Com. v. Ridenbaugh, W.

J-S34006-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM E. RIDENBAUGH
Appellant No. 981 WDA 2013
Appeal from the PCRA Order May 8, 2013
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000166-2006
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 14, 2015
William E. Ridenbaugh appeals from the order entered on May 8, 2013,
in the Court of Common Pleas of Clarion County, after a hearing, denying
him relief on his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9541 et seq.1 Ridenbaugh claims trial counsel was
ineffective for (1) failing to properly advise him on entering a guilty plea;
and (2) failing to file a motion to suppress statement made during custodial
interrogation. After a thorough review of the submissions by the parties,
relevant law, and the certified record, we affirm.
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1
Ridenbaugh was convicted by a jury of third-degree murder and related
offenses. The trial court sentenced him to an aggregate term of 28-56
years’ incarceration.
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We rely upon the factual statement found in the PCRA court’s decision
of May 8, 2013. Because the parties are familiar with the facts, we will not
reiterate them herein. Rather, we refer to pages two through six of the
PCRA court opinion.
Initially, we note:
Our standard of review of a trial court order granting or denying
relief under the PCRA calls upon us to determine whether the
determination of the PCRA court is supported by the evidence of
record and is free of legal error. The PCRA court's findings will
not be disturbed unless there is no support for the findings in the
certified record.
Commonwealth v. Heredia, 97 A.3d 392, 394 (Pa. Super. 2014) (citation
omitted).
Additionally,
[I]n order to obtain relief based on [an ineffective assistance of
counsel] claim, a petitioner must establish: (1) the underlying
claim has arguable merit; (2) no reasonable basis existed for
counsel's actions or failure to act; and (3) 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.
Trial counsel is presumed to be effective, and Appellant bears
the burden of pleading and proving each of the three factors by
a preponderance of the evidence.
Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa. Super. 2014)
(citation omitted). Finally, “[c]ounsel is not ineffective for failing to raise
meritless claims.” Commonwealth v. Wright, 961 A.2d 119, 149 (Pa.
2008).
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In Ridenbaugh’s first issue, he argues counsel was ineffective for
failing to properly advise him on the “risks, hazards and prospects”2 of his
case. Because of this failure, Ridenbaugh claims he refused a negotiated
plea offer that would have resulted in the imposition of a 10-20 year term of
incarceration. Ridenbaugh specifically argues counsel improperly informed
him that if he accepted the offer, he would likely serve all of it. But for this
advice, Ridenbaugh claims he would have accepted the terms of the
negotiated plea, including the requirement he testify against his co-
defendant.
Regarding the circumstances surrounding a guilty plea, Ridenbaugh
correctly notes:
The decision whether to plead guilty or contest a criminal charge
is probably the most important single decision in any criminal
case. This decision must finally be left to the client's wishes;
counsel cannot plead a man guilty, or not guilty, against his will.
But counsel may and must give the client the benefit of his
professional advice on this crucial decision, and often he can
protect the client adequately only by using a considerable
amount of persuasion to convince the client that one course or
the other is in the client's best interest. Such persuasion is most
often needed to convince the client to plead guilty in a case
where a not guilty plea would be totally destructive.
Commonwealth v. Copeland, 554 A.2d 54, 60 (Pa. Super. 1988) (citation
omitted).
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2
Appellant’s Brief at 7.
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However, in Copeland, trial counsel failed to convey the existence of
an offer to his client. That is not the instant situation. The record
demonstrates that Ridenbaugh knew of the Commonwealth’s plea offers.
His claim of ineffective assistance of counsel is that counsel failed to fully
discuss the options.
Ridenbaugh is complaining about counsel’s failure to discuss a plea
offer of 10-20 years’ incarceration, however, this claim ignores the fact that
the Commonwealth had previously offered him a 7 to 20 year sentence,
which counsel recommended he accept, and which Ridenbaugh refused,
claiming he did not commit the crime and would not accept any jail time due
to his poor health. See N.T. PCRA Hearing, 11/21/2012, at 9, 24-28.
Additionally trial counsel testified he fully discussed the strengths and
weaknesses of the case and gave Ridenbaugh his professional opinion,
specifically, because Ridenbaugh had just been convicted of illegal drug and
weapons offenses in a different case, he would likely serve the majority of
the offered sentence.3
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3
Having reviewed the certified record, we see nothing to indicate that the
strengths and weaknesses of Ridenbaugh’s case changed between the first
offer of 7 to 20 years’ incarceration and the subsequent offer of 10 to 20
years’ incarceration. Moreover, Ridenbaugh has not claimed there was any
change in circumstances between the two plea offers. Therefore, any
discussions regarding the first plea would be applicable to the second.
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Based upon this evidence, the PCRA court determined trial counsel had
properly discussed the plea offers with Ridenbaugh and, therefore,
Ridenbaugh’s decision not to accept the plea was fully informed and not the
product of ineffective assistance of counsel. The PCRA court did not abuse
its discretion or commit an error of law in denying this claim.
Ridenbaugh’s second claim is that trial counsel was ineffective for
failing to file a motion to suppress statements made to the police during his
August 12, 2005 and September 1, 2005 interviews. Ridenbaugh claims
both instances were custodial interrogations. In the first, he argues he was
not provided his Miranda4 rights; in the second, he argues he was
represented by counsel in a different case and therefore could not validly
waive his Miranda rights without access to that counsel. Both of these
claims fail.
Miranda warnings are only required when a defendant is subject
to a custodial interrogation. Commonwealth v. Fisher, 564 Pa.
505, 769 A.2d 1116, 1125 (2001); Commonwealth v.
Johnson, 556 Pa. 216, 727 A.2d 1089, 1100 (1999);
Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143, 149
(1998); Commonwealth v. Jones, 546 Pa. 161, 683 A.2d
1181, 1188 (1996). A person is in custody for purposes of
Miranda only when the objective circumstances suggest that
she was physically deprived of her freedom or was in a situation
where she reasonably could have believed that her freedom of
movement was being restricted. See Commonwealth v.
Gibson, 553 Pa. 648, 720 A.2d 473, 480 (1998);
Commonwealth v. Rucci, 543 Pa. 261, 670 A.2d 1129, 1139
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4
Miranda v. Arizona, 384 U.S. 436 (1966).
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(1996). See also Stansbury v. California, 511 U.S. 318, 322,
114 S. Ct. 1526, 1528-29, 128 L. Ed. 2d 293 (1994) (per curiam)
(“‘the ultimate inquiry is simply whether there [was] a formal
arrest or restraint on freedom of movement of the degree
associated with a formal arrest’”) (quoting California v.
Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77
L. Ed. 2d 1275 (1983)) (further citation omitted). The fact that
the officer questioning a person has “focused” on that individual
does not in itself prove custody for Miranda purposes. See
Minnesota v. Murphy, 465 U.S. 420, 431, 104 S. Ct. 1136,
1144, 79 L. Ed. 2d 409 (1984); Beckwith v. United States, 425
U.S. 341, 347-48, 96 S. Ct. 1612, 1616-17, 48 L. Ed. 2d 1 (1976).
Similarly, the fact that the officer subjectively believes that the
individual being interviewed is a suspect is irrelevant to the
question of custody, if the officer has not communicated the fact
to the individual. Stansbury, 511 U.S. at 324, 114 S.Ct. at 1530
(“Save as they are communicated or otherwise manifested to the
person being questioned, an officer's evolving but unarticulated
suspicions do not affect the objective circumstances of an
interrogation or interview, and thus cannot affect the Miranda
custody inquiry.”); Gibson, 720 A.2d at 480 (“[T]he test for
custodial interrogation does not depend upon the subjective
intent of the law enforcement officer interrogator. Rather, the
test focuses on whether the individual being interrogated
reasonably believes his freedom of action is being restricted.”)
(quoting Commonwealth v. Williams, 539 Pa. 61, 650 A.2d
420, 247 (1994)).
Commonwealth v. Smith, 836 A.2d 5, 18 (Pa. 2003).
Regarding the first interview, conducted on August 12, 2005, the PCRA
court concluded Ridenbaugh was not subject to a custodial interrogation,
and therefore, was not entitled to Miranda warnings. Our review of the
certified record leads us to agree with the PCRA court’s determination. The
PCRA court opinion states:
Ridenbaugh argues that when he as picked up by Trooper Powell
and transported to the Clarion barracks for an interview he was
in custody and should have been given his Miranda warnings.
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He points to the fact that he was transported to the barracks by
Trooper Powell and had no way of leaving on his own and the
total time between when he was picked up and dropped off was
over five hours. Ridenbaugh asserts that during the interview,
he was detained in a locked interrogation room with multiple
officers present.[5] He believes the totality of the circumstances
show the interview was so coercive that he was in fact in
custody.
Considering the totality of the circumstances, Ridenbaugh is
incorrect. Prior to the August 12, 2005 interview, Ridenbaugh,
by his own admission, had met voluntarily with police on
multiple occasions. On June 5, 2005, one of those voluntary
meetings took place at the Clarion barracks.
On August 12, 2005, Trooper Powell was not overly coercive
when he picked up Ridenbaugh. He spotted him riding his 4-
wheeler down the road and asked him to get in the police car.
Ridenbaugh complied. Trooper Powell told him to push the 4-
wheeler behind a tree and Ridenbaugh got in the front seat of
the police car. He was not handcuffed or touched in any way.
It is not clear exactly how long Ridenbaugh was at the barracks
being interviewed, but Trooper Powell testified he was not
interviewed for the entire five hours. During the interview, both
the troopers and Ridenbaugh agreed that one of the main topics
of conversation was Jesse McFadden. Ridenbaugh agreed to
wear a wire and to discuss the murder with McFadden. The
troopers spent time during the interview going over the
procedures of him wearing the wire. On the night of August 12,
2005, Ridenbaugh did in fact wear a wire during his interactions
with Jesse McFadden. He wore the wire again on two more
occasions. He was also given a cell phone to contact the
troopers.
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5
Trooper Powell testified the interview took place in the “Crime Unit”, a
room “probably 24 feet wide and some 30 feet long, a couple of desks and
so forth in there.” See N.T. PCRA Hearing at 71. Additionally, “You can
leave by just pushing the door, but to get in you have to have somebody
push the button.” Id.
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With Jesse McFadden being the primary subject of the interview
it is reasonable to conclude that Ridenbaugh was present at the
barracks as a witness and not as a suspect. He was working
with the troopers in the general investigation and specifically
their investigation of Jesse McFadden.
Approximately forty one minutes of the August 12, 2005
interview was recorded. The first question Trooper Felmlee
asked Ridenbaugh on the record was, “Bill you understand that
you’re here voluntarily?” Ridenbaugh responded, saying “That’s
correct.” He then proceeded to give a statement to the police
which strongly implicated Jesse McFadden in the murder, while
reiterating that he never had left his house.
It is true Ridenbaugh had no ride to get back to his home from
the barracks other than the troopers, however, at no time did
Ridenbaugh refuse to answer any questions, refuse to cooperate,
or communicate in any way that he wished to end the interview
and be transported home. It appears from the conduct of the
officers that had he made such a request, the interview would
have ended and the police would have transported him back
home without delay.
This court finds that Ridenbaugh was not prejudiced by attorney
Vrobel’s [defense counsel] failure to present a suppression
motion regarding the August 12, 2005 interview because
Ridenbaugh was not in custody and he would not have prevailed
on his motion.
Additionally, Ridenbaugh failed to meet the prejudice prong of
the test regarding the August 12, 2005 interview because he
failed to demonstrate there is a reasonable probability that, but
for attorney Vrobel’s error, the outcome of the trial would have
been different. Ridenbaugh has failed to point to any statement
he gave during the August 12, 2005 interview that prejudiced
him at trial. In fact, the record shows that at the interview he
was working with the troopers in their investigation of Jesse
McFadden. He agreed to wear a wire to obtain additional
incriminating evidence against McFadden. Any statement he did
give at the August 12, 2005 interview affirmed that Jesse
McFadden committed the murder on his own while Ridenbaugh
remained at his residence. Having failed to meet the prejudice
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prong of the test for ineffectiveness, Ridenbaugh’s claim
regarding the August 12, 2005 interview fails.
PCRA Court Opinion, 5/10/2013 at 11-14.
Based on our review, the record fully supports the PCRA court’s
findings and, in light of the standard set forth in Smith, supra, we discern
no error of law in the determination that Ridenbaugh was not entitled to
relief on this claim. We agree with the PCRA court’s findings that under the
totality of the circumstances, it appears that the August 12, 2005 meeting
was in the nature of an interview with a cooperating witness, and further,
Ridenbaugh has pointed to no statement from the August 12, 2005 interview
that prejudiced him a trial.
Regarding the September 1, 2005, interview, Ridenbaugh admits he
was given the Miranda warnings and signed a waiver. However, he claims
that because he had been appointed counsel for a separate (drug) crime, the
police were required to question him only in the presence of counsel and
therefore, the signed waiver was invalid. This claim would have arguable
merit if Ridenbaugh had, at any time, claimed he had invoked his Fifth
Amendment right to counsel in his drug case. Because he did not, he cannot
prevail.
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Here, the PCRA court correctly notes the difference between a person’s
Fifth Amendment right to counsel and a Sixth Amendment right to counsel,6
and the import of that difference to the outcome of this matter. By way of
background, at the time of the September 1, 2005 interview, Ridenbaugh
had been arrested and was in custody on drug charges that were unrelated
to the murder charge instantly at issue. Pursuant to the Sixth Amendment,
Ridenbaugh had been appointed counsel to defend him against the drug
charges. However, because he had not been arrested for murder, no Sixth
Amendment right to counsel attached to that case. Further, the PCRA court
correctly notes that a Sixth Amendment right to counsel is offense specific,
and cannot be invoked once for all future prosecutions. See
Commonwealth v. Wyatt, 669 A.2d 954, 956 (Pa. Super. 1996) citing
United States v. Gouveia, 467 U.S. 180, 104 S. Ct. 2922 (1984). It is
undenied that Ridenbaugh invoked his Sixth Amendment right to counsel for
his drug charge. However, he had no Sixth Amendment right to counsel for
the murder charge because he had not been charged with that crime.
Therefore, the fact that Ridenbaugh was represented by counsel in a
different matter is not, by itself, helpful to Ridenbaugh.
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6
The Fifth Amendment right to counsel is based upon due process rights and
the prohibition against compelled self-incrimination. The Sixth Amendment
right to counsel is based on the explicit language that “In all criminal
prosecutions the accused shall have the right…to have the Assistance of
Counsel for his defense.” U.S.Const., Amend VI.
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Therefore, the Miranda waiver must be examined under the Fifth
Amendment. A person’s Fifth Amendment right to counsel is not offense
specific. Wyatt, supra, 669 A.2d at 957, citing Arizona v. Roberson, 486
U.S. 675 (1988). Further, Wyatt acknowledges that once a person invokes
his Fifth Amendment right to counsel, the police may not initiate any further
questioning of the defendant in the absence of counsel. Id., citing Edwards
v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). Wyatt holds that once a
person invokes his Fifth Amendment right to counsel, that invocation
operates, pursuant to Roberson, to prevent the police from questioning a
defendant on any offense unless counsel is present. Id. Accordingly, for
Ridenbaugh to prevail on this claim, he was required to demonstrate that he
had invoked his Fifth Amendment right to counsel in his drug case.
Ridenbaugh never asserted, much less proved, that he had invoked his Fifth
Amendment right to counsel in his drug case. Therefore, the fact that he
was represented in the drug case, without ever invoking his Fifth
Amendment rights in that case, did not prevent the troopers from
questioning him regarding the murder. Because the troopers were entitled
to initiate questioning, Ridenbaugh was entitled to waive his Miranda rights
without counsel being present.
Accordingly, we agree with the PCRA court that the waiver was valid
and Ridenbaugh would not have prevailed in an attempt to suppress any
statements or other evidence that was a product of the September 1, 2005,
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interview. Counsel cannot be ineffective for failing to file a meritless motion.
Wright, supra.
Ridenbaugh’s final two issues were impliedly rejected in the prior
appeal;7 however, we will briefly discuss them.
Ridenbaugh argues that trial counsel was ineffective for failing to
object to hearsay evidence presented at trial. However, the PCRA court
noted in both the order denying the petition without a hearing, 3/11/2011,
and in its Pa.R.A.P. 1925(a) Opinion, 5/10/2011, that Ridenbaugh failed to
identify any specific hearsay statement. PCRA Court Opinion at 2.
Additionally, the PCRA court reviewed the notes of testimony and failed to
locate any such objectionable testimony. The PCRA court speculated
Ridenbaugh might have been complaining about the testimony of Corporal
Felmlee, who testified about what Ridenbaugh told Trooper Davis during an
interview. However, Corporal Felmlee was present at that interview, and so
was testifying from first-hand knowledge, not hearsay. Id. The record
supports this determination and Ridenbaugh is not entitled to relief on this
issue.
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7
In the prior appeal, the PCRA court had denied all of Ridenbaugh’s claims
without a hearing. A panel of this Court remanded for hearing on the two
issues discussed above. That memorandum implied that the other issues
were properly disposed of by the PCRA court. However, the prior decision
did not expressly affirm the PCRA court on the remaining issues. Therefore,
in an abundance of caution, we expressly affirm the PCRA court on the
remaining issues.
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Finally, Ridenbaugh claims PCRA counsel was ineffective for failing to
investigate and request a hearing on the above discussed issues. However,
counsel cannot be ineffective for failing to pursue meritless claims. See
Wright, supra. See also, Commonwealth v. Roney, 79 A.3d 595, 604
(Pa. 2013) (no PCRA hearing required when there are no genuine issues of
material fact, defendant is not entitled to relief and no legitimate purpose
would be served by a hearing).
Having determined that all issues raised by Ridenbaugh in both the
initial PCRA petition and those issues addressed pursuant to the remand are
meritless, we affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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