J-S28008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD POLITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1371 WDA 2022

Appeal from the PCRA Order Entered October 26, 2022

In the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0004135-2019

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD POLITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1372 WDA 2022

Appeal from the PCRA Order Entered October 26, 2022

In the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0004134-2019

COMMONWEALTH OF PENNSYLVANIA

v.

EDWARD POLITE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1373 WDA 2022

Appeal from the PCRA Order Entered October 26, 2022

In the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0004133-2019
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BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: October 31, 2023

Edward Polite appeals from the order entered in the Westmoreland 

County Court of Common Pleas on October 26, 2022, dismissing his petition 

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

9541-9546. After careful review, we affirm. 

On November 6, 2019, Polite was charged by criminal information at the 

three dockets listed above. The offenses stemmed from a fight between Polite 

and his neighbor, Thomas Jackson. At docket CP-65-CR-0004135-2019, Polite 

was charged with possession of a firearm by a person legally prohibited, 

aggravated assault, simple assault, and public drunkenness for allegedly 

punching Jackson and then waving a gun around, threatening to shoot Jackson 

and several of Jackson’s family members. At docket CP-65-CR-0004134-2019, 

Polite was charged with institutionalized vandalism for reportedly spitting 

blood throughout the police station’s holding cell. Finally, at docket CP-65-CR0004133-2019, Polite was charged with escape for failing to turn himself into 

the police after being discharged from the hospital where he was seen for 

injuries arising from the altercation. 

On August 24, 2020, Polite waived his right to a jury and proceeded to 

a bench trial. The three cases were consolidated for trial. The Commonwealth 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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presented five eyewitnesses, including Jackson, two of his children, his 

children’s mother, and a neighbor. The Commonwealth also provided police 

testimony in the other cases. Finally, Polite testified on his own behalf. 

After the trial, the trial court convicted Polite of all charges except the 

two assault charges. The trial court sentenced Polite to an aggregate term of 

six to twelve years’ imprisonment, followed by two years’ probation.

Trial counsel was subsequently granted leave to withdraw. Polite was 

permitted to apply for a public defender to pursue potential appellate issues. 

On October 16, 2020, Polite filed a pro se “Petition for Appointed Counsel 

and Post Conviction Relief” at all three dockets, raising claims of ineffective 

assistance of trial counsel. Specifically, Polite claimed trial counsel was 

ineffective for failing to (1) file a Rule 600 motion, (2) file a pre-trial 

suppression motion, (3) preserve body camera tapes and police radio tapes, 

and (4) investigate the existence of surveillance video from a security camera 

positioned near his home. 

PCRA counsel was appointed and filed an amended PCRA petition on 

January 13, 2021, raising the same four claims of ineffective assistance of trial 

counsel. 

An evidentiary hearing was held over a year later. Trial counsel testified 

he entered his appearance in early 2020, after prior counsel had left the 

matter, and went to the jail to meet Polite. See N.T., PCRA Hearing, 

5/12/2022, at 5. Due to COVID-19 restrictions that started soon thereafter, 
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trial counsel could not go back to the jail, but had approximately twenty-five 

telephone conversations with Polite prior to trial. See id. 

Trial counsel reviewed multiple hybrid motions filed by Polite pro se, 

including a Rule 600 motion, a suppression motion, and a motion to preserve 

police radio tapes. See id. at 8-10. Trial counsel recalled filing a Rule 600 

motion for nominal bond due to Polite’s expressed desire to get out of jail. 

See id. at 7. The petition was denied. See id.

Trial counsel did not recall Polite asking to file a suppression motion. 

See id. at 9. Trial counsel confirmed he did not file any suppression motions

because he did not think there were any suppression issues of merit. See id.

at 26. 

Trial counsel did not recall ever seeing the motion to preserve police 

radio tapes. See id. at 10. Trial counsel asserted any preservation issues 

would have been dealt with by previous counsel, as he was not hired until 

January 2020. See id. at 12-13. Further, he would not have seen any benefit 

to having any radio calls available during trial because they may have been 

harmful to the case due to how angry Polite was on that day. See id. at 25. 

Trial counsel did not file any formal motions for discovery. See id. at

10. However, counsel did make an oral request at the first status hearing and 

the assistant district attorney provided discovery, which did not include any 

videotapes. See id.
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Trial counsel did not recall discussing any cameras with Polite, or Polite 

asking counsel to seek video footage from a security camera owned by the 

City of New Kensington that was adjacent to the scene. See id. at 12. In fact, 

trial counsel stated he had “never heard of any type of video the entire time” 

and that the PCRA hearing was the first time he heard there is a video. Id. at 

18. Counsel confirmed he never received any video from the Commonwealth, 

and upon checking the Commonwealth’s entire file during the hearing, 

confirmed that no video was included. See id. at 20. PCRA counsel stipulated 

that he did not receive any videos from the Commonwealth in response to his 

requests for discovery either. See id. 

Trial counsel confirmed he did not file any post-sentence motions or any 

appeals, and that he was not directed to do so by Polite. See id. at 17. 

Polite also testified at the evidentiary hearing. Polite claimed he asked 

trial counsel to obtain the police dispatch calls and body camera footage to 

find out why the police had been called to his home. Specifically, he argued 

these materials would confirm that no guns were ever mentioned and that the 

calls were only pertaining to a fight. See id. at 31. 

Polite also alleged that he had two conversations with trial counsel about 

obtaining footage from a security camera located near his home. See id. at 

31-32. He believed this footage was important because it would show he did 

not possess a gun that day, and that the Commonwealth’s witnesses were 

lying. See id. at 32. 
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On cross-examination, Polite could not confirm that any video footage 

actually exists, or that the camera was operational at the time of the incident. 

See id. at 33-37. Polite indicated he moved forward with trial despite knowing 

his attorney had not obtained the security footage because he relied on his 

lawyer’s advice and did not want to postpone due to his incarceration and the 

potential for substantial delays caused by COVID-19. See id. at 41. 

After consideration of briefs filed by both Polite and the Commonwealth, 

the PCRA court issued an order dismissing the PCRA petition. This timely 

appeal followed. 

“The standard of review for an order denying post-conviction relief is 

limited to whether the record supports the PCRA court’s determination, and 

whether that decision is free of legal error. The PCRA court’s findings will not 

be disturbed unless there is no support for the findings in the certified record” 

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation 

omitted).

Polite raises a claim of ineffective assistance of trial counsel. We 

presume counsel is effective, and an appellant bears the burden to prove 

otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012). 

The test for ineffective assistance of counsel is the same under both the 

Federal and Pennsylvania Constitutions. See Strickland v. Washington, 466 

U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326, 330-

332 (Pa. 1999). An appellant must demonstrate: (1) his underlying claim is of 
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arguable merit; (2) the particular course of conduct pursued by counsel did 

not have some reasonable basis designed to effectuate his interests; and (3) 

but for counsel’s ineffectiveness, there is a reasonable probability that the 

outcome of the proceedings would have been different. See Commonwealth 

v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong 

of the test for ineffectiveness will require rejection of the claim. See id. at 

1163.

Pursuant to the first prong, we note that where an appellant is not 

entitled to relief on the underlying claim upon which his ineffectiveness claim 

is premised, he is not entitled to relief with regard to his ineffectiveness claim. 

See Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). In 

short, counsel cannot be deemed ineffective for failing to pursue a meritless 

claim. See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) 

(en banc).

Moreover, regarding the second prong, we have reiterated that trial 

counsel’s approach must be “so unreasonable that no competent lawyer would 

have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa. 

Super. 2000) (citation omitted). Our Supreme Court explained our review of 

reasonableness as follows: 

Our inquiry ceases and counsel’s assistance is deemed 

constitutionally effective once we are able to conclude that the 

particular course chosen by counsel had some reasonable basis 

designed to effectuate his client’s interests. The test is not 

whether other alternatives were more reasonable, employing a 

hindsight evaluation of the record.
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Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (citation omitted) 

(emphasis in original).

Concerning the third prong, we are mindful that prejudice requires proof 

that there is a reasonable probability that but-for counsel’s error, the outcome 

of the proceeding would have been different. See Commonwealth v. Pierce, 

786 A.2d 203, 213 (Pa. 2001). When an appellant has failed to meet the 

prejudice prong of an ineffective assistance of counsel claim, the claim may 

be disposed of on that basis alone, without a determination of whether the 

first two prongs have been met. See Commonwealth v. Baker, 880 A.2d 

654, 656 (Pa. Super. 2005).

On appeal, Polite argues the PCRA court erred in finding he failed to 

satisfy the Strickland test. Polite’s argument on appeal focuses on trial 

counsel’s failure to seek any video recording of Polite’s fight with Jackson: 

Clearly, this lack of investigation and [Polite]’s related claim has 

arguable merit. [Trial counsel] had no reasonable basis to not 

pursue the video. [Polite] certainly was prejudiced by this act []

or omission. The testimony of the witnesses proved to be a major 

factor in [Polite]’s conviction. The trial court stated on August 24, 

2020[,] that "[w]e had testimony from five different witnesses 

who heard him— or who witnessed him brandishing a firearm and 

hear him asking his wife for the firearm." Determining the status

of the security camera footage was imperative to [Polite]’s 

defense. Assuming his testimony is credible, said video would 

have further supported the veracity of [Polite]’s testimony, and 

also weakened the reliability of the aforementioned witnesses. 

Furthermore, the failure to litigate through a motion to compel 

discovery or to serve subpoenas upon the appropriate parties prior 

to or during trial could not have been the result of any rational, 

strategic, or tactical decision by counsel. [Trial counsel] failed to 

undertake reasonable investigations or make reasonable decisions 
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that related to the video. Moreover, counsel did not render any

reasonable decision that made this particular investigation

unnecessary. Therefore, [trial counsel’s] representation was 

ineffective.

Appellant’s Brief, at 20-21. 

“Counsel cannot be faulted for failing to discover or present evidence if 

Appellant fails to meet the burden of establishing that the evidence 

exists.” Commonwealth v. Fisher, 813 A.2d 761, 771 (Pa. 2002) (citations 

omitted). Polite failed to establish the existence of a camera in the area, that 

the camera was operational at the time of the incident, that any surveillance 

video ever actually existed, or that the video recording was retained by the 

owner of the camera. Accordingly, Polite has failed to meet his burden of proof 

to support his claim of ineffective assistance of trial counsel. 

As Polite failed to prove his claim was of arguable merit, the PCRA court 

did not err in finding Polite failed to satisfy the Strickland test. Polite’s sole 

claim on appeal therefore merits no relief. 

Order affirmed. 

DATE: 10/31/2023
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