Com. v. Hogue, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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affirmed the judgment of sentence on August 5, 2019, in a non-precedential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).
-2-
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).
-3-
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
-4-
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)
-5-
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.
-6-
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
-7-
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).
-8-
J-A13027-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2022
-9-
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