:v wer-sL?os?vu ?buu 3v caus- IN THE COURT OF COMIV ON PLEAS FOR THIF. FIRST JUDICIAL. DISTRICT 01" DIVISION CRIMINAL COMMONWEALTH OF PA V. KENNETH COI .EMAN FINDINGS OF FACT AND CONC P-q I-CR-120276I-2004 Received JUN 2 1 2015 0111de Trial LUSIONS OF LAW J. A. 1. FINDINGS OF FACT Procedural History .lune 21 . 2016 This matter arising under the Post-Conviction Relief Act (PCRA) was remanded by the Superior Court for an cvidentiary hearing. with suggestion that the hearing be assigned to a different judge. v. Kennel/1 No. 1791 EDA 2013. 2014 Pa. Super. Unpub. LEXIS 4520. *9 (Pa. Super. (71. 2014). The Superior Court directed that an evidentiary hearing be held on two discrete substantive issues: (1) whether a surveillance videotape of the ircident exists and was available: and (2) whether defendant's counsel failed to investigate defendant's fiance. Mary Boone. an alleged eyewitness in support of Petitioner?s claim of scl?defense. Commonwealth v. Coleman. 1791 EDA 2013. 2014 Pa. Super. Unpub. LEXIS 4520 (Pa. Super. Ct. 2014). The relevant procedural and factual history up to that Opinion. Id. point is set forth in the Superior Court?s CP-51-CR4201021-2004 Comm Coleman Kenneth Conclusmn of Law and Findings 01 Facts 7466746281 6. 11. 12. A more detailed statement 01? the evidence adduced Superior Court on direct appeal. 'mnmomrealth v. 1 (Pa. Super. 3/9/05). On remand. the Supervising Judge of the Trial Divi this Court. On September 16. 2014. the Court held a status confe The evidentiary hearing commenced on Decemb- additional witnesses who were unavailable. NT. 12/ at trial is set forth in the opinion of the lfennel/z (plenum. No. 2988 EDA 2005 sion Criminal. assigned the matter to fence with Petitioner.l pr 15. 2014. but was bifurcated for 5/14. Petitioner, who was present for the hearing, asked to proceed via video at subsequent hearings. N.T. 12/15/14, pp. 47-48. The evidentiary hearing was rescheduled at defense request. in order to conduct further investigation. The hearing reconvened on April 9. 20 The Amended PCRA Petition alleges that trial couns lS. . On August 6. 2015. Petitioner ?led an Amended PCRA Petition. 31 was ineffective in failing to obtain inquire about the missmg surveillance tape. or cross-eitamme on the tape at trial.- On August 21. 2015. a police witness failed to ap?iear and the hearing was continued to October 13. 2015. at which time the evidentiary hear continued for submission of briefs. ing was concluded. The case was then 1 Petitioner was permitted to proceed pl'u on June 29. 201 1. following a hearing pursuant to v. Urazier. 713 A.2d 81 (Pa. I998). John Cotter, Esquire. was appointed as stand-by counsel. a capacity in which he continued to serve during proceedings before this Court. 2 This precise issue relating to the surveillance tape was not included in the Superior Court?s remand directions. However. a fair reading of the 2010 PCRA Petition and the 2015 Amended PC RA Petition establishes an allegation that trial counsel was ineffective in failing to obtain or inquire about on the tape at trial. PCRA Petition. pp. 4. A-4. Amended PCRA Petition. pp. 4-5. 7 he missing surveillance tape. or cross-examine 13. On November 5. 2015. Petitioner ?led his memora support thereof on December 1. 2015. 14. On December 4. 2015. the Commonwealth ?led its n1 15. On December 14. 2015. the Commonwealth filed a idum of law. and tiled an appendix in emorandum in response. otion to dismiss the Petition. B. Trial Record and Testimony Adduced at PCRA Hearing 16. As described by the Superior Court: [Defendant] alleged that Leary initiated the physil the restroom and goading him into ?ghting. the [defendant] toward him. [Defendant] asserted he they exchanged punches. [Defendant] averred tl? overpowered him. and so fearing that Leary produced the box cutter with the blade uncxpo ?al confrontation by blocking his way to in grabbing [defendant]'s jacket. pulling grabbed Leary in return. at which point at Leary. who was larger and heavier. was about to "hurt" him. [defendant] and hit Leary with the box cutter. Now I'm just hitting him with the [Defendant] testified, "We?re going blow for No box cutter in my hand. hoping that this box cu er. seeing this box cutter in my band, would be as a deterrent as if to say 1 have a wea on. leave me the hell alone. He doesn't I was tremendously overpowered by thi guy. This guy is really strong." 7/5/05. at 116-17. [Defendant] further testified that during the gc. someone grabbed him from behind in a choke hold and: "1 still had the box cutter it my hand. I reached back trying to get this person off me. We both fall backwards. Sh? hits the ground. 1 fall on top of her. We're front to back. I get up. 1 see it's her. Ijus immediately leave I don't know if there are other people that are going to get in tl?is I thought in my mind the best thing to do is just to get the hell out of situation. and I felt in danger. Id. at 1 17-19. ('nmmomveullh v. Kenneth (.?olemun. No. 2988 ere because that was a very hostile 2005 (Pa. Super. 3/9/05). slip op. 2-8. 17. Mary Boone was living with Petitioner in November of2004. N.T. 12/15/14. p. l. 18. On November 5. 2004. the night of the incident. Boone was working at the Rite Aid Pharmacy at Chelten and Wayne Avenues in Philac elphia. across the street from Victor's Tavern. the scene of the incident. N.T. 12/15/14. p. 1 l. 19November 5. 2004. Boone came to Victor?s from security guard. in order to get Petitioner. N.T. 12/15/ Boone joined Petitioner at a table. but declined his a tired and wanted to go home. NT. 12/ 15/14. p. 12. Petitioner retrieved his coat from the chair. finished pp. 12-13. Boone testified she saw Joseph Leary3 block Petition and an argument appeared to ensue. although Boor 12/15/14. pp. 13. 19-20. her work at Rite Aid. accompanied by a 14. p. 11. 12. tier of a drink and instead said she was is drink. and then went to the bathroom. er as he attempted to enter the bathroom could not hear what was said. N.T. Boone testi?ed she observed that Leary?s body language was very aggressive and hostile toward Petitioner. NT. 12/ 15/14. p. 20. Boone testi?ed she saw Leary push and punch Pctit Boone stood near the door. him because ofthe crowd. N.T. 12/15/14. pp. 13-14. Boone testi?ed that as the fight was occurring Lorraine Patterson. Leary?s sister. come from behin Petitioner?s arms, and it appeared to her that Patt< Petitioner. NT. 12/ 15/14, pp. 14-15. Boone?s testimony. if believed by a jury. supports acting in self-defense. Boone called Petitione ioner. and then a fight broke out while r?s name. however she could not reach 2tween Leary and Petitioner. she saw 1 Petitioner. grab him and pull back on :rson appeared to be trying to restrain Petitioner?s trial testimony that he was Boone does not recall ever being contacted by Douglas Stern. Petitioner?s counsel. whether by phone or in person. N.T. 12/15/14. pp. 15-16. 3 Although sometimes referred to as ?Larry?. the complainant?s last 4 name is Leary. 28Smith testi?ed at trial that she saw Boone ?walk out. . Boone testified that she would have been willing test Boone was not contacted by Stern by mail. N.T. l2/1 Boone was not present at Petitioner?s trial. and was defense. N.T. 12/15/14. p. 17. Boone also was not present at trial when the barma Joyce Smith, testi?ed. NT. 12/ 15/14. p. 18. down. N.T. 7/6/05, p. 32, 38.5 p. 16. Boone?s testimony that she witnessed any part ofthe Assistant District Attorney Mark Levenberg was the 2005. at which time he had been a Philadelphia Assis ?ve years. N.T. 12/15/14. p. 24. Levenberg was responsible for gathering and pre 12/15/14. p. 25. Levenberg testi?ed that he reviewed his ?le. which i but there was no videotape. N.T. 12/15/14. p. 24. 42 5/14. pp. 15-16. present when he testi?ed in his own (also identi?ed as the bar manager).4 She left the bar? and Petitioner sat back ify at trial. had she been asked to do so. incident was not credible. trial prosecutor of Kenneth Coleman in tant District Attorney for approximately senting the available evidence. N.T. neluded a 48" that mentions a videotape. The 48 appears in the record as Exhibit A to the PCRA Petition. 4 NT. 7/6/05. p. 28. 5 The transcript which contains the testimony of Of?ce Stellt?ox, or tcer Morace. Complainants Leary and Patterson. Petitioner, charging conference. closing arguments. and the charge to the jury is dated July 5. 2015, while the volume which contains the testimony of Ms. Smith. along with the openings of counsel. is dated July 6. 2005. Clearly. the dates are presented here. For the sake ot?clarity, we will continue to identify with the understanding that one or both of those dates are incorrect. 6 ?48? is shorthand for Philadelphia Police Department for 75-48. a pp. 11-12. 5 we swearing of thejury. the opening charge and wrong. The error is of no moment to the issues he transcripts by the dates appearing on them. so known as a Complaint/Incident N.T. 7/5/05. 38. The 48 was prepared by Officer Stelltox. who is deceased. 12/15/14. p. 22. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. Levenberg presented Stellfox as a Commonwealth 16. tness at trial. N.T. 7/5/05. pp. 4-l3. l5- Levenberg introduced the 48s prepared by Stellfox into evidence at trial. Nfl?. 7/5/05. pp. l- 12. The 48 states. in pertinent part. "Surveillance Tape recovered.? [Exhibit A to the Petition. There was no other mention of a videotape in the video in this case. 12/15/l4. pp. 25-26. 28. Levcnberg testi?ed he had no knowledge of an conversation with the case detectives about a video. ilc. and Levenberg never had or saw a video and did not recall having a 12/l5/l4. pp. 25-27, 33. Levenberg did make inquiry about the existence of the mentioned surveillance video. Levenberg did not have any conversation with Doug as Stern, Petitioner?s trial counsel. about the video. although the 48 was introduced at trial arid Stellt?ox. the officer who prepared the 48. testi?ed at trial. N.T. 12/15/14. pp. 28-30. Douglas Stern. Petitioner?s trial counsel. testi?ed pt the hearing before this Court. N.T. 4/9/15. Stern was notably hostile during his testimony while pro se litigant. Stern was exceedingly defensive during his testimor . Stern was not entirely credible. being questioned by Petitioner. who is a 50Petitioner told Stern that Boone didn?t actually Will . Petitioner gave Stem all of Boone?s contact informal .The location of the altercation inside Victor?s Bar Stern testified that he discussed potential witnesses with Petitioner in the course of preparing the ease for trial. N.T. 4/9/15, pp. 5-6. 46. Although he did not recall her name. Stern discussed Mary Boone. who Petitioner identified as his fiance, as the only other witness with of the incident. N.T. 4/9/15. pp. 5-6. 46. Stem testi?ed that he did not call Boone because :ihe didn't actually witness the incident. 4/9/15. p. 6. the incident took place. 4/0/l 5. pp. 6. 8. 13-14. Stern testified that he does not recall contacting Boo Stern did not contact Boone. Petitioner testified at trial that Boone left before him when the whole incident took place. N.T. 4/9/ I tess the incident. but was outside before 46. ion. N.T. 4/9/15. pp. 10. 12. he. 4/9/15. p. 12. and was standing outside waiting for E. p. 7:151:11 7/7/05. p. 133. Petitioner testi?ed at trial that when he came outd?Ide. Boone asked him what was that all about. N.T. 7/7/05. p. I33. rear/back of the bar. near the bathroom and the cig 65-66: N.T. 7/6/05. pp. 34-35. 39-40. 47. 55. 61.7 7 Petitioner attached photographs of the inside ofVictor?s Tavern appeared on November 5. 2004. However. there was no testimom photographs shown to Ms. Boone or any other witness at the hearin Accordingly. there is no testimony that the photographs proffered representation ofthe way Victor?s Tavern appeared at the time of was to the right of the entry door. at the prette machine. N.T. 7/5/05. pp. 8. 9. l0. which he claims show the premises as they to this effect from Petitioner. nor were the g. No one from Victor?s was called to testify. py Petitioner by af?davit are a fair and accurate the incident. 60. Based on the location of the altercation. Petitioner wc Boone had actually exited the bar at the time of the cr bar near the bathroom. 61. Stem never received or saw a video. N.T. 4/9/15. pp 62. Stem did not speak to ADA chenberg about the sun 63. Stem did not make a written request of the Commom 64. Stem did not ?le a motion or otherwise seek Court tape. 65. Stem does not know if there was a tape or. if Commonwealth?s possession or what was on it. NT 66. When cross-examining Police Of?cer Stellfox. Ste crime scene. to which the of?cer responded in the ne 67. Stem also raised the absence ol'crime scene pictures 68. Stem did not question any witnesses about the missi 7/6/05. 69. In particular. Stern did not ask Smith. the Victor?s who prepared the 48. about the surveillance tape. 70. Stem did not argue the missing surveillance video i I70. 71. The ?rst time Stern indicated that he would seek tl? 2005. after Petitioner had been convicted. Petition. iuld not have been in a position to see il~ >nfrontation with Leary at the rear ol?the 8?9. 27-29. reillance tape. wealth for the surveillance tape. assistance in obtaining the surveillance ihere was, whether it was ever in the . 4/9/15. pp. 32-33. 35. rn asked if anyone took pictures of the fgative. N.T. 7/5/05, pp. 14-15. in his closing. 7/5/05. pp. 163-164. Lng. surveillance tape at trial. N.T. 7/5/05. [l?avern Bar Manager. or Of?cer Stellt?ox. 7/6/05. pp. 52-60; 7/5/05. pp. 14-15. 1 his closing to thejury. 7/5/05. pp. 152- surveillance video was on November I. 4/9/15. pp. 28-29; Exhibit to PCRA 72. Stem was not aware of the missing surveillance video until after Petitioner had been convicted. 73. Detective Terrence Anderson was interviewed by the defense on July 6. 2015. 74. After reviewing 75-48 and 75-498 forms. Detective Anderson "vaguely remembers the case but nothing specific" and does "not remember any vi lleo surveillance." 75. Retired Police Of?cer Terrence Davis. the ass igned investigator on this matter. was interviewed by the defense on August 13. 2015. carcy Investigations. Investigative Report. I August 13. 2015. 76. Of?cer Davis reviewed the 75?48 and 75-49 forn 1L. but does not remember the case or a videotape. Carey Investigations. Investigative Report. August 13. 2015. 77. If he had received a videotape. Of Iicer Davis woul Carey Investigations. Investigative Report. August t? have noted it on the 75-49 he prepared. 13.2015. 78. Of?cer Stellfox recovered a surveillance video from Victor?s Tavern. Exhibit A to the PCRA Petition. 79. There was no evidence adduced that the Victor's Tavern surveillance video recording system would have captured the altercation involving Petitioner. Leary and Patterson. 80. The surveillance video was not delivered to Detect Police Of?cer Davis. 81. The surveillance video was never in the possession Anderson or the assigned investigator. ofthc prosecutor. 82. There is no evidence. whether direct. testimonial br circumstantial regarding the content of the surveillance video. 83. There is no evidence that the surveillance video was materially exculpatory. 8 "7549" is the Philadelphia Police Department form number th? 9 the Investigation Repon. 84. There is no evidence that the police or the prosecutlion by their conduct indicated that the surveillance video could form a basis for exonerating the defendant. 85. There is no evidence that the police or the prosecution willfully lost or discarded the surveillance video. 86. There is no evidence regarding the circumstances of ihe disposition ofthe surveillance video. ll. CONCLUSIONS OF LAW A. The Surveillance tape. 87. "[Tlo establish a Brady violation. a defendant is required to demonstrate that exculpatory or impeaching evidence. favorable to the defense. was suppressed by the prosecution. to the prejudice of the defendant." Commonwealth v. (film-tin. 951 A.2d 10. 1 126 (Pa. 2008). 88. "[F]avorable evidence is material Mconstitutional error results from its suppression by the governmentif there is a reasonable probability thaif. had the evidence been disclosed to the defense. the result of the proceeding would have been different." Kyles v. Whit/c 1. 514 419. 433-434. 1 15 S. Ct. 1555. 131 L. Ed. 2d 490 (1995)(internal quotation marks omitted). 89. "[S]upport for an allegation that destroyed evidence was exculpatory . . . cannot be based on a 'mere assertion.? ?ommonweulth v. Snyder. 9 b3 A.2d 396. 405 (Pa. 2009) (citations omitted); see also r. Free. 902 p.2d 565. 571 (Pa. Super. 2006) ("The allegation that the evidence at issue was exculpatufy cannot be based on a mere assertion.") (citation omitted). 90. The burden of proof is on the defendant to demon strate that the Commonwealth withheld or suppressed evidence. See Commonwealth v. Ported 728 A.2d 890. 898 (Pa. I999). 91. ?[T]he United States Supreme Court has held the ? t]he mere possibility that an item of undisclosed information might have helped the defense. or might have affected the outcome of the trial. does not establish ?materiality' in the sense."' Commonwealth v. Spulli. 94 A.3d 367. 383 (Pa. Super. 2014). citing (Pa. 2009) (internal citations omitted). 92. As to Brady claims advanced under the PCRA. a dc Brady violation "so undermined the truth-determini guilt or innocence could have taken place." See 242. 259 (Pa. 1998). 93. There is no evidence that the surveillance tape cent 94. ?There is another category of constitutionally guar evidence that is not materially exculpatory. but is state before the defense has an opportunity to exan 30 A.3d 381. 492 (Pa. 201 95. ?Evidence that is possibly exculpatory is only mere A.3d at 402. pmmomreallh v. Ly. 980 A.2d 61 . 75-76 lbndant must demonstrate that the alleged rig process that no reliable adjudication of 'mnmonuv'callh v. ('openhe/er. 7 9 A.2d Lned materially exculpatory evidence. iteed access to evidence. which involves otentially useful. that is destroyed by the line it." Cbmmonu-ealrh v. Chamberlain. potentially Chamberlain. 30 96. ?Potentially useful evidence is that ol?whieh no moie can be said than that it could have been subjected to tests. the results of which might have 30 A.3d at 402 (internal quotations omitted). 97. The surveillance tape constituted ?potentially useft 98. Where potentially useful evidence has been disca where the failure to preserve was done in bad ll exonerated the defendant." Chamberlain. evidence?. rded. a due process violation occurs only aith. ('ommomt'eallh Lam/1. 20l5 l?a. Super. Unpub. LEXIS 2585. *7 (Pa. Super. 2015). 656. 963 A.2d 396. 404 (Pa. 2009). 99. Bad faith is shown where evidence is discarded un themselves by their conduct indicate that the evident defendant." Lamb. supra. citing Arizona r. )"oimghl l00. l0]. or that it was potentially useful evidence which the faith. he has failed to demonstrate a violation of th Amendment of the United States Constitution. Constitution. he is not entitled to relieii. B. Defendant has not demonstrated that the tape wa. iting C'mnmonwealth r. Snyder. 599 Pa. Fer circumstances "in which the police could form a basis for exonerating the i lost or discarded in bad faith. Because Defendant has failed to demonstrate thin the surveillance tape was exculpatory. L. ommonwealth failed to preserve in bad i: Due Process Clause of the Fourteenth or the concomitant portions of the lneffectivencss of counsel relating to Mary liqone 102. ?Counsel has a general duty to undettakc reasdinable investigations or make reasonable decisions that render particular investigations include a duty to interview certain potential witnes: duty. unless pursuant to a reasonable strategic deci ?Commonwealth v. Johnson. 966 I omitted). 103. defense attorney's failure to investigate po interview witnesses whose testimony could prove ineffective assistance of counsel if no reason v. McNeil, 487 A.2d 802. 806 (Pa. The duty to investigate may 3052 and a prejudicial failure to ful?ll this Fion. may lead to a ?nding of ineffective i.2d 523. 535-36 (Pa. 2009) (citations .entially meritorious defenses or failure to beneficial and exculpatory can constitute able basis exists for counsel's failure. il985). 104. Where a claim of ineffectiveness of counsel counsel's alleged failure in calling a witness. the existed; (ii) the witness was available to testify; of. the existence of the witness; (iv) the witness was the testimony was so prejudicial as to have denied v. Chmiel. 612 Pa. 333. 30 A.3d 1111, 1143 (Pa. 20 983 A.2d 666. 692 (Pa. 2009). 105. attempt to investigate and interview known eycwit hinge on the credibility of other witnesses. (.?omm (Pa. 2008). 106. the defense. ?the burden on [the PCRA petitioner] a reasonable probability that the outcome of triz interviewed and/or called [the witness] to the stan counsel." Dennis. 950 A.2d at 961. 107. PCRA petitioner ?must show how the uncalled bene?cial under the circumstances of the case.? ("or A.2d 11 10, 1134 (Pa. 2008): see also Commonweal 546 (Pa. 2005) (?Trial counsel's failure to call a Where there is a limited amount of evidence 0 Where counsel fails to investigate and interview ?To demonstrate SIrickluna? [in Washington. 4( brought under the PC RA pertains to petitioner must prove: the witness counsel knew of, or should have known willing to testify: and the absence of 1c defendant a fair trial. (.?ommomrcalth 1 (.?ommonweallh v. Cox. 603 Pa. 223. guilt. it is per so unreasonable not to tesses in connection with defenses that onweallh v. Dennis, 950 A.2d 945. 960 known eyewitnesses in connection with plead and prove sufficient prejudice -- 1 would have been different had counsel -- to establish ineffectiveness of trial 6 US. 668. 687 (1984)] prejudice. the witnesses' testimony would have been nmomreallh v. Gibson. 597 Pa. 402. 951 v. Chmiel. 585 Pa. 547. 889 A.2d 501. particular witness does not constitute ineffective assistance without some showing that the absent witness' testimony would have 13 been beneficial or helpful in establishing the as Johnson. 600 Pa. 329. 352 (Pa. 2009). 108. "witness had relevant evidence that could have aidec serted ('ommonu'eallh v. To properly grant Strickland relief a PCRA court must find that the uncalled fact the [petitioner's] defense. and that there is a reasonable probability that the introduction of such evidence would have altered the outcome ofthe trial." Commonwealth v. Johnson. 600 Pa. 329. 358-359 (Pa. 2009). were ('onmzomrca/lh v. Johnson. 600 l0. "[Tlhe question is whether the nature and quali reasonable probability that the jury would have en verdict. That assessment must include a recognitior ?That assessment must necessarily include some measure of a ?nding that the witnesses a. 329. 359 (Pa. 2009). of the evidence is such that there is a :ditcd it and rendered a more favorable of the impeachability of the witnesses. and not merely a viewing of their testimony in a nifost favorable light." (.?omnumwcollh r. Johnson. 600 Pa. 329. 36l (Pa. 2009). l. ?[T]he value of a particular defense or witness' vacuum of what might have been but in the realit must sustain his burden of proving how the ?ro uninterviewed witness would have been beneficial case." v. McNeil. 487 A.2d 802. 80 12. [A]ttorney performance is to be assessed withu must reconstruct the circumstances under which evaluate counsel's conduct from his perspective at 24 A.3d 319. 333 (Pa. 20l testimony is not judged abstractly in the of what is: accordingly. the defendant ad not taken? or the testimony of the under the facts and circumstances of his 5(l?a. 1985). at the distortion of hindsight; rather. we ounsel's decisions were made and [227] that time.? Commonwealth v. Birdsong. 1 13. only inquire whether counsel had any basis for his actions. not if counsel pursued the best available option." ('ommon 2012). 114. reasonably believed that he was in imminent danger it was necessary to use deadly force against the vic defendant was free from fault in provoking the dift and that the [defendant did not violate any duty 527 Pa. 298. 590 A.2d 1245. 1247-48 (Pa. 19? Commonwealth v. l'larris. 550 Pa. 92. 703 A.2d 44 Sepulveda. 55 A.3d 108. 124 (Pa. 2012). HS. defendant has no burden to prove a claii evidence, from whatever source. is presented to just is upon the Commonwealth to prove beyond a reasc acting in self-defense." C?ommonweal/Ir v. Rivera. 1 omitted). 116. The testimony of Mary Boone. if believed by a the facts and circumstances of this case. by supp: circumstance ofincident and his claim of self-defense. 1 17. Petitioner has shown that 1) Mary Boone existed; was willing to testify. 15 ?To prevail on a justification defense. there mus tract/1hr. Philisiin. 53 A.3d l. 10(1?a. be evidence that the defendant >fdeath or serious bodily injury and that :tim to prevent such harm: that the culty which culminated in the slaying; to retreat.? Samuel. H): see 18 505: see also I. 449 (Pa. 1997).? Commonwcallh v. of self-defense. Rather. once some fy a finding of self-defense. the burden nable doubt that the defendant was not A.3d 779. 791 (Pa. 2014) (citations jury. would have been bene?cial under prting Petitioner?s testimony as to the (ii) she was available to testify; and 118deciding not to contact or interview Boone. tri to him that Boone did not witness the altercation. Because the threshold of reasonableness of his in i counsel relied upon Petitioner?s report vestigation decisions is viewed through the lens of what trial counsel knew and believed at Hie time. we conclude that trial counsel's decision to not contact or interview Boone as unreasonable. under the circumstances, and then assistance of counsel in regard to investigation of Boc lneffeetiveness of counsel relating to the survei "[C]ounsel is presumed effective. and [appellant] The Pierce test requires appellant to prove. with res 1. rue. potential witness was not entirely fore he did not provide ineffective lance tape. bears the burden of proving otherwise. pect to counsel's performance. that: the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act: and (3) petitioner suffered prejudicc there is a reasonable probability that the result of the absent such error. Failure to prove any prong of I claim." Philistin. 53 A.3d at l0 (citations and interna been recovered by Of?cer Stellfox. specific information on the disposition ofthe surveillz Stellfox and Smith about the surveillance tape. 16 Trial counsel knew or should have known that 2 It was unreasonable for trial counsel not to seek It was unreasonable for trial counsel not to err as a result of counsel's error such that proceeding would have been different his test will defeat an ineffectiveness quotations omitted) surveillance tape was alleged to have production of the surveillance tape or nee tape. >ss-examine Commonwealth witnesses 124. ll was unreasonable for trial counsel to fail to tape at trial. 125. Notwithstanding. we must conclude that the surveillance tape, to ascertain its disposition pre-tri course of the trial. was not so prejudicial as to Fise and argue the missing surveillance failure of trial counsel to seek the al. or to address its absence during the rave denied the Petitioner a fair trial. particularly where there is no evidence that the missinig video would have been exculpatory. 126. Petitioner failed to prove there was a reasonable likelihood that the outcome of the trial would have been different but for the failure of trial counsel to cross-examine Stellfox and Smith regarding the surveillance tape and his t?ailur trial. Conclusion Accordingly. for all the reasons set forth herein. the Post-Conviction Relief Act are DENIED. to raise and argue the missing tape at he Petition and Amended Petition under By The ani??ir?l, l7 a/Z 7 11/7