J-S27010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JASON MILLER                              :
                                           :
                    Appellant              :   No. 1106 WDA 2018

             Appeal from the PCRA Order Entered July 6, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007883-2017


BEFORE:    OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY OLSON, J.:                                 FILED JUNE 7, 2019

      Appellant, Jason Miller, appeals from the July 6, 2018 order dismissing

his petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      The factual history of this case is derived from the May 15, 2017,

affidavit of probable cause, video recordings of the incident, and the transcript

of the July 6, 2018 PCRA hearing.       On May 15, 2017, Appellant and his

girlfriend attended a Pittsburgh Penguins hockey game at PPG Paints Arena.

Appellant became unruly, used profane language, and security officials asked

him to leave the arena. Appellant refused, insisting he paid too much for his

tickets to leave before the end of the game.        Security officials contacted

Pittsburgh Police Officer Bryan Sellers, who was working “an approved

secondary employment detail” at the arena.        Affidavit of Probable Cause,

05/15/2017, at paragraph 1.        Officer Sellers and another police officer,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Sergeant M. Graham, responded to the call. The officers attempted to remove

Appellant from his seat but Appellant was uncooperative. Appellant instructed

his girlfriend to record the encounter with her cellular telephone when Officer

Sellers first attempted to physically remove Appellant from his seat.

       At some point, Officer Sellers removed his taser from its holster. Officer

Sellers grabbed Appellant by his jersey and forced him out of the row. Officer

Sellers then brought Appellant to the ground on the concourse. According to

the affidavit of probable cause, Appellant continued to resist, but with the help

of Sergeant Graham and a security officer, Officer Sellers gained control of

Appellant and moved him onto an elevator “with the intention of getting him

handcuffed and arrested.”           Affidavit of Probable Cause, 5/15/2017, at

paragraph 6. On the elevator, Appellant allegedly attacked Sergeant Graham,

using his forearm to choke her against the wall of the elevator. According to

the affidavit of probable cause, it was at this point that Officer Sellers first

deployed his taser in an attempt to subdue Appellant.1 After Officer Sellers

discharged his taser twice in the elevator, Appellant ceased resistance, and

the officers handcuffed him.




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1 Video recordings of the altercation between Appellant and Officer Sellers
appear to show that Appellant was tased at least once while on the concourse,
prior to entering the elevator, contrary to the version of events described in
the affidavit of probable cause.




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        The Commonwealth charged Appellant with aggravated assault, 2

strangulation,3 simple assault,4 resisting arrest,5 defiant trespass,6 disorderly

conduct,7 and criminal mischief.8 On January 3, 2018, Appellant pled guilty

to all seven charges and the trial court sentenced him to six months’

confinement, with alternative housing eligibility for the first 90 days and

eligibility for house arrest thereafter. The Commonwealth read the affidavit

of probable cause as the factual basis for Appellant’s guilty plea.

        On April 23, 2018, Appellant filed a PCRA petition alleging ineffective

assistance of counsel. According to Appellant, he arrived in court on January

3, 2018, intending and expecting to take his case to trial.9 However, when

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2   18 Pa.C.S.A. § 2702(a)(3).

3   18 Pa.C.S.A. § 2718(a)(1).

4   18 Pa.C.S.A. § 2701(a)(1).

5   18 Pa.C.S.A. § 5104.

6   18 Pa.C.S.A. § 3503(b)(1)(i).

7   18 Pa.C.S.A. § 5503(a)(1).

8   18 Pa.C.S.A. § 3304(a)(5).

9 At the July 6, 2018, PCRA hearing, Appellant’s plea counsel testified as
follows:

        Q: [] [D]id he [Appellant] show up that morning expecting to go
        to trial, do you remember?

        A: That was definitely a strong possibility.



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Appellant spoke with his attorney, Justin Ketchel, Esquire, Attorney Ketchel

advised him that the videos of the incident may not be admissible because

they could not be properly authenticated.10 Additionally, Mr. Ketchel advised

Appellant that his prior conviction for simple assault could be used to impeach

him if he took the stand in his own defense or to authenticate the video

depictions of the relevant events.             Appellant’s petition for collateral relief

alleged that, “due to bad and erroneous advice [from] Attorney Ketchel,

[Appellant formed the impression that any video evidence that appeared to

contradict the facts contained in the affidavit of probable cause could not be

authenticated and was, therefore, inadmissible. Thus, Appellant] was left with

a belief that his case would be his word versus that [] of one or two police

officers.” Petition for Post-Conviction Relief, 04/23/2018, at paragraph 10.

On July 6, 2018, the PCRA court conducted a hearing on Appellant’s claims.




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N.T., 7/6/2018, at 16.

10 Appellant introduced two videos of the incident at the July 6, 2018 PCRA
hearing. The first video is a news report from WPXI, a local news station,
which showed cellular telephone footage filmed by another fan at the game,
Ben Tucci, and an interview with Mr. Tucci about the incident. The other video
also appears to be cellular telephone footage of the altercation, which was
uploaded to YouTube.com. The record indicates that plea counsel was also in
possession of a video from PPG Paints Arena security; however, Appellant did
not introduce that video at the PCRA hearing and it is not part of the record
before this Court.




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Attorney Ketchel and Appellant each testified at the hearing. The PCRA court

denied Appellant’s petition and this appeal followed.11

       Appellant presents two issues for our review:

       I.     Whether the PCRA court erred in dismissing Appellant’s
              petition for post-conviction relief where plea counsel
              provided ineffective assistance by giving Appellant
              inaccurate information regarding the authentication of
              videos which would have supported Appellant’s defense at
              trial, thereby inducing Appellant to enter a plea deal?

       II.    Whether the PCRA court erred in dismissing Appellant’s
              petition for post-conviction relief where plea counsel
              provided ineffective assistance by inaccurately informing
              Appellant that his prior criminal record would be introduced
              if [he] went to trial, thereby inducing Appellant to enter a
              plea deal?

Appellant’s Brief at 4 (capitalization removed).

       “Appellant's claim for ineffective assistance of counsel in connection with

advice rendered regarding whether to plead guilty is cognizable under the

PCRA pursuant to 42 Pa.C.S. § 9543(a)(2)(ii).” Commonwealth v. Barndt,

74 A.3d 185, 192 (Pa. Super. 2013).              “This Court's standard of review

regarding an order denying a petition under the PCRA is whether the


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11 On August 16, 2018, the PCRA court ordered Appellant to file a concise
statement of matters complained of on appeal within 21 days, pursuant to
Pa.R.A.P. 1925(b). Appellant complied on September 7, 2018, 22 days after
the order. The PCRA court issued its 1925(a) opinion on November 30, 2018,
which fully addressed the issues Appellant presented. Although Appellant filed
an untimely concise statement, we will address the merits of his claims. See
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (“if there
has been an untimely filing [of the concise statement], this Court may decide
the appeal on the merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on appeal.”)

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determination of the PCRA court is supported by the evidence of record and is

free of legal error.” Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. Super.

2017).

      In order to succeed on an ineffective assistance of counsel claim,
      the petitioner must show: (1) that the claim is of arguable merit;
      (2) that counsel had no reasonable strategic basis for his or her
      action or inaction; and [](3) that, but for the errors and omissions
      of counsel, there is a reasonable probability that the outcome of
      the proceedings would have been different. In the context of a
      guilty plea, an appellant must show that plea counsel's
      ineffectiveness induced him to plea. If the appellant makes
      such a showing, we deem his plea involuntarily made and will
      permit its withdrawal.

Commonwealth v. Johnson, 875 A.2d 328, 331 (Pa. Super. 2005) (citations

omitted) (emphasis added).     “Where the defendant enters his plea on the

advice of counsel, the voluntariness of the plea depends on whether counsel's

advice was within the range of competence demanded of attorneys in criminal

cases.” Commonwealth v. Timchak, 69 A. 3d 765, 769 (Pa. Super. 2013).

      In turning to Appellant’s first issue, we must initially assess whether

Appellant’s claim is of arguable merit. In other words, we must determine

whether Attorney Ketchel’s advice regarding the admissibility of the video

evidence was improper. At the hearing on Appellant’s PCRA petition, Attorney

Ketchel testified as follows, “I told [Appellant] that we were not—we would

not know until we got to the point of trial whether or not these tapes would

be able to come in, that that was a ruling that would be made by Your Honor.

And I can’t say one way or the other that’s going to happen. They may come

in, they may not.” N.T., 7/6/2018, at 17. Appellant testified that, “[Attorney

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Ketchel] told me that. . . we would not be able to use any of the videos due

to not having Ben Tucci present to authenticate the video or the person that

recorded it on YouTube.” N.T., 7/6/2018, at 33. The PCRA court credited

Attorney Ketchel’s assertion that he was equivocal regarding the admissibility

of the videos, and we are bound by the PCRA court’s findings of fact. See

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016).

       To assess the accuracy of the pre-plea advice conveyed by counsel and

on which Appellant relied, we review the Pennsylvania rules regarding

admissibility and authentication.      Generally, all relevant evidence is

admissible.   See Pa.R.E. 402.    Relevant evidence may be excluded if its

probative value is outweighed by the danger of unfair prejudice. See Pa.R.E.

403.    Demonstrative evidence such as photographs and videos must be

authenticated to establish that they are, in fact, what they purport to be. “To

satisfy the requirement of authenticating or identifying an item of evidence,

the proponent must produce evidence sufficient to support a finding that the

item is what the proponent claims it is.” Pa.R.E. 901(a).      Testimony of a

witness with knowledge will satisfy that requirement.      Pa.R.E. 901(b)(1).

“Demonstrative evidence such as photographs, motion pictures, diagrams and

models must be authenticated by evidence sufficient to support a finding that

the demonstrative evidence fairly and accurately represents that which it

purports to depict.” Pa.R.E. 901(a) cmt. “Authentication generally entails a




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relatively low burden of proof[.]” Commonwealth v. Koch, 106 A.3d 705,

713 (Pa. 2014).

       We agree with Appellant that the videos likely could have been

authenticated by any witness with personal knowledge of the events, including

either Appellant or his girlfriend. Based on the following, we find Appellant’s

claim is of arguable merit.         As explained supra, the burden of proof for

authentication is relatively low and either Appellant or his girlfriend could have

authenticated the videos for purposes of admission into evidence.12 Appellant

and his girlfriend were present during the entire incident, therefore they both

had sufficient knowledge to testify that the videos fairly and accurately

represent the altercation.

       The PCRA court determined that “whether the videos could be properly

authenticated was highly questionable” and therefore Attorney Ketchel was

not ineffective.    PCRA Court Opinion, 11/30/2018, at 4.       The PCRA court

incorrectly determined that because the videos “did not depict the entire

incident that led to criminal charges,” namely, the altercation in the elevator,

that they could not be admitted. Id. at 5. However, Appellant intended to

admit the videos to challenge the credibility of Officer Sellers by highlighting


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12 The authenticating witness’s recall or awareness of the entirety of the
episode would go to the weight of the evidence, not its admissibility. See
Pa.R.E. 104(e) (“Even though the court rules that evidence is admissible, this
does not preclude a party from offering other evidence relevant to the weight
or credibility of that evidence.”)


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the discrepancies between the affidavit of probable cause and the videos.

Specifically, the affidavit indicates that Officer Sellers did not tase Appellant

until both were in the elevator, whereas the videos indicate that Officer Sellers

likely tased Appellant on the concourse. Thus, it was not necessary for the

videos to depict the entire episode in order to be authenticated and admitted

for the purpose pursued by Appellant.

       Based on our review of the record and the relevant law, it appears that

Attorney Ketchel’s uncertain advice regarding the admissibility of the videos

was incorrect as it was based on his mistaken belief that the person who

recorded the video likely needed to be the one to authenticate it.                See

Commonwealth v. Impellizzeri, 661 A.2d 422, 428 (Pa. Super. 1995) (“It

is not necessary that the maker of the videotape testify to the tape's accuracy;

any witness familiar with the subject matter can testify that the tape was

an accurate and fair depiction of the events sought to be shown[.]”) (emphasis

added).13       Counsel’s    equivocal     statement   did   not   accurately   reflect


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13 See Commonwealth v. Loughnane, 128 A.3d 806 (Pa. Super. 2015),
reversed on other grounds, 173 A.3d 733 (Pa. 2017) (testimony from a
security center employee who reviewed footage after hearing a description of
the vehicle police were looking for was sufficient to authenticate the
screenshot taken from the footage and discrepancies regarding the time
stamp on the image go to weight, not admissibility); Commonwealth v.
McKellick, 24 A.3d 982 (Pa. Super. 2011) (testimony from the “mobile video
recording officer” who was responsible for downloading dashboard camera
videos and an officer with years of experience as a field sobriety test instructor
was sufficient to authenticate a video of appellant’s traffic stop after the officer
who actually participated in the stop was killed before trial).


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Pennsylvania law in terms of the burden and methods for authenticating video

recordings. Therefore, Appellant’s claim is of arguable merit.

      However, we find that the record supports the inference that plea

counsel’s advice had some reasonable strategic basis designed to effectuate

Appellant’s interests. Although under applicable Pennsylvania law the videos

likely could have been authenticated and admitted into evidence, the videos

of record are not exculpatory to Appellant. As the PCRA court put it, although

“[they] would cast doubt on [the] credibility [of Officer Sellers], it doesn’t

mean you lose or win.”     N.T., 7/6/2018, at 69.     Moreover, plea counsel

accurately advised Appellant that they would not know whether the videos

would be admitted until they got to that point at trial. We agree with the

following observation of the PCRA court. “Isn’t that what we do [] as defense

lawyers? We say this is how bad it can go for you, you need to know that so

you have an informed decision about the risks you’re taking by going to trial.”

N.T., 7/6/2018, at 70. Although plea counsel may have misapprehended the

rules of authentication, it would have been equally unsound to advise

Appellant that the videos would certainly have been admitted. There is no

way to accurately predict the outcome of each ruling at trial. Moreover, the

video recordings did not exculpate Appellant from the central charges in this

matter: the attack on Sergeant Graham in the elevator.           Plea counsel

negotiated a mitigated sentence to very serious charges, including aggravated




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assault of a female police officer. Plea counsel was not ineffective for advising

Appellant of the risks associated with going to trial.14

       Finally, the record does not support a finding that counsel’s inaccurate

advice regarding the admissibility of the videos induced Appellant to plead

guilty. To the contrary, Appellant’s plea was based on an accurate assessment

of the risks associated with going to trial and an understanding of the

seriousness of the charges. Accordingly, Appellant’s first claim fails.

       Appellant’s second claim also fails. Appellant claims that plea counsel

was ineffective for advising him that his prior convictions, including one for

simple assault, could be used to impeach him if he took the stand. Appellant

argues that evidence of a prior conviction can only be admitted if the crime

involved was one of crimen falsi, meaning it involved dishonesty or false

statement. Appellant’s Brief at 16; See Pa.R.E. 609. Appellant avers that

none of his prior criminal charges involved crimen falsi offenses and,

therefore, plea counsel was ineffective for advising him in this way.

       At the PCRA hearing, in response to the question, “[d]id you discuss

with [Appellant] if he testified his priors would or would not come in,” plea

counsel testified as follows:        “[c]ertainly if he takes the stand, with any



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14Compare Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992) (plea
counsel was ineffective for failing to advise client that sentences could be
imposed consecutively.)



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defendant in any case, there’s the possibility they may open the door and,

therefore, his prior convictions could come in.” N.T., 7/6/2018, at 17. We

find this advice to be legally sound. If Appellant took the stand and testified

that he has a reputation for peacefulness or for being a law-abiding citizen,

pursuant to Pa.R.E. 404(a)(2)(A), the Commonwealth would be permitted to

offer evidence of his convictions to rebut that assertion.           Additionally, if

Appellant were to testify in a way that put the victim’s character at issue, the

Commonwealth could introduce evidence that Appellant has the same trait or

character. See Pa.R.E. 404(a)(2)(B)(ii); Pa.R.E. 404(a)(2)(B)(ii) cmt (“For

example, in an assault and battery case, if the defendant introduces evidence

that   the   alleged   victim   was   a    violent   and   belligerent   person,   the

Commonwealth may counter by offering evidence that the defendant was also

a violent and belligerent person.”) Therefore, as Appellant’s second claim is

not of arguable merit, we need not reach the other two factors necessary to

succeed on an ineffective assistance of counsel claim. Appellant is not entitled

to relief.

       Order affirmed.

       Ott, J. joins the memorandum.

       Colins, J. notes dissent.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2019




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