Com. v. Leach, V. ( 2018 )

J-S51012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT LEACH :
:
Appellant : No. 90 EDA 2017
Appeal from the PCRA Order November 28, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002657-2012,
CP-51-CR-0002658-2012
BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 21, 2018
Appellant, Vincent Leach, appeals from the November 28, 2016 Order
entered in the Philadelphia County Court of Common Pleas dismissing his first
Petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
9546. After careful review, we adopt the PCRA court’s Pa.R.A.P. 1925(a)
Opinion as our own and affirm.
The relevant facts and procedural history are as follows. On August 7,
2011, Appellant shot Yavonne Burch and Keimyra Devine, killing Burch and
injuring Devine in the leg. Multiple witnesses, including Devine, Frank
Mitchell, and Natalie Brown, identified Appellant as the shooter.
On September 20, 2011, police arrested Appellant and the
Commonwealth charged him with First-Degree Murder, Firearms Not to be
Carried Without a License, Carrying Firearms in Public in Philadelphia, Persons
J-S51012-18
Not to Possess Firearms, and Possessing an Instrument of Crime (“PIC”).1 At
a separate docket, the Commonwealth charged Appellant with Aggravated
Assault, Simple Assault, Attempted Murder, and Recklessly Endangering
Another Person (“REAP”).2
Relevant to the instant appeal, prior to Appellant’s trial, the parties
discussed the admissibility of an October 27, 2011 telephone call, recorded by
prison authorities while Appellant was in custody awaiting trial. In the call,
Appellant told a woman, who the Commonwealth asserted was Appellant’s
friend Rachel Levocz, “It’s my fault. If I was back there, I would have taken
care of everything like I was supposed to. I fucked up. I fucked up. My bad.”
N.T., 8/20/13, at 4-5. Appellant’s counsel objected to the admission of the
recording on relevance and prejudice grounds. The following day, just prior
to the start of trial, the court ruled that both parties could play the tape.
The Commonwealth did not play the tape during its case-in-chief. It
did, however, introduce the tape to rebut Appellant’s testimony that he did
not recall the conversation recorded in the tape. Appellant’s counsel
responded: “I guess we already had this argument. I would object to that.”
N.T. 8/22/13, at 4.
____________________________________________
1 18 Pa.C.S. §§ 2502; 6106; 6108; 6105; and 907, respectively.
2 18 Pa.C.S. §§ 2702; 2701; 2502; and 2705, respectively.
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On sur-rebuttal, Appellant testified that the recorded conversation was
actually between him and a woman, Erica, and that he was apologizing for
missing her birthday, not admitting to the crimes. Id. at 45-46.
On August 22, 2013, a jury convicted Appellant of First-Degree Murder,
Firearms Not to be Carried Without a License, Carrying Firearms in Public in
Philadelphia, PIC, Attempted Murder, and Aggravated Assault. That same
day, the trial court sentenced Appellant to life imprisonment without parole
for the Murder conviction, and concurrent terms of imprisonment for the other
convictions.
This Court affirmed Appellant’s Judgment of Sentence on August 15,
2014, and the Pennsylvania Supreme Court denied Appellant’s Petition for
Allowance of Appeal on December 23, 2014. See Commonwealth v. Leach,
106 A.3d 162 (Pa. Super. 2014) (unpublished memorandum), appeal denied,
104 A.3d 524 (Pa. 2014).
On July 28, 2015, Appellant filed the instant pro se PCRA Petition, in
which he challenged the effectiveness of his trial counsel. The PCRA court
appointed counsel who filed an Amended PCRA Petition on July 20, 2016. In
his Amended Petition, Appellant claimed his trial counsel was ineffective for
failing to object to the admission of the prison phone recording because the
Commonwealth did not comply with the notice requirements of 18 Pa.C.S. §
-3-
J-S51012-18
57203 and because the voices on the phone call were not properly identified.
Amended Petition, 7/20/16, at 2 (unpaginated).
On October 20, 2015, the PCRA court issued a Notice of Intent to
Dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.
907. Although represented by counsel, on November 7, 2016, Appellant filed
a pro se Response to the PCRA court’s Rule 907 Notice. The PCRA court
complied with Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011), by
forwarding Appellant’s pro se Response to counsel. Counsel took no further
action.
On November 28, 2016, the PCRA court dismissed Appellant’s Amended
Petition without a hearing. This timely appeal followed. Both Appellant and
the PCRA court complied with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Was trial counsel ineffective for failing to raise an objection to
[Appellant’s] prison phone call pursuant to 18 Pa.C.S. § 5720?
2. Was trial counsel ineffective for failing to object to the prison
tape when the parties to the conversation had not be
identified?
Appellant’s Brief at 3.
This Court’s “standard of review for an order denying post-conviction
relief is limited to whether the trial court's determination is supported by
evidence of record and whether it is free of legal error.” Commonwealth v.
____________________________________________
3 Section 5720 requires, in relevant part, that the Commonwealth give a
defendant at least 10 days’ notice of the fact and nature of any intercepted
communication it intends to disclose at trial. 18 Pa.C.S. §5720.
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Allen, 732 A.2d 582, 586 (Pa. 1999). Further, “[t]he PCRA court’s findings
“will not be disturbed unless there is no support for the findings in the certified
record.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008)
(citation omitted).
The law presumes counsel has rendered effective assistance.
Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he
burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy
this burden, Appellant must plead and prove by a preponderance of the
evidence that: “(1) his underlying claim is of arguable merit; (2) the particular
course of conduct pursued by counsel did not have some reasonable basis
designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,
there is a reasonable probability that the outcome of the challenged
proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d
567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in
rejection of the appellant’s ineffective assistance of counsel claim.
Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).
In each issue, Appellant challenges the effective assistance of counsel.
First, he claims his trial counsel was ineffective for failing to object under 18
Pa.C.S. § 5720 to the admission of the recorded jailhouse phone call.
Appellant’s Brief at 9. In particular, Appellant claims that had his counsel
objected on this basis, the trial court would have excluded the recording. Id.
He baldly claims that his counsel had no reasonable basis for failing to object,
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that the contents of the call were highly prejudicial, and that the call’s
admission clearly affected the outcome of the cause. Id.
In his second issue, Appellant claims his counsel was ineffective for
failing to object to admission of the recorded call on the basis that the parties
to the conversation had not been identified. Id.
The Honorable Barbara A. McDermott, who presided over all of the
proceedings in this case, has authored a comprehensive, thorough, and well-
reasoned Opinion, citing to the record and relevant case law in addressing
Appellant’s challenges to his counsel’s representation. After a careful review
of the parties’ arguments and the record, we adopt the PCRA court’s Opinion
as our own and conclude that Appellant’s issues warrant no relief. See PCRA
Ct. Op., 11/28/16, at 4-8 (concluding that Appellant’s ineffectiveness claims
fail because: (1) Appellant failed to establish that the trial court would have
excluded the recorded call if his counsel had objected on timeliness grounds;
(2) the court took proper action to cure the Section 5720 violation by
permitting Appellant and counsel to hear the tape prior to its admission; (3)
Appellant identified himself as one of the parties on the phone call; (4) the
Commonwealth presented sufficient circumstantial evidence to identify Rachel
Levocz as the woman on the phone call; and (5) because of the overwhelming
evidence, suppression of the audiotape would not have precluded the jury
from convicting him). Accordingly, we affirm the denial of PCRA relief.
Order affirmed.
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J-S51012-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/18
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0043_Opinion
Circulated 10/19/2018 11:41 AM
FILED
NOV 2 B 2016
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Appeals/Post Trlal
CRIMINAL TRIAL DIVISION
Office of Judicial Records
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0002657-2012
CP-51-CR-0002658-2012
v.
CP-51-CR-0002657-2012 Comm. v. Leach. Vincent
Opinion
VINCENT LEACH
II1111II7869074901
I I I I 1111111111111
ORDER AND OPINION
McDermott, J. November 28, 2016
Procedural History
On September 20, 2011, the Petitioner, Vincent Leach was arrested and charged with
murder and related offenses in CP-51-CR-0002658-2012 and Attempted Murder and Aggravated
Assault in CP-51-CR-0002657-2012. On August 20, 2013, the Petitioner appeared before this
Court and elected to be tried by a jury. On August 22, 2013, the jury convicted the Petitioner of
First-Degree Murder, Firearms Not to be Carried Without a License, Carrying Firearms in Public
in Philadelphia, and Possession of an Instrument of Crime ("PIC") in CP-51-CR-0002658-2012,
and Attempted Murder and Aggravated Assault in CP-51-CR-0002657-2012.
That same date, this Court imposed total sentence of life imprisonment without parole for
the instant charges. On September 11, 2013, the Petitioner appealed, and on August 15, 2014,
the Superior Court affirmed the judgment of sentence. On December 23, 2014, the Pennsylvania
Supreme Court denied the Petitioner's Petition for Allowance of Appeal.
On July 28, 2015, the Petitioner filed a timely prose Post-Conviction Relief Act
("PCRA") petition. On April 11, 2016, PCRA counsel entered his appearance. On July 20,
2016, the Petitioner, through counsel, filed an Amended Petition. On October 11, 2016, the
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Commonwealth filed a Motion to Dismiss. On October 20, 2015, this Court found the
Petitioner's claims meritless and filed a Notice oflntent to Dismiss pursuant to Pa.R.Crim.P.
907. On November 7, 2016, the Petitioner,pra se, responded to this Court's Rule 907 Notice.1
PCRA counsel did not file a response to this Court's Rule 907 Notice.
On direct appeal, the Superior Court recited the facts of the case as follows:
On August 7, 2011, around 3:30 p.m., in response to a radio call,
Philadelphia Police Officer James Martin arrived at 2245 East Ann
Street. Officer Martin observed a fire paramedic unit giving
emergency assistance on the street to Yavonne Burch who had been
shot in the head. Officer Martin spoke to Keimyra Devine who was
sitting on the steps of 2245 East Ann Street. Devine indicated that
she had been shot in the leg. Devine was transported to Temple
University Hospital. Burch died that same day.
According to Dr. Marlon Osbourne, an Assistant Medical
Examiner and an expert in forensic pathology, Burch died from
multiple gunshot wounds. Burch was shot in the head, neck, torso,
back, and suffered abrasions to the forehead and nose. Burch
suffered injuries to the right lung, aorta, spinal cord, and brain.
Because of the stipple present on the gunshots to torso and neck, Dr.
Osbourne concluded that the shots had been fired within three feet
or less of Burch. Because both soot and stipple were present near the
gunshot wound to the head, Dr. Osbourne concluded the shot was
fired within one foot of Burch.
Police Officer Christopher Reed, of the Crime Scene Unit,
arrived on the scene at 4:55 p.m. From the 2200 block of Ann Street,
Officer Reed recovered a projectile, a copper-jacketed fragment, and
five .3 80-caliber fired cartridge casings.
According to Police Officer Ronald Weitman, an expert in
firearms identification, the five fired cartridge casings recovered
from the scene were .380-caliber. The four bullets recovered from
the victim's body were all .380-caliber and were fired from the same
firearm.
1
Petitioner is currently represented by counsel. Upon receipt of the Petitioner's prose response to this Court's Rule
907 Notice, this Court forwarded the Petitioner's motion to counsel and took no further action. See Commonwealth
v. Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984) ("An accused's prose actions have no legal effect while defense
counsel remains authorized to represent the accused in all aspects of the proceedings."); Commonwealth v. Jette, 23
A.3d 1032, l 044 (Pa. 2011) ("The proper response to any prose pleading is to refer the pleading to counsel, and to
take no further action on the prose pleading unless counsel forwards a motion.").
2
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[ ... ]
Evidence linking [Petitioner] to the malfeasance of August 7,
2011, was elicited from five witnesses. Rachel Levocz testified that
she became acquainted with [Petitioner] in the spring of 2011 and
spent almost every day with him for two to three months. The
relationship was based upon Levocz's drug habit. [Petitioner]
would provide heroin to Levocz and, in exchange, she would
occasionally drive [Petitioner] around Philadelphia. At one point,
Levocz expressed a desire to "get clean," and [Petitioner] responded
that he would no longer supply her with drugs. He also represented
that if anybody else delivered drugs to her "he would take care of
them." Two days before the subject crimes occurred, Levocz's
resolve to kick her drug habit dissipated, but [Petitioner] refused to
give her heroin. Levocz became angry, left [Petitioner], and refused
to accept his telephone calls.
Following the argument, Levocz went to Yavonne Burch's
house at 2245 Ann Street to rent her vehicle in exchange for drugs.
On the day of the murder, she was upstairs in Burch's house. When
she learned that Burch had been killed, Levocz telephoned
[Petitioner] and inquired as to his whereabouts. [Petitioner] replied
that he was at his mother's house. Although they continued to
communicate by telephone, Levocz did not see [Petitioner] again
until September 20, 2011, the day of his arrest.
Keimyra Devine related that on August 7, 2011, she was sitting
on the steps with Burch when a man approached and asked about a
car that was rented. When Burch replied that she did not have the
vehicle, the man informed her that the car was not to be rented that
day and then called for two others to join him. He told his
companions that he "broke [his] fast" and that he was "going to
[SCI] Graterford today." The man then pulled out a gun and shot
four or five times, killing Burch and wounding Devine.
When Devine was discharged from the hospital later that day,
she was taken to the homicide division to give her statement. At that
time, she identified [Petitioner] as the gunman from a photo array.
She also identified [Petitioner] as the shooter at the preliminary
hearing held on February 29, 2012.
Frank Mitchell, Burch's teenage neighbor, testified that on the
day of the crimes, he observed his friends, [Petitioner] and Burch,
talking. After he greeted them and began walking away, he heard
gunshots and ran back to his house. While running, he saw
[Petitioner] firing his gun towards Burch. The next day, Mitchell
gave his statement to the police and identified [Petitioner] in a photo
array as the person firing the gun.
Natalie Brown also was a witness to the events of August 7,
2011. Although at trial Brown initially represented that she did not
remember what occurred that day, she proceeded to recount that she
3
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and her friend, Natasha Parker, were in Brown's car when she heard
gunshots and saw two men running. One of the men held a gun,
walked in front of Brown's car, and looked directly at her. The
following day, Brown was interviewed by the police, and she
identified [Petitioner] as that man from a photo array.
Natasha Parker, Brown's passenger on August 7, 2011, recalled
that Brown slowed down her vehicle because they heard an
argument outside of the car. Parker heard three or four gunshots and
observed three or four men running. Although Parker did not see
the shooting, she saw one man put something in his pocket. After
being shown a photo array, Parker identified that person as
[Petitioner].
Commonwealth v. Leach, 2618 EDA 2013 (Pa. Super. Aug. 15,2014) (non-precedential
decision) (citations omitted).
Discussion
The Petitioner alleges that trial counsel was ineffective for failing to object to the
admission of a prison phone recording when the Commonwealth failed to: ( 1) comply with the
18 Pa.C.S. § 5720 notice requirement, and (2) properly identify the speakers. To warrant relief
based on an ineffectiveness claim, a petitioner must show that such ineffectiveness "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." Commonwealth v. Bardo, 105 A.3d
678, 684 (Pa. 2014); 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed to have rendered effective
assistance. Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013) (citing Commonwealth v.
Sepulveda, 55 A.3d 1108, 1117 (Pa. 2012)).
To overcome the presumption, the Petitioner has to satisfy the performance and prejudice
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court of
Pennsylvania has applied the Strickland test by looking to three elements, whether (1) the
underlying claim has arguable merit; (2) no reasonable basis existed for counsel's action or
failure to act; and (3) the petitioner has shown that he suffered prejudice as a result of counsel's
4
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lapse, i.e., that there is a reasonable probability that the result of the proceeding would have been
different. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). If a claim fails under any
necessary element of the Pierce test, the court may proceed to that element first. Commonwealth
v. Bennett, 57 A.3d 1185, 1195-1196 (Pa. 2011 ). Counsel will not be deemed ineffective for
failing to raise a meritless claim. Commonwealth v. Rivera, 108 A.3d 779, 789 (Pa. 2014) (citing
Commonwealth v. Jones, 912 A.2d 268, 278 (Pa. 2006)).
The Petitioner argues that, had trial counsel objected to the admission of a recorded
prison phone conversation on timeliness grounds, this Court would have excluded it from
evidence. 18 Pa.C.S. § 5720 requires the Commonwealth to disclose the contents of an
electronic communication ten days prior to trial:
The contents of any wire, electronic or oral communication
intercepted in accordance with the provisions of this subchapter, or
any evidence derived therefrom, shall not be disclosed in any trial,
hearing, or other adversary proceeding before any court of the
Commonwealth unless, not less than ten days before the trial,
hearing or proceeding the parties to the action have been served with
a copy of the order, the accompanying application and the final
report under which the interception was authorized or, in the case of
an interception under section 5704 (relating to exceptions to
prohibition of interception and disclosure of communications),
notice of the fact and nature of the interception. The service of
inventory, order, application, and final report required by this
section may be waived by the court only where it finds that the
service is not feasible and that the parties will not be prejudiced by
the failure to make the service.
18 Pa.C.S. § 5720. A court is not required to preclude evidence upon disclosure of a pretrial
discovery violation; rather, the Court may permit discovery or inspection, grant a continuance, or
enter an order as it deems just under the circumstances. Pa.R.E. 573(£). "[T]he admission of
rebuttal testimony is within the sound discretion of the trial court, and the appropriate scope of
5
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rebuttal evidence is defined by the evidence that it is intended to rebut." Commonwealth v.
Ballard, 80 A.3d 380, 401-402 (Pa. 2013).
At trial, the Commonwealth introduced a recorded phone call between the Petitioner and
a woman that was intercepted while the Petitioner was incarcerated. During this conversation,
the Petitioner tells the woman "It's my fault. If I was back there, I would have taken care of
everything like I was supposed to. I fucked up. I fucked up. My bad." After this Court
permitted trial counsel and the Petitioner listen to the recording, trial counsel objected to its
admission, arguing that the tape was both irrelevant and prejudicial. N.T. 8/20/2013 at 85-86.
Although this Court did not initially permit the Commonwealth to play the tape, the Prosecutor
introduced the tape in rebuttal.2
The Petitioner's claim has no merit, as he fails to establish that this Court would have
excluded the audiotape had trial counsel objected. Indeed, the Commonwealth was required to
disclose the contents of the audiotape ten days before trial. This Court took proper curative
action under Rule 573 by permitting the Petitioner and trial counsel to hear the audiotape prior to
admission. The Petitioner therefore fails to allege a basis for excluding the evidence.
In his second claim, the Petitioner alleges that trial counsel was ineffective for failing to
object to the admission of the audiotape where the parties of the conversation were not identified.
The requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what the
proponent claims. Pa.R.E. 901(a). Voice identification may be made "by opinion based upon
hearing the voice at any time under circumstances connecting with the alleged speaker." Pa.R.E.
2On direct testimony, Levocz testified that she recalls the contents of the recorded conversation she had with the
Petitioner. The Petitioner testified that he did not recall the conversation with Levocz, and that the recorded
conversation concerned the Petitioner's regret over missing a woman named Erica's birthday. N.T. 8/20/2013 at
112; N.T. 8/22/2013 at 45-46.
6
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901(b)(5). Telephone conversation identification can be made "by evidence that a call was made
to the number assigned at the time by the telephone company to (A) a particular person, if
circumstances, including self-identification, show that the person answering was the one called."
Pa.RE. 901 (b)( 6). Proving the identity of a party to a telephone conversation may be
accomplished by direct or circumstantial evidence. Commonwealth v. Carpenter, 372 A.2d 806,
808 (Pa. 1977)).
The Petitioner argues that the Commonwealth failed to identify the person the Petitioner
spoke to during the recorded prison phone call.' Both parties agreed that the Petitioner spoke to
a woman during the phone call. The Commonwealth presented sufficient circumstantial
evidence to identify Levocz as party on the other line. At trial, the Petitioner stipulated that the
phone call in question was "made by a number that's affiliated or associated with [his prison
telephone] account." N.T. 8/22/2013 at 39. Moreover, the Petitioner identified himself as a
speaker on surrebuttal. Id. at 45-46. Levocz testified that she had a telephone conversation with
the Petitioner after his arrest and recalled him stating that he "fucked up and he messed up."
N.T. 8/20/2013 at 112. A reasonable juror could conclude that the Petitioner and Levocz
testified about the same conversation. For these reasons, trial counsel's objection based on a
failure to identify the speakers would be overruled.
The Petitioner fails to demonstrate prejudice for each of his claims, as the suppression of
the audiotape would not preclude the jury from convicting the Petitioner. The Commonwealth
presented motive evidence to establish that the Petitioner sought to "take care of' any person
who sold Levocz drugs. Id. at 100. Devine, Mitchell, and Brown each identified the Petitioner
3 The Petitioner avers that the Commonwealth conceded that it could not identify the speaker. This is untrue. At
trial, the Prosecutor stated that he would not ask the Petitioner to stipulate to the identity of the speaker, because he
had not played the tape for Levocz, but stated that the Petitioner spoke to a young female. N.T. 8/22/13 at 40. This
does not rise to the level of a concession.
7
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as the shooter. Devine further testified that on the day of the shooting, the Petitioner approached
the decedent, announced that he was "going to [SCI] Graterford today," and shot her four times
from close range. Given the facts of the case, it is unlikely that the outcome of the trial would
have been different had the audiotape been suppressed.
For the foregoing reasons, the petition is hereby DISMISSED. The Petitioner is hereby
notified that he has thirty (30) days from the date of this Order and Opinion to file an appeal with
the Superior Court.
BY THE COURT
Barbara A. McDermott, J.
8
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Commonwealth v. Vincent Leach, CP-51-CR-0002657-2012; CP-51-CR-0002658-2012
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing filing upon the person(s), and in the
manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Attn: Robin Godfrey, Esq.
Type of Service: Hand Delivery
James F. Berardinelli, Esq.
1600 Locust Street
Philadelphia, PA 19103
Type of Service: First Class Mail
Vincent Leach
LD7890
SCI Fayette
Box 9999
LaBelle, PA 15450-1050
Type of Service: Certified Mail
Honorable Barbara A. McDermott