Com. v. Mehl, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RYAN ANDREW MEHL
Appellant No. 793 MDA 2016
Appeal from the PCRA Order April 21, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004500-2013
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 10, 2017
Ryan Andrew Mehl appeals from the order entered April 21, 2016, in
the York County Court of Common Pleas dismissing his petition for collateral
relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-
9546. Mehl seeks relief from the judgment of sentence of an aggregate
term of five to 10 years’ imprisonment, imposed following his jury conviction
of sexual assault, indecent assault without consent, and indecent assault of
an unconscious person.1 On appeal, he argues the PCRA court erred in
dismissing his claims asserting trial counsel’s ineffectiveness for: (1) failing
to meet with him and discuss trial strategy; (2) failing to adequately discuss
the waiver of his right to testify; and (3) failing to object when the court
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1
See 18 Pa.C.S. §§ 3124.1 and 3126(a)(1) and (a)(4), respectively.
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entered the jury room during deliberations. For the reasons below, we
affirm.
The facts presented during Mehl’s jury trial were recounted in detail in
this Court’s memorandum decision affirming his sentence on direct appeal.
See Commonwealth v. Mehl, 120 A.3d 389 [877 MDA 2014] (Pa. Super.
2014) (unpublished memorandum at 3-8). Therefore, we need not reiterate
them herein. To summarize, Mehl sexually assaulted a friend of his sister-
in-law after the victim had passed out following a night of drinking. He was
subsequently charged with rape of an unconscious person,2 sexual assault,
and two counts of indecent assault. The case proceeded to a jury trial. On
January 24, 2014, the jury returned a verdict of guilty on one count of
sexual assault, and two counts of indecent assault (without consent and
unconscious person). The jury was unable to reach a verdict on the charge
of rape.
On May 2, 2014, represented by new counsel, Mehl appeared for
sentencing and presented an oral motion for extraordinary relief pursuant to
Pa.R.Crim.P. 704(B). Mehl argued: (1) the trial court erred in denying an
oral suppression motion he made during trial and permitting the
Commonwealth to introduce testimony of a statement he made to a police
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2
18 Pa.C.S. § 3121(a)(3).
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investigator absent Miranda warnings;3 and (2) trial counsel was ineffective
for advising him not to testify and for failing to present character witnesses.
The court denied the motion before proceeding to sentencing. Thereafter,
Mehl was sentenced to a term of five to 10 years’ imprisonment for sexual
assault, and a concurrent term of one to two years’ imprisonment for
indecent assault of an unconscious person. The court also imposed a
consecutive period of two years’ probation for the second indecent assault
charge.
Mehl filed a timely direct appeal challenging the sufficiency of the
evidence and the trial court’s denial of his oral suppression motion. A panel
of this Court affirmed his judgment of sentence on February 23, 2015. See
Mehl, supra. Mehl did not petition the Supreme Court for allowance of
appeal. Thereafter, on December 23, 2015, Mehl filed a timely, pro se PCRA
petition asserting the ineffectiveness of trial counsel for failing to file a
pretrial suppression motion, failing to prepare for trial, and granting the
court permission to enter the jury room during deliberations. See Motion for
Post Conviction Collateral Relief, 12/23/2015, at 4. Counsel was promptly
appointed and filed an amended petition on February 29, 2016, asserting
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3
See Miranda v. Arizona, 384 U.S. 426 (1966). During trial, Mehl
presented an oral motion to suppress a statement he made to an
investigator while he was in a drug rehab facility. The court held a truncated
hearing, and denied the motion. See N.T., 1/22-24/2014, at 279-289.
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claims of trial counsel’s ineffectiveness. The PCRA court conducted a hearing
on March 2, 2016, and, on April 21, 2016, denied Mehl’s petition. This
timely appeal follows.4
When reviewing an order dismissing a PCRA petition, we must
determine whether the PCRA court’s findings of fact are supported by the
record, and whether its legal conclusions are free from error.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference
is granted to the findings of the PCRA court, and these findings will not be
disturbed unless they have no support in the certified record.”
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation
omitted). Moreover, “[t]he PCRA court’s credibility determinations, when
supported by the record, are binding on this Court.” Commonwealth v.
Spotz, 18 A.3d 244, 259 (Pa. 2011).
Moreover, where, as here, all of the petitioner’s claims assert trial
counsel’s ineffectiveness, our review is well-settled:
“[C]ounsel is presumed effective, and [appellant] bears the
burden of proving otherwise.” To prevail on an ineffectiveness
claim, appellant must establish: (1) the underlying claim has
arguable merit; (2) no reasonable basis existed for counsel’s
actions or failure to act; and (3) [appellant] 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
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4
On May 31, 2016, the court ordered Mehl to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mehl
complied with the court’s directive, and filed a concise statement on June
15, 2016.
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different absent such error. Failure to prove any prong of this
test will defeat an ineffectiveness claim.
Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (internal citations
and footnote omitted).
In his first issue, Mehl contends trial counsel was ineffective for failing
to meet with him and discuss defense strategy before trial. In support of
this claim, Mehl states he met with counsel only twice before his jury trial –
the first time, for 15 minutes in October of 2012, and the second time, for
15 minutes prior to the start of trial in January of 2013. See Mehl’s Brief at
8-9. Further, Mehl maintains he attempted to call counsel 50 times before
trial, but was never able to reach him. See id. at 9. Mehl’s father
corroborated these allegations at the PCRA hearing, testifying Mehl tried to
contact counsel “at least three times a day and three days a week before
trial.” Id. Mehl argues there can be no reasonable basis for counsel’s “lack
of communication.” Id. at 10. Moreover, he asserts counsel’s failure to
communicate with him and discuss trial strategy prevented him “from
participating in his own defense and providing critical, exculpatory evidence”
which would have change the outcome of the trial. Id. at 11.
Here, the PCRA court concluded that Mehl failed to meet his burden of
establishing counsel’s ineffectiveness. See PCRA Court Opinion, at 7. The
court noted trial counsel testified that he spoke with Mehl several times
before trial. See id. at 5-6. Our review of the PCRA hearing testimony
supports this finding. Trial counsel testified he spoke with Mehl “at least
once on the phone prior to the pre-trial conference, at the pre-trial
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conference, the one time in our office [in October 2013], and at least one
other time on the telephone between that October date and trial as well as
prior to trial.” N.T., 3/2/2016, at 35. Although counsel acknowledged he
probably never returned any messages Mehl may have left him, he stated, “I
talked to him when he caught me in the office.” Id. at 45. With regard to
trial strategy, counsel explained Mehl’s version of the events was consistent
during their conversations, in that Mehl “admitted to the [sexual] conduct
but not to the criminality.” Id. at 35. This Court has previously found a
challenge to counsel’s stewardship based solely on the length and frequency
of counsel’s consultations with the defendant does not support a finding of
ineffectiveness. See Commonwealth v. Johnson, 51 A.3d 237, 244 (Pa.
Super. 2012) (en banc) (finding that although “more contact may have been
advisable,” in preparation for defendant’s first-degree murder trial, the
attorney’s contact “allowed him to present a cogent trial strategy.”), appeal
denied, 63 A.3d 1245 (Pa. 2013). Accordingly, Mehl’s claim has no arguable
merit.
Furthermore, we find Mehl has failed to establish he was prejudiced by
counsel’s purported lack of contact. Indeed, while Mehl claims the lack of
communication with counsel prevented him from “providing critical,
exculpatory evidence[,]” he fails to identify this evidence or explain how the
outcome of the trial would have been different. Mehl’s Briel at 11.
Accordingly, he is entitled to no relief.
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In his second issue, Mehl contends trial counsel was ineffective for
failing to “adequately discuss [his] right to testify prior to advising [him] to
not testify.” Id. at 11. Mehl claims he was “eager to testify; mainly to tell
his version of events and maintain his innocence.” Id. at 12. However,
counsel advised him not to testify in order to preserve a potential
suppression issue on appeal.5 Mehl acknowledges that following a “brief
conversation with trial counsel, [he] followed counsel’s advice and did not
testify.” Id.
With regard to the ineffectiveness prongs, Mehl argues counsel’s
failure to “adequately discuss his right to testify” has arguable merit, and
counsel had no reasonable basis for this omission. Id. Mehl asserts the
case was dependent upon circumstantial evidence, and without his
testimony, the jury was “provided with only the Commonwealth’s version of
events.” Id. at 13. Finally, he claims he suffered prejudice because he “was
denied the opportunity to rebut the Commonwealth’s evidence with his own
factual testimony and exculpatory evidence.” Id.
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5
At the PCRA hearing, counsel explained Mehl wanted to appeal the trial
court’s decision denying his oral suppression motion. See N.T., 3/2/2016,
at 41-42. Counsel acknowledged he advised Mehl not to testify because he
anticipated Mehl’s testimony would confirm what Mehl told the investigator.
See id. at 42. Counsel feared that any error with regard to the admission of
Mehl’s statement would then be viewed as harmless error on appeal. See
id. Counsel also stated he was concerned how Mehl would be viewed by the
jury because “his attitude toward the whole thing was very flippant at
times.” Id. at 50.
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Preliminarily, we note:
The decision of whether or not to testify on one’s own behalf is
ultimately to be made by the defendant after full consultation
with counsel. In order to sustain a claim that counsel was
ineffective for failing to advise the appellant of his rights in this
regard, the appellant must demonstrate either that counsel
interfered with his right to testify, or that counsel gave specific
advice so unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (internal
citations omitted). Our review of the trial transcript reveals that at the close
of the Commonwealth’s case-in-chief, trial counsel indicated Mehl had
elected to testify on his own behalf, but asked for a brief recess, which the
trial court granted. See N.T., 1/22-24/2014, at 333. After the recess,
counsel informed the court that Mehl decided not to testify. The following
exchange took place:
THE COURT: … All right, Mr. Mehl, did you have enough time to
consider the decision about whether you wish to testify or not?
[MEHL]: Yes, Your Honor.
THE COURT: And what do you want to do?
[MEHL]: I’m choosing not to testify, I believe the facts are out
there.
THE COURT: All right, do you have any question about your
rights in this regard?
[MEHL]: No, Your Honor.
THE COURT: The Court finds that Mr. Mehl has knowingly,
voluntarily and intelligently elected not to testify in this matter.
Id. at 334-335.
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We again agree with the conclusion of the PCRA court that no relief is
due on this claim. See PCRA Court’s Opinion, 4/20/2016, at 6-7. The
colloquy performed by the trial court demonstrated that Mehl’s decision not
to testify was his own, and made after adequate consultation with counsel.
Moreover, counsel provided a reasonable basis for his advice, stating he
believed Mehl’s testimony would harm a legitimate appellate issue, and he
feared Mehl’s attitude might not be well received by the jury. See N.T.,
3/2/2016, at 41-42, 50. Furthermore, Mehl failed to demonstrate how he
was prejudiced by counsel’s advice. While Mehl claims the jury did not hear
his “factual testimony,” the jury did hear, through his statement to the
police investigator, that he believed the sexual contact was consensual, and
initiated by the victim. See N.T, 1/22-24/2014, at 295, 298. See also id.
at 339-343 (explaining Mehl’s recount of the incident through his statement
to the investigator). Mehl does not identify any “exculpatory evidence” or
testimony he would have provided had he testified at trial that would have
raised a “reasonable probability that the result of the proceeding would have
been different[.]” Fears, supra, 86 A.3d at 804. Therefore, no relief is
warranted on this claim.
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Mehl’s final allegation of counsel’s ineffectiveness focuses on counsel’s
failure to object when the trial court entered the jury room during
deliberations.6 This issue is based on the following facts.
During deliberations, the trial court received a note from the jury
indicating they were “having difficulty with one of the charges” and asking
the court how to proceed. N.T., 2/22-24/2014, at 406. The court provided
further instructions in the courtroom, and then sent the jury back to
continue deliberations. Later, the jury sent another note explaining they
were “hung” on one of the charges, and had made no further progress. Id.
at 417. At that point, the trial court stated the following to counsel:
I’m going to have them come out and take the verdict on the
charges that we have reached a decision on, and I will first make
an inquiry if there is anything else that the Court can provide to
them that may assist them, or if they need more time.
But before I do that, with the consent of both counsel, I’m going
to briefly stick my head [in] the jury room to make sure that
they’ve completed the verdict slip for the three charges on which
they’ve reached a verdict, and that they’ve signed all 12
signatures to the verdict slip as required under the procedure.
Id. The court asked both prosecution and defense counsel if that procedure
was “okay” with them, to which they both responded, “Yes, Your Honor.”
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6
We note while PCRA counsel did not include this issue in his amended
petition, Mehl preserved the claim in his pro se petition, and the PCRA court
permitted testimony on the claim at the PCRA hearing. On appeal, PCRA
counsel concedes that the claim lacks merit. See Mehl’s Brief at 14.
However, in the interests of justice, we will address it, as did the PCRA
court. See PCRA Court Opinion, 4/20/2016, at 7-10.
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Id. Shortly thereafter, the jury returned with the verdict. See id. at 418.
At the PCRA hearing, trial counsel testified that he could not recall if Mehl
was in the courtroom during that exchange. See N.T., 3/2/2016, at 49.
The PCRA Court addressed this issue as follows:
After review of the pertinent case law, we find [Mehl’s]
claim of error meritless. In Commonwealth v. Bradley,15 the
Pennsylvania Supreme Court announced that it was eliminating
the presumption of prejudice in cases involving unauthorized
contact between a judge and the jury, which had been
established in prior case law.16 Bradley requires that the
moving party show that “a reasonable likelihood of prejudice”
resulted from the trial court’s ex-parte communication with the
jury before the reviewing court grants relief.17
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15
459 A.2d 733, 739 (Pa. 1983); see also
Commonwealth v. Young, 748 A.2d 166, 175 (Pa. 1999)
(stating “where there has been ex parte contact between
the court and jury in a criminal case, we are constrained to
reverse the defendant’s conviction unless there is no
reasonable possibility that the error might have
contributed to the conviction.”).
16
Argo v. Goodstein, 228 A.2d 195 (Pa. 1967).
17
Bradley, 459 A.2d at 739.
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Here, the trial judge stated that he wanted to inquire
whether the jury completed the verdict form. As evidenced by
the jury’s prior two notes, there were hung on one charge and
the resulting verdict was consistent in the respect. There was no
evidence presented that the judge’s communication was more
than administrative in nature, or that the jury was influenced
either way by the judge. In absence of a showing of prejudice,
no relief is warranted.18
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18
Commonwealth v. Daniels, 104 A.3d 267, 296 (Pa.
2014) (stating that, “Pennsylvania law generally requires a
showing that ex parte communications with a jury resulted
in prejudice in order to warrant relief.”).
PCRA Court Opinion, 4/20/2016, at 9-10.
Our review of the record and the pertinent case law reveals no basis to
disturb the PCRA court’s ruling. The interaction between the trial court and
the jury, after the jury indicated they were unable to reach a verdict on one
count, appears to have been only administrative, that is, to ensure the
jurors had signed the verdict slip. Indeed, after speaking with the jurors,
the court returned to the courtroom and stated: “All right, good thing that I
did that because they need to complete that. Just give them a couple of
minutes to sign that and bring them out.” N.T., 1/22-24/2014, at 418.
Because “counsel is not ineffective for failing to raise a meritless objection,”
we find Mehl is entitled to no relief. Commonwealth v. Spotz, 47 A.3d 63,
82 (Pa. 2012).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2017
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