Commonwealth v. Thuy Van Vo

1

COMMONWEALTH OF PENNSYLVANIA Appellee v. THUY VAN VO Appellant

No. 2314 EDA 2022

No. J-S07045-23

Superior Court of Pennsylvania

August 1, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the PCRA Order Entered August 18, 2022 In the Court of Common Pleas of Bucks County Criminal Division at No(s) CP-09-CR-0000472-2011

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM

KING J.

Appellant Thuy Van Vo, appeals from the order entered in the Bucks County Court of Common Pleas, which denied his first petition filed under the Post Conviction Relief Act ("PCRA").^[1] We affirm.

In its opinion, the PCRA court accurately sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.

Appellant raises the following issues for our review:

Did the [PCRA] court err in its denial of Appellant's PCRA claim that he was denied his constitutionally guaranteed right to effective representation, and trial counsel was ineffective when she failed to properly advise Appellant of his right to testify, failed to prepare him to testify, and failed to provide to him sufficient information and advice so as to allow Appellant the ability to make a knowing, intelligent and voluntary decision whether or not to testify?

Did the [PCRA] court err in its denial of Appellant's PCRA claim that he was denied his constitutionally guaranteed right to effective representation, and trial counsel was ineffective based upon multiple instances of attorney error resulting in cumulative prejudice which deprived Appellant of a fair trial and resulted in his conviction, which would not have occurred had the following errors not been committed:

Trial counsel did not obtain surveillance video from the Parx Casino which would have displayed that Appellant did not, as alleged by the detectives, gamble on a date leading up to the murder, thus depriving Appellant of the ability to show the jury that the police and prosecution were not entirely accurate in their recitation of the events, which could have raised reasonable doubt;

Trial counsel did not locate, retain and call at trial a competent expert witness in the area of cell phone transmissions and cell tower technology, relying instead upon Manfred Schenk, who was wholly unqualified to provide such testimony in a convincing or adequate manner;

Trial counsel failed to object or seek to preclude the police detective from testifying about cell phone transmissions and cell tower technology when the detective had no expertise in such area and was not qualified as an expert in such specialized areas of telecommunications;

(Appellant's Brief at vi-vii).

Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway, 14 A.3d 101, 108 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court's credibility determination, it is binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Diane E. Gibbons, we conclude Appellant's claims merit no relief. The PCRA court opinion comprehensively discusses and properly disposes of the claims raised. (See PCRA Court Opinion, filed September 9, 2022, at 10-19) (finding: there was no arguable merit to Appellant's claim that trial counsel failed to advise Appellant of his right to testify because trial counsel credibly testified that she met with Appellant numerous times, typically has at least two conversations with her clients about the right to testify, and would never tell a client that he or she could not testify; regarding counsel's failure to obtain surveillance footage from Parx Casino, Appellant failed to demonstrate that any surveillance footage existed and that it was retained by Parx Casino at time of trial; court also credited trial counsel's testimony that her investigator contacted Parx Casino to obtain information about whether Appellant was present at casino during the relevant times and she would have used any helpful evidence she obtained at the trial; Appellant failed to establish that trial counsel was ineffective for failing to call expert in area of cell phone transmissions and cell tower technology because Appellant failed to identify expert who was available and willing to testify to information that would have been helpful to Appellant's defense; Appellant also failed to identify specific testimony offered by Detective Rudisill that Appellant alleges was impermissible expert testimony; Detective Rudisill's testimony about content of Appellant's cell phone records and location of cell phone towers required no specialized knowledge and was permissible lay testimony;^[2] Appellant's individual claims lack merit and cannot form basis to establish cumulative prejudice). Accordingly, we affirm on the basis of the PCRA court's opinion.

Order affirmed.

Judgment Entered.

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

v.

THUY VAN VO

No CP-09-CR-472-2011

OPINION

Petitioner, Thuy Van Vo, filed an appeal from this Court's order dated August 18, 2022 denying his Second Amended Petition for Relief Pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq., following a hearing held on August 31, 2021.

Factual and Procedural History

The factual and procedural history of this case was summarized by this Court for purposes of direct appeal as follows:

At the time of her death, the victim, thirty-year-old An-Hnan Thi Huynh, nicknamed "Annie," lived on Kendrick Street in Philadelphia with her six-year-old son and her parents. She was the owner and operator of Kim's Nails located on Second Street Pike in Upper Southampton, Bucks County.

The victim was killed on Monday morning, November 8, 2010. At 7:56 that morning, the victim dropped her son off at First Children's Academy, located less than one mile from Kim's Nails. The videotape retrieved from the school by investigators depicted the victim walking her son to his classroom, saying goodbye and then leaving the building. N.T. 12/6/11, p. 174; N.T. 12/7/11, pp. 14, 16; Exhibit C-2. At approximately 9:00 a.m., two employees and a customer arrived at Kim's Nails. When they drove into the shopping center where Kim's Nails is located, they found the victim's car parked in the fire lane in front of the salon. The lights inside the salon were on. The front and the back doors of the salon were locked. Upon entering the salon, the witnesses observed the victim's keys, her jacket and a cup of iced coffee at the victim's workstation located in the front of the salon. The bathroom door of the salon was locked. When the employees could not locate the victim, they called 911 N.T. 12/6/11, pp. 51-58, 80-81,118-120.

Upper Southampton Police Officer Ryan Hand responded to the scene shortly after 9:15 a.m. Officer Hand forced his way into the bathroom and found the victim lying on the floor unconscious. N.T. 12/6/11, p. 141. She showed clear signs of having been involved in a physical altercation. Her hair was disheveled, an earring had been torn from her ear and there was a small amount of blood on her lips and hands. N.T. 12/6/11, pp. 172, 174; N.T. 12/12/11, p. 120. The officer attempted to resuscitate her without success. She was subsequently pronounced dead on scene by emergency medical personnel. N.T. 12/6/11, pp. 142-143.

Forensic pathologist Dr. Ian Hood performed the autopsy. Dr Hood determined the cause of death to be strangulation. He testified that blood flow to the brain would have to be interrupted for a minimum of three to four minutes for death to result from manual strangulation. N.T. 12/12/11, p. 105. Based upon his findings during the autopsy, Dr. Hood testified that it was his opinion that the victim was strangled, began breathing on her own a minute or so later, and then was strangled a second time, causing her death. N.T. 12/12/11, pp. 104-105.

Investigation of the scene revealed no signs of forced entry and no evidence of a struggle inside the salon. N.T. 12/6/11, p. 148. The victim's purse, her two cell phones and the start-up cash for the salon had been taken. N.T. 12/6/11, p. 167. The victim's cell phones were found in a plastic bag near a dumpster at the opposite end of the shopping center. The victim's purse was never recovered. N.T. 12/6/11, p. 219.

At approximately 10:00 a.m., police were advised that [Petitioner], identified as the victim's boyfriend, had arrived on scene. NT. 12/6/11, pp. 180, 209. Testimony at trial established that he arrived after receiving a telephone call from the victim's employees who had advised him that they could not locate the victim. Although he had been told that the victim was missing and could observe that police and emergency medical personnel were in the salon, [Petitioner] did not appear to be distraught. He did not ask the police about the victim's whereabouts, her condition or what was happening inside the salon. N.T. 12/6/11, p. 211. [Petitioner] showed no emotion when he was told that the victim had died. N.T. 12/6/11, p. 214.

In speaking with police, [Petitioner] identified himself as the victim's boyfriend. N.T. 12/6/11, p. 214. He told investigators that he met the victim in approximately 2008.

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