J-S70005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    DANIEL CHAVIOUS                            :
                                               :
                      Appellant                :       No. 623 MDA 2017

                  Appeal from the PCRA Order March 20, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0002415-2009


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED DECEMBER 01, 2017

        Appellant, Daniel Chavious, appeals from the order entered in the

Dauphin County Court of Common Pleas, which denied his first petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        In its opinions, the PCRA court fully and correctly sets forth the

relevant facts and procedural history of this case.       Therefore, we have no

reason to restate them. We add that the PCRA court dismissed Appellant’s

PCRA petition on March 20, 2017. On April 6, 2017, Appellant timely filed a

notice of appeal. The PCRA court ordered Appellant on April 11, 2017, to file

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.



____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S70005-17


1925(b). Appellant filed a Rule 1925(b) statement on May 8, 2017.2

       Appellant raises the following issues for our review:

          WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN HER
          REPRESENTATION?

          WHETHER    THERE   WAS   MISCONDUCT  BY THE
          COMMONWEALTH WHEN A COURT ORDER WAS IGNORED
          AND RELEVANT EVIDENCE WAS DESTROYED?

(Appellant’s Brief at 5).

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the record supports the court’s determination and

whether the court’s decision is free of legal error. Commonwealth v. Ford,

947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319

(2008). This Court grants great deference to the findings of the PCRA court

if the record contains any support for those findings.     Commonwealth v.

Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007).       Credibility determinations are within the province of the

PCRA court when a hearing is held on the matter.           Commonwealth v.

Rathfon, 899 A.2d 365 (Pa.Super. 2006).          If the record supports a PCRA
____________________________________________


2 Appellant’s Rule 1925(b) statement appears to have been untimely filed.
Nevertheless, this Court may address the merits of a criminal appeal,
where a defendant files an untimely Rule 1925(b) statement, if the trial
court had adequate opportunity and chose to prepare an opinion addressing
the issue(s) raised on appeal.    Here, the PCRA court issued opinions
addressing Appellant’s complaints.    Therefore, we decline to consider
Appellant’s issues waived. See Commonwealth v. Burton, 973 A.2d 428
(Pa.Super. 2008) (en banc) (allowing for immediate review under these
circumstances).



                                           -2-
J-S70005-17


court’s credibility determination, it is binding on the appellate court.

Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

     A defendant is constitutionally guaranteed access to evidence that is

either materially exculpatory or potentially useful.    Commonwealth v.

Chamberlain, 612 Pa. 107, 30 A.3d 381 (2011). When the Commonwealth

fails to preserve “potentially useful” evidence, as opposed to materially

exculpatory evidence, no due process violation occurs unless the defendant

can prove the Commonwealth acted in bad faith.       Id.   “Potentially useful

evidence is that of which no more can be said than that it could have been

subjected to tests, the results of which might have exonerated the

defendant.” Id. at 143, 30 A.3d at 402.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Richard A.

Lewis, we conclude Appellant’s issues merit no relief.      The PCRA court

opinions comprehensively discuss and properly dispose of the questions

presented. (See PCRA Court Opinion, filed May 10, 2017, at 1; PCRA Court

Opinion, filed March 20, 2017, at 10-16) (finding: (1) at PCRA hearing on

July 29, 2013, trial counsel testified that she recalled Appellant asking her

more than once to obtain phone records; trial counsel stated she had no

reasonable basis for failing to secure phone records; thus, Appellant

established second prong of ineffectiveness test; Appellant, however, was

unable to establish what was contained in records at issue or whether


                                    -3-
J-S70005-17


phones or phone records would have likely changed outcome of his trial had

counsel obtained and been able to introduced them as evidence, because

phones and phone records had been destroyed; thus, Appellant failed to

satisfy arguable merit and prejudice prongs of ineffectiveness test; (2)

testimony during PCRA hearing on January 23, 2017, regarding destruction

of   phones   at   issue,   did   not    support   adverse   inference   against

Commonwealth; Dauphin County evidence coordinator, Charles A. Acre,

testified that Commonwealth did not direct him to destroy phones and he

was unaware of any other order pertaining to phones; Mr. Acre also stated

he received no orders or notifications directing him to retain phones; Mr.

Acre testified that Dauphin County’s regular practice was to destroy evidence

after it remained unrequested in storage for several years and that

destruction occurs regularly on particular dates; timing of destruction of

evidence was unfortunately done in regular course of conduct, but no

evidence indicated destruction was done in bad faith; therefore, Appellant

was not entitled to relief merely because evidence at issue had been

destroyed).   Accordingly, we affirm on the basis of the PCRA court’s

opinions.




                                        -4-
J-S70005-17


     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




                          -5-
                                                                                            Circulated 11/08/2017 02:06 PM




 COMMONWEALTH OF PENNSYLVANIA                                IN THE COURT OF COMMON PLEAS
                                                             DAUPHIN COUNTY, PENNSYLVANIA


                           vs.                              : NO. 2415CR2009(624MDA2017)

                                                             PCRA - APPEAL
 DANIEL CHA VIOUS,
                        Defendant


                    STATEMENT IN LIEU OF MEMORANDUM OPINION

        AND NOW, this            _J_Q_ day of May, 2017, this Court notes that, for purposes of
appellate review, the reasons for dismissing Defendant's PCRA petition were discussed in this

Court's Memorandum Order, filed March 20, 2017. We refer the Pennsylvania Superior Court to

the Memorandum Order in lieu of a memorandum opinion. 1




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Ryan Lysaght, Esquire, District Attorney's Office Jo
Jennifer E. Tobias, Esquire, P.O. Box 365, Stewartstown, PA 17363                 WlCtl /
Daniel Chavious, Defendant mtt.i I
Court Administration - Criminal _:[ ()
Clerk of Courts
FILE COPY - Chambers of the Honorable Richard A. Lewis ..t.-0


I This Court notes that Defendant did file a "Concise Statement of Matters Complained of on Appeal Pursuant to

Pa.R.A.P. 1925(b)" in response to this Court's l 925(b) Order. All issues were addressed in our March 20, 2017
Memorandum Order.

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                                                                                              Circulated 11/08/2017 02:06 PM



COMMONWEALTH OF PENNSYLVANIA                                   IN THE COURT OF COMMON PLEAS,
                                                               DAUPHIN COUNTY, PENNSYLVANIA

                  v.                                           NO. 2415 CR 2009


DANIEL CHAVIOUS                                                CRIMINAL - PCRA

                             TRIAL COURT MEMORANDUM OPINION
         Presently before this Court is Petitioner Daniel Chavious's (hereinafter "Petitioner")

Petition for Post-Conviction Collateral Relief pursuant to 42 Pa. C.S.A. §§ 9541-9551. For the

reasons set forth below, we will deny said petition.


I. Factual Background and Procedural History.

         Petitioner's instant petition for relief pursuant to the Pennsylvania Post-Conviction Relief

Act ("PCRA"), which was previously granted by the Honorable Jeannine Turgeon (hereinafter

"Judge Turgeon") of this Court, is again before this Court on Remand from the Superior Court of

Pennsylvania. The procedural and factual history surrounding Petitioner's trial, conviction, and

direct appeals in this case can be summarized by the following recitation, which is taken from an

opinion in this matter issued by Judge Turgeon on October 23, 2013: 1

                      Following a trial held December 14-16, 2009, a jury found petitioner
             guilty of three counts of unlawful delivery of a controlled substance. These
             convictions arose from petitioner's alleged sale of crack cocaine on· two
             occasions to a confidential informant and on a third occasion to an
             undercover officer. Following trial, [Judge Turgeon] sentenced petitioner to
             an aggregate term of 66 to 240 months confinement. Petitioner filed a
             timely appeal to the superior court arguing that [the trial court] erred by
             failing to give a missing witness instruction and also that the evidence was
             insufficient. The superior court denied petitioner's appeal and his request
             for discretionary review before the supreme court was subsequently denied.
             Commonwealth v. Chavious, No. 158 MDA 2010 (Pa. Super. Feb. 2, 2011)


I
  The Superior Court also quoted portions of Judge Turgeon's recitation of the factual and procedural history of this
case in its August 29, 20)4 decision which ultimately remanded this matter back to this Court. � Commonwealth
v. Chavious, No. 2063 MDA 2013, at 1-5 (Pa. Super. Ct. Aug. 29, 2014) (memorandum).
          (mem.);petitionfor allowance of appeal denied, No. 138 MAL 2011 (Pa.
          July 12, 2011).

PCRA Court Opinion, I 0/23/J 3, at 1-2.

       In addressing petitioner's claims on appeal to the Superior Court, Judge Turgeon recited

the fol1owing relevant trial evidence supporting the Petitioner's conviction:

          ... Dauphin County Detective Corey Dickerson testified that around 6:30
          p.m. on February 3, 2009, he was working undercover with the Harrisburg
          Police vice unit. At the time, Detective Dickerson had been working with
          Dauphin County CID for two months. (N.T. [Petitioner's December 2009
          trial] 32). Detective Dickerson, operating on information he acquired form
          his supervisor, Detective David Lau, became acquainted with a confidential
          informant to purchase $40 of crack cocaine from a man known as Dog or
          Duke. (N.T. 21, 33, 116)

               Detective Dickerson was present when the confidential informant was
          searched to make sure she had nothing other than what she was provided by
          police. (N.T. 22) After the confidential informant contacted Dog by phone,
          in Detective Dickerson's presence, Dog instructed the confidential
          informant where to meet. Detective Dickerson drove with the confidential
          informant to 17th and Carnation Streets in Harrisburg in an undercover
          vehicle. Upon their arrival, the confidential informant called Dog to let him
          know they were there. Dog approached the confidential informant but,
          upon noticing a third party, walked ahead about ten yards to an alleyway.
          Detective Dickerson described [Petitioner] as wearing a gray and yellow
          Rocawear jacket. A few moments later, the [Petitioner] called the
          confidential informant and told the confidential informant he didn't want to
          meet her driver so they arranged to meet in the alleyway. Detective
          Dickerson gave the confidential informant $40 and the confidential
          informant walked to the alleyway, out of Detective Dickerson's sight, for
          about 15 seconds. She then returned to the car, with [Petitioner] following
          behind. The confidential informant immediately handed Detective
          Dickerson crack cocaine wrapped in plastic wrap. Detective Dickerson
          drove directly into the alleyway and noticed that it was clear of people. He
          then drove to a secure location where he handed the drugs to Detective Lau
          and observed as the confidential informant was searched. (N.T. 21-25, 27,
          42,45,52)

               Two days later, around 5 :00 p.m., Detective Dickerson and the
          confidential informant arranged for a second drug deal with [Petitioner].
          The confidential informant called to purchase $40 of crack cocaine and
          [Petitioner] again directed the confidential informant to the same location.
          After they parked, [Petitioner] approached the confidential informant who

                                                 2
rolled down her window at which point [Petitioner] spit out from his mouth
three small plastic wrapped baggies of crack cocaine. The confidential
informant handed $40 to [Petitioner]. According to Detective Dickerson,
[Petitioner] was wearing the same Rocawear jacket. Detective Dickerson
then observed [Petitioner] go into a building at 66 North 17th Street after the
transaction. (N.T. 25-27, 30, 58)

      On February 11, 2009, Detective Dickerson working alone and upon
Detective Lau's direction, called [Petitioner)'s phone number and asked to
purchase $40 of crack cocaine. [Petitioner] directed the undercover officer
to l 71h and Walnut Streets. Upon Detective Dickerson's arrival,
[Petitioner], wearing head phones and the Rocawear jacket, got into the
vehicle. While Detective Dickerson drove around the block, [Petitioner]
gave him crack cocaine and Detective Dickerson drove to a secure location
and turned the drugs over to Detective Lau. At trial, Detective Dickerson
identified the man known as Dog to be Daniel Chavious. (N.T. 28-31)

     Sergeant Brenda Holmes, a vice unit supervisor with the Harrisburg
Police, testified that she performed the searches on the confidential
informant before and after the February 3 and 5, 2009 drug transactions and
confirmed that she found no contraband or cash on the confidential
informant. (N.T. 74-77) Detective Dickerson testified that after each initial
search, he never lost sight of the confidential informant except for the 15
seconds she disappeared into the alleyway during the first transaction.
(N.T. 79-80)

     Detective Dickerson testified that during each of the three transactions,
he was able to provide about five minutes' notice to other police officers
involved in the operation of the planned location of the transactions so they
could conduct surveillance and provide backup. (N.T. 38-39, 49-50, 54-56,
66) Harrisburg Police Officer Levell Jenkins, who worked in the vice unit,
testified that he provided such backup and surveillance. (N.T. 81) He
stated that during the surveillance operations, he was in constant
communications with the other officers, including the undercover officer
who would provide a description of the suspect and his location during the
course of events. (N. T. 94) He testified that while providing surveillance
on February 3, 2009, after [Petitioner] had completed the transaction with
the confidential informant and Detective Dickerson, he observed
[Petitioner] go into a building at 66 North 17th Street. (N.T. 81) Officer
Jenkins testified that regarding the third transaction on February 11, 2009,
he also provided surveillance and again observed [Petitioner] after the
transaction walk into 66 North 17th Street. (N.T. 82)

     Officer Jenkins also testified that, based upon information provided by
the undercover officer including a description of what [Petitioner] was
wearing, police were able to video record [Petitioner's] movements shortly


                                       3
          following both the first and third transactions. (N.T. 82, 94) Those video
          recordings were played for the jury. The earlier video, taken at 6:38 p.m.
          showed [Petitioner] walk into a house at 66 North 17th Street. (N. T. 84)
          The latter video showed [Petitioner] walking west on Carnation Street, then
          south on 17th Street to Regina Street where he walked into a store. The
          video follows him walking west and north on 17th Street and into the home
          at 66 North 17th Street. (N.T. 86) [Petitioner] is shown in this video
          wearing a gray Rocawear jacket and headphones. (N.T. 86) This video was
          taken between 3:34 and 3:38 p.m.

               Harrisburg Police Detective David Lau, who was in charge of the
          undercover operation, testified that he was not present at the three drug
          transactions but did receive evidence from Detective Dickerson within
          about twenty minutes after they had concluded. (N .T. 97) He testified that
          the contraband purchased from [Petitioner] was later tested to be crack
          cocaine in the amounts of .041, .042 and .036 grams, respectively. (N.T.
          98-105)

               Detective Lau testified that the confidential informant had been arrested
          prior to providing information to the police and that she worked for the
          police either to help reduce her charges or for money. (N.T. 115) He stated
          that the confidential informant received cash, probably $40, for each of the
          two transactions she helped set up. (N.T. 116) Detective Lau testified that
          all of the deals were made with recorded money though none of that money
          was recovered from [Petitioner]. (N.T. 140)

               [Petitioner] was arrested and charged with three counts of unlawful
          delivery on April 14, 2009. (N.T. 134, 142) He was listed in the criminal
          complaint as being homeless. (N.T. 136-37) The Commonwealth's
          attorney read into the record a stipulation reached by the parties which was
          that in January 2009, [Petitioner] reported his address as 66 North l '71h
          Street. The parties also stipulated that in April 2009 the booking officer
          reported [Petitioner] as homeless but that also at another point in April
          2009, [Petitioner] reported his address as 66 North 17th Street. (N.T. 149)

Commonwealth v. Chavious, 2415 CR 2009, pp. 1-4 (Dauphin Cnty. C.P. May 25, 2010).

       Subsequent to unsuccessful direct-appeal attempts, Petitioner filed the instant PCRA

petition. The procedural history surrounding the instant PCRA petition can be summarized by

the following recitation, which is also taken from Judge Turgeon's October 23, 2013 opinion:

               Petitioner filed a timely prose PCRA petition on May 15, 2012. His
          attorney Jennifer Tobias later filed a motion to withdraw which [Judge
          Turgeon] denied on the basis that counsel had not reviewed all of the claims

                                                4
asserted in the prose petition. [Judge Turgeon] directed that she fully
address them in a supplemental filing. In response, Ms. Tobias filed a
PCRA petition April 3, 2013 seeking an evidentiary hearing for the purpose
of determining whether petitioner's trial attorney was ineffective for having
failed to obtain phone records, which would have presumably and
definitively revealed that the phone number which petitioner aUegedly used
to contact the confidential informant and Detective Dickerson had not been
activated until a month after the aJleged drug deals. Petitioner claimed that
the evidence supporting his convictions was completely fabricated and these
phone records would so prove. Petitioner's [PCRA] counsel also sought an
evidentiary hearing in order to determine whether petitioner's other broadly
stated claims ... had any merit. PCRA counsel had not sought to obtain the
phone or the phone records. Therefore, following the [July 29, 2013]
evidentiary hearing, [Judge Turgeon] issued an order, August 2, 2013,
directing that the record be held open for thirty days during which
petitioner's attorney would make all reasonable efforts to obtain any and a11
phone records necessary to fully pursue petitioner's PCRA claim alleging
ineffective assistance of trial counsel for failure to obtain said records.
[Judge Turgeon] directed as well that the Commonwealth "provide
petitioner's attorney with all relevant evidence available to it of phone
number and/or records relevant to the three drug transactions at issue."
[Judge Turgeon] also directed the parties to submit briefs on the phone
records issue.

                                     ***
     Petitioner's attorney, in her brief, stated that after the PCRA hearing,
and pursuant to [Judge Turgeon's] order, she reviewed Detective
Dickerson's undercover officer worksheets, which showed he recorded in
his paperwork that the phone number allegedly used by petitioner during the
drug buys was 717-370-8630. These worksheets had been identified as
Commonwealth Exhibits (#1-3) for trial, though they were not admitted.
Petitioner's attorney further noted that she contacted the cell phone
provider, Boost Mobile, but was informed that it stores records for only
eighteen months and thus no longer had access to them; however, it would
have had the records from the alleged drug transaction calls, made in
February 2009, at the time of trial, held in December 2009.

     Because petitioner's attorney was unable to obtain Boost Mobile's
records, she requested from the lead detective in the case, Detective David
Lau, that he provide her with petitioner's phone so she could attempt to
obtain records of all phone calls made to and from the phone (as well as its
period of activation), which are recorded on a chip in the phone. Police had
confiscated petitioner's phone at the time of his arrest. Incredibly, counsel
was informed that the phone had been destroyed just one week prior to her
request. [As of October 23, 2013], [t]he Commonwealth ha[d] not disputed


                                      5
              that the phone was destroyed in the manner represented by Attorney
              Tobias.2

PCRA Court Opinion, 10/23/13, at 1-6 (internal citations and some internal footnotes omitted).

           In her October 23, 201-3 opinion, Judge Turgeon then granted Petitioner's PCRA.petition,

reasoning as follows:

              Inasmuch as the Commonwealth is responsible for depriving petitioner of
              the only means to prove his claim, and given the applicable inference that
              the fact finder can consider that the destroyed evidence would have been
              unfavorable to the Commonwealth, I grant his request for a new trial and
              vacate his judgment of sentence.

PCRA Court Opinion, I 0/23/13 at 1.

           The Commonwealth then appealed Judge Turgeon's ruling to the Superior Court of

Pennsylvania, raising the fol1owing two arguments on appeal: ( l) that Judge Turgeon erred in

finding that Petitioner had received ineffective assistance of trial counsel since he failed to show

that his underlying claim had any arguable merit and/or that there was a reasonable probability

2
    Judge Turgeon's October 23, 2013 opinion stated as follows:

              In its brief, the Commonwealth failed to address Attorney Tobias' claim that the police had
              destroyed the phone. [Judge Turgeon's] staff thereafter contacted the attorney who
              represented the Commonwealth at the [July 29, 2013) PCRA hearing by email and
              requested if he could confirm that the phone had been destroyed as indicated by Ms.
              Tobias. The email response provided by the Commonwealth attorney was that he could not
              confirm or deny Ms. Tobias' representation.

PCRA Court Opinion, l 0/23/ 13, at 6 n.6.

Judge Turgeon also stated as follows:

              The destruction of the phone could be considered in direct violation of [Judge Turgeon's]
              August 2, 2013 Order, by which I directed that the Commonwealth "provide petitioner's
              attorney with all relevant evidence available to it of phone numbers and/or records relevant
              to the three drug transactions at issue .... " Furthermore, even absent court order, the fact
              that petitioner had a pending request for PCRA relief, including a request for a new trial,
              was easily discoverable to those within the criminal justice system and should have
              precluded such destruction. The principle that any relevant evidence should not be
              destroyed in a pending case is beyond obvious.




                                                            6
that, but for the aJleged error of trial counsel, the outcome of the trial would have been different;

and (2) that Judge Turgeon erred in failing to conduct an evidentiary hearing concerning the

destruction of Petitioner's cell phone. On August 29, 2014, the Superior Court issued a

memorandum decision pertaining to the Commonwealth's appeal. See Commonwealth v.

Chavious, No. 2063 MDA 2013 (Pa. Super. Ct. Aug. 29, 2014) (memorandum). Therein, the

Superior Court only addressed the Commonwealth's second argument, that which pertained to

Judge Turgeon's failure to hold an evidentiary hearing. The court ruled in favor of the

Commonwealth and held that Judge Turgeon erred by granting Petitioner's PCM petition

without conducting a hearing as to the circumstances surrounding the alleged destruction of the

cell phone. Id. at 7. The court reasoned that while there is generally no right to an evidentiary

hearing on a PCRA petition, see Commonwealth v. Jordan, 772 A.2d 1011, l 014 (Pa. Super. Ct.

2001 ), such a hearing was necessary in this case because there was a genuine issue of material

fact concerning the circumstances surrounding the destruction of Petitioner's cell phone. The

court believed a genuine issue existed because the Commonwealth attorney's email statement to

Judge Turgeon neither confirmed nor denied Attorney Tobias's assertion that the police had

destroyed the cell phone. Id. at 7-8. Thus, the Superior Court reasoned, the Commonwealth

should have been afforded with an opportunity to investigate the matter and present any

information relevant to the circumstances of the cell phorie's destruction. Id. at 8. According to

the Superior Court, Judge Turgeon's failure to provide the Commonwealth with such opportunity

amounted to reversible error, and the Superior Court remanded this matter with a direction to this

Court that an evidentiary hearing be held regarding the circumstances surrounding the

destruction of Petitioner's cell phone and the existence of any relevant phone records. Id. Due

to its disposition, the Superior Court did not address the other issue the Commonwealth raised on



                                                  7
appeal-that is, whether Petitioner's underlying ineffective assistance of counsel claim had any

merit. Id. at 8 n.2

        On January 231 2017, pursuant to the directive of the Superior Court's August 29, 2014

decision, we conducted an evidentiary hearing regarding the circumstances surrounding the

destruction of Petitioner's cell phone. The only witness to testify at this hearing was Dauphin

County evidence coordinator Charles A. Acre (hereinafter "Acre"), who testified on behalf of the

Commonwealth. Acre testified that as an evidence coordinator, his responsibility is to receive

evidence from Dauphin County, store it, and hold it for disposition. (Notes of Testimony,

Evidentiary Hearing dated January 23, 2017, hereinafter ..N.T.," at 4). Acre stated that normally

when he receives evidence, he asks the prosecutor what should be done with the evidence, and

then he is informed whether it should be held for a certain duration of time or destroyed. (N.T.

4-5).

        As to evidence for which Acre is given no specific requests or instruction as to retention

or destruction, Acre typically holds such evidence in storage for eventual destruction. (N.T. 9,

12-13 ). If someone requests evidence that is in storage, Acre can pull it out of storage for the

requesting party, but if the evidence in storage is not requested, it is destroyed after

approximately two or three years. (N.T. 9, 12-14). According to Acre, evidence is typically

destroyed in a "batch." (N.T. 13). The County normally does a mass "drug burn" twice a year at

a steel mill-one on a particular date in the spring and another on a particular date in the fall-to

burn evidence such as drugs and firearms that is being held in storage. (N.T. 7, 14-15). In

advance of the biannual drug bums, Acre pulls out any evidence which cannot be destroyed by

burning (e.g. batteries and other electronic devices) and places them into separate boxes so that

he can take them out to a recycling center in Dauphin County. (N.T. 7-8, 15-16). According to



                                                   8
Acre, there are typically two scheduled occasions per year on which the County takes multiple

boxes of recyclable-type evidence to the recycling center. (N.T. 15-16).

        With regard to Petitioner's case, Acre stated that on December 15, 2009, he received

some crack cocaine and two cell phones that had been used as evidence in Petitioner's

conviction. (N.T. 4-5). Acre destroyed both of the cell phones involved in this case on August

16, 2013, and the drugs associated with the case were destroyed in September of 2013. (N.T. 5-

7, 11, 14).   Although he was uncertain as to which, if any, other objects were destroyed on

August 16, 2013, Acre testified that the Commonwealth never directed him to destroy the cell

phones that were destroyed on that date, and he was not aware of any destruction order regarding

the cell phones. (N. T. 5-10, 13 ). Furthermore, Acre testified that to the best of his recolJection,

he never received Judge Turgeon's August 2, 2013 order directing that all of the evidence from

the instant case be held open for thirty days, and he stated that if he had received any kind of

notification that the evidence was needed, he would have pulled it from storage to prevent its

destruction. (N.T. 12, 14).

       At the close of the January 23, 2017 hearing that addressed the circumstances

surrounding the destruction of Petitioner's phone, we ordered both parties to submit memoranda

as to the issue which was not addressed by the Superior Court in its August 2014 memorandum

decision-specifically, the merit of Petitioner's underlying ineffective assistance of counsel

claim contained within the instant PCRA petition. On February 3, 2017, the Commonwealth

filed its brief in opposition to Petitioner's instant PCRA petition, and on February 13, 2017,

Defendant filed his memorandum in support of his petition. Having reviewed the parties'

memoranda, we now deliver our ruling on the instant PCRA petition.




                                                  9
II. Discussion.

       The issue currently before this Court is the merit of Petitioner's ineffectiveness-of-

counsel claim. The law governing ineffective assistance of counsel claims has been summarized

by the Supreme Court of Pennsylvania as follows:

           There are three elements to a valid claim of ineffective assistance. We
           inquire first whether the underlying claim is of arguable merit; that is,
           whether the disputed action or omission by counsel was of questionable
           legal soundness. If so, we ask whether counsel had any reasonable basis for
           the questionable action or omission which was designed to effectuate his
           client's interest. If he did, our inquiry ends. If not, the appe1lant will be
           granted relief if he also demonstrates that counsel's improper course of
           conduct worked to his prejudice, i.e., had an adverse effect upon the
           outcome of the proceedings.


Commonwealth v. Davis, 541 A.2d 315, 318 (Pa. 1988) (citing Commonwealth v. Pierce. 527

A.2d 973 (Pa. 1987); Commonwealth v. Sullivan, 371 A.2d 468 (Pa. 1977); Commonwealth ex

rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1967)). The three prongs of an ineffective

assistance claim are sometimes referred to collectively as the "Pierce test." See. e.g.,

Commonwealth v. McGill, 832 A.2d 1014, 1022-24 (Pa. 2003). Below, we address each of the

three prongs of the Pierce test as they pertain to the instant matter.

    A. Petitioner Cannot Establish the First and Third Prongs of the Pierce Test Without
       Presenting the Phone Records or Phone as Evidence.
        We find that Petitioner is unable to establish the first and third prongs of the Pierce test

without presenting the phone records or the phone that he used in the a1leged drug buys in 2009.

Unfortunately for Petitioner, he cannot possibly produce either one because the phone has been

destroyed and phone service provider Boost Mobile no longer is in possession of the relevant

phone records. Thus, pursuant to the ensuing discussion, we hold that it is appropriate to dismiss

Petitioner's instant PCRA petition.


                                                  10
        First, we will briefly address the second prong of the Pierce test because based on the

facts presented in the record, we believe Petitioner has established this second prong. The

second prong of Pierce requires Petitioner to establish that counsel's action or inaction did not

have a reasonable basis or was not the "product of a reasonable strategic decision."

Commonwealth v. Pursell, 724 A.2d 293, 304 (Pa. 1999) (citation omitted). "With regard to the

second, reasonable basis prong, 'we do not question whether there were other more logical

courses of action which counsel could have pursued; rather, we must examine whether counsel's

decisions had any reasonable basis."' Commonwealth v. Chmiel, 30 A.3d 1111, t 127 (Pa. 2011)

(quoting Commonwealth v. Washington, 927 A.2d 586, 593 (Pa. 2007)). In the instant matter,

we conclude that Petitioner's trial attorney had no reasonable basis for failing to obtain the phone

records at issue. At the July 29, 2013 PCRA hearing before Judge Turgeon, Petitioner's trial

attorney, Attorney Pasqualini testified that she remembered Petitioner asking her to obtain the

phone records and that Petitioner made such request on more than one occasion (Notes of

Testimony, July 29, 2013 PCRA Hearing, hereinafter "N.T.," at 17). Attorney Pasqualini

testified that she never secured the phones records, and when asked ifthere was a reason why she

did not secure the phone records, Attorney Pasqualini simply replied, "No." (N.T. at 17-18).

Thus, per Attorney Pasqualini's own testimony, she had no reason for failing to obtain the phone

records, and, therefore, it cannot be said that such decision had a reasonable basis or was the

product of a reasonable strategic decision. Consequently, Petitioner satisfies the second prong of

the Pierce test.

        We now tum to the first and third prongs of the Pierce test. The first prong of the Pierce

test inquires "whether the underlying claim is of arguable merit; that is, whether the disputed

action or omission by counsel was of questionable legal soundness." Davis, 541 A.2d at 318.



                                                 11
Stated differently, a court examines "whether there is arguable merit to the claim that counsel's

performance was substandard or deficient." Commonwealth v. Perry, 644 A.2d 705, 709 (Pa.

1994). As to the third prong of the Pierce test, such prong requires that counsel's improper

course of conduct worked to a defendant's prejudice. Prejudice is established where a petitioner

demonstrates that "but for the errors and omissions of counsel, there is a reasonable probability

that the outcome of the proceedings would have been different." Commonwealth v. Kimball,

724 A.2d 326, 333 (Pa. 1999). In other words, a defendant must show that counsel's act or

omission had an "adverse effect on the outcome of the proceedings." Commonwealth v.

Marshall, 633 A.2d 1100, 1109 (Pa. 1993).

       In the instant matter, Petitioner cannot satisfy either the first or third elements of the

Pierce test. Petitioner claims that the phone records that Attorney Pasqualini failed to acquire

would have established that the phone number used for the aJleged drug buys was not in service

until a month after the alleged buys occurred. Thusly, Petitioner claims, such records would
                                                                      '

have impeached Detective Dickerson's trial testimony, as Detective Dickerson apparently

testified that such phone number was used for the drug transactions which gave rise to

Petitioner's conviction. Unfortunately, however, since the subject phones and records have been

destroyed, we are unable to determine what was contained therein and what they would establish.

All we could do is engage in speculation and conjecture as to what this evidence would have

shown, and drawing inferences from such speculation would be inappropriate. See Pursell, 724

A.2d at 311 ("Claims of ineffective assistance of counsel that are based on speculation and

conjecture do not adequately establish the degree of prejudice necessary; namely, that there is a

reasonable probability that, but for counsel's error's, the outcome of the proceeding would have

been different."). As such, Petitioner cannot possibly establish that either the subject phone or



                                                  12
phone records would have likely changed the outcome of his criminal trial had Attorney

Pasqualini obtained them and introduced them as evidence, and he cannot establish the third

element of the Pierce test. Furthermore, as a result, Petitioner cannot establish the first element

of the Pierce test. Considering that we are unable to ascertain the content of the phone or phone

records and, therefore, are unable to examine the potential impact they may have had on the

outcome of Petitioner's trial, we cannot make a determination as to whether Attorney Pasqualini

acted in a substandard manner by failing to obtain and introduce such evidence requested by

Petitioner.

    B. The Circumstances Surrounding the Destruction of the Cell Phones.

        Although we have determined that Petitioner cannot satisfy the Pierce test with regard to

Attorney Pasqualini's failure to obtain the requested phone records, we must also engage in a

brief discussion regarding the circumstances surrounding the destruction of the cell phones

allegedly used in Petitioner's drug buys. Judge Turgeon previously granted Petitioner's PCRA

petition without holding a hearing regarding the destruction of the phones. Because the phones

had been destroyed one week prior to Attorney Tobias's requests for them, Judge Turgeon

inferred that the Commonwealth had destroyed them because they would have been adverse to

the Commonwealth's position in the instant matter. The Commonwealth appealed Judge

Turgeon's decision to our Superior Court, and the Superior Court held that Judge Turgeon had

erred by granting the petition without a holding a hearing. Our Superior Court reasoned that the

Commonwealth should have an opportunity to provide evidence pertaining to the circumstances

surrounding the destruction of the phones; thus, a genuine issue of material fact existed regarding

the circumstances of said phones. The Superior Court remanded the case to this Court and

ordered that a hearing be held on this issue.


                                                 13
       Having held the hearing ordered by our Superior Court, we conclude that although the

timing of the phones' destruction was unfortunate, nothing was elicited from Acre's testimony

regarding their destruction which would justify an adverse inference against the Commonwealth.

Acre testified that the Commonwealth did not direct him to destroy the phones, nor was he aware

of any other destruction order pertaining to the phones. Additionally, Acre stated that he

received no orders or notifications directing him to retain the phones and that if he had received

such a notification, he would have pulled the phones from storage to prevent their destruction.

Acre testified that it is regular practice for Dauphin County to destroy evidence after it sits

unrequested in storage for several years and that such destruction typically occurs on particular

dates biannually; in any given year, drugs and firearms are usually taken to a steel mill on two

specific dates to be burned, and shortly before these dates, non-burnable evidence is removed for

disposition by other means. In the instant matter, it was not merely the cell phones that were

destroyed in temporal proximity to Judge Turgeon's August 2, 2013 order. Rather, both the cell

phones and the drugs involved in Petitioner's alleged drug buys were destroyed within one

month of each other, the drugs being destroyed in September 2013 and the phones being pulled

for destruction just a month earlier; in light of this fact as well as Acre's testimony that he

received no direction from the Commonwealth to destroy the phones and that he never received

any direction from this Court to retain the phones, we find no reason to believe that the evidence

from the instant case was not destroyed as a part of that regular course of conduct.

        Because there is no evidence that that the phones were destroyed in bad faith; we believe

that granting Petitioner's PCRA petition merely because they were destroyed would not be

appropriate.




                                                  14
    C. Additional Evidence Supports Petitioner's Conviction.

        Furthermore, even absent the phone-related evidence, we find that there was other

sufficient evidence presented at trial to sustain Petitioner's conviction. The phones allegedly

involved in the drug transactions were not the only evidence upon which the Commonwealth

relied in obtaining its conviction, nor were they the only evidence that supported the conviction

in this case. 3 Detective Dickerson also testified that he was in the vicinity of each drug

transaction as they occurred and that he actually observed each transaction as they occurred. In

one of the alleged transactions, Detective Dickerson was acting undercover and purchased

cocaine himself directly from Petitioner. With regard to the two alleged drug transactions in

which the confidential informant ("Cl") was the buyer, Detective Dickerson testified that he was

in the immediate vicinity of both drug transactions as they occurred. Petitioner contends that

Detective Dickerson's testimony regarding the first alleged CI transaction is insufficient to

sustain a conviction because the Cl and Petitioner had retreated to an alleyway out of Detective

Dickerson's sight at the time the CI allegedly gave Petitioner $40.00 in exchange for drugs. We

find this contention inapposite. Although Detective Dickerson may not have observed the actual

exchange, the CI nonetheless emerged from the alleyway with cocaine and gave it to the

Detective. The CI and Petitioner were only out of Dickerson's sight for about fifteen (15)

seconds, and the CI had been searched for drugs and paraphernalia before each buy was

executed. Furthermore, the trial testimony established that it was Petitioner himself who

requested that the first alleged CJ transaction be conducted in the alleyway because he did not

want to conduct such transaction in the presence of the Cl's driver (who, unbeknownst to



3 Furthermore, as noted earlier, Detective Dickerson's undercover-officer worksheets on which he recorded the
phone number allegedly used by Petitioner in the drug buys were not admitted as evidence at trial, even though the
Commonwealth had marked them as Exhibits. As such, the phone number itself appears not to have played a role in
leading the jury to its finding of guilt.

                                                        15
 Petitioner, was Detective Dickerson). As such, Petitioner would have us believe that it was by

 pure happenstance that the Cl ( despite being searched by police before the initiation of the

 controlled buy) went into an alley with Petitioner at Petitioner's own request and returned just

, fifteen seconds later with drugs from a source different than Petitioner himself. That confluence

 of happenstance is beyond any reasonability.

         Additionally, even if Detective Dickerson's observances regarding the first CI transaction

 were deficient, his testimony regarding the second CI transaction established that he was able to

 clearly view the exchanging of drugs and money on that occasion. During the second CI

 transaction, Detective Dickerson saw Petitioner spit out three baggies of cocaine directly into the

 vehicle in which the Cl and Detective Dickerson were sitting, and the CI handed Petitioner

 $40.00 from that same vehicle. Thus, Petitioner and the Cl were never out of Detective

 Dickerson's sight during the second CI transaction, and in fact, the exchange of cocaine and cash

 took place in the very vehicle in which Detective Dickerson was sitting.


 III. Condusion.

         In light of the foregoing discussion, we conclude that Petitioner fails to state a claim for

 relief under Pennsylvania's Post Conviction Relief Act. Accordingly, we enter the following:




                                  (This space intentionally left blank)




                                                   16
COMMONWEALTH OF PENNSYLVANIA                               IN THE COURT OF COMMON PLEAS,
                                                           DAUPHIN COUNTY, PENNSYLVANIA

                v.                                         NO. 2415 CR 2009


DANIEL CHA VIOUS                                           CRIMINAL - PCRA


                                            ORDER OF COURT
                             J._(Ylday
       AND NOW, this                     of March, 2017, upon consideration of the Petition for Post-

Conviction Collateral Relief filed by Defendant Daniel Chavious, and of the relevant statutory

and case law, this Court finds that Defendant is not entitled to post-conviction collateral relief.

Therefore, IT IS HEREBY ORDERED that his petition is DISMISSED.

        Defendant has the right to appeal this decision to the Superior Court of Pennsylvania.

This appeal must be taken within thirty (30) days of the date of this Order.

       Furthermore, the Clerk of Courts of Dauphin County shall immediately serve a copy of this

Order upon the Defendant and the Defendant's counsel by certified mail, return receipt requested,

as well as upon the District Attorney.




                                                                                                        , ..... ...,

                                                                                   '·
                                                                            is, President Judge
Distribution:        2, l '2 \
Ryan Lysaght, Esquire, District Attorney's Office , 0
Jennifer E. Tobias, Esquire, P.O. Box 365, Stewartstown, PA 17363 (Y\,A \ c,                            (11
Daniel Chavious, Defendant (n,A l L.
Court Administration - Criminal l O
Clerk of Courts
FILE COPY - Chambers of the Honorable Richard A. Lewis \ 0


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