NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No MDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. ANDREW JIMMY AYALA Appellant No MDA 2013 Appeal from the PCRA Order June 25, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.: FILED MAY 28, 2014 Andrew Jimmy Ayala appeals from the order entered June 25, 2013, in the Lebanon County Court of Common Pleas, denying him relief on his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S et seq. Ayala seeks relief from the judgment of sentence of 54 months to 10 years imprisonment, imposed following his conviction of burglary and receiving stolen property (RSP). 1 On appeal, he contends trial counsel was ineffective for failing to challenge the admissibility of a surveillance videotape and for failing to properly question the victim. For the reasons set forth below, we affirm Pa.C.S and 3925, respectively.

2 The facts underlying Ayala s arrest and conviction were summarized by this Court in the memorandum decision affirming his judgment of sentence on direct appeal: Instantly, at trial, two witnesses testified; Lebanon Police Officer Patrick McKinney and the victim, Hector Pastrana ( Pastrana ). Pastrana recounted that on the evening of December 19, 2010, he returned to his apartment from a night of drinking between 1:00 a.m. and 2:00 a.m. He was carrying a large amount of money in his wallet, $1,300. [At the time of the burglary, Pastrana told Officer McKinney that he had only $1,000 in his wallet.] He undressed, left his wallet in his pants pocket, and fell asleep. Pastrana testified he closed his apartment door, but did not lock it. He awoke around 5:00 a.m. and noticed the door to his apartment was half open and the money was missing from his wallet. He testified that earlier in the day, [Ayala], who lived on the same floor, had asked if he could borrow money because he was short on the amount he owed for rent. Pastrana refused to give or loan [Ayala] any money. Upon his discovery that his money was missing, Pastrana talked to his landlord who told him to call the police. Pastrana called the police, and Officer McKinney arrived around 7:30 a.m. and spoke to him. Officer McKinney learned that the apartment complex had a video surveillance system. Officer McKinney and Pastrana viewed the video taken that evening which depicted the entrance to the apartment building and the entrance to Pastrana s apartment. It showed [Ayala] entering Pastrana s apartment wearing a baseball cap at 2:18 a.m. When [Ayala] left Pastrana s apartment, he was holding money in his right hand. The video also showed [Ayala] counting money. Later that morning when [Ayala] was arrested, he was wearing the same baseball cap that he wore in the video. Commonwealth v. Ayala, 60 A.3d 856 [1869 MDA 2011] (unpublished memorandum at 6-8) (Pa. Super. 2012)

3 On August 5, 2011, a jury found Ayala guilty of burglary and RSP, but not guilty of criminal trespass. 2 He was sentenced on September 28, 2011, to a term of 54 months to 10 years imprisonment for the burglary conviction. 3 This Court affirmed the judgment of sentence on September 19, Ayala, supra. On November 1, 2012, Ayala filed a timely, pro se PCRA petition. Counsel was appointed, and filed an amended petition on December 18, 2012, challenging the ineffectiveness of trial counsel for (1) failing to file a motion to suppress the surveillance videotape, (2) failing to object to prosecutorial misconduct, and (3) failing to seek a competency evaluation of the victim. At the conclusion of an evidentiary hearing conducted on June 25, 2013, the PCRA court entered an order denying Ayala PCRA relief. This timely appeal followed. 4 Ayala raises the following three issues before this Court: 2 18 Pa.C.S The RSP conviction merged for sentencing purposes. 4 On July 29, 2013, the PCRA court ordered Ayala to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Although no concise statement is included in the certified record, the PCRA court states in its opinion that Ayala filed a Rule 1925(b) statement on July 29, See PCRA Court Opinion, 9/9/2013, at 4. In addition, the Commonwealth cites to Ayala s concise statement in its brief. See Commonwealth s Brief at 3. Therefore, we will presume that Ayala properly complied with the court s directive

4 1. Whether trial counsel was ineffective for failing to file a suppression motion seeking to preclude admissibility of the videotape evidence. 2. Whether trial counsel was ineffective for failing to object to the introduction of the videotape evidence. 3. Whether trial counsel was ineffective for failing to properly question the victim when he testified. Ayala s Brief at 4. When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa. Super. 2010). Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted). Where, as here, all of the petitioner s claims challenge the ineffectiveness of counsel, our review is well-settled: We begin our analysis of ineffectiveness claims with the presumption that counsel is effective. To prevail on his ineffectiveness claims, Appellant must plead and prove, by a preponderance of the evidence, three elements: (1) the underlying legal claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) Appellant suffered prejudice because of counsel s action or inaction. With regard to the second, i.e., the reasonable basis prong, we will conclude that counsel s chosen strategy lacked a reasonable basis only if Appellant proves that an alternative not chosen offered a potential for success substantially greater than the course actually pursued. To establish the third, i.e., the prejudice prong, Appellant must show that there is a reasonable probability that the outcome of the proceedings would have been different but for counsel s action or inaction

5 Commonwealth v. Spotz, 18 A.3d 244, (Pa. 2011) (internal citations omitted). Failure to establish any prong of the test will defeat an ineffectiveness claim. Commonwealth v. Keaton, 45 A.3d 1050, 1061 (Pa. 2012) (citations omitted) First, Ayala argues trial counsel was ineffective for failing to challenge the admissibility of the surveillance videotape. Specifically, he contends that the videotape admitted into evidence failed under the best evidence rule because it was not the original videotape, but rather a recording of the original. Ayala s Brief at 10. Further, he claims the recording was not properly authenticated, and was, in essence, altered from its original form. Id. at 14. Ayala also asserts the recording did not give a full depiction of [his] alleged acts since the arresting officer was only able to videotape a fragment of the surveillance recording. Id. at 10 (footnote omitted). Accordingly, he argues trial counsel had no reasonable basis for failing to file a motion to suppress the recording, and the verdict would more than likely have been different had the videotape evidence been excluded[.] Id. at 20 (emphasis in original). The PCRA court addressed Ayala s challenge to the surveillance videotape as follows: The surveillance video that was admitted by the Commonwealth was a depiction of a closed surveillance system maintained by the landlord of the victim s premises. No direct copies of the closed surveillance system could be made. Therefore, the police used a handheld camera to record what was on the video surveillance system. There is nothing per se wrong with this procedure

6 Officer McKinney testified that what was depicted on the handheld video camera accurately and fairly depicted what he saw on the closed surveillance system. The Pennsylvania Rules of Evidence state that [t]o satisfy the requirements of authenticating or identifying an item of evidence, the [Commonwealth] must produce evidence sufficient to support a finding that the item is what the [Commonwealth] claims it is. Pa.R.E. Rule 901(a). The Rules clearly articulate that testimony of a witness with knowledge that an item is what it is claimed to be satisfies this authentication requirement. Pa.R.E. Rule 901(b)(1). Therefore, the video was properly authenticated by the testimony of Officer McKinney and subsequently properly admitted at trial. [Ayala s] argument that a video of a video can never be presented is rejected. PCRA Court Opinion, 9/9/2013, at 7. We agree with the PCRA court s conclusion that Ayala s challenge to the admissibility of the videotape has no arguable merit. Although Pennsylvania Rule of Evidence 1002, requires that a party submit an original recording in order to prove its content, Pennsylvania Rule of Evidence 1003 allows the submission of a duplicate of the original unless a genuine question is raised about the original authenticity or the circumstances make it unfair to admit the duplicate. Pa.R.E. 1002; Moreover, Rule 1004 provides that an original is not required when, inter alia, an original cannot be obtained by any available judicial process[.] Pa.R.E. 1004(b). With respect to authentication, Rule 901 provides that evidence may be authenticated through the testimony of a [w]itness with [k]knowledge that an item is what it is claimed to be. Pa.R.E. 901(b)(1). Here, Lebanon City Police Officer Patrick McKinney testified at trial that the surveillance video from Ayala s apartment building was saved to a - 6 -

7 computer so that he was unable to make a CD copy of it. N.T., 8/5/2011, at 22. Therefore, the officer recorded the original surveillance video with a handheld video camera. Id. That video recording was then played for the jury during Ayala s trial. Id. at Ayala does not explain how the recording was altered, or why it does not accurately reflect his actions on the night of the burglary. Therefore, we agree with the trial court that the surveillance video was properly authenticated, and counsel was not ineffective for failing to move to suppress this evidence. With regard to Ayala s contention that the video does not include a full depiction of his actions on the night of the burglary, we note Officer McKinney testified that he began the recording at the point when Ayala returned to the apartment building. See N.T., 8/5/2011, at 31. Although trial counsel testified during the PCRA hearing that she was disappointed the recording did not show when the victim returned home, she acknowledged that by the time we got the video the system had recorded over that portion. N.T., 6/25/2013, at 16. Further, she admitted that the recording completely depicted [Ayala s] actions. Id. at 15. Moreover, although Ayala testified during the PCRA hearing that the victim had company and was awake when Ayala entered the apartment at approximately 2:10, 2:15[,] 5 the victim testified at trial that he returned 5 N.T., 6/25/2013, at

8 home at about 1:15 a.m. and went to sleep. 6 Ayala has not identified any individual who he claims was present in the victim s apartment at the time of the burglary. Therefore, this issue warrants no relief. Next, in a related claim, Ayala argues trial counsel was ineffective for failing to object to the introduction of the videotape, and, instead, stipulating to its admission. However, Ayala fails to differentiate this issue from his first. Indeed, his argument on this claim contains only a bald allegation that counsel was ineffective. Therefore, this claim fails. See Commonwealth v. Phillips, 879 A.2d 1260, 1263 (Pa. Super. 2005) (finding appellant s challenge to the trial court s denial of a motion for acquittal waived when appellant failed to discuss how or why evidence was insufficient). In his last issue, Ayala contends trial counsel was ineffective for failing to properly question the victim at trial regarding the presence of other potential witnesses and [his] relationship status with [Ayala]. 7 Ayala s Brief at 22. Ayala claims that, contrary to the victim s trial testimony, the victim had company when he returned from the bar and that Ayala and the 6 N.T., 8/5/2011, at 6. 7 While this particular issue was framed in the amended PCRA petition as challenge to trial counsel s ineffectiveness for failing to contest the victim s competency, PCRA counsel clarified at the beginning of the hearing that [a]fter discussions with my client, it s more whether [trial counsel] was competent in questioning that victim on the stand[.] N.T., 6/25/2013, at 3. Therefore, we find it was preserved for our review

9 victim hung out after Ayala returned home. Ayala s Brief at 22-23, citing N.T., 6/25/2013, at 6-7, 13. The trial court concluded, however, that Ayala failed to demonstrate that counsel was ineffective: [Ayala] argued that his trial counsel was ineffective in questioning the victim. When asked directly by this Court what [his] attorney should have additionally asked the victim, [Ayala] could not come up with any additional questions that [his] trial counsel had not already asked. Thereafter, we deem this issue to completely lack arguable merit[.] PCRA Court Opinion, 9/9/2013, at 6-7. The PCRA court s ruling is supported by the record. During the PCRA hearing, Ayala testified that he told trial counsel to ask the victim if he had company on the evening of the theft. N.T., 6/25/2013, at 7. However, when asked directly by the PCRA court what other questions do you believe [trial counsel] should have asked the victim[,] Ayala replied: Should have asked the victim? That like, you know, basically was well [counsel] asked him did he know [me]? He said he didn t know, that wasn t true. He just didn t have his stories straight. Every time [counsel] asked him something he switched up. Id. at 13. Under redirect questioning, Ayala testified that he wanted counsel to ask the victim if they (he and the victim) hung out that night after Ayala returned from the bar. Id. However, trial counsel testified that she focused her cross-examination on the victim s prior criminal record, his potential inability to recall the events of that evening since he admitted he was drunk, and whether or not - 9 -

10 he and Ayala were friends. Id. at 17. Counsel explained, Ayala had insisted they were friends but the victim refused to acknowledge that, said he just knew him from the building. Id. We find that Ayala has failed to demonstrate counsel s ineffectiveness. While not directly questioned whether he had company on the night of the burglary, the victim testified that he returned home from the bar, intoxicated, and went to sleep. Further, the surveillance videotape purportedly showed Ayala entering the victim s room at a time when the victim testified he was sleeping, and leaving shortly thereafter, counting money. 8 Accordingly, even if we were to conclude that counsel had no reasonable basis for failing to ask the victim whether he had company that evening, Ayala would be hard pressed to demonstrate that but for counsel s omission, the outcome of the trial would have been different. 9 See Steele, supra. Order affirmed. 8 We note that Ayala has failed to include a copy of the surveillance recording in the certified record. It is Appellant's responsibility to ensure that this Court is provided a complete certified record to ensure proper appellate review; a failure to ensure a complete certified record may render the issue waived. Commonwealth v. Whitaker, 878 A.2d 914, 922 (Pa. Super. 2005), appeal denied, 891 A.2d 732 (Pa. 2005) 9 Ayala s focus on trial counsel s shortcomings ignore the fact that if the victim, indeed, had company on the night of the burglary, Ayala could have provided that information to trial counsel, who then could have attempted to locate any potential witness

11 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/28/