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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                                           -2-
J-S51012-18



      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.

                                           -4-
J-S51012-18



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,




                                        -5-
J-S51012-18



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.




                                      -6-
J-S51012-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/18




                          -7-
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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
----·-····-·-*•·' . ..,·   · ....•-...-. ·--··. ..;�.-·   ,., __.,   , . ---- .. ·.. '.'. · .. :.-· .. ' --·· . ---·· ··-·· .. ·. :" ··-·· ·.. .,: .__.:.. ·   • .· ,·.·   ·.-· ·:.· :. -·,.• · -·,·-·•. ·. __   - .· :.�,-   -   ·.,_. -',:   ,' .'....... ·-··---- ::.· :··.··'-<·a   .". ·,. ···-""···--·-'· - .._ _,   -- _.-.·.• ·. -·. "   - ', ".•· :·   :·.,•. :·. ···-'·-·· -   ·.•• ·   :· .. .- .. ·..•




                                     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
