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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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affirmed the judgment of sentence on August 5, 2019, in a non-precedential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