J-S28017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JASON LEVON PATE                          :
                                           :
                    Appellant              :    No. 1810 MDA 2018

           Appeal from the PCRA Order Entered October 3, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0000165-2009


BEFORE:     BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                        FILED AUGUST 14, 2019

      Jason Levon Pate appeals from the order denying his petition filed under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He raises

trial counsel ineffectiveness claims. We affirm.

      The trial court set forth the following factual history:

          On December 10, 2008, Officer Marc Moule with the
          Harrisburg City Police received a call to respond to the area
          of 2511 Derry Street for a report of a black male allegedly
          breaking into a vehicle. As Officer Moule approached the
          scene, he witnessed a black sedan with its hazard lights
          flashing. Officer Moule positioned his vehicle approximately
          20 feet away and approached the vehicle. As Officer Moule
          approached, he witnessed an individual who would later be
          identified as [Pate].

          As Officer Moule approached, [Pate] exited the vehicle from
          the rear driver’s side. Officer Moule commanded [Pate] to
          stop and asked what he was doing. [Pate] responded that
          he was “having sex with his girl.” This prompted Officer
          Moule to look through the driver’s side window of the
          vehicle. He observed a woman, later identified as the victim,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Lessli Gingery [(“Victim”)], fully reclined in the front
       passenger seat, not moving.

       In response to Officer Moule’s request for identification,
       [Pate] responded that he left it at home. [Pate] provided the
       officer with his name and date of birth. Officer Moule
       proceeded to check on the well-being of the person in the
       passenger seat. As he opened the passenger side door, he
       observed a female naked from the waist down with her legs
       spread apart. Officer Moule detected a very strong odor of
       alcohol in the car. After several unsuccessful attempts to
       wake the passenger, Officer Moule called for paramedics to
       transport her to the hospital.

       Officer Moule directed the backup officer to arrest [Pate]. At
       trial, Officer Moule identified [Pate] as the man he observed
       with the unconscious passenger, [Victim], in the vehicle.

       [Victim] remained unresponsive upon arrival at Harrisburg
       Hospital. The emergency room physician, Dr. Jed Seitzinger,
       testified that when [Victim] regained consciousness, she
       knew who she was, but did not know where she was.

       Dr. Seitzinger testified that he could smell alcohol on her
       breath when she answered his questions. Toxicology tests
       revealed her blood alcohol level as 0.32. Based upon
       information that [Victim] was the victim of an alleged sexual
       assault, upon medical clearance and her consent, [Victim]
       underwent a “safe exam”, an examination conducted for
       collection of evidence from the victim of a sexual assault.

       Harrisburg Hospital Nurse Mary Jane Laughlin conducted the
       safe exam. Because [Victim] could not remember her
       encounter with [Pate], Ms. Laughlin collected various forms
       of physical evidence, namely, vaginal, oral, and rectal
       swabs. Ms. Laughlin did not test for any “date rape” drugs
       due to the fact that the safe exam was conducted
       approximately six to seven hours after [Victim] was brought
       into the emergency room, and such drugs only stay in the
       system for a short period of time.

       Detective Elijah Massey of the Harrisburg Police Department
       executed a search warrant for a blood test of [Pate]. During
       the blood test, [Pate] admitted to Detective Massey that he
       engaged in sexual intercourse with [Victim].


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         The Pennsylvania State Police crime lab analyzed evidence
         collected from [Victim] and [Pate]. Analysis of samples
         obtained from [Victim] confirmed the presence of
         spermatozoa on the vaginal and rectal swabs. Further
         analysis by Pennsylvania State Police forensic scientist
         Michael Biondi determined that sperm cells from the vaginal
         and rectal swabs matched the DNA profile from the blood
         sample acquired from [Pate].

         [Victim] testified that she visited an establishment known
         as Bill’s Café on Derry Street with her friend April Robles on
         the evening of December 9, 2008 into the early morning of
         December 10, 2008. [Victim] testified that she bumped into
         [Pate] and apologized for doing so. She testified that she
         had a brief conversation with [Pate], but never indicated in
         any way that she was interested in engaging in sexual
         activities with him. [Victim] testified that at one point, she
         left her drink unattended while she went to the restroom.
         [Victim] has no recollection of any events during the rest of
         the evening. She next remembers waking up in a hospital
         room.

         [Victim’s] friend, April Robles, went to Bill’s Café with her
         that evening. Ms. Robles testified that she noticed [Victim]
         missing at around 12:45 A.M. Ms. Robles became concerned
         as it became late, she did not know how she would get
         home. She observed [Victim’s] belongings but could not
         locate her; she assumed [Victim] had stepped out. Ms.
         Robles called a cab for a ride home. Police contacted Ms.
         Robles the next day and told her that [Victim] was in the
         hospital. When she visited [Victim] at the hospital, police
         showed her a photograph of [Pate]. Ms. Robles identified
         [Pate] as the man sitting next to [Victim] at the bar.

Trial Court Opinion, filed Nov. 14, 2018, at 3-6 (citations to record omitted)

(“1925(a) Op.”).

      At trial, Pate’s counsel and the trial court conducted a colloquy of Pate

regarding his decision to not testify, which included Pate’s acknowledgement

that his decision to not testify was “based on the fact that [he had] significant




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crimen falsi and [he] could be cross-examined about that.” N.T., 5/24/10-

5/26/10, at 175-76.

        A jury convicted Pate of rape of an unconscious person and sexual

assault.1 The trial court sentenced Pate. Pate filed a motion for reconsideration

of sentence, which the trial court granted in part, finding the sexual assault

conviction should have merged with the rape conviction for sentencing

purposes. The trial court re-sentenced Pate to ten to 20 years’ imprisonment.

Pate appealed, and this Court affirmed the judgment of sentence on November

5, 2012.

        On October 16, 2013, Pate filed a timely counseled PCRA petition, and

the Commonwealth filed an answer. The PCRA court granted numerous

requests to continue the evidentiary hearing, and held a hearing on April 27,

2016, and November 22, 2016.

        At the hearing, Pate’s trial counsel testified that he initially met with

Pate and his parents in December 2008 and January 2009. N.T., 4/27/16, at

13. Pate and his parents mentioned at the initial meetings that Pate’s cell

phone was “downtown” in police custody and that the phone had text

messages between Pate and Victim. Id. at 10-12. Counsel did not request the

phone from the police until May 2009, after which he was informed that the

phone had been destroyed pursuant to a police department policy that

required the destruction of personal items after 30 days. Id. at 12.

____________________________________________


1   18 Pa.C.S.A. §§ 3121(a)(3) and 3124.1, respectively.

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         Counsel requested video surveillance from Bill’s Café, but that also had

been destroyed. Id. at 26. In August 2009, counsel learned that “one or

multiple [employees]” that were employed at the time of the incident, “would

not have been employed at [Bill’s Café] . . . at or around the time of trial.” Id.

at 68.

         Pate provided counsel with the name of an individual who was with him

at the bar on the night of the incident, Tony Maldonado. N.T., 4/27/16, at 27.

Counsel testified that Pate’s girlfriend, Amanda Huss, was not able to provide

a telephone number for Maldonado. Id. at 28. He stated his “attempts [to

contact Maldonado] would have been through [Huss].” Id. at 30. He further

testified that Huss informed counsel that Maldonado “was [not] available or

maybe he was not willing to come to court to testify, or we were just not able

to get in contact with him maybe because of a disconnected number and we

didn’t have his updated contact information.” N.T., 11/22/16, at 62. On cross-

examination, counsel agreed he reviewed transcripts of prison phone calls,

including a call in which Pate stated that “[Maldonado] isn’t coming to [c]ourt

for me.” Id. at 91.

         Trial counsel also testified regarding the Pate’s decision to not testify.

He noted that he had concerns about Pate testifying because of Pate’s prior

record, which included a theft-related offense from 2000. Id. at 80-81, 85.

         Maldonado testified at the evidentiary hearing. He testified that on the

night of the incident he was with Pate at the bar. Id.at 118. He stated the

victim was grabbing and rubbing Pate. Id. He said he was not contacted by

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Pate or his counsel in 2008 or 2009 and he would have been available to give

a statement if counsel had contacted him. Id. at 122. On cross-examination,

Maldonado testified that Huss “might have reached out to [him],” but that

“[s]he said that [counsel] was going to reach out to me,” and counsel did not.

Id. at 130. He testified he left the bar before Pate. Id. at 121.

       Pate also testified. He stated that counsel told him that he should not

testify because if he did he could be questioned on cross-examination about

his prior conviction for possession with intent to distribute a controlled

substance (“PWID”). Id. at 136. He would have testified if counsel had not

informed him that the PWID conviction could be used to impeach him. Id. at

137.

       Following the hearing, the PCRA court directed the parties to file

proposed findings of fact and conclusions of law. The court granted numerous

extensions of time, and the parties filed the findings of fact and conclusions

of law in March 2018.

       The PCRA court denied the petition. Pate filed a timely notice of appeal.

       Pate raises the following issue on appeal: “Whether the trial court erred

by   denying   [Pate’s]   post-sentence   motion?”   Pate’s   Br.   at   8   (some

capitalization omitted). The issue encompasses the claims that the PCRA court

erred in denying the following trial counsel ineffectiveness claims: (1) counsel

failed to interview potential witnesses; (2) counsel failed to secure Pate’s

cellular telephone; (3) counsel failed to request a missing evidence




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instruction; and (4) counsel failed to properly advise Pate as to his right to

testify.

      “[I]n reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to ascertaining whether the evidence supports the

determination of the PCRA court and whether the ruling is free of legal error.”

Commonwealth v. Andrews, 158 A.3d 1260, 1262-63 (Pa.Super. 2017). A

PCRA petitioner will only prevail on a claim that trial counsel was ineffective

through pleading and proving each of the following: “(1) the underlying legal

claim is of arguable merit; (2) counsel’s action or inaction lacked any

objectively reasonable basis designed to effectuate his client’s interest; and

(3) prejudice, to the effect that there was a reasonable probability of a

different outcome if not for counsel’s error.” Commonwealth v. Grove, 170

A.3d 1127, 1138 (Pa.Super. 2017). A failure to plead or prove any prong will

defeat an ineffectiveness claim. Id.

      Pate first claims his trial counsel was ineffective for failing to interview

and conduct a reasonable investigation of potential witnesses, including April

Robles, Tony Maldonado, and other patrons and employees of Bill’s Café who

were present on the night Victim and Pate were at the establishment. Pate

claims that he provided trial counsel with the name of two witnesses, including

Maldonado, but counsel did not contact them. He claims the witnesses could

have testified that Victim was not so intoxicated as to impair her ability to

make decisions and that Victim and Pate were interacting with each other at

the bar. He further maintains counsel was ineffective for failing to contact

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Commonwealth witness Robles prior to trial, for not seeking the names of the

employees of Bill’s Café until nine months after the date of the incident, and

for not attempting to contact any of the employees until 17 months after the

arrest.

      To establish counsel was ineffective for failing to investigate and

interview a witness, the petitioner must plead and prove: “(i) the witness

existed; (ii) the witness was available to testify; (iii) counsel knew of, or

should have known of, the existence of the witness; (iv) the witness was

willing to testify; and (v) the absence of the testimony was so prejudicial as

to have denied the defendant a fair trial.” Commonwealth v. Pander, 100

A.3d 626, 639 (Pa.Super. 2014) (en banc).

      Here, the PCRA court found counsel attempted to contact Maldonado

through Pate’s girlfriend, who conveyed to counsel that Maldonado would not

speak to counsel even though he knew Pate was arrested for rape. 1925(a)

Op. at 11. It further found that counsel made reasonable attempts to

investigate Maldonado as a witness. Id. In addition, the court found that Pate

failed to prove that Maldonado was available and willing to testify or that the

lack of Maldonado’s testimony prejudiced him. Id. at 11-12. The court noted

that Maldonado testified at the evidentiary hearing that he left the bar before

Pate and did not know what occurred thereafter. Id. at 12.

      The record supports the PCRA court’s findings and it did not err in finding

counsel was not ineffective. Pate failed to prove counsel did not attempt to




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contact Maldonado, that Maldonado was available and willing to testify, or that

Pate suffered prejudice, as Maldonado testified that he left the bar before Pate.

      Although Pate mentions other witnesses in his appellate brief, his PCRA

petition listed only Maldonado, and Maldonado was the only witness to testify

at the PCRA hearing. Therefore Pate waived any claim that counsel was

ineffective for failing to investigate or call any other witness.

      Pate has not established that any other witness was available and willing

to testify on his behalf. He also has not established that counsel’s efforts in

contacting Bill’s Café were unreasonable or that Pate suffered any prejudice.

      Pate next claims counsel was ineffective for failing to secure Pate’s

cellular telephone. He argues the Harrisburg Police Department took the

phone into custody, and Pate and his family informed counsel that the phone

contained text messages between Pate and Victim. Pate argues counsel was

ineffective because the phone was destroyed before counsel requested it and

because he did not subpoena the phone records.

      “Counsel has a general duty to undertake reasonable investigations or

make reasonable decisions that render particular investigations unnecessary.”

Commonwealth v. Eichinger, 108 A.3d 821, 847 (Pa. 2014) (citing

Commonwealth v. Cox, 983 A.2d 666, 692 (Pa. 2009)). “[A]n evaluation of

counsel’s performance is highly deferential, and the reasonableness of

counsel’s decisions cannot be based upon the distorting effects of hindsight.”

Commonwealth v. Bridges, 886 A.2d 1127, 1132 (Pa. 2005).




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      The PCRA court found counsel made reasonable efforts to locate Pate’s

cell phone and that “[n]either the unavailability of the phone because of a

destruction policy or the absence of phone records prejudiced [Pate].” 1925(a)

Op. at 6. It noted that counsel was retained in December 2008 and met with

Pate before the January 2009 preliminary hearing. During that meeting, Pate

informed counsel that the police had confiscated the phone during the arrest.

The court also found that in May 2009, six months after this meeting and more

than one year before trial, counsel requested that the assistant district

attorney produce the phone. He then learned that the phone was destroyed

30 days after the arrest, pursuant to a destruction policy for un-retrieved

personal items. Id. at 7. The PCRA court concluded counsel “exercised due

diligence in his request for production of the cell phone. Pursuant to the

destruction policy, of which [counsel] had no reason to be aware, the phone

would have been destroyed within days of the January 7, 2009 preliminary

hearing.” Id. It also noted that “[Pate’s] family made no effort to obtain the

phone following [Pate’s] arrest.” Id. The court further found that “[e]ven if

phone calls occurred between [Pate] and [Victim], such phone contact would

not refute the overwhelming[,] direct[,] and scientific evidence that [Pate]

assaulted [Victim] while she was unconscious.” Id. at 8. It found the

suggestion the phone records would have supported [Pate’s] defense “purely

speculative,” noting Pate “offered no evidence that text messages existed or

what their content would have been.” Id.




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      The record supports the PCRA court’s factual findings and the trial court

did not err in finding the ineffectiveness claim lacked merit. Pate failed to

establish his counsel acted unreasonably regarding the phone and failed to

establish any prejudice.

      Pate next argues counsel was ineffective for failing to request a missing

evidence instruction for the cellular telephone. He argues the Commonwealth

was in sole possession of the phone. Pate’s Br. at 25. He maintains the text

messages were material to whether “the parties were engaged in flirty

behavior,” and “would not have been merely cumulative.” Id. at 25-26.

      A missing evidence instruction is appropriate “where evidence which

would properly be part of a case is within the control of the party in whose

interest it would naturally be to produce it, and, without satisfactory

explanation he fails to do so.” Clark v. Phila. Coll. of Osteopathic Med.,

693 A.2d 202, 204 (Pa.Super. 1997) (quoting Haas v. Kasnot, 92 A.2d 171,

173 (Pa. 1952)). In such situations, “the jury may draw an inference that it

would be unfavorable to him.” Id.

      The   trial   court   found   that   Pate   “fail[ed]   to   demonstrate   the

Commonwealth exclusively maintained control of the phone.” 1925(a) Op. at

8. It noted the police department kept the phone for 30 days pursuant to its

policy, and that Pate did not ask for it back before its destruction. Id. It found

the “Commonwealth was unaware” the phone had been destroyed. Id. The

court concluded that a missing evidence instruction did not apply here and

counsel was not ineffective for not seeking an inapplicable instruction.

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      The record supports the PCRA court’s findings and it did not err in finding

counsel was not ineffective for failing to request a missing evidence

instruction. There is no evidence the prosecution controlled the phone, had

any role in its destruction, or knew what evidence would be on it. Further, the

phone was destroyed pursuant to pre-existing policy. We thus agree that the

court would have properly denied a missing evidence instruction such that

Pate cannot show prejudice.

      Pate next claims counsel was ineffective for advising Pate not to testify

at trial. He claims counsel informed Pate that he “should not testify based on

the incorrect assumption by trial counsel that [Pate’s] prior record would be

introduced into the record and heard by members of the jury.” Pate’s Br. at

26. He claims counsel’s advice was based on Pate’s PWID conviction. Id. at

27.

      “The decision of whether or not to testify on one’s own behalf is

ultimately to be made by the defendant after full consultation with counsel.”

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000). “[T]o sustain

a claim that counsel was ineffective for failing to advise the appellant of his

rights in this regard, the appellant must demonstrate either that counsel

interfered with his right to testify, or that counsel gave specific advice so

unreasonable as to vitiate a knowing and intelligent decision to testify on his

own behalf.” Id.

      In general, “[e]vidence of a crime, wrong, or other act is not admissible

to prove a person’s character in order to show that on a particular occasion

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the person acted in accordance with the character.” Pa.R.Evid. 404(b)(1).

However, “[f]or the purpose of attacking the credibility of any witness,

evidence that the witness has been convicted of a crime . . . must be admitted

if it involved dishonesty or false statement” and it is not more than ten years

old. Pa.R.Evid. 609(a), (b). In Nieves, the Pennsylvania Supreme Court found

counsel ineffective where he advised the defendant not to testify, informing

the client that a non-crimen falsi prior conviction could be used to impeach his

credibility. 746 A.2d at 1105.

      The PCRA court found Pate “knowingly, voluntarily, and intelligently

waived the right to testify on his own behalf.” 1925(a) Op. at 9. It cited the

colloquy at trial, in which Pate agreed he had discussed the decision with

counsel, and made a “conscious, knowing, and intelligent decision to not

provide any testimony” and noted he had a prior crimen falsi conviction. Id

(quoting N.T., 5/25/10, at 175-77). It concluded:

         The [c]ourt apprised [Pate] of the Commonwealth’s burden,
         and [Pate’s] personal right to decide whether or not to
         testify. Trial [c]ounsel fully apprised [Pate] of the ‘pros and
         cons’ of testifying. Based upon the complete colloquy and
         the evidence of the thorough and vigorous representation
         by [t]rial [c]ounsel, we find [Pate] based his decision not to
         testify based upon a concern regarding his crimen falsi
         convictions and other concern[s] discussed with counsel.

Id. at 10-11.

      The PCRA court’s findings are supported by the record and it did not err

in finding counsel was not ineffective in advising Pate not to testify. Although

Pate claimed counsel informed him that his PWID conviction could be used on


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cross-examination, trial counsel testified that he told Pate that the prior theft-

related conviction could be used on cross-examination. The trial colloquy

corroborates counsel’s testimony. Counsel was not ineffective for advising

Pate that a prior crimen falsi conviction could be used on cross-examination.

See Commonwealth v. Daniels, 999 A.2d 590, 596 (Pa.Super. 2010)

(finding counsel ineffectiveness claim frivolous where counsel advised

defendant to not testify because of prior crimen falsi convictions).

      Pate also claims that, because each the above-referenced claims has

merit, we should conclude he is entitled to relief based on cumulative

prejudice. Pate’s Br. at 27. However, as discussed above, his claims do not

have merit and “no number of failed claims may collectively warrant relief if

they fail to do so individually.” Commonwealth v. Washington, 927 A.2d

586, 617 (Pa. 2007). Therefore this claim fails.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/14/2019




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