Com. v. Metzger, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DALE METZGER,
Appellant No. 1822 WDA 2014
Appeal from the PCRA Order of September 18, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002367-2008
BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 30, 2015
Appellant, Dale Metzger, appeals pro se from the order entered on
September 18, 2014, dismissing his first petition filed under the Post-
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously summarized the factual background of this case
as follows:
On the morning of January 18, 2008, [Victim] was awoken by
noise by her bedroom door at approximately 7:45 [a.m. Victim]
lives . . . with her mother and brother. [Victim] knew the house
to be empty when she heard the noise because her mother and
brother had already left for work. When [Victim] attempted to
exit her room, a disguised subject who had covered his face and
hands with a hood and gloves attacked her. This assailant
physically forced her back on the bed and instructed her to be
quiet. He used a “high-pitched voice with a southern accent” that
[Victim] immediately recognized as a voice used by her ex-
boyfriend, Appellant. [Victim] and Appellant dated from
approximately August of 2006 to November of 2007 and suffered
a miscarriage on December 5, 2007.
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Once [Appellant] had [Victim] on the bed, he duct taped her
eyes and mouth shut and hands together. He proceeded to rub
his hands on her chest, telling her that he was going to “tell her
to do stuff that she didn’t want to do, but she was going to do it
unless she wanted to get hurt, and he told her that she needed
to try and enjoy herself.” Appellant freed her hands and
removed her clothes, and instructed her to “play with herself.”
When [Victim] covered herself, Appellant reminded her that she
had to do what he told her or she would be hurt. At this point,
[Victim] gained a small amount of visibility from underneath the
duct tape that was over her eyes and nose. She also heard a
“click” which sounded like a [disposable] camera, so she covered
herself. Appellant climbed on top of her, grabbed her neck and
wrists, and squeezed, telling her to “shut the F up and do what
he said and don’t touch him.” Appellant th[en] inserted his penis
into her vagina and remained inside of her until he ejaculated.
[Victim] consented to none of this sexual activity.
After ejaculating, Appellant questioned [Victim] extensively
about her ex-boyfriend, if she knew where he was and why she
broke up with him. Appellant brought up topics that only
Appellant could have known. Appellant told [Victim] that his
name was “Junior” and that he was a friend of her current
boyfriend. He said that she “had given him the cold shoulder,
but she was just too pretty to pass up.” After this conversation,
Appellant instructed [Victim] to get into the shower and “rinse
herself out.” He gave her a “squirt bottle” and told her to place
it inside of her vagina and squeeze to rinse out the semen.
[Victim] took the squirt bottle and used it, but did not place it
inside of her vagina because she wanted to preserve the DNA
evidence from the sexual assault. Appellant also wanted her to
use her fingers to “get the evidence out.”
After they left the bathroom and came back to her room,
Appellant went through [Victim]’s purse and wallet and took
money ($24[.00]) and a $50[.00] gift card to Applebee’s. He
also took her down to her mother’s room and took medication in
pill bottles that [Victim]’s mother used for her cancer. Appellant
then took [Victim] to the kitchen where he tied her up with a
phone cord and told [Victim] not to call the police when he left.
To make sure she would not, he disassembled her cell phone and
said he was going to call her to make sure she complied. He
asked her for her phone number and she gave him a false
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number. At this point, Appellant went down the basement and
exited through a door that only someone who had been in the
house [previously] could have known about. [Victim] then freed
herself with a kitchen knife, ran to the living room, grabbed the
house phone[,] and dialed 911. As she looked out the living
room window, she could see Appellant “walking up the hill with
his hood up.” Though she never saw his face, [Victim] was able
to identify a small tattoo on Appellant’s hand, at the base of his
thumb once he had removed the gloves. They had gotten
matching tattoos while they were dating of the “infinity sign.”
Further, at 9:54 [a.m.], right after the assault, Appellant left a
voicemail, from his number, on [Victim]’s phone that said “Hi,
Darlin, looks like you’re not answering your phone like we talked
about. I guess I will be in touch.” He used the same high[-
]pitched voice with a southern accent as her assailant had during
the assault. Lastly, experts from the Allegheny County Medical
Examiners Office were able to find DNA evidence from the [r]ape
[k]it confirming that [Victim] did have intercourse with Appellant
within 24 hours of the reported assault. [Victim] states that
prior to her assault on January 18, she had not had sex with
[Appellant] since November of 2007.
Commonwealth v. Metzger, 63 A.3d 830 (Pa. Super. 2012) (unpublished
memorandum), at 3-5, appeal denied, 80 A.3d 776 (Pa. 2013) (internal
alterations, footnote, citations, and ellipsis omitted).
The relevant procedural history of this case is as follows. On April 9,
2008, Appellant was charged via criminal information with burglary, 1 rape,2
sexual assault,3 unlawful restraint causing serious bodily injury,4 making
1
18 Pa.C.S.A. § 3502.
2
18 Pa.C.S.A. § 3121.
3
18 Pa.C.S.A. § 3124.1.
4
18 Pa.C.S.A. § 2902.
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terroristic threats,5 simple assault,6 and theft by unlawful taking.7 On
February 22, 2011, following a non-jury trial, Appellant was found guilty of
all charges. On May 23, 2011, Appellant was sentenced to an aggregate
term of 14 to 28 years’ imprisonment. On direct appeal, this Court affirmed.
See id.
On July 15, 2014, Appellant filed a pro se PCRA petition. On July 17,
2014, PCRA counsel was appointed. On July 25, 2014, PCRA counsel filed a
motion to withdraw as counsel along with a letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
August 25, 2014, the PCRA court granted PCRA counsel’s motion to
withdraw. That same day, the PCRA court issued notice pursuant to
Pennsylvania Rule of Criminal Procedure 907 of its intent to dismiss
Appellant’s petition without an evidentiary hearing. On September 9, 2014,
Appellant filed a response to the Rule 907 notice. On September 22, 2014,
the PCRA court dismissed the petition. This timely appeal followed. 8
5
18 Pa.C.S.A. § 2706.
6
18 Pa.C.S.A. § 2701.
7
18 Pa.C.S.A. § 3921.
8
On November 14, 2014, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On December 8, 2014, Appellant filed his concise
statement. On January 22, 2015, the PCRA court issued its Rule 1925(a)
(Footnote Continued Next Page)
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Appellant presents two issues for our review:
1. Did PCRA counsel’s failure to investigate trial counsels’
strategic/tactical decisions and the reasonableness thereof result
in ineffective assistance of PCRA counsel and a failure to create
any substantive PCRA record to support any viable appeal?
2. In failing to apply a more stringent review of PCRA counsel’s
Turner/Finley letter and without any actual opinion, was there
an abuse of discretion violating due process when the PCRA
court allowed PCRA counsel to withdraw while subsequently
dismissing [Appellant’s] timely filed first PCRA petition?
Appellant’s Brief at 5 (complete capitalization removed).
“In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination is supported by the record and free of legal error.”
Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal
quotation marks and citation omitted). “In PCRA appeals, our scope of
review is limited to the findings of the PCRA court and the evidence on the
record of the PCRA court’s hearing, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,
_______________________
(Footnote Continued)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.
Although Appellant’s concise statement was docketed after the applicable
deadline, we conclude that the concise statement was timely pursuant to the
prisoner mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 425–
426 (Pa. 1997) (explaining the prisoner mailbox rule). Appellant dated the
concise statement December 2, 2014 – a Tuesday. The concise statement
was docketed on December 8, 2014 – a Monday. It is reasonable to assume
that Appellant placed the concise statement in the stream of prison mail on
or before December 4, 2014 and that it was delayed in reaching the PCRA
court because of (1) prison mail procedures; (2) USPS transit time; and (3)
the weekend. Therefore, we decline to find all of Appellant’s issues waived.
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779 (Pa. Super. 2015) (en banc) (internal quotation marks and citations
omitted).
In his first issue, Appellant claims that PCRA counsel rendered
ineffective assistance. Our Supreme Court has explained:
[T]o prove counsel ineffective, [a PCRA] petitioner must
demonstrate: (1) the underlying claim has arguable merit; (2)
no reasonable basis existed for counsel’s actions or failure to
act; and (3) the petitioner suffered prejudice as a result of
counsel’s error such that there is a reasonable probability that
the result of the proceeding would have been different absent
such error. Counsel is presumed to have rendered effective
assistance.
A court is not required to analyze the elements of an
ineffectiveness claim in any particular order of priority; instead,
if a claim fails under any necessary element of the
ineffectiveness test, the court may proceed to that element first.
Finally, counsel cannot be deemed ineffective for failing to raise
a meritless claim.
Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations
omitted). As Appellant challenges the effectiveness of PCRA counsel – and
not trial counsel – he raises a layered ineffectiveness claim. While a layered
ineffectiveness claim presents a separate and distinct claim from the
underlying ineffectiveness claim, if the underlying ineffectiveness claim is
without merit then the resultant layered ineffectiveness claim is likewise
without merit. See Commonwealth v. King, 57 A.3d 607, 624 (Pa. 2012)
(citations omitted).
We conclude that in the instant case, Appellant’s layered
ineffectiveness claims fail for the same reason that the underlying claims of
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ineffectiveness fail. In his first claim of ineffectiveness, Appellant argues
that PCRA counsel was ineffective for failing to raise trial counsel’s alleged
ineffectiveness in not presenting evidence relating to the location of his cell
phone during the attack. Appellant argues that such evidence would have
given him an alibi. We agree with the PCRA court that failure to present
evidence relating to the location of Appellant’s cell phone did not cause
actual prejudice. The evidence presented at trial was overwhelming that
Appellant was at the crime scene and committed the attack. As noted
above, Appellant’s DNA was recovered from Victim’s vagina. Furthermore,
Victim was able to identify a tattoo of an infinity sign on Appellant’s thumb.
Victim was also able to identify Appellant’s voice and was certain that the
attacker had previously been in her home because he knew of the basement
door. Finally, comments made by the attacker during the course of the rape
included facts known only by Appellant. This evidence overcame any
probative value relating to the location of Appellant’s cell phone during the
attack as Appellant could have left his cell phone in another location while
assaulting Victim.
To the extent that Appellant argues that trial counsel was ineffective
for failing to call an expert witness to testify regarding his cell phone data,
that argument is without merit. “[T]o establish ineffectiveness for failing to
call an expert witness, an appellant must establish that the witness existed
and was available; counsel was aware of, or had a duty to know of the
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witness; the witness was willing and able to appear; and the proposed
testimony was necessary in order to avoid prejudice to the appellant.”
Commonwealth v. Weiss, 81 A.3d 767, 804 (Pa.2013) (citation omitted).
In this case, Appellant failed to show that an expert witness was willing and
able to appear at trial. As such, Appellant’s argument that trial counsel was
ineffective for failing to call an expert witness lacks arguable merit.
Accordingly, the corresponding layered ineffectiveness claim is without
merit.
In his second claim of ineffectiveness, Appellant argues that his PCRA
counsel was ineffective for failing to raise trial counsel’s alleged
ineffectiveness in failing to pursue Victim’s mental health records. Appellant
contends that Victim was a “woman scorned.” Appellant argues that Victim
engaged in consensual sexual intercourse with him on January 17, 2008 and
then concocted the story about the rape on January 18, 2008 in order to
retaliate for a miscarriage suffered by Victim in December 2007. According
to Appellant, Victim blamed him for the miscarriage and attempted to buy a
firearm on the date she learned of the miscarriage in order to exact revenge.
Appellant argues that Victim’s mental health records would have shown that
she was mentally unstable and that this evidence would have helped to
undermine Victim’s credibility.
We conclude that Appellant failed to plead and prove that failure to
seek Victim’s mental health records caused actual prejudice. The evidence -
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physical, documentary, and testimonial - was overwhelming that Appellant
was the individual that attacked Victim. The DNA test proved that Appellant
had sexual intercourse with Victim during the 24-hour period prior to the
test. The documentary evidence showed that Appellant contacted Victim
mere minutes after the attack. During her testimony, Victim was able to
identify Appellant as the attacker in multiple ways. First, she recognized his
voice during the attack. Second, only someone familiar with the house
would have escaped through the basement door. Third, she recognized a
tattoo on Appellant’s thumb. Fourth, the attacker relayed information only
known by Appellant. Finally, Victim recognized Appellant’s voice when he
called to ensure she had not reassembled her cell phone. Evidence of
Victim’s alleged mental disorders would not have overcome the probative
force of the inculpatory evidence. Because Appellant cannot demonstrate
actual prejudice, Appellant’s second claim of ineffectiveness fails.
In his third claim of ineffectiveness, Appellant argues that PCRA
counsel was ineffective for failing to raise trial counsel’s alleged
ineffectiveness in conceding that Appellant made an incriminating telephone
call and that the piece of tape introduced at trial had been used to restrain
Victim’s wrist.9 Appellant first argues that trial counsel conceded that
Appellant placed the incriminating phone call. Appellant’s counsel, however,
9
The Commonwealth argues this issue is waived for failure to develop it in
his brief. We disagree and conclude that the issue was properly developed
in Appellant’s brief.
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made no such concession. Instead, he merely examined the witness
regarding her testimony. See N.T., 1/19/11, at 65-66. Furthermore, even
if counsel had made such a concession, it did not actually prejudice
Appellant. As noted above, Victim testified that she recognized Appellant’s
voice. Thus, even if the telephone call came from a different phone, it could
still have been placed by Appellant.
Appellant also argues that the duct tape introduced at trial was used to
blind Victim, not restrain her wrists. We agree with the PCRA court that
Appellant failed to prove that trial counsel’s admission led to actual
prejudice. Whether the tape was used to restrain Victim’s wrists or blind her
did not impact the trial court’s finding that Appellant restrained Victim.
Therefore, all three of Appellant’s claims of ineffective assistance of trial
counsel are without merit. Accordingly, Appellant’s layered ineffective claim
fails.10
10
In addition to the three ineffectiveness claims discussed in his brief,
Appellant raised an additional claim of ineffectiveness in his PCRA petition,
i.e., trial counsel was ineffective for failing to call a witness to discuss the
circumstances surrounding Appellant’s apprehension. As Appellant failed to
develop that claim of ineffectiveness in his brief, it is waived. See Pa.R.A.P.
2101, 2119(a). Furthermore, even if the issue were preserved, we would
conclude that this claim is likewise without merit. Finally, Appellant raises
claims of ineffectiveness in his brief that were not properly preserved below,
e.g., trial counsel was ineffective for advising him to waive his right to a jury
trial. As such, those issues are also waived. See Pa.R.A.P. 302(a). Again,
even if the issue were preserved, we would conclude that this claim is
without merit.
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In his second issue, Appellant claims that the PCRA court abused its
discretion by not applying a more stringent standard of review when
reviewing PCRA counsel’s Turner/Finley letter. We disagree. The PCRA
court conducted an independent review of the record and determined that
the issues discussed in PCRA counsel’s Turner/Finley letter were without
merit. See PCRA Court Opinion, 1/22/15, at 6. Thus, the PCRA court
applied the proper standard of review when reviewing counsel’s
Turner/Finley letter. See Commonwealth v. Pitts, 981 A.2d 875, 876
(Pa. 2009).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2015
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