
 omitted). A paiiy offering such evidence must first authenticate it. See Pa.RE. 90l(a).

"[A]uthentication generally entails a relatively low burden of proof[.]" Commonwealth v.

Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017) (citations omitted). The authentication

requirement "is satisfied by evidence sufficient to support a finding that the matter in question is

what its proponent claims." Pa.RE. 901(a). Demonstrative evidence may be permissibly entered

into evidence, so long as its proponent establishes that the "evidence fairly and accurately

represents that which it purports to depict." McKellick, 24 A.3d at 987 (citation omitted).

Moreover, the standard for establishing a chain of custody for admission of physical

evidence was stated by the court in Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d

1381 (1980):

"The admission of demonstrative evidence is a matter committed to the
discretion of the court . . . Furthermore, there is no requirement that the
Commonwealth establish the sanctity of its exhibits beyond a moral
certainty . . . Every hypothetical possibility of tampering need not be
eliminated; it is sufficient that the evidence, direct or circumstantial,
establishes a reasonable inference that the identity and condition of the
exhibit remained unimpaired until it was surrendered to the trial court . . .
Finally, physical evidence may be properly admitted despite gaps in
testimony regarding its custody.... "

Id., 489 Pa. at 631-32, 414 A.2d at 1387 (citations omitted).

At trial, the Commonwealth moved to admit the part of her telephone conversation that

had been simultaneously recorded with her brother's cell phone while she had been speaking via

a Bluetooth speaker with her father (Appellant), while inside her automobile accompanied by her

mother and her brother.

BY MR. GRANT: Q. Okay. Now, you said that you would recognize what I
will mark as C-2, the recording. I will play it and ask you to
identify it.
A. Okay.
(Commonwealth Exhibit 2 marked for identification.)
(Audio played.)

14
BY MR. GRANT: Q. Do you recognize tltat?
A. Yes.
Q. Was tltat your voice on one end?
A. Yes.
Q. And your father's on tlte otlter?
A. Yes.
Q. Is tltat tlte record tltat you made relating to your pltone
call witlt your dad tltat day? [
A. Yes.
Q. Okay. The phone we're looking at in C-2, whose phone
is that?
A. That's my brother's phone.
Q. Is that the phone that was used in making the recording?
A. Yes.
Q. Wlto is Ito/ding tlte pltone in tltis video, if you
remember?
A. That's my brother's ltand.
Q. Okay.
THE COURT: Wlto 's taking tlte picture?
THE WITNESS: I tltink the police at tlte station or something. I don't
remember.

BY MR. GRANT: Q. Fair to say -
A. I don't remember tltem taking tlte picture. I don't
remember tltat.
Q. At tlte very top, we 're seeing "Voice Memos. "
A. Yes.
Q. Is tltat tlte app you used to record tlte conversation?
A. Mm-ltmm.
Q. You told us you wanted it to protect yourself. Did you
play this for the police officers after you had made the
report?

A. Yes.
Q. And is it fair to say that this was actually a video of you
playing it for the police officers after it had already been
done?

A. The video? What do you mean?
Q. The video we're looking at here.
A. The picture. That's a picture, you're saying?
THE COURT: Yeah.
THE WITNESS: That's a picture.
THE COURT: It's on pause. Does that accurately reflect what they did at
the police station?

15
 THE WITNESS: I don't recall that.
THE COURT: All right. Moving on.

(N.T., 06/17/16, pp. 30-33).

As demonstrated above, the recording had been fully authenticated by the witness who

had been familiar with the subject matter and thus able to testify that it had been a fair and

accurate depiction of the event. Commonwealth v. McKellick, 24 A.3d 982 (Pa. Super. 2011).

At trial, Ms. Siojo testified that the police had taken a picture/video of the phone that had been

used to record the conversation and that the evidence presented at trial had been an accurate copy

of the recording that Ms. Siojo's brother had used to make the recording (N.T., 12/13/2016, p.

93).

Ms. Siojo had reluctantly testified during the trial in front of Appellant, her father, and

had partially altered her testimony to distance herself from her direct involvement in the taping

of her conversation with her brother's cell phone. Her previous testimony during the motion to

suppress physical evidence had been far more detailed, less hostile and far more consistent with

her written and adopted verbatim statement that had also been admitted into evidence at trial as

Commonwealth Exhibit #9. Within her previous verbatim adopted inconsistent statements to

investigators, she had fully acknowledged her role with respect to the recording as well as the

preceding events that had included Appellant's admissions to her and to her mother that he had

stabbed the man and the reasons for the stabbing.

Regardless, at trial Ms. Siojo fully admitted that she had recognized her voice and

Appellant's voice that could be heard and that the recording had been accurate as to that portion

that had been was played before the jury. Id. at 89-91. Indeed, the introduced exhibit of the

recording had included the photograph of the hand holding her brother's cell phone, that had

been used to speak to her father and partially record their three-way telephone conversation.

16
 During her trial testimony, Ms. Siojo also acknowledged her receipt of written

correspondence that had contained visceral threats that had been sent to her from the prison by

Appellant. Those threats and denigrating comments had been hand written in bold capped letters

upon documents that had included the letter that had been forwarded to Appellant from his trial

counsel and the associated police paperwork as well as the underlying Search Warrant Affidavits

of probable cause, PARS Reports, indicting bills of information and associated property receipts.

Those admitted documents additionally and independently verified authenticity and chain of

custody of all prosecution evidence including the recording at issue.

Ms. Siojo had grudgingly recognized her father's handwriting on each of the

aforementioned items as collectively marked and moved into the trial evidence as

Commonwealth Exhibit C-11 (A through C). One of the opening lines handwritten upon these

documents that had been sent to Ms. Siojo's home within what can only be described as

Appellant's demonstration of his intended violent retribution began with the words:

"APRIL OF 2015 WILL BE 13 MONTH'S I'M JAILED ALL BECAUSE MY
OWN DAUGHTER WENT AND TOLD THE POLICE I STABBED AN
INDIVIDUAL!!! YOU RAT ASS FAKE ASS WANT TO BE A FILIAP!
SLASHED WHITE KRAKKA ASS BITHC!!! ... THE GUY DIDN'T HAVE
ANY IDEA WHO I WAS UNTIL MY DAUGHTER WENT AND RATTED ME
OUT! THE NEXT TIME YOU SAY OR DO ANYTHING ... "

See Commonwealth Exhibit C-1 lA. Query whether it is disingenuous for Appellant to belatedly

raise the lack of authenticity or chain of custody when his own preceding written diatribe and

motion arguments had reflected his complete adoption of both of these concepts? The

deliberating jury as the duly appointed collective factfinder assessed Ms. Siojo's credibility of

her statements and versions of events.

17
 Moreover, Ms. Siojo's cumulative testimony independently and sufficiently

authenticated that the recording had been a fair and accurate rendition of the conversation. Her

written introduced verbatim signed statement that she had provided to Detectives immediately

after she had rescued her mother, further corroborated both chain of custody and authentication

of the recording as reflected within the admitted Commonwealth Exhibit #9. Frankly, both chain

of custody and authentication had constituted non-debatable subjects. Similarly, Ms. Lolita

Moore's hostile trial testimony along with her admitted prior verbatim written inconsistent

statements independently corroborated the authenticity of the subject recording.

Contrary to Appellant's contention, the Commonwealth was not required to present

testimony from the police officer who had taken the photograph of the cell phone that had

recorded the conversation. Rather, the Commonwealth's obligation was to ensure a witness

familiar with the subject matter - Ms. Siojo, testified that the audio played at the hearing and trial

had been the actual conversation between her and her father; at trial and during the motion

hearing, Ms. Siojo positively identified both her and Appellant's voices. Thus, the trial court did

not abuse its discretion in admitting the recording and counsel, and as a result, no grounds had

been available to the defense to legitimately move to suppress the recording. See

Commonwealth v. Grimes, 648 A.2d 538, 543 (Pa. Super. 1994) ("trial counsel cannot be

deemed ineffective for failing to file meritless motions to suppress"). Therefore, no relief is due.

Appellant's final argument is that his trial counsel had failed to object on the basis that

the taped conversation had violated the Wiretap Act as delineated in 18 Pa.C.S. § 5703, and the

exception found in 18 Pa.C.S.A. § 5704(17) had not been applicable "to the facts at hand." The

claim that counsel was ineffective for failing to move to suppress the taped conversation on

grounds that the recording violated Pennsylvania's Wiretap laws is without merit.

18
 Section 5703 of the Wiretap Act provides that "a person is guilty of a felony of the third

degree if he ... intentionally intercepts, endeavors to intercept, or procures any other person to

intercept or endeavor to intercept any wire, electronic or oral communication." 18 Pa.C.S. §

5703(1) (emphasis added). The Wiretap Act defines "intercept" as "[a]ural or other acquisition

of the contents of any wire, electronic or oral communication through the use of any electronic,

mechanical or other device." 18 Pa.C.S. § 5702 (emphasis supplied). The Act further defines an

"electronic, mechanical or other device" as, inter alia:

Any device or apparatus, including, but not limited to, an induction coil or a
telecommunication identification interception device, that can be used to
intercept a wire, electronic or oral communication other than:

(1) Any telephone or telegraph instrument, equipment or facility, or any
component thereof, furnished to the subscriber or user by a provider of
wire or electronic communication service in the ordinary course of its
business, or furnished by such subscriber or user for connection to the
facilities of such service and used in the ordinary course of its business, or
being used by a communication common carrier in the ordinary course of
its business, or by an investigative or law enforcement officer in the
ordinary course of his duties ....
Id. (emphasis supplied).

18 Pa.C.S. § 5702. "Pennsylvania's [ ] Wiretap Act emphasizes the protection of privacy," and,

therefore, "the provisions of the Wiretap Act are strictly construed." Commonwealth v.

Spangler, 570 Pa. 226, 809 A.2d 234, 237 (2002).

In the present case, Appellant's claim lacked factual and legal merit because the trial

counsel had effectively sought suppression of the recording as a violation of the Wiretap Act.

This Court held an evidentiary hearing on June 7, 2016, at which time counsel moved to suppress

the recording, and argued that it had been recorded under the direction of Assistant District

Attorney Deborah Nixon (N.T., 6/7/16, pp. 15-16). At the conclusion of the suppression hearing,

this Court determined that no prohibited state action had taken place and that the recording had

19
 had been exempted under Section 5704(17) exemption for recorded communications. (N.T.,

617 /16, p. 69).

As the affirming Superior Court in the instant case acknowledged in its initial review of

the trial record, a court may suppress evidence obtained in violation of the Wiretap Act. 18 Pa.

C.S. § 5721.1 (b) (defendant may motion to exclude contents of interception not excepted under

Section 5704). Section 5704(17) provides an exception, where any victim, witness, or licensed

private detective may intercept the contents of any wire, electronic, or oral communication so

long as there is reasonable suspicion that the intercepted party has committed a violent crime,

and that evidence of that crime may be obtained from the interception. 18 Pa. C.S. § 5704(17).

The Wiretap Act protects one's privacy by prohibiting the intentional interception of any

wire, electronic, or oral communication, and the intentional disclosure or use of the contents of

any such communication, or any evidence derived therefrom. 18 Pa. C.S. § 5703(1)-(3). See also

Commonwealth v. Spangler, 809 A.2d 234, 237 (Pa. 2002) (Wiretap Act focuses on protection of

privacy and must be strictly construed). A court may suppress evidence obtained in violation of

the Wiretap Act. 18 Pa. C.S. § 5721.l(b) (defendant may motion to exclude contents of

interception not excepted under Section 5704). Section 5704(17) provides an exception, where

any victim, witness, or licensed private detective may intercept the contents of any wire,

electronic, or oral communication so long as there is reasonable suspicion that the intercepted

party has committed a violent crime, and that evidence of that crime may be obtained from the

interception. 18 Pa. C.S. § 5704(17).

Because trial counsel had moved to suppress the recorded conversation on grounds that

the recording had violated the Wiretap Act, and because this Court specifically held after hearing

supporting evidence that Section 17 had provided an applicable exception to the Act, Appellant's

20
 suppression challenge had been properly denied. At this point trial counsel, therefore, could not

be deemed ineffective for failing to do something that he did, in fact, do. Thus, no relief is due.

Within the responsive Brief In Opposition To Commonwealth's Motion To Dismiss,

Appellant contended however, that because Ms. Siojo's brother's phone had been utilized as a

tape recorder during the conversation-in-question, that conversation should have been precluded

from trial upon litigation of a motion or during trial based upon the Superior Court of

Pennsylvania's analysis espoused in Commonwealth v. Smith, 136 A.3d 170, 178 (Pa. Super.

2016) To frame his ineffectiveness claim, Appellant argued that the device used had not been

the statutory equivalent of a telephone which is exempt from the definition of an "interception

device" as specifically covered by the Wiretap Act (see Commonwealth v. Smith, 136 A.3d 170,

178 (Pa. Super. 2016) (noting that an employee's surreptitious tape recording of a workplace

conversation with his supervisor would violate 18 Pa. C.S.A. § 5703) and therefore, had

constituted a violation of the Wiretap Act as outlined in 18 Pa.C.S. § 5703.

The underlying facts and corresponding legal rationale posited in the Smith holding,

however remains readily distinguishable from the instant case and therefore would not have

affected this Court's decision to grant its admission. Specifically, this Court determined after

careful consideration of the evidence that had been introduced in the suppression motion, that the

speech at issue, even if protected, had been exempted. As previously stated, section 5704(17)

provides an exception [to the Wiretap Act], where any victim, witness, or licensed private

detective may intercept the contents of any wire, electronic, or oral communication so long as

there is reasonable suspicion that tlte intercepted party has committed a violent crime, and that

evidence oft/tat crime may be obtained from the interception. 18 Pa. C.S. § 5704(17).

21
 The threat of violence that had formed the genesis of Ms. Siojo's need to record a portion

of her father's ranting outbursts had been reasonably determined to be credible and well-

founded. Ms. Siojo testified during the suppression hearing most convincingly that she had made

the recording because she had been fearful for the safety of herself and for her mother. She based

her decision upon the knowledge and experience with her volatile parents, as well as the

collective circumstances and information that she had received from her mother who had been

sitting in the car with her during the chaotic screaming match between all four persons.

The defendant in Smith on the other hand, had been charged criminally with violating the

Wiretap Act because he had secretly recording his face to face meeting with his former work

supervisor utilizing a specialized app on his Smartphone in their workplace. Therefore, Mr.

Smith's actions did not fall within the fear of violence based exception that had been statutorily

granted; there was no violent crime, there was no reasonable suspicion that Smith's supervisor

had committed a violent crime, therefore he did not fall within the exception of the Act. In fact,

unlike the instant situation with Appellant, there was no alternate use of any telephone by Mr.

Smith whatsoever.

To date, the Pennsylvania Supreme Court has not weighed in on the Superior Court's

holding in Smith; thus their holding in Commonwealth v. Spence (J-90-2013) that the

Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. §§5701 et se

q., does not prohibit the surreptitious interception of private communications, so long as the

interception is accomplished using a telephone is still the law in Pennsylvania. Specifically, the

Spence Court concluded that telephones (whether smartphones, mobile phones or landline

phones), are excluded from the Act's definition of "electronic, mechanical or other device[s]."

22
 Because the Pennsylvania Wiretap Act only prohibits the "interception" of private

communications using "electronic, mechanical or other device[s]," the Court reasoned that the

Act does not prohibit or otherwise limit the interception of private communications using

telephones. The Pennsylvania Supreme Court in Spence, found that the way or by whom a

telephone is used to record or otherwise intercept communications is immaterial - the Act does

not prohibit the use of telephones to intercept communications, period: "the language of the

statute does not state that it is the use to which the telephone is being put which determines if it is

considered a device." To the contrary, the Wiretap Act's statutory language may remain strictly

construed as intended and as interpreted by the Pennsylvania Supreme Court in Spence.

Regardless, the legal rationale posited in the referenced Pennsylvania Superior Court's

Smith decision, remains readily distinguishable and inapplicable to this Court's decision to grant

its admission. Even if the cellular phone had contained a protected recording as per Smith, its

admission had been proper pursuant to the applicable exemption as stated by this Court and

reiterated within the reviewing appellate decision following Appellant's first direct appeal.

Therefore, counsel cannot be found ineffective for not arguing the application of Smith, supra.

Finally, even if the logic espoused in Smith, supra. had been applicable to the instant

matter, and qualifying exemption had unavailable, and the admission of the recording had been

improperly admitted, realistically such admission of this recording had at worst constituted a

form of harmless error. In Pennsylvania, the harmless error doctrine "reflects the reality that the

accused is entitled to a fair trial, not a perfect trial." Commonwealth v. Hairston, 84 A.3d 657,

664, 671 (Pa. 2014). (citation and quotation omitted). The Pennsylvania Supreme Court has

described the proper analysis as follows: Harmless error exists where: (1) the error did not

prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence

23
 was merely cumulative of other untainted evidence which was substantially similar to the

enoneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt

was so overwhelming and the prejudicial effect of the en-or was so insignificant by comparison

that the en-or could not have contributed to the verdict. Commonwealth v. Robinson, 721 A.2d

344, 350 (Pa. 1998) (citation omitted).

The evidence produced within the partial recording of the telephone conversation was

minimal. Amid the recorded rantings of Appellant, he had acknowledged that he had stabbed a

man as she shouted to his daughter his girlfriend and their brother while they traveled in a

vehicle. Prior this recording, made without state action, Appellant's prior admissions of the

stabbing and the sunounding circumstances that he had made to both Ms. Moore and Ms. Siojo

had been explored fully during direct and cross-examination of both witnesses in front of the

jury. Appellant's right to confrontation of the witnesses had been preserved.

In this instance, Appellant had possessed no realistic expectation of privacy as he yelled

through the Bluetooth assisted phone to multiple persons within the vehicle. Ms. Siojo and her

mother both testified as to what transpired both before, during and after the conversation in the

car that became the subject matter of the partial recording. Both of their recollections were

memorialized within the adopted and admitted statements provided to law enforcement. The

knife that had been used to stab the victim had been recovered from the closet that Appellant had

hidden in at the time of his an-est.

Appellant's guilt was additionally evidenced within the admitted and recorded telephone

conversations that he had initiated with his girlfriend Ms. Lolita Moore from prison. Those calls

firmly reflected his culpability and consciousness of guilt. The collective intimidating

24
 correspondence that Appellant had sent to his daughter Ms. Rashada Siojo and to her mother,

Ms. Lolita Moore had also explicitly demonstrated his consciousness of guilt.

Most critically, the complainant, Eugene Kellam, testified unequivocally and quite

convincingly that it was Appellant who had stabbed him repeatedly following their argument

over the return of a cigarette lighter. He informed the jury as to his natural safety concerns that

had caused him to originally fail to appear to testify against Appellant. Mr. Kellam also

remarkably reported that approximately one week before trial Ms. Lolita Moore had visited him

while he had been in custody as part of her effort to convince him to drop the charges; She

"visited" him after she had spoken on the phone to Appellant while he was in custody awaiting

trial.

In short, 18 Pa.C.S.A. § 5704(17) provides an exception for victims and witnesses to

intercept communications when they have reasonable suspicion that the intercepted party is

committing, about to commit, or has committed a crime of violence, and there is reason to

believe that evidence of the crime of violence may be obtained from the interception. 18

Pa.C.S.A. § 5704(17). Further, the term "crime of violence" includes aggravated assault as well

as other enumerated offenses. See 18 Pa.C.S.A. § 5702. The Appellant here was thought to have

committed aggravated assault and other serious offenses by Siojo at the time that their phone

conversation was taped by her brother. (N.T., 6/17/16, pp. 19-22). Any prejudicial impact of the

error was de minimis, such that the error was harmless. The record does not disclose any basis

for concluding that the evidence prejudiced Appellant.

Because the cumulative trial evidence had been otherwise compelling, the contextually

referenced partially recorded telephone exchange as restrictively played had contributed

minimally, if at all, to the jury's decision to convict Appellant of the criminal charges. No

25
prejudice has been demonstrated. If it existed, any prejudice to Appellant was de minimis. See,

e.g., Commonwealth v. Stetler, 431 A.2d 992, 995 (Pa. 1981) (holding admission made by the

appellant's child that the appellant shot the victim after the victim "busted down our door" was

harmless error where the record failed to disclose any basis for concluding that the out-of-court

statement prejudiced appellant and the statement supported appellant's claim of self-defense).

Accordingly, if the admission of the recording was improper, the admission was harmless error.

See Robinson, supra at 350. Therefore, this claim must fail.

IV. CONCLUSION

Appellant has failed to establish any legitimate basis for relief. In the absence of any

meritorious challenge that can be found in the reviewable record, Appellant has not articulated

any viable allegation in accordance with the requisites of a claim predicated upon counsel's

ineffectiveness. For the foregoing reasons, this Court's decision to deny Appellant's requests for

post-conviction collateral relief had constituted a reasonable exercise of discretion.

BY THE COURT:

26