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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
t he admission of certain evidence , and object to the Commonwealth ’s alleged Brady 2 violat ion

. 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

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Paraphernalia. 3 The facts underlying his conviction s ha ve been previously summarized by this Court:
On March 17, 2016, Detective John DiBattista applied for a search warrant for a hou se 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, 2 0 16 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 Unio n 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 hou se 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 sus pected 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 su rveillance, 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

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After exiting, the CI met Detective DiBattista at a predetermined location, where he or she turned over a bag of suspected cocaine. The substance field tested positive for cocaine. The CI inf ormed 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. I d . 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 suppre ss, 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, 201 9 ). 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 timelyJ

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pro se PCRA petition, his first, in March 2020. The PCRA court appointed counsel who filed a no - merit letter 4 and request to withdraw. The court granted appointed counsel’s reque st to withdraw on May 14, 2020. Thereafter, Richardson obtained private counsel who filed an amended PCRA petition , and i n 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 ul timately 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 admi ssion 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 Unio n Street, West Chester, P A ?

_________________ __________ ______ ____ _______ 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

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Richardson’s Br. at 2. We assess an order denying PCRA relief under a well

- settled standard of review. Our task is to determine whether the conclusions of the PCRA court are “supported by the record and free of legal error.” Commonwealth v. Anderson , 234 A.3d 735, 737 ( Pa.Super. 2 020) (citation omitted). Richardson claims, in all three of his issues, that his trial counsel was ineffective. A p etitioner 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 effec tuate 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. 201 4). In his first issue , Richardson argues that his trial counsel was ineffective for failing to file post

- sentence motion s on his behalf

. He contends that although Hassan testified that Richardson told him that other counsel would be filing post

- sentence motion s, 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 failureJ

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to file post

- sentence motion s prejudiced him by preventing him from challenging the sufficiency of the evidence and the weight of the evidence.
A defendant claiming counsel was ineffective for failing to file a post

sentence motion must prove prejudice to obtain relief. Commonwealth v. Liston , 977 A.2d 1089, 1092 (P a. 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 motion s. 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 fail ed 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 fail ing 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 protec ted by marital privilege. RichardsonJ

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acknowledges that the court admitted the hostile text messages to provide an explanation regarding why Richardson and his wife were not found sleeping in the same bedroom, which contained the contraband at issue. He als o 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 th e 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. Mc Burrows , 779 A.2d 509, 514 (Pa.Super. 2001) ( en banc )

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However, the privilege does not shield written correspondence between spouses that the prosecution obtained from a n 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 messa ges 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 a dmission of the messages on the basis of the marital privilege, because the underlying claim had no merit. See Mason , 130 A.3d at 618. Rich ardson also claims that his trial counsel was ineffective for not object ing to the admission of the text messages be cause the CommonwealthJ

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failed to properly authenticate t hem . 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 equal ly 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 Commonweal th 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 evid ence. 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 100 4

. The question of the admissibility of electronic communication must be “eval uated on a case

- by

- case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.” In re F.P. , 878 A.2d 91, 96 (Pa.Super. 2005)

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Here, we conclude that Koch is factually d istinguishable. 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
mi sled 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 L G 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 himse lf 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 authenticat ed. 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

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In hi s third issue, Richardson argues his trial counsel was ineffective for failing to allege a Br ady 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) prejudic e ensued.” Commonwealth v. Spotz , 47 A.3d 6 3 , 8 4 (Pa. 201 2 ) (citation omitted). As to Brady claims advanced under the PCRA, a defendant must demonstrate that the alleged Brady violation “so

_________________ __________ ______ ____ _______ 5 While Richardso n’s question presented does not reference ineffective assistance of counsel, his argument is fashion ed 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 asserti ng 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 prov isions of this paragraph (b)(4) are waived”).J

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undermined the truth

- determining process that no reliable adjudica tion 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 conclude d 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 t hat 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 establishin g 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 s uch 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 pr ejudiced 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

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. We conclude that the record supports the court’s determination that Richardson failed to e stablish 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

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Accordingly, we affirm the PCRA court’s order dismissing Richardson’s PCRA petition. Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/19/2021