J-S31004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRYAN BROWN-CAMP : : Appellant : No. 2328 EDA 2021
Appeal from the PCRA Order Entered November 12, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003503-2015
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED OCTOBER 31, 2022
Bryan Brown-Camp appeals from the order dismissing his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). We affirm in part, vacate
in part, and remand with instructions.
On April 25, 2013, Tevan Patrick was found shot to death in an
abandoned property in Philadelphia. Following an investigation, Appellant and
co-defendant Maurice Smith were charged with homicide and related crimes.
They proceeded to a joint jury trial, at the conclusion of which they were both
found guilty of third-degree murder and conspiracy to commit robbery. As
summarized by this Court, Appellant and Smith “lured the victim into their car
to ostensibly commit a robbery, but later killed him.” Commonwealth v.
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* Former Justice specially assigned to the Superior Court. J-S31004-22
Brown-Camp, 209 A.3d 525 (Pa.Super. 2019) (unpublished memorandum at
1-2).
Of relevance to the issues raised in this appeal, the Commonwealth’s
theory was that Appellant, who went by the nickname B-Y, and Smith killed
Mr. Patrick between 9:30 p.m. and 10:00 p.m. on April 22, 2013. In support
of this theory, the Commonwealth introduced, inter alia, the following
evidence. Earlier in the day on April 22, 2013, Mr. Patrick asked his cousin
and Appellant’s girlfriend, Janeicia Jackson, for Appellant’s phone number,
which she provided. Later that same day, Appellant and Smith were observed
driving a silver four-door Hyundai and an eyewitness observed Mr. Patrick
enter a silver four-door car in Delaware. The triangulation of cell phone pings
placed Appellant and Mr. Patrick near each other in Delaware and cell phone
records established that they were in contact with one another. The
triangulation of cell phone pings then tracked Appellant, Smith, and Mr. Patrick
in southwestern Philadelphia. “All three phones were utilizing cell towers that
covered the site where [Mr. Patrick’s] body was recovered.” PCRA Court
Opinion, 1/24/22, at 10.
Reginald Tyler testified that he received a text message from Mr. Patrick
on the night of April 22 saying that “if anything fishy happened to me, B-Y[1]
did it.” Brown-Camp, supra (unpublished memorandum at 8) (cleaned up).
At approximately 10:00 p.m. that evening, Mr. Patrick’s cell phone went offline
1 There was testimony that Appellant’s nickname was B-Y.
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somewhere over the Schuylkill River. Immediately prior, it had been utilizing
the same cell tower as Smith’s phone. After Mr. Patrick’s cell phone went
offline, he made no outgoing communications.
The Commonwealth also presented the testimony of Terry Kearney, who
testified that Smith told him that Smith had driven his girlfriend’s silver four-
door car to Delaware to meet Mr. Patrick, taken him back to southwestern
Philadelphia to rob him, and then shot Mr. Patrick when he attempted to run.
Melissa Palmer testified that Appellant admitted to setting up Mr. Patrick to be
robbed, that he picked up Mr. Patrick in Delaware, and that Mr. Patrick had
been shot, but not by Appellant. Notwithstanding the Commonwealth’s theory
that Mr. Patrick was shot and killed on April 22, 2013, the criminal information
alleged that he was killed on April 25, 2013.
On direct appeal, this Court affirmed Appellant’s judgment of sentence.
Notably, Appellant raised a hearsay challenge to Mr. Tyler’s testimony about
the text message he received from Mr. Patrick. This Court found that issue
waived because trial counsel had only sought to exclude the text message
testimony based on the best evidence rule. Id. (unpublished memorandum
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at 8-11).2 Our Supreme Court denied Appellant’s petition for allowance of
appeal. Id., appeal denied, 240 A.3d 99 (Pa. 2020).3
Appellant timely filed the instant, counseled PCRA petition, raising five
claims of ineffective assistance of trial counsel. He responded to the
Commonwealth’s ensuing motion to dismiss by filing a reply, notice of new
authority, and notice of additional authority. The PCRA court issued notice of
its intent to dismiss Appellant’s PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. On November 12, 2021, the court dismissed Appellant’s
petition.
This timely filed appeal followed. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.4 Appellant raises the following three issues for
our consideration:
2 We also found Appellant had waived the issue by failing to include it in his Rule 1925(b) statement.
3 In the interim, Appellant pro se filed a PCRA petition, which the PCRA court properly dismissed as prematurely filed while his direct appeal was still pending. See Commonwealth v. Smith, 244 A.3d 13, 16 (Pa.Super. 2020) (concluding Smith’s PCRA petition was prematurely filed as a petition for allocatur review was still pending in our Supreme Court).
4 Appellant filed an unprompted Rule 1925(b) statement on the same date he filed his notice of appeal. Thereafter, the PCRA court ordered Appellant to file a Rule 1925(b) statement. In lieu of re-filing the same statement, Appellant filed a letter to the PCRA court advising it that he had complied with the Rule 1925(b) order by virtue of his earlier filing. Additionally, Appellant noted that the PCRA court had used the wrong docket number on its Rule 1925(b) order and final dismissal order. We observe that the court’s error has not impeded our review and we deem Appellant to have complied with the court’s Rule 1925(b) order. Thus, we mention these irregularities solely to provide a complete record of the procedural history of this case.
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1. Did the PCRA court err in summarily denying the claim that trial counsel was ineffective in failing to challenge the lawfulness of the two search warrants the police used to obtain Appellant’s cell phone records, as they both lacked probable cause to support their authorization?
2. Did the PCRA court err in summarily denying the claim that trial counsel was ineffective in failing to retain a forensic expert pathologist to refute the Commonwealth’s theory that the decedent was murdered on April 22, 2013, as the expert opinions proffered in PCRA proceedings completely undermined the Commonwealth’s theory of the case?
3. Did the PCRA court err in summarily denying the claim that trial counsel was ineffective in failing to object on hearsay and Confrontation Clause grounds to the admission of testimony about a text message from the decedent in which he identified Appellant as his killer, as this was argued by the Commonwealth for the truth of the matter asserted and no proper cautionary instruction was requested or given?
Appellant’s brief at 3 (reordered for ease of disposition).
On appeal from a PCRA court’s decision, our scope of review is “limited
to examining whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal error. We view
the findings of the PCRA court and the evidence of record in a light most
favorable to the prevailing party.” Commonwealth v. Johnson, 236 A.3d
63, 68 (Pa.Super. 2020) (en banc) (cleaned up). The PCRA court’s credibility
determinations are binding on this Court when supported by the certified
record, but we review its legal conclusions de novo. Id.
Appellant challenges the effective assistance of trial counsel.
Preliminarily, we observe that counsel is presumed to be effective and the
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petitioner bears the burden of proving otherwise. Id. (citation omitted). To
do so, he must establish the following three elements:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel’s action or failure to act; and (3) the petitioner suffered prejudice as a result of counsel’s error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different.
Id. (citations omitted). Failure to prove any of the three elements will result
in dismissal of the ineffectiveness claim. Id. (citation omitted).
Appellant first argues that the PCRA court erred in summarily dismissing
his claim that trial counsel rendered ineffective assistance by failing to
challenge the two search warrants for Appellant’s cell phone records. See
Appellant’s brief at 35. We consider this issue mindful of the following:
This Court has previously found that the failure to file a suppression motion under some circumstances may be evidence of ineffective assistance of counsel. However, if the grounds underpinning that motion are without merit, counsel will not be deemed ineffective for failing to so move. The defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable.
Commonwealth v. Watley, 153 A.3d 1034, 1044 (Pa.Super. 2016) (cleaned
up).
Regarding the grounds upon which Appellant relies in arguing that
counsel should have sought suppression, our Supreme Court has summarized
as follows:
Pursuant to the totality of the circumstances test . . ., the task of an issuing authority is simply to make a practical, common-sense
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decision whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Commonwealth v. Torres, 764 A.2d 532, 537 (Pa. 2001) (cleaned up).
By way of background, nearly identical affidavits of probable cause were
issued for Appellant’s two cell phone accounts. The affidavits offered the
following averments in support thereof. Mr. Patrick’s body was discovered at
6513 Linmore Avenue, in Philadelphia, on April 25, 2013. The ensuing
investigation revealed the cause of death to be multiple gunshot wounds and
the manner of death to be homicide. Mr. Patrick was last heard from on
April 22, 2013. He was reported missing from the state of Delaware on
April 24, 2013. Ms. Jackson (identified as “Witness #1” in the affidavits)
stated that on April 22, 2013, Mr. Patrick asked her for Appellant’s phone
number, which she provided. Later that evening, she picked up Appellant
near the Philadelphia Zoo. Once inside Ms. Jackson’s car, Appellant instructed
her to call Mr. Patrick, which she attempted to do three times. Ms. Jackson
further stated that Appellant was known as B.Y. and he lived in Philadelphia.
See PCRA Petition, 12/28/20, Exhibits L-M.
In his PCRA petition, Appellant contended that these affidavits failed to
establish probable cause and trial counsel was therefore ineffective for not
challenging them. The PCRA court, however, concluded that counsel had a
reasonable basis for not filing a motion to suppress the phone records.
Specifically, the PCRA court provided the following reasoning:
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This was a case where the [victim] was reported missing as of the date that the [victim] was looking to make contact with [Appellant]. [Appellant] attempted to call the [victim] three times on that same night when he disappeared, and [Appellant] was picked up within a few miles of where the [victim’s] body was found three (3) days after the date he went missing. Viewing the information in the affidavit in a common sense manner would lead one to surmise that there is a probability that there would be information of evidence of a crime on [Appellant’s] phone.
PCRA Court Opinion, 1/24/22, at 14.
According to Appellant, the detective authoring the affidavit knowingly
omitted that Appellant and Mr. Patrick were good friends who sold marijuana
together and that Appellant’s phone charge was depleted when he asked
Ms. Jackson to call Mr. Patrick. See Appellant’s brief at 37. Appellant avers
that these omissions created the false impression that Appellant and
Mr. Patrick were strangers and that Appellant asked Ms. Jackson to call
Mr. Patrick to conceal Appellant’s involvement in his death. Id. Appellant
concedes that his communication with Mr. Patrick on April 22 would suggest
that he “may have had useful information about [Mr.] Patrick’s whereabouts”
and therefore the “[p]olice were therefore well within their rights to seek
Appellant out and ask him questions[.]” Id. at 38. However, Appellant argues
that “there is nothing in the four corners of these two warrants that says
anything about Appellant’s possible involvement in [Mr.] Patrick’s death,
much less establishes probable cause to believe he committed this crime.”
Id. (emphasis in original).
Appellant fails to cite authority to support his notion that the affidavit of
probable cause becomes somehow invalid by the omission of arguably-
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exculpatory evidence. Critically, the police did not have to establish probable
cause that Appellant had committed a crime to obtain a search warrant for his
phone records. Rather, they needed to establish a fair probability that
evidence of a crime would be found in a particular place, i.e., his phone
records. Upon review of the affidavits of probable cause, we conclude that
there was a fair probability that evidence of the crimes surrounding
Mr. Patrick’s disappearance would be found in Appellant’s phone records.
Thus, any motion to suppress based on a lack of probable cause would have
been meritless. Accordingly, the PCRA court’s conclusion that counsel had a
reasonable basis not to file a suppression motion is supported by the record
and the court did not err in dismissing this claim.
We now turn to Appellant’s second issue on appeal. Appellant argues
that the PCRA court erred in summarily dismissing his claim that trial counsel
rendered ineffective assistance by failing to retain an expert witness to refute
the Commonwealth’s theory that Mr. Patrick was murdered on April 22, 2013.
See Appellant’s brief at 9. To prove a PCRA claim for failure to call an expert
witness, a petitioner must:
prove that an expert witness was willing and available to testify on the subject of the testimony at trial, counsel knew or should have known about the witness and the defendant was prejudiced by the absence of the testimony. Prejudice in this respect requires the petitioner to show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case. Therefore, the petitioner’s burden is to show that testimony provided by the uncalled witness would have been helpful to the defense.
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Commonwealth v. Williams, 141 A.3d 440, 460 (Pa. 2016) (cleaned up).
In his PCRA petition, Appellant identified Dr. Gary Collins as a potential
expert witness whom trial counsel should have known about and called at trial
to refute the Commonwealth’s theory regarding Mr. Patrick’s date of death.
Dr. Collins conducted Mr. Patrick’s autopsy, rendered the opinion as to the
cause and manner of death, and issued the autopsy report.5 Appellant’s
petition included a new report authored by Dr. Collins wherein he concluded
that, based on the forensic evidence, it was “highly unlikely” that Mr. Patrick
was shot and killed on April 22, 2013, and opined instead that his time of
death was sometime between 5:00 p.m. on April 24 and 5:00 a.m. on April 25,
2013. PCRA Petition, 12/28/20, Exhibit K at 4-5. Additionally, Dr. Collins
opined that “[t]he two penetrating gunshot wounds to [Mr. Patrick’s] head
would have been immediately incapacitating” and thus it was “not possible
that Mr. Patrick would have been shot on April 22, 2013[,] and survived his
injuries until April 25, 2013.” Id., Exhibit K at 5.
The PCRA court found Appellant had successfully established an expert
witness was willing to testify and that counsel should have known about the
witness. Nonetheless, the court dismissed the claim without a hearing
because it found Appellant could not prove prejudice when “the evidence that
the victim was murdered sometime on April 22, 2013, was established through
5Dr. Collins did not testify at trial because he was no longer employed in the medical examiner’s office in Philadelphia at that time.
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overwhelming direct and circumstantial evidence.”6 PCRA Court Opinion,
1/24/22, at 9. The PCRA court made this credibility determination, i.e., that
the evidence presented at trial was more persuasive than Dr. Collins’s
proposed testimony, without the benefit of an evidentiary hearing. For the
following reasons, we conclude this was error.
Upon review of the record, it is beyond cavil that Dr. Collins’s testimony
regarding Mr. Patrick’s date of death would have been helpful to the defense.
Specifically, it would have altered the significance of the April 22 cell phone
evidence and provided the opportunity for Appellant to present a potential
alibi defense for the actual date of the murder. This paradigm shift in focus
on when Mr. Patrick was killed and the evidence of who he was with at the
time of his death could have cast reasonable doubt in the mind of at least one
6 We observe that the Commonwealth avers that Appellant cannot establish prejudice because Appellant’s trial counsel cross-examined Dr. Albert Chu regarding the “core substance of Dr. Collins’s proposed testimony” and argued in closing that Mr. Patrick could not have been killed on April 22. See Commonwealth’s brief at 15. In fact, trial counsel did not cross-examine Dr. Chu at all; it was Smith’s attorney who cross-examined him. See N.T. Trial (Jury) Vol. I, 2/23/17, at 110-15 (cross-examination by Smith’s attorney); id. at 115 (Appellant’s attorney stating that he had “no questions” for Dr. Chu). The brief cross-examination by Smith’s counsel focused on the onset of rigor mortis generally, elicited that it generally lasts 48 hours, and that Mr. Patrick’s muscles exhibited “rigidity” during his autopsy on April 26. Id. at 110-15. It did not attempt to elicit the opinion that, based upon the forensic evidence of when rigor mortis was observed in Mr. Patrick and the lack of decomposition evidence at the time of his autopsy, Mr. Patrick was not killed on April 22, but instead was killed sometime between April 24 and 25. As such, counsel’s closing argument was that based on rigor mortis being present when Mr. Patrick’s body was found, he was killed on April 23, not April 22. See N.T. Trial (Jury) Vol. I, 2/28/17, at 104-05.
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juror, thereby affecting the verdict in this case. At trial, counsel argued that,
based upon an examination of Dr. Chu’s testimony and the forensic evidence,
Mr. Patrick was killed on April 23, not April 22. However, Dr. Collins’s report
indicates that he was willing and able to testify that, in his medical opinion,
the date of death was April 24 or April 25, which was even further removed
from the evidence placing Appellant in Mr. Patrick’s vicinity. This would have
significantly strengthened the defense’s argument that the Commonwealth’s
evidence failed to prove beyond a reasonable doubt that Appellant was
involved in Mr. Patrick’s death.
Appellant was entitled to an evidentiary hearing wherein the PCRA court
would make a credibility determination as to Dr. Collins’s testimony and then
“reweigh the Commonwealth’s evidence of guilt from [Appellant’s] trial . . .
and decide what impact, if any, the absence of [Dr. Collins’s] testimony had
upon the evidentiary picture the Commonwealth developed in [Appellant’s]
trial.” Johnson, supra at 70. Accordingly, we vacate the order insofar as it
dismissed this claim and remand for an evidentiary hearing on trial counsel’s
alleged ineffectiveness for failing to call Dr. Collins as an expert witness
regarding Mr. Patrick’s time of death.
Finally, we turn to Appellant’s third issue regarding the admission of
Mr. Tyler’s testimony about the text message he received from Mr. Patrick.
Specifically, he argues that the PCRA court erred in summarily dismissing his
claim that trial counsel provided ineffective assistance by failing to object to
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the admission of this testimony on hearsay grounds.7 See Appellant’s brief
at 43. As discussed supra, trial counsel had advocated for exclusion of that
testimony solely based on the best evidence rule, thereby waiving for
appellate purposes any argument based upon hearsay.
By way of background, there were two similar text messages allegedly
sent by Mr. Patrick on the evening of April 22. The first was allegedly sent to
Mr. Tyler, and it stated that “if anything fishy happened to me, B-Y did it.”
N.T. Trial (Jury) Vol. I, 2/23/17, at 7. Mr. Tyler subsequently deleted the
message and it was never seen by police. Instead, he relayed the contents of
the text message as he remembered them to the police during an interview.
Secondly, the Commonwealth sought to introduce a screenshot of a text
exchange between Mr. Patrick and an unknown individual that was sent to
Mr. Patrick’s mother, stating that “if some fishy shit happen, I was wit [sic] B-
Y.” Id. The court excluded the screenshot but permitted Mr. Tyler to testify
from memory as to the message he received from Mr. Patrick on the evening
of April 22. Id. at 14-15. Mr. Tyler testified at trial that he received a text
message from Mr. Patrick on the night of April 22 that said: “if anything fishy
happened to me, B-Y did it.” N.T. Trial (Jury) Vol. I, 2/23/17, at 158.
7 Appellant also argues that counsel was ineffective for failing to object to its admission on the grounds that it violated the Confrontation Clause. Although Appellant’s argument for this issue spans thirteen pages, his argument pertaining to the Confrontation Clause comprises merely two paragraphs. See Appellant’s brief at 51, 54. Regardless, given our ruling on counsel’s failure to object on hearsay grounds, we need not reach Appellant’s Confrontation Clause argument, scant as it is.
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Appellant argued in his PCRA petition that this testimony was
inadmissible hearsay that constituted a statement of belief offered for the
truth of the matter asserted, and therefore did not fall under any exception.
As such, he contends that counsel rendered ineffective assistance by failing to
object to its admission on hearsay grounds or request a cautionary instruction.
See PCRA Petition, 12/28/20, at 56-61.
In dismissing this claim, the PCRA court concluded that Appellant
successfully established that the issue was of arguable merit and that counsel
had no reasonable basis for failing to object on hearsay grounds. See PCRA
Court Opinion, 1/24/22, at 15. Nonetheless, the PCRA court dismissed this
claim because it found that Appellant had not suffered prejudice. Specifically,
the court explained that it would have overruled any hearsay objection
because the “statement was offered as circumstantial evidence to prove
[Mr. Patrick’s] subsequent conduct; that he was with [Appellant] when he
went missing.” Id. at 16. The PCRA court additionally noted that even if such
a ruling would have been in error, Appellant could not prove prejudice given
the overwhelming evidence of his guilt. Id. at 17.
Appellant argues that even if the text message was admissible to show
Mr. Patrick’s intent to be in Appellant’s company, “it also pointed the finger of
guilt at Appellant, an impermissible purpose for the evidence.” Appellant’s
brief at 58. According to Appellant, the fact that Appellant and Smith were in
the company of Mr. Patrick on the evening of April 22 was undisputed given
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the cell phone evidence, and therefore any probative value “did not outweigh
the high potential for incurable prejudice.” Id. at 58 (cleaned up). By
extension, Appellant maintains that the PCRA court’s conclusion that a hearsay
objection would not have been valid is legally erroneous.
In support of this argument, Appellant relies on our Supreme Court’s
decision in Commonwealth v. Fitzpatrick, 255 A.3d 452 (Pa. 2021), which
was issued during the PCRA proceedings below. In Fitzpatrick, our Supreme
Court considered “[t]he admissibility of state of mind statements, including
dual-purpose statements that proverbially point the finger from the grave[.]”
Id. at 473. There are three “categories in which the need for such statements
overcomes almost any possible prejudice[:]” (1) a defendant raises the
defense of justification; (2) the defendant raises the defense that the
deceased committed suicide; and (3) claims of accidental death. Id. at 474-
75 (cleaned up). Recognizing that our courts’ approaches to the admissibility
of these statements has been inconsistent, our High Court “set forth the
general inquiry courts must undertake when contemplating the admissibility
of out-of-court statements proffered to the court for admission as state of
mind evidence” as follows:
First, the court must ascertain the reason that the moving party is offering the evidence. If it is not being offered for the truth of the matter asserted, it is not hearsay, and can be admitted to demonstrate the non-truth purpose. . . .
If the statement is offered as substantive evidence for the truth of the matter asserted, the court must examine the statement more closely and make a number of preliminary rulings. First, [as
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with] all evidence, the statement must be relevant. In the context of state of mind evidence, the speaker’s mindset must be pertinent to some contested issue in the legal proceeding. In criminal cases, the prosecution must prove the defendant’s mens rea beyond a reasonable doubt. Thus, in the typical prosecution, a victim’s state of mind simply is not relevant. There are exceptions to this general rule, [as outlined hereinabove]. . . .
....
If the statement is relevant, then the court must examine the character of the statement being proffered. If the statement is a sing[le] expression of the declarant's state of mind, i.e., “I was sad,” the court need only apply Rule 803(3). So long as the expression refers to the declarant’s state of mind (or physical condition), and not to a third-party’s state of mind, and so long as the statement refers to the speaker’s mindset as it existed at the time the statement was made, facially it is admissible. . . .
On the other hand, if the statement is not a sing[le] purpose statement, but instead contains both a state of mind component and a “fact-bound” component, it generally is inadmissible. . . .
[S]uch two-part statements are only relevant if they are taken for their truth. The problem is that there are two parts to these statements, only one of which facially is admissible: the state of mind component. The factual component is not. That part, which is uttered out-of-court and also offered for the truth of the matter asserted, does not satisfy this exception to the hearsay rule, nor does it possess the same hallmarks of reliability imputed to state of mind evidence. That one aspect of a statement is admissible does not render all of a multi-part statement admissible. Quite to the contrary, both components must independently be admissible. Each aspect of the statement must satisfy a hearsay exception.
Fitzpatrick, supra at 479-81 (cleaned up).
In Fitzpatrick, the victim, Annemarie Fitzpatrick, had written a note
that stated “06/05/12. If something happens to me—JOE.” Id. at 460. Her
husband’s name was Joseph Fitzpatrick, the defendant in the case. On June 6,
2012, she was found dead following a purported ATV accident. The High Court
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found the note relevant because Fitzpatrick disputed that his wife was
murdered, claiming instead that she died in an accident. Id. at 482. Applying
the above, the Court found “the fact-bound aspect of [her] note cannot be
bootstrapped into admissibility merely because the statement
contemporaneously contains some expression of [her] state of mind.” Id.
(cleaned up). Accordingly, it found that the trial court erred in admitting the
note at trial.
Instantly, the PCRA court distinguishes Fitzpatrick because it claims
that the text message “was not offered to prove the truth of the matter
asserted—that B-Y did something fishy—but that the [victim] was with B-Y
around the time he went missing.” PCRA Court Opinion, 1/24/22, at 17. At
the outset, we observe that the PCRA court misses the mark by focusing on
the “fishy” aspect of the message, and not the latter portion pertaining to
Appellant. Furthermore, it appears that the PCRA court has conflated the two
messages purportedly sent by Mr. Patrick. By characterizing the text message
as showing Mr. Patrick’s intent to be with Appellant on April 22, 2013, the
PCRA court must be referring to the screenshot message, sent to Mr. Patrick’s
mother, that stated if anything fishy happened, Mr. Patrick was “wit [sic] B-
Y.” In fact, the message to which Mr. Tyler testified stated that if anything
fishy happened, “B-Y did it.” Without doubt, this text message was offered
for the truth of the matter asserted and pointed the finger at Appellant from
the grave. Even if it also demonstrated Mr. Patrick’s state of mind, given that
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there was no question of justification, suicide, or accident, the message would
not be relevant solely on the basis of Mr. Patrick’s state of mind. Moreover,
even assuming that the message was relevant, the fact-bound aspect of it
that pointed the finger at Appellant if anything untoward happened to
Mr. Patrick rendered the text message as a whole inadmissible.
As such, the PCRA court’s conclusion that Appellant was not prejudiced
is based on a legally erroneous analysis. Accordingly, we vacate this portion
of the PCRA court’s order and remand for a hearing. At the hearing, trial
counsel should be afforded the opportunity to be heard as to whether he had
a reasonable basis for failing to object on hearsay grounds. See
Commonwealth v. Hughes, 865 A.2d 761, 799 (Pa. 2004) (“[A]s the PCRA
court did not hold a hearing, we cannot discern whether a reasonable basis
existed for counsel’s omission. In such circumstance, this Court has declined
to divine, in the first instance on appellate review, whether counsel’s actions
were reasonably based.”). Following the hearing, the PCRA court must
determine whether the basis counsel offers for failing to object is reasonable
and whether the erroneously-admitted evidence likely affected the verdict.
Based on the foregoing, we: (1) affirm the portion of the PCRA court’s
order dismissing Appellant’s suppression-related ineffective assistance claim;
(2) vacate the portion of the PCRA court’s order dismissing Appellant’s claim
of ineffectiveness relating to the expert witness testimony claim and remand
for an evidentiary hearing on the prejudice prong; and (3) vacate the portion
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of the PCRA court’s order denying relief for counsel’s failure to object to the
text message on hearsay grounds and remand for an evidentiary hearing on
the reasonable basis and prejudice prongs.
Order affirmed in part and vacated in part. Case remanded with
instructions. Jurisdiction relinquished.
Judge Nichols and P.J.E. Stevens concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/31/2022
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