Opinion
2085 EDA 2020 J-A26045-21
03-08-2022
COMMONWEALTH OF PENNSYLVANIA v. WAVERLY BRIDGES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered September 24, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005307-2012
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM
McCAFFERY, J.
Waverly Bridges (Appellant) takes this counseled appeal from the September 24, 2020, order entered in the Philadelphia County Court of Common Pleas dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA). Appellant seeks collateral relief from his jury convictions of aggravated assault and possession of an instrument of crime (PIC). On appeal, Appellant argues counsel was ineffective for failing to request a jury instruction pertaining to alleged missing video evidence. For the reasons below, we affirm.
This Court previously summarized the facts of the underlying case on direct appeal, we need not recite them in detail herein. Briefly, on the night of February 27, 2012, James Haynes (Victim) was working at the Village Food Court in Philadelphia, Pennsylvania. Commonwealth v. Bridges, 2963 EDA 2015 at 1 (unpub. memo) (Pa. Super. May 15, 2015), appeal denied, 195 A.3d 563 (Pa. 2018). Around 5 p.m., Appellant entered the business where he "was acting erratically . . . and appeared drunk." Id. at 2. Victim instructed another employee not to serve Appellant any alcohol. Id. Appellant became upset and left the Village Food Court. Id. Around 9 p.m., Victim encountered Appellant outside of the food court where Appellant proceeded to hit Victim in the face while holding a knife in his hand. Id. Victim went back into the store and saw that Appellant cut his face "from the bottom of his lip to the right side of his nose." Id. Victim called the police and then went to the emergency room (ER) at Temple University Hospital. Id.
"[A] short time later," Victim observed the perpetrator in the ER where Appellant "was handcuffed to a wheelchair[.]" Bridges, 2963 EDA 2015 at 2 (citation omitted). When Appellant saw Victim, Appellant began yelling at him, "I cut him in the face. I'll stab him again. I'll kill him next time." Id.
Philadelphia Police Officer James Boone responded to the hospital after receiving reports of a stabbing. Id. at 3. Upon entering the ER, Officer Boone saw Victim and heard him yell, "That guy just stabbed me!" Id. The officer then observed Appellant respond with the following statements: "You're lucky I didn't kill you asshole. When I get out of jail, I'm going to find you, kill you!" Id. Officer Boone "noted that [Appellant] seemed intoxicated." Id.
This case proceeded to a jury trial on July 10, 2013, where Victim's coworker, David Lee, testified. Lee stated that a detective came to the Village Food Court and requested any surveillance video from the store concerning the night of the incident. See N.T. Trial (Jury) Vol. 1, 7/10/13, at 93-94. Lee testified the detective "checked the tape[, ]" but he "didn't go with [the detective] in the office" and he did not know if the detective took the surveillance tape upon leaving. Id. at 94. Lee indicated the surveillance video only showed the inside of the food court. Id. at 93, 96.
Philadelphia Police Detective James Brooks then testified that he responded to the scene of the reported stabbing. N.T., 7/10/13, at 103. Detective Brooks took photographs of blood in front of the food court entrance, near the door and pavement. Id. He noted a Temple University Police Officer recovered a knife from just outside the ER. Id. at 107. Detective Brooks asked Lee about video surveillance footage of the food court, but "never received a copy" of the video and stated no other officers "could have gone to view any videos without" his knowledge. Id. at 107, 109.
On July 7, 2013, a jury found Appellant guilty of two counts of aggravated assault and one count of PIC. The trial court subsequently sentenced Appellant to an aggregate sentence of 11 to 25 years' incarceration. This Court affirmed his judgment of sentence on May 15, 2015. See Bridges, 2963 EDA 2015. Appellant initially did not seek an allowance of appeal with the Pennsylvania Supreme Court.
In May 2016, Appellant filed a timely, counseled PCRA petition alleging counsel was ineffective for not filing a petition for allowance of appeal with our Supreme Court. In May 2018, the PCRA court entered an order, granting Appellant's petition reinstating his appellate rights. Thereafter, the Supreme Court denied his petition on October 11, 2018. Commonwealth v. Bridges, 265 EAL 2018 (Pa. October 11, 2018).
In April 2019, Appellant filed a pro se PCRA petition. Counsel was appointed, and an amended petition was filed on November 23, 2019. The Commonwealth filed a motion to dismiss. The PCRA court heard oral argument by counsel on the matter. Thereafter, on July 9, 2020, the PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907. Appellant did not file a response to the court's Rule 907 notice. On September 24, 2020, the PCRA court dismissed Appellant's petition. Appellant filed this timely notice of appeal and complied with the PCRA court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following issue on appeal:
Did the PCRA [c]ourt err and/or abuse its discretion when it denied [Appellant's] petition under the PCRA seeking relief based upon the ineffective assistance of counsel where counsel failed to request that the jury be instructed with Suggested Standard Jury Instruction (Criminal) 3.21B despite the fact that the police department failed to preserve and produce a copy of potentially exculpatory surveillance video which it was aware of? [sic]
Appellant's Brief at 4.
The standard by which we review PCRA petitions is well settled:
Our standard of review in a PCRA appeal requires us to determine whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. The scope of our review is limited to the findings of the PCRA court and the evidence of record, which we view in the light most favorable to the party who prevailed before that court. [ ] The PCRA court's factual findings and credibility determinations, when supported by the record, are binding upon this Court. However, we review the PCRA court's legal conclusions de novo.Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citations omitted).
First, we must address the timeliness of the petition:
"Crucial to the determination of any PCRA appeal is the timeliness of the underlying petition." The timeliness requirement for PCRA petitions "is mandatory and jurisdictional in nature."
* * *
A PCRA petition is timely if it is "filed within one year of the date the judgment [of sentence] becomes final." 42 Pa.C.S.A. § 9545(b)(1). "[A] judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." 42 Pa.C.S.A. § 9545(b)(3).Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en banc) (some citations omitted).
In the instant case, the PCRA court granted relief after Appellant filed his 2016 PCRA petition, wherein he requested to file an allowance of appeal with the Pennsylvania Supreme Court. This relief allowed Appellant to "reset the clock" for the calculation of the finality of the judgment of sentence for PCRA purposes as it restores his direct appeal rights. Nevertheless, the Supreme Court denied his petition for allowance of appeal on October 11, 2018. Bridges, 265 EAL 2018. Appellant then had 90 days to file a writ of certiorari with the United States Supreme Court. See S.Ct.R. 13(1). Appellant did not, and thus, his judgment of sentence became final on January 9, 2019. Appellant then had one year, or until January 9, 2020, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Appellant filed the present PCRA petition on April 22, 2019. Thus, his petition is timely, and we will address his claim on the merits.
See cf. Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008) ("[A] successful first PCRA petition does not 'reset the clock' for the calculation of the finality of the judgment of sentence for purposes of the PCRA where the relief granted in the first petition neither restored a petitioner's direct appeal rights nor disturbed his conviction, but, rather, affected his sentence only.").
In his sole argument on appeal, Appellant avers trial counsel was ineffective for failing to request Suggested Standard Jury Instruction (Criminal) 3.21B as to the store's allegedly missing surveillance video because he claims the Commonwealth failed to produce this evidence at trial. Appellant asserts this omission "resulted in the jurors not being instructed that they could infer that the missing video was unfavorable to the Commonwealth's allegations." Appellant's Brief at 29. Appellant points out that the Victim "stated the man who stabbed him was in the deli four hours before the stabbing causing a scene - i.e., at 5 p.m." Id. at 31. Appellant maintains that if the Commonwealth presented video surveillance from inside the Village Food Court, it "would have confirmed whether or not [Appellant] was [that] unruly patron in the store at 5 p.m." Id. Appellant contends the "police knew the video existed," and because Appellant was arrested on the night of the stabbing, "he had no opportunity to review or obtain the surveillance video." Id. Appellant argues the adverse inference instruction was "consistent with [ ] counsel's trial strategy" due to the fact that counsel "repeatedly referenced the missing video during closing argument." Id. at 32. Appellant suggests that had trial counsel requested the instruction, "at least one juror would have paused or hesitated, and [ ] had a reasonable doubt with respect to [A]ppellant's guilt." Id. at 34.
Our standard of review of ineffective assistance of counsel claims is limited:
[T]o prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. "If a petitioner fails to prove any of these prongs, his claim fails." Generally, counsel's assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client's interests. Where matters of strategy and tactics are concerned, "[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued." To demonstrate prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." "[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding."Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014) (citations and some quotation marks omitted).
When a party fails to produce a piece of evidence, opposing counsel may request the trial court give Pennsylvania Standard Jury Instruction (Criminal) 3.21B:
1.There is a question about what weight, if any, you should give to the failure of [a party] [the Commonwealth] [the defendant] to produce an item of potential evidence at this trial [identify document or tangible item].
2.If three factors are present, and there is no satisfactory explanation for a party's failure to produce an item, the jury is allowed to draw a common-sense inference that the item would have been evidence unfavorable to that party. The three necessary factors are:
First, that the item is available to that party and not to the other;
Second, that it appears the item contains or shows special information material to the issue; and
Third, that the item would not be merely cumulative evidence.
3. Therefore, if you find these three factors present and there is no satisfactory explanation for the [party's] failure to produce [the item], [specify item], at this trial, you may infer, if you choose to do so, that it would have been evidence unfavorable to [that party].Pa. SSJI (Crim) 3.21B.
Here, in finding that trial counsel was not ineffective for failing to request the jury instruction, the PCRA court explained its rationale as follows:
Appellant has failed to establish the video recording is "available to one party and not the other." Detective Brooks testified that he did not observe nor remove any video recordings.
Further, although [ ] Lee stated "yeah" when asked if there existed a surveillance video recording of inside the store, he acknowledged that he had not viewed the video and was not present when anyone observed the recording. More importantly, he was unable to say if police had seized the recording. Thus, [A]ppellant is unable to establish the threshold requirement of Pa. SSJI 3.2[1]B (Crim.).
Moreover, [A]ppellant is unable to establish that the video contains "special information material to the issue." Specifically, [A]ppellant is unable to prove that (1) the surveillance camera was working that night and it captured the events inside the store and (2) that a video of events occurring inside the store would be "material" to the issue of the person who assaulted [Victim] outside of the store. Therefore, [A]ppellant is unable to satisfy the second requirement of Pa. SSJI 3.2[1]B (Crim.) which requires that the item contains "special information material to the issue." Thus, [A]ppellant has failed to establish that he would have been entitled to an adverse inference charge regarding the surveillance video. Therefore, he is unable to prove the first prong of an ineffectiveness claim, namely, that his claim has arguable merit.
Further, assuming [A]ppellant would be able to prove that trial counsel's course of conduct in not requesting a Pa. SSJI 3.2[1]B (Crim.) adverse inference instruction was without any reasonable basis, [A]ppellant is unable to prove the third prong of an ineffectiveness claim, that is, that prejudice resulted from counsel's ineffectiveness. Here, [ ] Lee testified that the surveillance video captured events occurring inside rather than outside of the store where the assault occurred, thereby limiting its potential relevance. More importantly, at trial, the evidence overwhelmingly supported the identification of [A]ppellant as the person who stabbed the [Victim]. At trial, [Victim] positively identified [A]ppellant as the individual that stabbed him both at the hospital and at trial. Moreover, [Victim]'s identification was corroborated by Officer Boone, who testified that when he arrived at the [ER], he heard [A]ppellant shout to the [Victim], 'you're lucky I didn't kill you . . . when I get out of jail I'm going to find you, kill you."
In light of this overwhelming and compelling evidence of [A]ppellant's guilt, [A]ppellant is unable to prove that there would have been a reasonable likelihood of a different outcome of the trial had [the PCRA court] instructed the jury as to the possible weight they could give to the failure of the Commonwealth to
produce the surveillance video. Thus, [A]ppellant is unable to establish that any prejudice resulted from counsel's failure to request the instruction.PCRA Ct. Op. at 7-9 (citations omitted).
We agree with the PCRA court's conclusion that Appellant's claim does not have arguable merit because he has not demonstrated the adverse inference instruction applies to the instant matter. Indeed, there is no evidence to support Appellant's claim that the video recording at issue was available to one party and not the other. Rather, a review of the record reveals that Detective Brooks did not observe, possess, or remove any surveillance video from the Village Food Court. N.T., 7/10/13, at 107-110. As such, there is no evidence to demonstrate the Commonwealth was ever in possession of the video, or even viewed it, and failed to provide the video to Appellant. Moreover, in his brief, Appellant does not aver the Commonwealth possessed a copy of the video and refused to share it with him before trial. To the contrary, he merely engages in speculation that a video existed and that police viewed it.
Furthermore, Appellant's reliance on Lee's testimony is misplaced. While Lee alleged a video existed and it was shown to the police, he acknowledged at trial that he had not viewed the video and was not present when anyone purportedly observed the recording. See N.T., 7/10/13, at 94. As the trial court correctly pointed out, Lee was unable to confirm if the police had seized the recording. See PCRA Ct. Op. 7. As such, Appellant has not demonstrated the first prong of Pa. SSJI 3.21B.
Finally, Appellant has not established the second prong, that the video footage would display "special information material to the issue." PCRA Ct. Op. at 8; see Pa. SSJI (Crim) 3.21B. It is agreed that the cameras recorded only what took place inside the Village Food Court, while the stabbing occurred outside of the food court four hours after Victim claimed Appellant was inside the store. Therefore, assuming the video existed, the content of the video would not show the incident or the perpetrator in question.
Because we agree with the PCRA court that Appellant's claim does not have arguable merit, his ineffectiveness claim fails on this basis. See Spotz, 84 A.3d at 311. Accordingly, we conclude Appellant is not entitled to relief on his claim, and the PCRA court properly dismissed his petition.
Furthermore, we agree with the PCRA court that Appellant has failed to demonstrate that he was prejudiced by counsel's actions. As the PCRA court noted, the Commonwealth presented overwhelming evidence at trial that Appellant stabbed Victim by way of Appellant's own admission at the ER and Victim's consistent identification of Appellant. See PCRA Ct. Op. at 8-9.
Order affirmed.
Judgment Entered.