J-S46010-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellant       :
                                        :
            v.                          :
                                        :
DANIEL CHAVIOUS,                        :
                                        :
                        Appellee        :     No. 2063 MDA 2013


              Appeal from the Order Entered October 23, 2013,
              In the Court of Common Pleas of Dauphin County,
              Criminal Division, at No. CP-22-CR-0002415-2009.


BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 29, 2014

      The Commonwealth appeals from the order granting Daniel Chavious,



Pa.C.S.A. §§ 9541 9546.      For the reasons that follow, we vacate and

remand.

      The PCRA court summarized the factual and procedural history of this

case as follows:

           Following a trial held December 14-16, 2009, a jury found
      [Appellee] guilty of three counts of unlawful delivery of a

      alleged sale of crack cocaine on two occasions to a confidential
      informant and on a third occasion to an undercover officer.
      Following trial, I sentenced [Appellee] to an aggregate term of
      66 to 240 months confinement. [Appellee] filed a timely appeal
      to the superior court arguing that this court erred by failing to
      give a missing witness instruction and also that the evidence was
      insufficient. The superi
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     his request for discretionary review before the supreme court
     was subsequently denied. Commonwealth v. Chavious, No. 158
     MDA 2010 (Pa. Super. Feb. 2, 2011 (mem.); petition for
     allowance of appeal denied, No. 138 MAL 2011 (Pa. July 12,
     2011).

                                     ***

            [Appellee] filed a timely pro se PCRA petition on May 15,
     2012.     His attorney Jennifer Tobias later filed a motion to
     withdraw which I denied on the basis that counsel had not
     reviewed all of the claims asserted in the pro se petition. I
     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
                                               ve for having failed to
     obtain phone records, which would have presumably and
     definitively revealed that the phone number which [Appellee]
     allegedly used to contact the confidential informant and
     Detective Dickerson had not been activated until a month after
     the alleged drug deals. [Appellee] claimed that the evidence
     supporting his convictions was completely fabricated and these

     sought an evidentiary hearing in order to determine whether
     [Appe
     any merit. PCRA counsel had not sought to obtain the phone or
     the phone records. Therefore, following the evidentiary hearing,
     I issued an order, August 2, 2103, directing that the record be
     held
     would make all reasonable efforts to obtain any and all phone

     alleging ineffective assistance of trial counsel for failure to obtain
     said reco

     [sic] phone numbers and/or records relevant to the three drug

     briefs on the phone record issue.[1]


1




           AND NOW, this 2nd day of August, 2013, following an
     evidentiary hearing, this Court directs that the record be held

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                                  ***


     PCRA hearing, and pursuant to my order, she reviewed Detective

     recorded in his paperwork that the phone number allegedly used
     by [Appellee] during the drug buys was 717-370-8630. These
     worksheets had been identified as Commonwealth Exhibits (#1-

     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.




     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

     Incredibly, counsel was informed that the phone had been
     destroyed just one week prior to her request.        The




     attorney is directed to make all reasonable efforts to obtain any

     PCRA claim alleging ineffective assistance of trial counsel for
     failure to obtain said records. The Commonwealth is further
     direc
     evidence available to it of phone numbers and/or records
     relevant to the three drug transactions at issue. This court

     (limited to the phone record issue) on or before, September 6,

     September 16, 2013.

Order, 8/2/13, at 1.

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     Commonwealth has not disputed that the phone was destroyed
     in the manner represented by Attorney Tobias.6
           6
             In its brief, the Commonwealth failed to address
                                                  ad destroyed
           the phone.       My staff thereafter contacted the
           attorney who represented the Commonwealth at the
           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


                 The destruction of the phone could be
           considered [to] be in direct violation of my August 2,
           2013 Order, by which I directed that the

           all relevant evidence available to it of phone
           numbers and/or records relevant to the three drug

           Commonwealth acted in contempt of my order has
           been assigned to President Judge Todd Hoover for
           resolution. Furthermore, even absent court order,
           the fact that [Appellee] 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.

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

footnotes omitted).

     The PCRA court then granted Appellee

following reasoning:

     Inasmuch as the Commonwealth is responsible for depriving
     [Appellee] of the only means to prove his claim, and given the
     applicable inference that the fact finder can consider that the


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      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, 10/23/13 at 1. The Commonwealth timely appealed.

Both the Commonwealth and the PCRA court complied with Pa.R.A.P. 1925.

      In its brief, the Commonwealth presents the following issues for our

review:

      A.    Whether the trial court erred in finding Appellee received
      ineffective assistance of counsel since he failed to show his
      underlying claim has any arguable merit, and/or that there was
      a reasonable probability that, but for the alleged error of
      counsel, the outcome of the trial would have been different.

      B.    Whether the trial court erred in failing to conduct an
      evidentiary hearing concerning the destruction of Appe
      phone?



      Our standard of review in an appeal from the grant or denial of PCRA

relief requires us to determine whether the ruling of the PCRA court is

supported by the record and is free from legal error.    Commonwealth v.

Lesko

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011) (citing

Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super. 2001)).



issue first. The Commonwealth acknowledges that a PCRA court need not




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a court



Commonwealth maintains that in this situation, however, an evidentiary

hearing was necessary because the merits of the issue could not be

adequately reviewed based upon the record.        Id.   The Commonwealth

contends that following submission of the briefs, the PCRA court made no



                                  ne. Id. The Commonwealth asserts that

the PCRA court erred in failing to conduct an evidentiary hearing concerning



                                                        Id. at 32.

     There is no right to an evidentiary hearing on a PCRA petition.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). Rule

907(2) of the rules of criminal procedure provides:

     (2) A petition for post-conviction collateral relief may be
     granted without a hearing when the petition and answer show
     that there is no genuine issue concerning any material fact and
     that the defendant is entitled to relief as a matter of law.

Pa.R.Crim.P. 907(2).    On review, we examine the issues raised in the

petition in light of the record to determine whether the PCRA court erred in

concluding that there were no genuine issues of material fact. Jordan, 772

A.2d at 1014.


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      In this case, as noted, the Commonwealth has asserted that a hearing

was   necessary   to   probe   the   circumstances   surrounding   the   alleged



agree.   Our review of the record reveals that there was a genuine issue

concerning the circumstances surrounding the alleged destruction of the

mobile phone. As outlined previously, the PCRA court stated that it granted




prove his claim, and given the applicable inference that the fact finder can

consider that the destroyed evidence would have been unfavorable to the



to conclude that the PCRA court made this decision without adequate inquiry

into the circumstances surrounding the asserted destruction of the cell

phone.



counsel that the police had told her that the phone had been destroyed, the

P                                                       via email, inquiring as




again via email, that he could not confirm or deny this claim. Id. Thus, on




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petition.



without conducting a hearing as to the circumstances surrounding the

alleged     destruction     of   the    cell   phone,   was     reversible   error.    The

Commonwealth should have been afforded the opportunity to investigate the

matter      and   present    any       information   relevant    to   the    circumstances

surrounding the confiscated phone, phone records and the assertion that it

had been recently destroyed.

                                                                                  lution of

this issue on the existing record, we are remanding this matter for an

evidentiary hearing regarding the circumstances surrounding the destruction

of the cell phone and the existence of any relevant phone records.                    Upon

remand, both parties shall be given the opportunity to establish their

respective positions at the hearing. Thus, we vacate the order of the PCRA

court and remand this matter to the PCRA court for further proceedings

consistent with this memorandum.2

      Order vacated. Matter remanded. Jurisdiction relinquished.




2

claim.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014




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