J-S25021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID EUGENE RICHARDSON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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).
J-S25021-21

- 2 -

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. 

____________________________________________

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.
J-S25021-21

- 3 -

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 
J-S25021-21

- 4 -

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?

____________________________________________

4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
J-S25021-21

- 5 -

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 
J-S25021-21

- 6 -

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 postsentence 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
J-S25021-21

- 7 -

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). 
J-S25021-21

- 8 -

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 
J-S25021-21

- 9 -

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). 
J-S25021-21

- 10 -

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. 
J-S25021-21

- 11 -

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 

____________________________________________

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”). 
J-S25021-21

- 12 -

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. 
J-S25021-21

- 13 -

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