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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

                 v.


    JASON NATHAN BREDBENNER

                      Appellant             :   No. 221 MDA 2019

             Appeal from the PCRA Order Entered January 9, 2019
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0001302-2016
BEFORE:      LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

MEMORANDUM BY MURRAY, J.:                                FILED JULY 31, 2019

        Jason Nathan Bredbenner (Appellant) appeals from the order denying

his timely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        On February 8, 2017, a    jury found Appellant guilty of possession with
intent to deliver     a   controlled substance (PWID), recklessly endangering

another person (REAP), and simple assault. The trial court summarized the

relevant testimony from Appellant's trial as follows:

           [O]n May 18, 2016, Officer Cody Applegate of the Shenandoah
        Borough Police Department was dispatched to [Appellant's]
        residence at 23 South Chestnut Street in Shenandoah for a heroin
        overdose. Upon arriving at the location, Applegate heard sounds
        emanating from inside the residence, including what he described
        as a male's voice, running, a door open and a bag of garbage hit
        the ground. After knocking several times on the front door,
        Applegate entered the residence and found [Victim] unconscious
        on a couch. [Victim's] skin was blue, a hypodermic needle was
        next to her[,] but no other paraphernalia was visible. Applegate
        asked [Appellant], who was also present, if he had moved the

* Retired Senior Judge assigned to the Superior Court.
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        "bags." [Appellant] said he had not. Applegate asked several
        times if there was anything in the house that had been moved.
        [Appellant] denied that any contraband was in the house.

           After emergency personnel arrived, Applegate saw that the
        back door of the residence was open. He asked [Appellant] if
        anyone had run out the door. [Appellant] said he had left the door
        open. Applegate noticed an open garbage bag with small bags of
        what he believed had contained heroin. He also found a box
        engraved with the name "Eddie," [Appellant's] nickname. Two
        needles and empty heroin bags were in the box. While EMS
        personnel were working on [Victim], Applegate found heroin bags
        on the floors of upstairs rooms together with other drug
        paraphernalia. Eight full bags of heroin and two empty bags with
        the term "Fresh Direct" were recovered.

           Shenandoah Police Officer Travis Bowman was on duty May 18,
        2016, when he was dispatched to the scene.           The caller said
        someone was overdosing in the house. While en route, Bowman
        received a second dispatch for a call that had been received from
        another caller who was identified as [Appellant]. Like Applegate,
        Bowman heard running in the house and the shutting of a door
        after the officers had arrived but before they entered [Appellant's]
        residence.

            [Victim] testified that she had gone to [Appellant's] home to
        buy heroin from him that day. [Victim] said she had been referred
        to the house and to [Appellant] as being someone to see for
        heroin. Upon arriving at the residence, [Victim] gave [Appellant]
        $120.00. [Appellant] left the home but returned with heroin.
        [Victim] asked that he inject her. [Appellant] prepared the heroin
        and injected it into [Victim's] left arm. After a period of time,
        [Victim] asked that [Appellant] do so again and he did. [Victim]
        described how [Appellant] placed water in a cup with heroin and
        then drew the substance through a cotton ball into a syringe and
        injected it into her left arm.

           Ann Marie Kovalewski, a Shenandoah ambulance paramedic,
        testified that she responded to the scene for a report of an
        overdose and a person not breathing. Three EMTs were at the
        scene when she arrived. [Victim] was cyanotic, exhibited shallow
        breathing and low heart rate. Because the Narcon given to
        [Victim] nasally by the EMTs had not been effective to revive her,
        Kovalewski gave [Victim] Narcon intravenously.            [Victim]

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        responded and became conscious. According to Kovalewski,
        Narcon only works to revive a person who is on narcotics.

           A forensic scientist from  Pennsylvania State Police Crime
        Laboratory analyzed evidence collected by the Shenandoah police
        that day and found that the bags submitted contained heroin.

Trial Court Opinion, 4/21/17, at 2-4.

        A prior panel of this Court summarized the procedural history:

           Following trial, the jury found Appellant guilty of PWID, REAP
        and simple assault and not guilty of tampering with physical
        evidence    .   .  On March 17, 2017, the trial court sentenced
                            .   .


        Appellant to three to six years in prison for PWID, one to two years
        in prison for REAP, and two years of probation for simple assault.
        The sentences were ordered to run consecutively. Thus, in the
        aggregate, the trial court sentenced Appellant to serve four to
        eight years in prison. Appellant timely filed a post -sentence
        motion, which the trial court denied on April 21, 2017. Appellant
        appealed to this Court.

Commonwealth v. Bredbenner, 757               MDA 2017 at 3-4 (Pa. Super. Mar. 20,

2018) (unpublished memorandum). On March 20, 2018, this Court affirmed

Appellant's judgment of sentence. See id.

        On July 9, 2018, Appellant filed a pro se PCRA petition. The PCRA court

appointed counsel, who filed an amended PCRA petition on December 3, 2018.

On December 19, 2018, the PCRA court held a hearing on Appellant's PCRA

petition. On January 9, 2019, the PCRA court denied the petition. This timely

appeal followed.'

        On appeal, Appellant presents the following issues     for review:

        WAS [TRIAL] COUNSEL INEFFECTIVE IN HIS ASSISTANCE BY:



' Both the   PCRA       court and Appellant have complied with Pa.R.A.P. 1925.
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        A.   FAILING TO   REVIEW,   INSPECT   OR   OTHERWISE
        FAMILIARIZE HIMSELF WITH PERTINENT PHOTOGRAPHIC
        EVIDENCE NECESSARY TO [APPELLANT]'S DEFENSE, THAT
        WOULD HAVE PROVED [VICTIM] COMMITTED PERJURY;

        B.   WAITING UNTIL ONE (1) OR TWO (2) DAYS PRIOR TO TRIAL
        TO   ATTEMPT   TO   LOCATE     WITNESSES    THAT   COULD
        AUTHENTICATE PHOTOGRAPHIC EVIDENCE AND THAT [VICTIM]
        HAD BEEN AT [APPELLANT]'S HOME ON PRIOR OCCASIONS AND
        HAD BEEN ROMANTICALLY INVOLVED WITH [APPELLANT].

Appellant's Brief at 5.

        We review the denial of PCRA relief by "examining whether the PCRA

court's findings of fact are supported by the record, and whether its

conclusions of law are free from legal error." Commonwealth v. Busanet,

54 A.3d 35, 45 (Pa. 2012). "Our scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most favorable

to the party who prevailed in the PCRA court proceeding."      Id.
        Both of Appellant's issues challenge trial counsel's effectiveness with

respect to preparation for trial.     Therefore, we address the issues together.

Appellant argues that trial counsel was ineffective because he did not review

or investigate, until   a   day or two prior to Appellant's trial, photographs on

Appellant's phone showing Victim and another woman in Appellant's home and

video of Appellant and Victim engaging in sexual relations. Appellant asserts

that trial counsel should have used the photographs and video to impeach

Victim's testimony indicating that she had never been to Appellant's home and

was not romantically involved with Appellant. Appellant also claims that trial


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counsel "failed to identify potential witnesses and failed to locate known

witnesses." Appellant's Brief at 12.

        In deciding ineffective assistance of counsel claims, we begin with the

presumption that counsel rendered effective assistance. Commonwealth v.

Bomar, 104 A.3d 1179, 1188            (Pa. 2014).    To overcome      that presumption,

the petitioner must establish: "(1) the underlying claim has arguable merit;

(2) no reasonable basis existed for counsel's action or failure to act; and (3)

the petitioner suffered prejudice as      a   result of counsel's error, with prejudice

measured by whether there is      a    reasonable probability that the result of the

proceeding would        have   been    different."     Id. (citation omitted).        To

demonstrate prejudice in an ineffective assistance of counsel claim, "the

petitioner must show that there          is a   reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different." Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012). If the

petitioner fails to prove any of these prongs, the claim       is   subject to dismissal.

Bomar, 104 A.3d at 1188.

        Additionally:

        When raising    a claim of ineffectiveness for the failure to call a
        potential witness, a petitioner satisfies the performance and
        prejudice requirements of the [ineffective assistance of counsel]
        test by establishing that: (1) the witness existed; (2) the witness
        was available to testify for the defense; (3) counsel knew of, or
        should have known of, the existence of the witness; (4) the
        witness was willing to testify for the defense; and (5) the absence
        of the testimony of the witness was so prejudicial as to have
        denied the defendant a fair trial.


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Commonwealth v. Sneed, 45 A.3d 1096, 1108-09               (Pa. 2012).

        We conclude that Appellant's claims do not merit relief.        Appellant has

failed to establish the prejudice prong of the ineffective assistance of counsel

test.   See Bomar, 104 A.3d at 1188.           Appellant's brief   is   devoid of any

explanation as to how trial counsel's failure to review, investigate, and utilize

the photographs and video of Victim on Appellant's phone to impeach Victim's

testimony prejudiced Appellant at trial.          Indeed, Appellant provides no

discussion explaining how there was    a   reasonable probability that, but for trial

counsel's failure to impeach Victim's testimony, the result of Appellant's trial

would have been different. See King, 57 A.3d at 613.

        Moreover, as the PCRA court points out, other than its use as

impeachment evidence, the photographs and video do not help Appellant's

case because "the material issue at trial was whether [Appellant] had supplied

[Victim] heroin, not whether she had known [Appellant] prior to the incident."

PCRA Court Opinion,    3/18/19, at 8. The trial court's recitation of the facts of

this case and the transcript of Officer Applegate's testimony reveal more than

ample direct and circumstantial evidence of Appellant's crimes, regardless of

whether trial counsel impeached Victim's testimony. See Trial Court Opinion,

4/21/17, at 2-4; see also N.T., 2/8/17, at 33-40. Therefore, there         is no basis

on which to conclude that trial counsel's failure to review, investigate, and

utilize the photographs and video of Victim on Appellant's phone prejudiced

Appellant.


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        Finally,   with respect to Appellant's claim that trial counsel was

ineffective for failing to identify and locate potential witnesses, Appellant does

not identify what witnesses trial counsel should have called at trial or address

any of the factors set forth in Sneed. Thus, this claim lacks merit.

        Accordingly, based on the foregoing, we conclude that the trial court did

not abuse its discretion in denying Appellant's PCRA petition.

        Order affirmed.



Judgment Entered.




J seph D. Seletyn,
Prothonotary
Date: 7/31/2019




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