Com. v. Leach, V.

Superior Court of Pennsylvania

Com. v. Leach, V.

DecidedNovember 21, 2018

Docket90 EDA 2017

StatusUnpublished

This text of Com. v. Leach, V. (Com. v. Leach, V.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Leach, V., (Pa. Ct. App. 2018).

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Opinion

J-S51012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VINCENT LEACH : : Appellant : No. 90 EDA 2017

Appeal from the PCRA Order November 28, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002657-2012, CP-51-CR-0002658-2012

BEFORE: DUBOW, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 21, 2018

Appellant, Vincent Leach, appeals from the November 28, 2016 Order

entered in the Philadelphia County Court of Common Pleas dismissing his first

Petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-

9546. After careful review, we adopt the PCRA court’s Pa.R.A.P. 1925(a)

Opinion as our own and affirm.

The relevant facts and procedural history are as follows. On August 7,

2011, Appellant shot Yavonne Burch and Keimyra Devine, killing Burch and

injuring Devine in the leg. Multiple witnesses, including Devine, Frank

Mitchell, and Natalie Brown, identified Appellant as the shooter.

On September 20, 2011, police arrested Appellant and the

Commonwealth charged him with First-Degree Murder, Firearms Not to be

Carried Without a License, Carrying Firearms in Public in Philadelphia, Persons J-S51012-18

Not to Possess Firearms, and Possessing an Instrument of Crime (“PIC”).1 At

a separate docket, the Commonwealth charged Appellant with Aggravated

Assault, Simple Assault, Attempted Murder, and Recklessly Endangering

Another Person (“REAP”).2

Relevant to the instant appeal, prior to Appellant’s trial, the parties

discussed the admissibility of an October 27, 2011 telephone call, recorded by

prison authorities while Appellant was in custody awaiting trial. In the call,

Appellant told a woman, who the Commonwealth asserted was Appellant’s

friend Rachel Levocz, “It’s my fault. If I was back there, I would have taken

care of everything like I was supposed to. I fucked up. I fucked up. My bad.”

N.T., 8/20/13, at 4-5. Appellant’s counsel objected to the admission of the

recording on relevance and prejudice grounds. The following day, just prior

to the start of trial, the court ruled that both parties could play the tape.

The Commonwealth did not play the tape during its case-in-chief. It

did, however, introduce the tape to rebut Appellant’s testimony that he did

not recall the conversation recorded in the tape. Appellant’s counsel

responded: “I guess we already had this argument. I would object to that.”

N.T. 8/22/13, at 4.

____________________________________________

1 18 Pa.C.S. §§ 2502; 6106; 6108; 6105; and 907, respectively.

2 18 Pa.C.S. §§ 2702; 2701; 2502; and 2705, respectively.

-2- J-S51012-18

On sur-rebuttal, Appellant testified that the recorded conversation was

actually between him and a woman, Erica, and that he was apologizing for

missing her birthday, not admitting to the crimes. Id. at 45-46.

On August 22, 2013, a jury convicted Appellant of First-Degree Murder,

Firearms Not to be Carried Without a License, Carrying Firearms in Public in

Philadelphia, PIC, Attempted Murder, and Aggravated Assault. That same

day, the trial court sentenced Appellant to life imprisonment without parole

for the Murder conviction, and concurrent terms of imprisonment for the other

convictions.

This Court affirmed Appellant’s Judgment of Sentence on August 15,

2014, and the Pennsylvania Supreme Court denied Appellant’s Petition for

Allowance of Appeal on December 23, 2014. See Commonwealth v. Leach,

106 A.3d 162 (Pa. Super. 2014) (unpublished memorandum), appeal denied,

104 A.3d 524 (Pa. 2014).

On July 28, 2015, Appellant filed the instant pro se PCRA Petition, in

which he challenged the effectiveness of his trial counsel. The PCRA court

appointed counsel who filed an Amended PCRA Petition on July 20, 2016. In

his Amended Petition, Appellant claimed his trial counsel was ineffective for

failing to object to the admission of the prison phone recording because the

Commonwealth did not comply with the notice requirements of 18 Pa.C.S. §

-3- J-S51012-18

57203 and because the voices on the phone call were not properly identified.

Amended Petition, 7/20/16, at 2 (unpaginated).

On October 20, 2015, the PCRA court issued a Notice of Intent to

Dismiss Appellant’s PCRA Petition without a hearing pursuant to Pa.R.Crim.P.

907. Although represented by counsel, on November 7, 2016, Appellant filed

a pro se Response to the PCRA court’s Rule 907 Notice. The PCRA court

complied with Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011), by

forwarding Appellant’s pro se Response to counsel. Counsel took no further

action.

On November 28, 2016, the PCRA court dismissed Appellant’s Amended

Petition without a hearing. This timely appeal followed. Both Appellant and

the PCRA court complied with Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal:

1. Was trial counsel ineffective for failing to raise an objection to [Appellant’s] prison phone call pursuant to 18 Pa.C.S. § 5720?

2. Was trial counsel ineffective for failing to object to the prison tape when the parties to the conversation had not be identified?

Appellant’s Brief at 3.

This Court’s “standard of review for an order denying post-conviction

relief is limited to whether the trial court's determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v. ____________________________________________

3 Section 5720 requires, in relevant part, that the Commonwealth give a defendant at least 10 days’ notice of the fact and nature of any intercepted communication it intends to disclose at trial. 18 Pa.C.S. §5720.

-4- J-S51012-18

Allen, 732 A.2d 582, 586 (Pa. 1999). Further, “[t]he PCRA court’s findings

“will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. 2008)

(citation omitted).

The law presumes counsel has rendered effective assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

rejection of the appellant’s ineffective assistance of counsel claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

In each issue, Appellant challenges the effective assistance of counsel.

First, he claims his trial counsel was ineffective for failing to object under 18

Pa.C.S.

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