J-S82039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEREMIE MICHAEL WINTER,

                            Appellant                  No. 835 MDA 2016


                   Appeal from the PCRA Order May 17, 2016
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0001295-2012


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 29, 2016

        Appellant, Jeremie Michael Winter, appeals from the denial of his first

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546.       Appellant claims that he is entitled to relief because trial

counsel was ineffective for failing to introduce expert testimony concerning

his intellectual disability. We affirm.

        We take the factual and procedural history in this matter from the trial

court opinion and our review of the certified record. On the evening of April

12, 2009, Appellant, who was twenty years old, gave a minor female, then

fourteen, fruit punch mixed with vodka, and then engaged in sexual

intercourse with her while she was unconsicous.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        On November 8, 2011, Officers Michael J. Kimes and Leon Jeffrey

Sosnoski interviewed Appellant while he was in Lancaster County Prison

awaiting trial on other charges. During this interview, Officer Kimes orally

advised Appellant of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), and Appellant indicated that he understood them.              (See N.T.

Suppression Hearing, 6/10/13, at 9-10).            As the interview progressed,

Appellant provided a statement to police in which he admitted to giving the

victim an alcoholic beverage and having intercourse with her, although he

denied she was unconscious.           Officer Kimes transcribed the statement for

Appellant, Appellant read the statement, made one correction to it, and

signed each. (See N.T. Trial, 6/10/13, at 114-15; 118-19). Police charged

Appellant with statutory sexual assault, corruption of minors, and furnishing

liquor to a minor.1

        On May 23, 2013, Appellant filed a motion to suppress his confession,

arguing that it was obtained in violation of his rights under Miranda. The

trial court held a suppression hearing on June 10, 2013, immediately prior to

Appellant’s trial. During the suppression hearing, Appellant testified that he

was never read his Miranda warnings, and that the officers specifically told

him they did not have to read them to him. (See N.T. Suppression Hearing,

at 44-45, 47-49). Defense counsel argued to the court that Appellant has a


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1
    18 Pa.C.S.A. §§ 3122.1(a)(1), 6301(a)(1), and 6310.1(a) respectively.



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limited mental capacity, was not provided a written Miranda warning to

sign, and therefore his confession was involuntary because had he known of

his rights he would not have given the statement. (See id. at 54-55). The

trial court ultimately denied Appellant’s motion, and he proceeded to a jury

trial.

          At trial, defense counsel again argued that Appellant’s confession

should not be credited because it was the product of coercion. At the start

of the second day of trial, defense counsel requested that he be permitted to

call Dawn Boltz as a witness, explaining that she “works for the Behavioral

Health/Behavioral Services Department,” and that she would be called “to

speak regarding [Appellant’s] mental capacity.”              (N.T. Trial, 6/11/13, at

135). The trial court asked for an offer of proof, and defense counsel stated

that Ms. Boltz would be testifying to “[Appellant’s] intelligence, his I[.]Q[.],

his      ability   to   understand   the   events   around    him.”    (Id.).    The

Commonwealth objected to admission of her testimony because it was not

provided with an expert report. The trial court explained that

          regardless of whether or not a report has been produced, I
          would not allow that testimony because I don’t believe that it is
          sufficiently probative of the issues. Unless a witness, an expert
          witness, would be prepared to testify that [Appellant’s] mental
          capacity was so diminished so as to have a significant impact in
          this case, I would not allow it anyway.

(Id. at 136-37).




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      Appellant testified at trial that he has a mental disability and a difficult

time reading, writing, and processing information. (See id. at 166-67). At

the conclusion of trial, the jury found Appellant guilty on all counts.

      On August 23, 2013, Appellant was sentenced to an aggregate term of

imprisonment of not less than fourteen months, nor more than six years.

This Court affirmed Appellant’s sentence on June 18, 2014.                  (See

Commonwealth v. Winter, 105 A.3d 36 (Pa. Super. 2014) (unpublished

memorandum)). Appellant did not seek review in our Supreme Court.

      On October 2, 2014, Appellant pro se filed his first PCRA petition. The

PCRA court appointed counsel, who filed an amended petition on December

4, 2015. The court conducted an evidentiary hearing on January 29, 2016.

At the hearing, the court heard testimony from Dixon H. Miller, Ph.D.; trial

counsel, Dennis C. Dougherty, Esquire; and Officer Michael J. Kimes.

      Dr. Miller, who was accepted as an expert witness in the field of

neuropsychology, testified about his assessment of Appellant and the results

of three evaluative tests he performed: the Wechsler Adult Intelligence

Scale-IV (WAIS-IV); the Test of Memory Malingering (TOMM); and Thomas

Grisso’s Instruments for Applied Assessment of Understanding of Miranda

Rights (Grisso test).    (See PCRA Court Opinion, 5/17/16, at 9).            With

respect to the WAIS-IV, Dr. Miller testified that, to the extent he was able to

perform the test, he arrived at a General Ability Index (GAI) of 53, which

placed Appellant in the markedly impaired range within 0.1 percent of the

population. (See id. at 9-10).

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        Dr. Miller conceded that Appellant’s results were inconclusive as to

whether he put forth effort on the TOMM test, and that he only performed

two portions of the three-part test. (See id. at 10). He also admitted that

the fact that Appellant had been given Miranda warnings in the past would

suggest that he would be able to repeat them and would be familiar with

them.

        The PCRA court dismissed Appellant’s petition.        It found that Dr.

Miller’s assessment did not establish that Appellant was incapable of waiving

his rights or that he was subject to undue influence. The court concluded

that in the totality of the circumstances, Appellant was not so mentally

impaired that he could not understand his rights.           (See id. at 19-20).

Appellant timely appealed.2

        Appellant raises one issue on appeal.

        A. Whether the [PCRA] court erred in denying [Appellant’s]
        amended PCRA [petition] when trial counsel was ineffective by
        failing to present expert testimony at the suppression hearing
        and trial that [Appellant] was intellectually disabled to the extent
        that he was incapable of knowingly and intelligently waiving his
        rights under Miranda v. Arizona?

(Appellant’s Brief, at 4) (most capitalization omitted).

        Our standard of review of a PCRA court’s decision is well-settled:



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2
  Appellant timely filed his statement of errors complained of on appeal on
June 1, 2016. See Pa.R.A.P. 1925(b). The PCRA court entered its opinion
on June 2, 2016. See Pa.R.A.P. 1925(a).



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            In reviewing the denial of PCRA relief, we examine whether
      the PCRA court’s determinations are supported by the record and
      are free of legal error. The PCRA court’s credibility
      determinations, when supported by the record, are binding on
      this Court; however, we apply a de novo standard of review to
      the PCRA court’s legal conclusions.

Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) (citations

and quotation marks omitted).

            [C]ounsel is presumed effective, and to rebut that
      presumption, the PCRA petitioner must demonstrate that
      counsel’s performance was deficient and that such deficiency
      prejudiced him. Strickland v. Washington, 466 U.S. 668, 104
      S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court has described
      the Strickland standard as tripartite by dividing the
      performance     element    into   two    distinct   components.
      Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
      (1987). Accordingly, to prove counsel ineffective, the petitioner
      must demonstrate that (1) the underlying legal issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) the petitioner was prejudiced by
      counsel’s act or omission. Id. A claim of ineffectiveness will be
      denied if the petitioner’s evidence fails to satisfy any one of
      these prongs.

Commonwealth v. Roane, 142 A.3d 79, 88 (Pa. Super. 2016) (one case

citation omitted).

      In his sole issue, Appellant argues that counsel was ineffective for

failing to introduce expert testimony into evidence at both the suppression

hearing and trial, to demonstrate that he was incapable of knowingly and

intelligently waiving his rights under Miranda because of his diminished

mental capacity. (See Appellant’s Brief, at 11-17). Specifically, Appellant

argues that he was prejudiced by counsel’s omission because presenting

expert testimony would create a reasonable probability that the court’s



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decision on the motion to suppress and the jury’s verdict would have been

different. (See id. at 17). We disagree.

      Our Supreme Court has repeatedly held that a defendant’s waiver of

rights under Miranda is not per se defective merely because of his

diminished mental capacity.      See Mitchell, supra at 1268; see also

Commonwealth v. Chacko, 459 A.2d 311, 317 (Pa. 1983) (“[T]he fact that

a defendant possesses a low I.Q. does not in itself render his confession

involuntary.”) (collecting cases).   A defendant’s intelligence level, alone, is

not dispositive; rather, it must be considered in light of the defendant’s

background, experience and conduct. See Commonwealth v. Cohen, 53

A.3d 882, 887 (Pa. Super. 2012).

           The voluntariness standard of Miranda requires that the
      prosecution prove by a preponderance of the evidence that the
      waiver is knowing and intelligent. . . .

            Thus, in the suppression realm, the focus is upon police
      conduct and whether a knowing, intelligent and voluntary waiver
      was effected based on a totality of the circumstances, which may
      include consideration of a defendant’s mental . . . condition[.]
      When a defendant alleges that his waiver or confession was
      involuntary, the question is not whether the defendant would
      have confessed without interrogation, but whether the
      interrogation was so manipulative or coercive that it deprived
      the defendant of his ability to make a free and unconstrained
      decision to confess.

Mitchell, supra at 1268 (citations omitted).

      Here, Dr. Miller opined that Appellant suffered from an intellectual

disability.   However, as the PCRA court correctly observed, Dr. Miller’s

conclusion that “[Appellant] was unable to make a knowing and intelligent


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decision to waive his rights as a function of his intellectual disability[,]” (N.T.

PCRA Hearing, Petitioner’s Exhibit “C”, Forensic Psychological Evaluation, at

6), is inconsistent with Pennsylvania case law. (See PCRA Ct. Op., at 14);

see also Mitchell, supra at 1268; Chacko, supra at 317. Furthermore, as

the court noted, “Dr. Miller’s opinion that [Appellant’s] mental deficiencies

prevented him from making a knowing and intelligent waiver of his rights is

inconsistent with [Appellant’s] criminal background and experience, which

indicates that he understood police interrogation, the courts, and his rights.”

(PCRA Ct. Op., at 15 (footnote omitted)).

      Our review of the certified record reveals that defense counsel

presented evidence of Appellant’s diminished mental capacity at both the

suppression hearing and trial through Appellant’s own testimony. (See N.T.

Suppression Hearing, at 46; N.T. Trial, 6/11/13, at 166-67).                   The

Commonwealth also introduced the testimony of Officers Kimes and

Sosnoski, who both testified that throughout the interview they did not yell

at or threaten Appellant, and did not exhibit a threatening demeanor, and

that Appellant was relaxed and calm. (See N.T. Suppression Hearing, at 7-

8, 37-38; N.T. Trial, 6/10/13, at 108-13; N.T. Trial, 6/11/13, at 152-53,

155-56).    Thus, when the trial court and jury determined that Appellant

gave his statement after knowingly and voluntarily waiving his rights, they

considered Appellant’s mental impairment, his background and experience,

and the circumstances of the interrogation. See Mitchell, supra at 1268;

Cohen, supra at 887.

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      We conclude that there is no reasonable probability that the outcome

of either the suppression hearing or trial would have been different if counsel

had introduced Dr. Miller’s expert testimony that Appellant suffered from an

intellectual disability. Thus, Appellant has not proven that he was prejudiced

by counsel’s omission, and has not met his burden of establishing counsel’s

ineffectiveness.   See Mitchell, supra at 1265; Roane, supra at 88 (“A

claim of ineffectiveness will be denied if the petitioner’s evidence fails to

satisfy any one of these prongs.”) (citation omitted).       The PCRA court

properly determined that Appellant failed to prove ineffectiveness of trial

counsel. Appellant’s issue does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2016




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