Com. v. Polite, E.

• Court: Superior Court of Pennsylvania
• Decided: October 31, 2023
• Docket: 1371 WDA 2022
• Status: Unpublished

Opinion

J-S28008-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD POLITE : : Appellant : No. 1371 WDA 2022

Appeal from the PCRA Order Entered October 26, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0004135-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD POLITE : : Appellant : No. 1372 WDA 2022

Appeal from the PCRA Order Entered October 26, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0004134-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD POLITE : : Appellant : No. 1373 WDA 2022

Appeal from the PCRA Order Entered October 26, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0004133-2019 J-S28008-23

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED: October 31, 2023

Edward Polite appeals from the order entered in the Westmoreland

County Court of Common Pleas on October 26, 2022, dismissing his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§

9541-9546. After careful review, we affirm.

On November 6, 2019, Polite was charged by criminal information at the

three dockets listed above. The offenses stemmed from a fight between Polite

and his neighbor, Thomas Jackson. At docket CP-65-CR-0004135-2019, Polite

was charged with possession of a firearm by a person legally prohibited,

aggravated assault, simple assault, and public drunkenness for allegedly

punching Jackson and then waving a gun around, threatening to shoot Jackson

and several of Jackson’s family members. At docket CP-65-CR-0004134-2019,

Polite was charged with institutionalized vandalism for reportedly spitting

blood throughout the police station’s holding cell. Finally, at docket CP-65-CR-

0004133-2019, Polite was charged with escape for failing to turn himself into

the police after being discharged from the hospital where he was seen for

injuries arising from the altercation.

On August 24, 2020, Polite waived his right to a jury and proceeded to

a bench trial. The three cases were consolidated for trial. The Commonwealth

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* Former Justice specially assigned to the Superior Court.

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presented five eyewitnesses, including Jackson, two of his children, his

children’s mother, and a neighbor. The Commonwealth also provided police

testimony in the other cases. Finally, Polite testified on his own behalf.

After the trial, the trial court convicted Polite of all charges except the

two assault charges. The trial court sentenced Polite to an aggregate term of

six to twelve years’ imprisonment, followed by two years’ probation.

Trial counsel was subsequently granted leave to withdraw. Polite was

permitted to apply for a public defender to pursue potential appellate issues.

On October 16, 2020, Polite filed a pro se “Petition for Appointed Counsel

and Post Conviction Relief” at all three dockets, raising claims of ineffective

assistance of trial counsel. Specifically, Polite claimed trial counsel was

ineffective for failing to (1) file a Rule 600 motion, (2) file a pre-trial

suppression motion, (3) preserve body camera tapes and police radio tapes,

and (4) investigate the existence of surveillance video from a security camera

positioned near his home.

PCRA counsel was appointed and filed an amended PCRA petition on

January 13, 2021, raising the same four claims of ineffective assistance of trial

counsel.

An evidentiary hearing was held over a year later. Trial counsel testified

he entered his appearance in early 2020, after prior counsel had left the

matter, and went to the jail to meet Polite. See N.T., PCRA Hearing,

5/12/2022, at 5. Due to COVID-19 restrictions that started soon thereafter,

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trial counsel could not go back to the jail, but had approximately twenty-five

telephone conversations with Polite prior to trial. See id.

Trial counsel reviewed multiple hybrid motions filed by Polite pro se,

including a Rule 600 motion, a suppression motion, and a motion to preserve

police radio tapes. See id. at 8-10. Trial counsel recalled filing a Rule 600

motion for nominal bond due to Polite’s expressed desire to get out of jail.

See id. at 7. The petition was denied. See id.

Trial counsel did not recall Polite asking to file a suppression motion.

See id. at 9. Trial counsel confirmed he did not file any suppression motions

because he did not think there were any suppression issues of merit. See id.

at 26.

Trial counsel did not recall ever seeing the motion to preserve police

radio tapes. See id. at 10. Trial counsel asserted any preservation issues

would have been dealt with by previous counsel, as he was not hired until

January 2020. See id. at 12-13. Further, he would not have seen any benefit

to having any radio calls available during trial because they may have been

harmful to the case due to how angry Polite was on that day. See id. at 25.

Trial counsel did not file any formal motions for discovery. See id. at

10. However, counsel did make an oral request at the first status hearing and

the assistant district attorney provided discovery, which did not include any

videotapes. See id.

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Trial counsel did not recall discussing any cameras with Polite, or Polite

asking counsel to seek video footage from a security camera owned by the

City of New Kensington that was adjacent to the scene. See id. at 12. In fact,

trial counsel stated he had “never heard of any type of video the entire time”

and that the PCRA hearing was the first time he heard there is a video. Id. at

18. Counsel confirmed he never received any video from the Commonwealth,

and upon checking the Commonwealth’s entire file during the hearing,

confirmed that no video was included. See id. at 20. PCRA counsel stipulated

that he did not receive any videos from the Commonwealth in response to his

requests for discovery either. See id.

Trial counsel confirmed he did not file any post-sentence motions or any

appeals, and that he was not directed to do so by Polite. See id. at 17.

Polite also testified at the evidentiary hearing. Polite claimed he asked

trial counsel to obtain the police dispatch calls and body camera footage to

find out why the police had been called to his home. Specifically, he argued

these materials would confirm that no guns were ever mentioned and that the

calls were only pertaining to a fight. See id. at 31.

Polite also alleged that he had two conversations with trial counsel about

obtaining footage from a security camera located near his home. See id. at

31-32. He believed this footage was important because it would show he did

not possess a gun that day, and that the Commonwealth’s witnesses were

lying. See id. at 32.

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On cross-examination, Polite could not confirm that any video footage

actually exists, or that the camera was operational at the time of the incident.

See id. at 33-37. Polite indicated he moved forward with trial despite knowing

his attorney had not obtained the security footage because he relied on his

lawyer’s advice and did not want to postpone due to his incarceration and the

potential for substantial delays caused by COVID-19. See id. at 41.

After consideration of briefs filed by both Polite and the Commonwealth,

the PCRA court issued an order dismissing the PCRA petition. This timely

appeal followed.

“The standard of review for an order denying post-conviction relief is

limited to whether the record supports the PCRA court’s determination, and

whether that decision is free of legal error. The PCRA court’s findings will not

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

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted).

Polite raises a claim of ineffective assistance of trial counsel. We

presume counsel is effective, and an appellant bears the burden to prove

otherwise. See Commonwealth v. Bennett, 57 A.3d 1185, 1195 (Pa. 2012).

The test for ineffective assistance of counsel is the same under both the

Federal and Pennsylvania Constitutions. See Strickland v. Washington, 466

U.S. 668, 687-88 (1984); Commonwealth v. Kimball, 724 A.2d 326, 330-

332 (Pa. 1999). An appellant must demonstrate: (1) his underlying claim is of

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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 proceedings would have been different. See Commonwealth

v. Solano, 129 A.3d 1156, 1162-63 (Pa. 2015). A failure to satisfy any prong

of the test for ineffectiveness will require rejection of the claim. See id. at

1163.

Pursuant to the first prong, we note that where an appellant is not

entitled to relief on the underlying claim upon which his ineffectiveness claim

is premised, he is not entitled to relief with regard to his ineffectiveness claim.

See Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). In

short, counsel cannot be deemed ineffective for failing to pursue a meritless

claim. See Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003)

(en banc).

Moreover, regarding the second prong, we have reiterated that trial

counsel’s approach must be “so unreasonable that no competent lawyer would

have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa.

Super. 2000) (citation omitted). Our Supreme Court explained our review of

reasonableness as follows:

Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record.

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Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (citation omitted)

(emphasis in original).

Concerning the third prong, we are mindful that prejudice requires proof

that there is a reasonable probability that but-for counsel’s error, the outcome

of the proceeding would have been different. See Commonwealth v. Pierce,

786 A.2d 203, 213 (Pa. 2001). When an appellant has failed to meet the

prejudice prong of an ineffective assistance of counsel claim, the claim may

be disposed of on that basis alone, without a determination of whether the

first two prongs have been met. See Commonwealth v. Baker, 880 A.2d

654, 656 (Pa. Super. 2005).

On appeal, Polite argues the PCRA court erred in finding he failed to

satisfy the Strickland test. Polite’s argument on appeal focuses on trial

counsel’s failure to seek any video recording of Polite’s fight with Jackson:

Clearly, this lack of investigation and [Polite]’s related claim has arguable merit. [Trial counsel] had no reasonable basis to not pursue the video. [Polite] certainly was prejudiced by this act [] or omission. The testimony of the witnesses proved to be a major factor in [Polite]’s conviction. The trial court stated on August 24, 2020[,] that "[w]e had testimony from five different witnesses who heard him— or who witnessed him brandishing a firearm and hear him asking his wife for the firearm." Determining the status of the security camera footage was imperative to [Polite]’s defense. Assuming his testimony is credible, said video would have further supported the veracity of [Polite]’s testimony, and also weakened the reliability of the aforementioned witnesses. Furthermore, the failure to litigate through a motion to compel discovery or to serve subpoenas upon the appropriate parties prior to or during trial could not have been the result of any rational, strategic, or tactical decision by counsel. [Trial counsel] failed to undertake reasonable investigations or make reasonable decisions

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that related to the video. Moreover, counsel did not render any reasonable decision that made this particular investigation unnecessary. Therefore, [trial counsel’s] representation was ineffective.

Appellant’s Brief, at 20-21.

“Counsel cannot be faulted for failing to discover or present evidence if

Appellant fails to meet the burden of establishing that the evidence

exists.” Commonwealth v. Fisher, 813 A.2d 761, 771 (Pa. 2002) (citations

omitted). Polite failed to establish the existence of a camera in the area, that

the camera was operational at the time of the incident, that any surveillance

video ever actually existed, or that the video recording was retained by the

owner of the camera. Accordingly, Polite has failed to meet his burden of proof

to support his claim of ineffective assistance of trial counsel.

As Polite failed to prove his claim was of arguable merit, the PCRA court

did not err in finding Polite failed to satisfy the Strickland test. Polite’s sole

claim on appeal therefore merits no relief.

Order affirmed.

DATE: 10/31/2023

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