J-S54012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
DARYL SCOTT PROVANCE                           :
                                               :
                 Appellant                     :   No. 1934 WDA 2016

                 Appeal from the PCRA Order November 16, 2016
                 In the Court of Common Pleas of Fayette County
               Criminal Division at No(s): CP-26-CR-0000500-2015


BEFORE:        OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 08, 2017

        Daryl Scott Provance appeals, pro se,1 from the order entered on

November 16, 2016, in the Court of Common Pleas of Fayette County, denying

him relief on his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq. In this timely appeal, Provance argues the

PCRA court erred in determining trial counsel was not ineffective for failing to

introduce photographs of damage to the rear end of his truck, which Provance

asserts would have proven that he was not at fault for the accident that led to

his conviction of aggravated assault and related charges.2 After a thorough

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 The trial court granted appointed counsel’s motion to withdraw after fulfilling
the Turner/Finley no-merit requirements.

2  Provance received an aggregate sentence of four to eight years’
incarceration.
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review of the submissions by the parties, relevant law, and the certified

record, we affirm.

      Initially, we note that this appeal is facially untimely. The appeal from

the November 16, 2016 order denying him relief, was due on Friday,

December 16, 2016, but was not docketed until Monday, December 19, 2016,

three days late. However, we recognize that under the prisoner mailbox rule,

which holds the appeal is deemed filed when it is delivered to the proper

authority at the prison for mailing. It is obvious that, having been docketed

on a Monday, the appeal was submitted to the prison authority for mailing by

Friday, December 16, 2016 at the latest. Accordingly, this appeal is timely.

      The fact that the appeal is timely does not, however, provide any further

aid to Provance. As referred to above, the charges against Provance arose

from an incident in which Provance crashed his pickup truck into the victims’

vehicle.   Provance then fled the scene.   At trial, Provance claimed he was

intoxicated on the night in question and a stranger, who only identified himself

as a friend of the family, drove Provance home.       Provance supposed that

someone else took his car keys from him while he was intoxicated and caused

the accident.




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       Provance     now    attempts      to    present   photographs   of   his   truck

demonstrating rear end damage, thereby proving he did not cause the

accident, rather, his truck was rear-ended and forced into the victims’ car.3

       Our standard of review for an order denying PCRA relief is as follows:

       This Court's standard of review regarding an order denying a
       petition under the PCRA is whether the determination of the PCRA
       court is supported by the evidence of record and is free of legal
       error.

Commonwealth v. Rizvi, 166 A.2d 344, 347 (Pa. Super. 2017).

       In order to prevail on a claim of ineffective assistance of counsel, a

petitioner:

       [M]ust plead and prove by a preponderance of the evidence that:
       (1) the underlying legal claim has arguable merit; (2) counsel had
       no reasonable basis for his action or inaction; and (3) Appellant
       suffered prejudice because of counsel's action or inaction. With
       regard to the [reasonable basis] prong, we will conclude that
       counsel's chosen strategy lacked a reasonable basis only if
       Appellant proves that an alternative not chosen offered a potential
       for success substantially greater than the course actually pursued.
       To establish the [prejudice] prong, Appellant must show that there
       is a reasonable probability that the outcome of the proceedings
       would have been different but for counsel's action or inaction.

Commonwealth v. Brown, 161 A.3d 960, 965 (Pa. Super. 2017) (citation

omitted).

       In denying his petition, the trial court accurately observed that because

Provance’s trial testimony was that he was not driving his truck at the time of
____________________________________________


3 Provance raised this claim as ineffective assistance of counsel for failing to
introduce photographs of his truck at trial. He attempts to reframe the issue
as newly discovered exculpatory evidence. In substance, they are essentially
the same claim. We address the issue as originally raised.

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the incident, the photographs were irrelevant to the trial and counsel could

not have been ineffective for failing to introduce them at trial.

      We have reviewed the certified record, including the notes of testimony

of the trial, and we rely upon the PCRA court’s analysis of this issue found at

page 3 of his Rule 907 Notice, which states:

      You next allege that Attorney Spegar was ineffective for failing to
      present photographic evidence of the damage caused to your
      truck by the crash. When you took the witness stand in your own
      defense at trial, you told the jury that you were not driving your
      vehicle when it crashed into the other vehicle and then went down
      an embankment and crashed again into a tree. Your sworn
      testimony at trial was that some unknown person had stolen your
      truck prior to the crashes. You told the jurors that it was the thief
      who drove your truck, not you. You did not dispute that your
      vehicle had been involved in two separate crashes on the night of
      the crimes, and thus the photographic evidence of the resulting
      damage was irrelevant since the extent of that damage was not
      at issue. The failure to present any photographic evidence of the
      physical damage to your truck did not cause you prejudice since
      your defense was that you were not the driver at the time of the
      crashes.

Rule 907 Notice, 10/24/206, at 3.

      Simply put, the photographs of Provance’s truck were irrelevant to his

defense. Accordingly, there was no error in failing to introduce them at trial

and, parenthetically, the photographs are not exculpatory.

      In light of the above, the PCRA court’s order is supported by the certified

record and there has been no error of law.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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