J-S26038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 EDWARD ADDISON                             :
                                            :
                     Appellant              :   No. 2417 EDA 2018

             Appeal from the PCRA Order Entered July 20, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0011331-2014


BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                             FILED MAY 29, 2019

      Edward Addison (Addison) appeals from the order denying his timely

first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546, of the Court of Common Pleas of Philadelphia County (PCRA

court). Specifically, Addison claims that trial counsel was ineffective for failing

to object to hearsay testimony. We affirm.

      We take the following background facts and procedural history from our

independent review of the certified record and the PCRA court’s November 20,

2018 opinion.      On September 4, 2014, college students Ross Mechanic

(Mechanic) and his housemates held a party at their home. The party ended

at approximately 3:00 A.M. and at about 4:00 A.M., Mechanic and Madelyn

Child (Child) went upstairs to the bedroom, shut the door, and left it unlocked.

(See N.T. Trial, 9/01/15, at 10-12).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       When they awoke later that morning, Mechanic and Child discovered

that their cell phones and Child’s purse were missing.        Mechanic went to

roommate Alex Hissom’s (Hissom) room across the hall and the men

discovered that Hissom’s laptop, credit cards, and cell phone were also gone.

Upon going downstairs, Mechanic found the backdoor slightly ajar and a $20

bill on the floor. Child found her purse downstairs and the wallet inside was

missing approximately $200.00. (See id. at 13-14, 25-30).

       Mechanic and Child used the “Find my iPhone” application to locate the

missing cell phones at 58th Street and Washington Avenue in Philadelphia.

They contacted the police, who went to that location and found the cell phones

and the other stolen items in Addison’s possession.         He claimed that he

purchased them from a third party at a local restaurant. (See id. at 14, 56).

None of the victims knew Addison and had not invited him to their party or

given him permission to take the items.

       On October 16, 2014, the Commonwealth filed a Criminal Information

against Addison for the crimes of burglary, criminal trespass, theft by unlawful

taking, and receiving stolen property.1 At trial, Mechanic testified, in pertinent

part, about Hissom’s missing property:

       So I entered [Hissom’s] room—it was unlocked—and woke him up
       saying I don’t know where my phone is, do you think you have


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1  18 Pa.C.S.      §§    3502(a)(1), 3503(a)(1)(iii),   3921(a), and 3925(a),
respectively.


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      anything stolen. We looked around his room and his ID cards,
      credit cards, laptop, and phone were also gone.

(Id. at 13).

      Child testified, in relevant part:

      Q: What did you do after you realized your phones were missing?

      A: We looked all over the room and couldn’t find them there and
      then we opened the door and there was, kind of, stuff everywhere.
      So we realized that something was wrong and talked to other
      people in the house who also were missing things, like [Hissom]
      because he lived across. And I went downstairs to look for my
      stuff and there was money on the ground, the door was open—

      Q: One step at a time. You said you went to speak to [Hissom]—

      A: Yes.

      Q: Are you aware if [Hissom] was missing anything?

      A: Yes, he was missing his laptop and some jewelry, his girlfriend’s
      jewelry, and some money I believe.

(Id. at 26).

      Hissom did not testify. The court convicted Addison of all charges and

sentenced him to an aggregate term of not less than ten and one-half nor

more than twenty-one years’ imprisonment. Addison did not directly appeal

but did file a timely PCRA petition in which he alleged that trial counsel was

ineffective for failing to object to hearsay testimony of Mechanic and Child.

      The PCRA court denied Addison’s petition, finding that his underlying

claim that inadmissible hearsay was admitted lacked merit because the above

testimony did not constitute hearsay, he failed to establish prejudice because

his prejudice argument conflicted with his trial defense that he had purchased

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the stolen items and that, even if it did constitute inadmissible hearsay, the

other evidence of record established Addison’s guilt.        (See PCRA Court’s

Opinion, 11/20/18, at 5-6). Addison timely appealed.2, 3

       To establish the ineffective assistance of counsel, the petitioner must

prove that “the underlying claim is of arguable merit; counsel had no

reasonable basis for the act or omission in question; and he suffered prejudice

as a result, i.e., there is a reasonable probability that, but for counsel’s error,

the outcome of the proceeding would have been different.” Commonwealth

v. Laird, 119 A.3d 972, 978 (Pa. 2015) (citations omitted). “Appellant bears

the burden of proving all three prongs; failure to prove any of these prongs is

sufficient to warrant dismissal of the claim without discussion of the other

two.” Commonwealth v. Robinson, 877 A.2d 433, 439 (Pa. 2005) (citations

omitted).

       Pursuant to Pennsylvania Rule of Evidence 602, “A witness may testify

to a matter only if evidence is introduced sufficient to support a finding that

the witness has personal knowledge of the matter. Evidence to prove personal



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2The PCRA court did not order Addison to file a statement of errors complained
of on appeal. See Pa.R.A.P. 1925(b).

3 “This Court analyzes PCRA appeals in the light most favorable to the
prevailing party at the PCRA level. Our review is limited to the findings of the
PCRA court and the evidence of record[.]” Commonwealth v. Rigg, 84 A.3d
1080, 1084 (Pa. Super. 2014) (citations and internal quotation marks
omitted).


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knowledge may consist of the witness’s own testimony.”            Pa.R.E. 602.

Hearsay is an out of court statement offered “for the truth of the matter

asserted.” Pa.R.E. 801(c). A statement is “a person’s oral assertion, written

assertion, or nonverbal conduct, if the person intended it as an assertion.”

Pa.R.E. 801(a).

      In this case, Mechanic and Child were two of the victims of Addison’s

burglary of the home with personal knowledge of the items missing from

Hissom’s room.    Mechanic testified that he and Hissom looked around the

room and discovered that the items were missing. Child stated that she was

personally aware of the missing laptop and jewelry. This testimony was based

on their personal knowledge, not on an out of court statement, and the rule

against hearsay was not violated. See Pa.R.E. 801(c); Commonwealth v

Perry, 420 A.2d 729, 732 (Pa. Super. 1980) (“A witness may relate facts of

which he has personal knowledge . . . and no question of hearsay is

presented.”) (citations omitted).

      Hence, Addison’s underlying claim lacks merit and his failure to prove

this prong of the ineffectiveness test was sufficient for the PCRA court to deny

his claim. See Robinson, supra at 439. Additionally, even if this testimony

was hearsay, Addison has failed to prove that its admission affected the

outcome because “[i]n a non-jury trial, the judge is presumed to have

disregarded inadmissible hearsay testimony.” Commonwealth v. Dent, 837

A.2d 571, 582 (Pa. Super. 2003), appeal denied, 863 A.2d 1143 (Pa. 2004)


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(citation omitted). Accordingly, we affirm the order of the PCRA court denying

Addison’s petition for lack of merit.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




____________________________________________


4 We also note that, even assuming, again, that the testimony consisted of
hearsay, Addison’s argument that “the admission of this hearsay formed a key
basis for the burglary charge since it precluded the possibility that Hissom
may have permitted [him] to enter the apartment,” conflicts with his trial
defense theory that he was not at the home and purchased the stolen goods
that night. (See N.T. Trial, at 56, 66-68).

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