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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


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).



____________________________________________


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



____________________________________________


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
____________________________________________


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.

____________________________________________


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.

____________________________________________


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.
____________________________________________


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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