Com. v. Duboise R. ( 2023 )

J-S18032-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RYAN L. DUBOISE :
:
Appellant : No. 2242 EDA 2022
Appeal from the PCRA Order Entered August 11, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011415-2014
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 13, 2023
Ryan L. Duboise appeals pro se from the August 11, 2022 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The relevant facts of this case were set forth by a prior panel of this
Court as follows:
From the time [the victim,] Monet Hall[,] and
[Appellant] began dating, until the moment
[Appellant] murdered her, the two had a violent and
abusive relationship. In January 2014, Hall and
[Appellant] moved into an apartment on Allegheny
Avenue in Philadelphia. Not long after, on February
5, 2014, Hall sought treatment at Mercy Fitzgerald
Hospital for rib injuries. On February 22, 2014, Hall’s
cousin, Angela Starks, called 911 after a crying Hall
called her and told her that [Appellant] would not stop
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* Former Justice specially assigned to the Superior Court.
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punching her in the stomach. On March 4, 2014, Hall
was treated at Temple University Hospital for a closed
head injury, contusions, and a facial laceration, after
being hit in the head with a bottle.
On the morning of April 2, 2014, two days before Hall
was found dead, Police Officer Christopher Reeder and
his partner responded to a 911 call for a person with
a weapon on Allegheny Avenue. The police
encountered Hall[,] who appeared under the
influence[,] and requested transportation to a
hospital. She informed police that she had had an
altercation with her boyfriend and that her head hurt.
That same day, Hall told Temple University Hospital
staff that her boyfriend physically assaulted, punched,
and kicked her. She was offered social service help
but declined.
On the morning of April 4, 2014, after [Appellant]
returned to his apartment from spending the night at
his best friend Dustin Taylor’s house, he called 911
and reported that he had found Hall unresponsive.
When medics arrived at or around 7:30 a.m., they
found Hall dead, lying naked on a bed. [Appellant]
claimed that he did not know what had happened to
her. After the medics informed [Appellant] that Hall
was dead, [Appellant] swiftly left the apartment.
Outside, he encountered Firefighter Captain Crespo.
According to the captain, [Appellant] appeared
nervous and uncomfortable and refused to give his
name or relation to the deceased. [Appellant] then
walked to the corner and disappeared.
In the bedroom where Hall was found dead, Officer
Guaraldo recovered a broken flat iron inside a
wastebasket near the bed. The flat iron was broken
into three pieces: a large piece connected to a cord, a
paddle-like shaped piece, and a small plastic piece.
Both Detective Crone and Officer Guaraldo observed
a unique pattern of marks on Hall’s buttock and left
hip consistent with the flat iron’s shape. After noticing
injuries around Hall's neck, they also found an audio-
visual (“AV”) cord on the television stand at the foot
of the bed. DNA mixtures found on both the flat iron
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and the AV cord were consistent with that of Hall and
[Appellant].
Dr. Gary Collins, former Deputy Chief Medical
Examiner of Philadelphia, testified that Hall had
numerous bruis[es], abrasions, and scrapes about her
face, forearms, hips, legs, and buttocks. The cause of
death was homicidal violence, including blunt impact
injuries and strangulation. The victim’s bodily injuries
were severe enough to cause a large amount of fat
emboli to enter the blood vessels of her lungs,
preventing proper oxygenation of her blood, which
may have contributed to her death.
After [Appellant] returned to the scene, Captain
Crespo pointed him out to police. When questioned
by police, [Appellant] said that Hall had died from a
drug overdose and that someone had beaten her. The
officers decided to bring him to the homicide unit for
further questioning. When placing [Appellant] in
handcuffs, the officers noticed that his hands were
swollen with several marks on his right hand. Officer
Van Sciver observed that [Appellant’s] hands were so
swollen that they were almost double their normal
size.
On April 4 and on May 20, 2014, Dustin Taylor gave
statements to Philadelphia Police detectives. He told
detectives that [Appellant] came to his apartment on
the night of April 3, 2014 (the night before Hall was
found dead), and that his hands were swollen — his
right hand was so puffy, it resembled “genetically
modified chickens.” Taylor said he joked about
[Appellant’s] swollen hands, but [Appellant] did not
respond, something Taylor found strange.
Taylor also informed detectives that [Appellant] and
Hall had domestic problems and that [Appellant] had
complained to Taylor several times about Hall stealing
drugs (crack and heroin) from him. [Appellant] also
told Taylor that he would kick and punch Hall’s ankles
and legs and verbally abuse her, calling her a b[**]ch,
whore, and crack whore. Taylor said that two days
before [Appellant] slept at his house, [Appellant] and
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Hall had a domestic incident after Hall stole $20.00
from [Appellant] and used it to get high.
Recovered video footage from surveillance cameras
located diagonally across and down the street from
[Appellant] and Hall’s apartment showed an individual
leaving at or about 8:20 p.m. on April 3, 2014, and
returning to the apartment the next morning at or
about 7:27 a.m. No one was seen on the video
entering or exiting the property after the individual
left. When [a] detective brought [Appellant] into the
Homicide Unit on April 4, his clothing was consistent
with the clothing worn by the individual in the video
— a black, white, and grey checkered shirt with a
hoodie.
Francis Curry, [Appellant’s] cell mate while
incarcerated in April or May 2014 at the George W.
Hill Correctional Facility in Delaware County, testified
that after [Appellant] was arrested for Hall’s murder,
he told Curry that right before Hall died, he and Hall
argued over a phone call from another male and that
Hall had stolen money for pills (Xanax). [Appellant]
told Curry that he hit Hall a couple times and gave her
more pills. He claimed that after Hall ingested the
pills, she made gargling sounds and asked for
[Appellant] to call 911, but he refused. [Appellant]
claimed that he left Hall in the apartment; when he
returned, she was dead.
Commonwealth v. Duboise, 185 A.3d 1087 (Pa.Super. 2018) (unpublished
memorandum at *1-2), appeal denied, 196 A.3d 617 (Pa. 2018), quoting
trial court opinion, 9/8/16, at 2–5.
The PCRA court summarized the procedural history of this case as
follows:
On August 5, 2014, [Appellant] was arrested and
charged with murder and possession of an instrument
of crime (“PIC”). On April 4, 2016, after being
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permitted to proceed pro se, [Appellant] appeared
before this Court and elected to be tried by a jury. On
April 12, 2016, the jury convicted [Appellant] of third-
degree murder and PIC.[1]
On June 27, 2016, th[e trial c]ourt sentenced
[Appellant] to twenty to forty years imprisonment for
third-degree murder and a consecutive sentence of
two-and-a-half to five years for PIC, for a total
sentence of twenty-two-and-a-half to forty-five years
imprisonment. [Appellant] appealed and the Superior
Court affirmed [Appellant’s] judgment of sentence on
February 6, 2018. On October 30, 2018, the
Pennsylvania Supreme Court denied [Appellant’s]
petition for allowance of appeal. [See
Commonwealth v. Duboise, 185 A.3d 1087(Pa.Super. 2018), appeal denied, 196 A.3d 617 (Pa.
2018).]
On July 29, 2021, [Appellant] filed a pro se [PCRA]
petition, his first. On August 27, 2021, [Appellant]
filed a Motion for DNA Testing requesting DNA testing
on saliva found on the rectal swab from the decedent
Monet Hall’s sexual assault kit and that DNA evidence
in the Commonwealth’s possession from a third
unknown contributor be entered into the Combined
DNA Index System (“CODIS”) and the Local DNA
Index System (“LDIS”). [Appellant’s] PCRA counsel,
Jason D. Javie, Esq. [(hereinafter, “Attorney Javie” or
“PCRA counsel”)], entered his appearance on January
7, 2022.[2]
On January 10, 2022, th[e PCRA c]ourt denied
[Appellant’s] request to enter DNA evidence into
CODIS and LDIS. On January 18, 2022, th[e PCRA
c]ourt ordered the Commonwealth to conduct DNA
testing on the rectal swab from the decedent’s sexual
assault kit and provide the results to [Appellant]. On
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1 18 Pa.C.S.A. §§ 2502(c) and 907(a), respectively.
2The record reflects that Attorney Javie did not file an amended petition on
Appellant’s behalf, but represented him during the PCRA proceedings.
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May 9, 2022, [Appellant] filed a memorandum of law
supplementing his PCRA petition.
PCRA court opinion, 8/11/22 at 1-2 (extraneous capitalization and internal
footnote omitted).
The PCRA court conducted evidentiary hearings on April 12, May 9, May
24, and July 6, 2022. Following these hearings, the PCRA court denied
Appellant’s petition on August 11, 2022. PCRA counsel was subsequently
granted permission to withdraw after Appellant requested permission to
proceed pro se. On August 22, 2022, Appellant filed a timely pro se notice
of appeal. Although not ordered to do so, Appellant filed a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b), on
August 24, 2022. In lieu of a filing an additional Rule 1925(a) opinion, the
PCRA court refiled its prior August 11, 2022 opinion authored in support of its
order denying Appellant’s PCRA petition.
Appellant raises the following issues for our review:
I. Did the PCRA court err in denying a new trial
based on a finding that Appellant’s after-
discovered witness was of questionable
credibility by misapprehending the facts and
using the same factor it would have asked the
jury to consider?
II. Did the PCRA court err as a matter of law by
rendering factual determinations that were
inconsistent with the record, and applying the
wrong legal standard when it dismissed
Appellant’s unopposed PCRA petition on the
basis that the after-discovered DNA evidence
was not likely to change the outcome of
Appellant’s trial?
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III. Did PCRA counsel render inadequate assistance
of counsel when he failed to raise the
Commonwealth’s bad faith failure to preserve
the entire raw surveillance video of the entrance
of [victim’s] apartment?
IV. Did the PCRA court err when it failed to consider
that the scientific DNA evidence was clear and
convincing evidence that demonstrated
Appellant’s actual innocence in violation of his
due process rights under the Fourteenth
Amendment of the United States Constitution
and Article 1, section 9, and Article 1, section 13
of the Pennsylvania Constitution?
Appellant’s brief at 3.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
Preliminarily, we must consider the timeliness of Appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
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omitted). All PCRA petitions, including a second or subsequent petition, must
be filed within one year of when a defendant’s judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
Here, the record reveals that our Supreme Court denied Appellant’s
petition for allowance of appeal on October 30, 2018. See Commonwealth
v. Duboise, 185 A.3d 1087 (Pa.Super. 2018), appeal denied, 196 A.3d 617(Pa. 2018). Thus, Appellant’s judgment of sentence became final on January
28, 2019, when the 90–day time period for filing a petition for a writ of
certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A.
§ 9545(b)(3). Accordingly, Appellant had until January 28, 2020 to file a
timely PCRA petition. Id. at § 9545(b)(1). Appellant’s instant PCRA petition
was filed July 29, 2021, a year and a half after his judgment of sentence
became final, and is patently untimely. Accordingly, appellant was required
to plead and prove that one of the three statutory exceptions enumerated in
Section 9545(b)(1) applies.
The three statutory exceptions to the PCRA time-bar are as follows:
(i) the failure to raise the claim previously was the
result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
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(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i-iii). A petition invoking any of these exceptions
must “be filed within one year of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).
I.
Instantly, Appellant invokes the “newly-discovered facts” exception to
the PCRA time-bar and argues that he is entitled to a new trial based upon
the fact that Erik Patterson, a fellow inmate at SCI Forest, informed him that
he saw the victim at her apartment with a man named Raheem or Rasheem
on the evening of her murder. Appellant’s brief at 7-12.
To establish the newly discovered fact timeliness
exception in [Sub]section 9545(b)(1)(ii), a petitioner
must demonstrate he did not know the facts upon
which he based his petition and could not have learned
those facts earlier by the exercise of due diligence.
Due diligence demands that the petitioner take
reasonable steps to protect his own interests. A
petitioner must explain why he could not have learned
the new fact(s) earlier with the exercise of due
diligence. This rule is strictly enforced. Additionally,
the focus of this exception is on the newly discovered
facts, not on a newly discovered or newly willing
source for previously known facts.
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Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations
and quotation marks omitted), appeal denied, 125 A.3d 1197 (Pa. 2015).
Accordingly, we must determine whether Appellant has established both
“that the facts upon which the claim was predicated were unknown and could
not have been ascertained by the exercise of due diligence.” Commonwealth
v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis and numeration
omitted), citing 42 Pa.C.S.A. § 9545(b)(1)(ii).
Here, we find that Appellant’s claim satisfies the “newly-discovered
facts” exception. The record reflects that these “facts” were unknown to
Appellant and could not have been discovered through the exercise of due
diligence because he was not aware that Patterson allegedly observed the
victim and another man at her apartment on the evening of her murder until
he was informed by Patterson of this fact in July 2021, while incarcerated at
SCI Forest. Appellant, in turn, raised this claim on July 29, 2021, less than a
year after the period to raise a claim pursuant to a PCRA time-bar exception
would have expired.
Although this claim is timely under Section 9545(b)(1)(ii), we agree with
the PCRA court that it is devoid of merit. To be eligible for relief on a claim of
after-discovered evidence, a PCRA petitioner must plead and prove by a
preponderance of the evidence that the evidence:
(1) could not have been obtained prior to the
conclusion of the trial by the exercise of reasonable
diligence; (2) is not merely corroborative or
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cumulative; (3) will not be used solely to impeach the
credibility of a witness; and (4) would likely result in
a different verdict if a new trial were granted.
Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012) (citation
omitted).
Here, our review of the record reveals that Appellant failed to establish
that this evidence would have likely compelled a different verdict if a new trial
were granted. As recognized by the PCRA court,
Even if a new trial were granted, Patterson’s
testimony would not result in a different verdict
because the evidence presented at trial
overwhelmingly established [Appellant’s] guilt.
Surveillance video of the apartment on the night of
the murder does not show that Patterson or any other
individual entered or exited the apartment that night
besides [Appellant]. There is DNA evidence linking
[Appellant] to the objects used to murder the
decedent. [Appellant’s] DNA was found on both the
flat iron and the AV cord as well as under the
decedent’s fingernails. The decedent’s blood was
found on [Appellant’s] jacket and the presence of
blood was also found on [Appellant’s] boots, jeans,
underwear, and shirt that he wore the night of the
murder. [Appellant’s] hands were swollen and had
several marks on them when he was handcuffed by
the police shortly after the decedent’s body was
discovered.
There was a history of domestic abuse between
[Appellant] and the decedent. The most recent
incident occurred only two days before the decedent’s
body was discovered where the police were called
when the decedent had armed herself with a knife
after allegedly being assaulted by [Appellant] at their
apartment. At that time, the decedent was taken to
Temple University Hospital for head and abdominal
pain.
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PCRA court opinion, 8/11/22 at 15 (citations omitted).
We agree with the PCRA court’s determination that Patterson’s
testimony would not have likely compelled a different verdict. Accordingly,
we affirm on the basis of the aforementioned analysis.
II. & IV.
Appellant next argues that he is entitled to a new trial based upon the
discovery of a small quantity of DNA from a third unknown male that was
found on the rectal swab in the victim’s sexual assault kit. Appellant’s brief
at 13-17. In conjunction with this claim, Appellant contends that the PCRA
court erred in failing to find that this DNA evidence was clear and convincing
evidence of his actual innocence. Id. at 22-23. For the following reasons, we
disagree.
Post-conviction DNA testing is governed by 42 Pa.C.S.A. § 9543.1,
which provides, in relevant part, that “[a]n individual convicted of a criminal
offense in a court of this Commonwealth may apply by making a written
motion to the sentencing court at any time for the performance of forensic
DNA testing on specific evidence that is related to the investigation or
prosecution that resulted in the judgment of conviction.” Id. at
§9543.1(a)(1).
Though brought under the general rubric of the PCRA,
motions for post-conviction DNA testing are clearly
separate and distinct from claims brought pursuant to
other sections of the PCRA. This Court has
consistently held the one-year jurisdictional time bar
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of the PCRA does not apply to motions for DNA testing
under Section 9543.1. Another distinction of motions
for DNA testing is that Section 9543.1 does not confer
a right to counsel.
Importantly, a motion for post-conviction DNA testing
does not constitute a direct exception to the one year
time limit for filing a PCRA petition. Instead, it gives
a convicted person a vehicle to first obtain DNA testing
which could then be used within a PCRA petition to
establish new facts in order to satisfy the
requirements of an exception under 42 Pa.C.S.A.
§ 9545(b)(2).
Commonwealth v. Williams, 35 A.3d 44, 50 (Pa.Super. 2011) (citations and
internal quotation marks omitted), appeal denied, 50 A.3d 121 (Pa. 2012).
Section 9543.1(f) further provides that:
After the DNA testing conducted under this section
has been completed, the applicant may, pursuant to
section 9545(b)(2) (relating to jurisdiction and
proceedings), during the one-year period beginning
on the date on which the applicant is notified of the
test results, petition to the court for postconviction
relief pursuant to section 9543(a)(2)(vi) (relating to
eligibility for relief).
Id. § 9543.1(f)(1).
Our Supreme Court has recognized that “after-discovered evidence is a
substantive basis for relief under the PCRA, applicable where the petitioner
pleads and proves by a preponderance of the evidence that his conviction
resulted from ‘[t]he unavailability at the time of trial of exculpatory evidence
that has subsequently become available and would have changed the outcome
of the trial if it had been introduced.’” Commonwealth v. Small, 238 A.3d
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1267, 1273 n.1 (Pa. 2020), citing 42 Pa.C.S.A. § 9543(a)(2)(vi) (remaining
citations omitted).
As noted, “to obtain relief based upon exculpatory, after-discovered
evidence, the petitioner must establish that: (1) the evidence has been
discovered after trial and it could not have been obtained at or prior to trial
through reasonable diligence; (2) the evidence is not cumulative; (3) it is not
being used solely to impeach credibility; and (4) it would likely compel a
different verdict.” Small, 238 A.3d at 1273 n.1 (citation omitted). Lastly,
we note that this Court has defined “actual innocence” under Section 9543.1
as making it “more likely than not that no reasonable juror would find
[petitioner] guilty beyond a reasonable doubt.” In re Payne, 129 A.3d 546,
556 (Pa.Super. 2015) (citation omitted), appeal denied, 145 A.3d 167 (Pa.
2016).
Upon review, we find that Appellant has failed to prove that could not
have obtained this evidence earlier through the exercise of due diligence.
Although Appellant’s judgment of sentence became final on January 28, 2019,
he took no further action on the untested rectal swab in the victim’s sexual
assault kit until August 2021. The record, however, reflects that Appellant
acknowledged in 2016 that he was aware of samples from the victim’s rape
kit that could have been tested, and in fact hired a laboratory to examine the
samples. See “Motion for Post-Conviction DNA Testing,” 8/27/21 at
unnumbered 2, ¶ 4; notes of testimony, 4/8/16 at 198. Appellant was
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informed that there was saliva found from a rectal swab taken from the victim,
but he requested the lab not process those samples. Notes of testimony,
4/8/2016 at 199. Furthermore, the record reflects that Appellant was fully
aware from both the Commonwealth’s examination and his own hired expert
that another male’s DNA had been found underneath the victim’s fingernails,
but at no point during before or during his 2016 jury trial did he request a
continuance or inform the trial court that he desired additional testing on the
sexual assault kit. Id. at 133–136, 199–206. Additionally, during his direct
appeal in 2018, Appellant challenged the trial court’s denial of his request to
hire a pathologist, but failed to raise any allegation of error with respect to
the testing of the sexual assault kit.
Under Section 9545(b)(1)(ii), “due diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner, based on the particular circumstances, to uncover facts that may
support a claim for collateral relief.” Commonwealth v. Brown, 141 A.3d
491, 506 (Pa.Super. 2016) (citation omitted; emphasis added). Clearly,
Appellant failed to undertake reasonable efforts in this instance.
III.
In his final claim, Appellant argues that the untimeliness of the instant
PCRA petition should be excused due to the purported ineffectiveness of his
prior PCRA counsel in failing to allege, albeit incorrectly, that the
Commonwealth failed to preserve the full surveillance video of his apartment
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taken in 2014. Appellant’s brief at 18-21. We find that such relief is
impermissible.
Courts in this Commonwealth have long recognized that there is no
statutory exception to the PCRA time-bar applicable to claims alleging the
ineffectiveness of prior counsel. As our Supreme Court has explained:
It is well settled that allegations of ineffective
assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.
See Commonwealth v. Pursell, [749 A.2d 911,
915-916 (Pa. 2000)] (holding a petitioner’s claim in a
second PCRA petition, that all prior counsel rendered
ineffective assistance, did not invoke timeliness
exception, as “government officials” did not include
defense counsel); see also Commonwealth v.
Gamboa-Taylor, [753 A.2d 780, 785-786 (Pa.
2000)] (finding that the “fact” that current counsel
discovered prior PCRA counsel failed to develop issue
of trial counsel’s ineffectiveness was not after-
discovered evidence exception to time-bar)[.]
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citation
formatting amended).
To allow Appellant to raise new claims of prior PRCA counsel’s
ineffectiveness more than 1½ years after his judgment became final directly
conflicts with the legislative mandate of Section 9545(b)(1) of the PCRA. See
Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (stating that the
PCRA places time limitations on claims, and in doing so, “strikes a reasonable
balance between society’s need for finality in criminal cases and the convicted
person’s need to demonstrate that there has been an error in the proceedings
that resulted in his conviction”), cert. denied, 572 U.S. 1039 (2014). The
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fact that Appellant frames some of his issues as alleging the ineffectiveness
of prior PCRA counsel simply does not overcome this Court’s lack of jurisdiction
to address them.
In any event, we note that Appellant’s underlying claim is belied by the
record. As Attorney Javie explained during the April 12, 2022 evidentiary
hearing, when he was initially retained by Appellant during the PCRA
proceedings, the Commonwealth forwarded him a copy of the surveillance
video that was incomplete to a technical error in the copying process. Notes
of testimony, 4/12/22 at 74. Attorney Javie subsequently confirmed that the
Commonwealth possessed the full video. Id. There was also no evidence
presented that the surveillance video that Appellant and prior standby trial
counsel received on April 28, 2015, approximately a year before his jury trial
commenced, was similarly incomplete. See notes of testimony, 4/28/15 at
45.
Accordingly, for all the foregoing reasons, we discern no error on the
part of the PCRA court in dismissing Appellant’s PCRA petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2023
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