J-S07008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 877 MDA 2014


        Appeal from the Judgment of Sentence Entered May 2, 2014
               In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0004500-2013


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED FEBRUARY 23, 2015

      Appellant, Ryan Andrew Mehl, appeals from the judgment of sentence

of an aggregate term of five to ten years’ incarceration, followed by two

years’ probation, imposed after a jury convicted him of sexual assault,

indecent assault without consent, and indecent assault of an unconscious

person. After careful review, we affirm.

      Appellant was arrested and charged with the above-stated offenses in

March of 2013. In January of 2014, he proceeded to a jury trial and was

convicted.    Appellant was subsequently sentenced to five to ten years’

incarceration for his sexual assault conviction; a concurrent term of one to

two years’ incarceration for his offense of indecent assault of an unconscious

person; and a consecutive term of two years’ probation for his conviction of

indecent assault without consent. Appellant filed a timely notice of appeal,
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as well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. Herein, he raises four issues for our review:

      I. Whether the trial court erred in concluding that the
      Commonwealth presented sufficient evidence at trial to sustain a
      conviction on the charge of Sexual Assault?

      II. Whether the trial court erred in concluding that the
      Commonwealth presented sufficient evidence at trial to sustain a
      conviction on the charge of Indecent Assault pursuant to 18
      Pa.C.S.A. §[]3126(a)(1)?

      III. Whether the trial court erred in concluding that the
      Commonwealth presented sufficient evidence at trial to sustain a
      conviction on the charge of Indecent Assault pursuant to 18
      Pa.C.S.A. §[]3126(a)(4)?

      IV. Whether the trial court erred in denying [Appellant’s] oral
      motion for suppression and exclusion of his alleged statement to
      the affiant?

Appellant’s Brief at 5.

      Appellant’s first three issues challenge the sufficiency of the evidence.

We will address these claims together, applying the following standard of

review:

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).




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      Appellant challenges his convictions for sexual assault, indecent

assault without consent, and indecent assault of an unconscious person. A

person commits sexual assault “when that person engages in sexual

intercourse or deviate sexual intercourse with a complainant without the

complainant's consent.” 18 Pa.C.S. § 3124.1. The term ‘sexual intercourse’

is defined in the Crimes Code as follows: “In addition to its ordinary

meaning, [sexual intercourse] includes intercourse per os or per anus, with

some penetration however slight; emission is not required.”     18 Pa.C.S. §

3101. Appellant’s indecent assault offenses are defined in 18 Pa.C.S. § 3126

as follows:

      (a) Offense defined.--A person is guilty of indecent assault if
      the person has indecent contact with the complainant, causes
      the complainant to have indecent contact with the person or
      intentionally causes the complainant to come into contact with
      seminal fluid, urine or feces for the purpose of arousing sexual
      desire in the person or the complainant and:

         (1) the person does so without the complainant's consent;


         …

         (4) the complainant is unconscious or the person knows
         that the complainant is unaware that the indecent contact
         is occurring;

18 Pa.C.S. § 3126(a)(1), (a)(4).    “Indecent contact” is defined as “[a]ny

touching of the sexual or other intimate parts of the person for the purpose

of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

      To prove these offenses at trial, the Commonwealth presented the

following evidence.   First, the victim in this case, S.R., testified that in


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December of 2012, she was visiting her childhood friend, Amy Justice, at the

home of Amy’s sister, Jessica. N.T., 1/22/14-1/24/14, at 131-133. Jessica

lived at the home with her husband, Appellant, and their two children. Id.

at 186. Appellant was present at the home when S.R. and Amy arrived. Id.

at 137. S.R., Amy, and Jessica began drinking heavily and playing drinking

games. Id. at 137-143. The women were consuming vodka mixed drinks,

as well as vodka shots.     Id. at 137-138, 143.      S.R. stated she had

approximately two mixed drinks, as well as about seven shots of vodka

during a 30 to 45 minute period when the women were playing a game

called “Power Hour.” Id. at 142-143. During this time, Appellant was not

present. Id. at 142.

     S.R. testified that at some point, she began playing video games with

Jessica’s oldest child. Id. at 144. The next thing S.R. recalled was “being

on the couch with [Appellant] above [her]….” Id. at 145. S.R. testified that

Appellant did not have clothing on, and while she knew she did not have

pants on, she was unsure if her underwear was on or off. Id. at 146, 147-

48. S.R. stated that Appellant was positioned “between [her] legs” and she

“felt pain in [her] genital area….” Id. at 148, 149. S.R. clarified that the

pain emanated from her vagina. Id. at 149. S.R. testified that she tried to

push Appellant away, and he got off her after he “look[ed] towards the

kitchen, as if hearing someone….”    Id. at 151.   S.R. then “rolled off the

couch and … crawled towards [her] shoes and just slipped them on.”      Id.

She “grabbed [her] phone and ran outside[,]” calling her boyfriend and

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asking him to come get her. Id. As [S.R.] was standing outside the home,

Appellant came out and offered to drive her to a nearby store to meet her

boyfriend. Id. at 152. During the ride to the store, Appellant said that S.R.

was “making him feel bad[,]” and told S.R. that she had “kissed [him]….”

Id. S.R. admitted that she could not recall how the “contact between [her]

and [Appellant] began[,]” but she was adamant that she would not have

initiated the incident with Appellant because he was married with children.

Id. at 152, 173, 174-175.

         The Commonwealth also called Amy Justice to the stand at Appellant’s

trial.    She corroborated S.R.’s testimony that she, S.R., and her sister,

Jessica, were drinking heavily and playing games on the night in question.

Id. at 247-252. Amy testified that S.R. became sick and vomited “at least

twice.” Id. at 252. Amy said that during this time, Appellant “tried to help”

S.R. by bringing her “napkins and water.” Id. at 252-253. Appellant also

helped Amy get S.R. downstairs and onto the couch, as S.R. “was not able

to walk by herself[.]” Id. While Appellant and Amy were “carrying [S.R.]

downstairs,” S.R. was talking, but was not making “too much sense[,]” and

Amy “couldn’t understand her.” Id. at 253. Amy then testified:

         [Amy:] I asked [S.R.] if she was okay and needed anything and
         [whether she wanted to] sleep upstairs in my room with me or
         sleep on the couch. And I tried to get as much information out
         of her as I could, and it wasn’t really working.

         [The Commonwealth:]      So she wasn’t responsive to your
         questions?




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     [Amy:] Not really. She would nod and she wasn’t really saying
     anything of substance.

     [The Commonwealth:] And you said that you were taking [S.R.]
     downstairs, what did you do after you got downstairs?

     [Amy:] I believe he actually -- [Appellant] actually carried her to
     the couch and laid her on the couch.

     [The Commonwealth:] And you mean carried, supported her
     walking?

     [Amy:] Not really, like fully carried her, but I guess it was kind
     of simpler to walk her there. I don’t know. But then I got her
     some napkins and water and a trash can and all of that stuff so
     she was like set up and posted on the couch.

     [The Commonwealth]: And what was [Appellant] doing when
     you were doing that?

     [Amy:] He was in and out of the kitchen. I think he went
     outside to smoke a cigarette at one point. I wasn’t worried
     about him, he was worried about her. I then walked into the
     kitchen, talked about starting pancakes. …

     And I had walked back into the living room after I had left [S.R.]
     in there and [Appellant] was knelt down by her face and he got
     up real fast. And I said, what were you doing, and he said, I
     was taking her hair out of her face so it wouldn’t get in the throw
     up. I didn’t think anything of it at that time.

     [The Commonwealth:] And was [S.R.] awake at that point?

     [Amy:] No.

     [The Commonwealth]: And what happened after that?

     [Amy:] I said -- like, the way that my house was set up, the
     stove was by the fridge and doorway and I posted up in the
     corner, leaning against the fridge, and [Appellant] was making
     pancakes on the stove right beside me.

     …

     And I don’t know whether I wanted to smoke a cigarette or what
     the situation was, but I went upstairs and he was to bring me
     my pancakes when they were done. And I smoked like four
     cigarettes and I’m like, where are my pancakes.

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     I went back downstairs and he was in and out of the living room
     and I was [like], where are my pancakes what is going on. And
     he’s like, oh, right there. And I grabbed them, [and asked him,
     “]are you coming upstairs[?”] [He said, “]I’ll be right there.[”]
     And I waited 20 minutes and finished the pancakes and smoked
     another cigarette or two and at that point he didn’t come up and
     I went to bed.

     [The Commonwealth:] And, Amy[,] when you put [S.R.] on the
     couch, did she fall asleep or pass out or what happened?

      [Amy:] She might not have been … asleep, but she wasn’t
     responsive, you know, like laying there, and she wasn’t any bit
     conversational or anything like that. She just -- if she wasn’t
     already asleep, she was going to sleep.

     [The Commonwealth:] Was she moving around or anything like
     that?

     [Amy:] No.

     [The Commonwealth:] No. And you said you went to bed after
     that, correct?

     [Amy:] I took a shower and then went to bed.

Id. at 254-256.

     The Commonwealth also called to the stand Sergeant Craig Culp of the

Hanover Borough Police Department.      Id. at 291.   Sergeant Culp testified

that he became involved in investigating S.R.’s allegations against Appellant

the day after the incident occurred.       Id.   During the course of his

investigation, Sergeant Culp interviewed Appellant.   Id. at 293. Appellant

told the sergeant that S.R. was “belligerently drunk” and that she “came on

to him … after she was on the couch.” Id. at 294. Appellant stated that he

and S.R. engaged in consensual oral sex, as well as consensual sexual

intercourse. Id. at 295, 297. Appellant claimed that between the oral sex

and intercourse, [S.R.] was “throwing up into a trash can.” Id. Appellant

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told Sergeant Culp that he stopped the intercourse before he ejaculated

because “he was nervous about being caught, that he might have heard

noises, that he felt bad and came to his senses and shouldn’t be doing this …

[because] [h]e’s a married man with two kids that he loves very much.” Id.

at 295.

       Appellant claims that this evidence was insufficient to prove that he

engaged in sexual intercourse with S.R., that he did so without her consent,

or that he did so while she was unconscious. Thus, he maintains that his

convictions must be overturned. We disagree.

       First, Sergeant Culp testified that Appellant admitted he had sexual

intercourse with S.R., which was sufficient evidence to permit the jury to

conclude that sexual intercourse took place.        In regard to Appellant’s

contention that the evidence failed to prove that S.R. was ‘unconscious,’ we

emphasize that section 3126(a)(4) also permits a person to be convicted of

indecent assault when they know the victim “is unaware that the indecent

contact is occurring[.]”1       18 Pa.C.S. § 3126(a)(4).   Here, the evidence

permitted the jury to conclude that Appellant had indecent contact with S.R.

while knowing that she was unaware of what was happening. Namely, Amy

testified that after S.R. began vomiting, she and Appellant carried S.R. to
____________________________________________


1
  We note that the jury was instructed that it could find Appellant guilty of
indecent assault if it concluded that he “knew that [S.R.] was unconscious or
unaware that the indecent contact was occurring, which rendered her
incapable of consent.” N.T., at 396.



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the couch. S.R. was not speaking coherently, and when they placed S.R. on

the couch, she was asleep, or almost asleep. Amy stated that at that time,

S.R. was not responsive. Amy also testified that she left the room and came

back to find Appellant close to S.R. Amy stated that S.R. was not awake at

that point.     Amy then went to bed, leaving Appellant alone with S.R.

Appellant admitted to Sergeant Culp that S.R. was ‘belligerently drunk’ and

claimed   she    was   vomiting   intermittently   throughout   their   ostensibly

consensual sexual encounter.        S.R. testified that she could not recall

anything about the assault until she ‘woke up’ with Appellant on top of her.

     Based on this evidence, the jury was free to reject Appellant’s claim

that S.R. consented to the sexual intercourse and, instead, conclude that

Appellant had indecent contact with S.R. while knowing that S.R. was

unaware of what was occurring.        Therefore, Appellant’s conviction under

section 3126(a)(4) is supported by sufficient evidence, regardless of his

claim that S.R. was not ‘unconscious.’ We also conclude that based on this

evidence, the jury was free to find that Appellant engaged in indecent

contact, as well as sexual intercourse, with S.R. without her consent.

Therefore, Appellant’s convictions for sexual assault and indecent assault

under section 3126(a)(1) were also supported by sufficient evidence.

     In Appellant’s fourth issue, he argues that the trial court erred by

denying his oral motion to suppress his statement to Sergeant Culp.

Initially, we note that Appellant’s motion to suppress was not made prior to

trial as required by the Pennsylvania Rules of Criminal Procedure.            See

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Pa.R.Crim.P. 578 (“Unless otherwise required in the interests of justice, all

pretrial requests for relief shall be included in one omnibus motion.”);

Pa.R.Crim.P. 581(B) (“Unless the opportunity did not previously exist, or the

interests of justice otherwise require, [a] motion [to suppress evidence] …

shall be contained in the omnibus pretrial motion set forth in Rule 578. If

timely motion is not made hereunder, the issue of suppression of such

evidence shall be deemed waived.”).                Nevertheless, the trial court

considered Appellant’s motion, and conducted a suppression hearing outside

the presence of the jury. See N.T. at 279-287.

       Appellant now argues that the trial court abused its discretion by not

conducting “a full-scale suppression hearing.”          Appellant’s Brief at 22.

Appellant did not raise this issue in his Rule 1925(b) statement and,

therefore, it is waived. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).           Nevertheless, our review of the record

confirms that Appellant was not precluded from presenting any evidence or

witnesses at the suppression hearing.          Therefore, we would conclude that

Appellant’s argument that the trial court failed to conduct a “full-scale”

hearing is meritless.2
____________________________________________


2
  Appellant also argues that his trial counsel was ineffective for not filing a
written, pretrial motion to suppress. In Commonwealth v. Holmes, 79
A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior holding in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain
(Footnote Continued Next Page)


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      Appellant also avers that his statement to Sergeant Culp should have

been suppressed because he was not provided with Miranda warnings prior

to making that statement.              Our standard of review for denial of a

suppression motion is as follows:

      In reviewing an order from a suppression court, we consider the
      Commonwealth’s evidence, and only so much of the defendant’s
      evidence as remains uncontradicted. We accept the suppression
      court’s factual findings which are supported by the evidence and
      reverse only when the court draws erroneous conclusions from
      those facts.

Commonwealth v. Hoopes, 722 A.2d 172, 174-75 (Pa. Super. 1998).

      This Court has explained when Miranda warnings are required, as

follows:

      A law enforcement officer must administer Miranda warnings
      prior to custodial interrogation. The standard for determining
      whether an encounter with the police is deemed “custodial” or
      police have initiated a custodial interrogation is an objective one
      based on a totality of the circumstances, with due consideration
      given to the reasonable impression conveyed to the person
      interrogated. Custodial interrogation has been defined as
      “questioning initiated by law enforcement officers after a person
                       _______________________
(Footnote Continued)

circumstances, claims of ineffective assistance of counsel should be deferred
until collateral review under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546.         Holmes, 79 A.3d at 576.            The specific
circumstances under which ineffectiveness claims may be addressed on
direct appeal are not present in the instant case. See id. at 577-78 (holding
that the trial court may address claim(s) of ineffectiveness where they are
“both meritorious and apparent from the record so that immediate
consideration and relief is warranted,” or where the appellant’s request for
review of “prolix” ineffectiveness claims is “accompanied by a knowing,
voluntary, and express waiver of PCRA review”). Accordingly, we decline to
review Appellant’s ineffectiveness claim on direct appeal.



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      has been taken into custody or otherwise deprived of his [or her]
      freedom of action in any significant way.” “Interrogation” is
      police conduct “calculated to, expected to, or likely to evoke
      admission.” When a person's inculpatory statement is not made
      in response to custodial interrogation, the statement is classified
      as gratuitous, and is not subject to suppression for lack of
      warnings.

         The appropriate test for determining whether a situation
      involves custodial interrogation is as follows:

         The test for determining whether a suspect is being
         subjected to custodial interrogation so as to necessitate
         Miranda warnings is whether he is physically deprived of
         his freedom in any significant way or is placed in a
         situation in which he reasonably believes that his freedom
         of action or movement is restricted by such interrogation.

      Said another way, police detentions become custodial when,
      under the totality of the circumstances, the conditions and/or
      duration of the detention become so coercive as to constitute the
      functional equivalent of arrest.

             The factors a court utilizes to determine, under the totality
      of the circumstances, whether a detention has become so
      coercive as to constitute the functional equivalent of arrest
      include: the basis for the detention; its length; its location;
      whether the suspect was transported against his or her will, how
      far, and why; whether restraints were used; whether the law
      enforcement officer showed, threatened or used force; and the
      investigative methods employed to confirm or dispel suspicions.
      The fact that a police investigation has focused on a particular
      individual does not automatically trigger “custody,” thus
      requiring Miranda warnings.

Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (en

banc) (internal citations omitted; emphasis in original).

      At the suppression hearing in the present case, Sergeant Culp testified

that he spoke with Appellant on the telephone, and Appellant stated that he

“wanted the interview, he wanted to give his side of the story.”       N.T., at

281. At that time, Appellant was in a drug rehabilitation facility in Maryland,

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so Sergeant Culp traveled there to speak with him. Id. When the sergeant

arrived, Appellant signed a form to allow the sergeant to enter the facility.

Id. at 281-282.    Sergeant Culp testified that he began the interview by

telling Appellant that “he wasn’t under arrest, he could get up and -- talk to

me or get up and leave at any time.” Id. at 282. Sergeant Culp also asked

Appellant if “he [felt] like he was under arrest, and [Appellant] said no….”

Id.   When asked why he did not provide Miranda warnings to Appellant,

Sergeant Culp answered, “Because [Appellant] was not in police custody nor

was he under arrest at that time.” Id. at 283.

      On cross-examination, Sergeant Culp stated that when he interviewed

Appellant, charges had not yet been filed against Appellant, and he was

interviewing Appellant “in the normal course of the investigation….” Id. at

284. When asked if he had “any sort of expectation of what [Appellant’s]

statement was going to include[,]” Sergeant Culp replied, “Yes, I knew. I

knew what he was going to say.” Id. at 285. However, Sergeant Culp was

not asked to elaborate.    The sergeant stated that his conversation with

Appellant was “just two men sitting and talking[,]” and Appellant appeared

to be “relaxed.” Id.

      Based on Sergeant Culp’s testimony, the trial court concluded that the

interview of Appellant was not a custodial interrogation.         We agree.

Sergeant Culp’s testimony indicated that the interview was initiated by

Appellant; before the interview began, the sergeant told Appellant that he

was not under arrest and could leave at any time; Appellant stated that he

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did not feel that he was under arrest; and Appellant spoke to Sergeant Culp

in a relaxed manner. Considering the totality of these circumstances under

the standard set forth above, we conclude that Appellant did not speak to

Sergeant Culp while under conditions that were so “coercive as to constitute

the functional equivalent of arrest.”        Mannion, 725 A.2d at 200.

Accordingly, Miranda warnings were not required, and the court did not err

in denying Appellant’s motion to suppress.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2015




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