J-S43025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYAN O'CONNELL                             :
                                               :
                       Appellant               :   No. 42 WDA 2018

                Appeal from the PCRA Order December 12, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0005216-2009

BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 13, 2019

        Appellant, Ryan O’Connell, appeals from the December 12, 2017 Order

dismissing his first Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        The facts and procedural history are, briefly, as follows. On February

19, 2009, the Commonwealth charged Appellant with three counts each of

Criminal Attempt (Homicide) and Aggravated Assault,1 arising from the

beating of Ryan Hatfield, Angela Sapienza, and Kelly McGinnis at a party,

which took place on the night of February 17, 2009.

        The following morning, Appellant, accompanied by Charles P. Hoebler,

Esquire, voluntarily presented himself to police.        Appellant produced the

blood-soaked clothing he was wearing on the night of the incident. Appellant,

in the presence of Attorney Hoebler, also made a statement to police
____________________________________________


1   18 Pa.C.S. §§ 901(a) and 2702(a)(1), respectively.
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explaining the circumstances of the party and stating that he did not recollect

being involved in the crimes.

      On March 23, 2009, Appellant, still represented by Attorney Hoebler,

attended a preliminary hearing after which the court held all charges for trial.

      On June 15, 2011, Appellant, now represented by Paul R. Gettleman,

Esquire, filed a Motion to Suppress the evidence obtained from the clothing

he turned over to police and the statement he made to police, allegedly at the

advice of Attorney Hoebler. Following a hearing at which Appellant testified,

the suppression court denied the Motion on June 24, 2011.

      Appellant’s trial commenced on June 27, 2011. Relevant to the instant

appeal, Appellant moved to bar the Commonwealth from impeaching him with

his suppression testimony, if he chose to testify. On June 29, 2011, the trial

court denied Appellant’s Motion in Limine.

      On June 30, 2011, a jury convicted Appellant of three counts of

Aggravated Assault.    On September 20, 2011, the trial court sentenced

Appellant to serve three consecutive terms of 84 to 168 months’ incarceration.

      This Court affirmed Appellant’s Judgment of Sentence on August 22,

2013 and the Pennsylvania Supreme Court denied Appellant’s Petition for

Allowance of Appeal on April 4, 2014. Commonwealth v. O’Connell, 83

A.3d 1070 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 89

A.3d 661 (Pa. 2014).




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       On April 2, 2015, Appellant filed the instant, counseled PCRA Petition,2

raising both substantive issues and requesting discovery.     The PCRA court

denied Appellant’s discovery request, and directed Appellant to file an

Amended PCRA Petition, which he did on April 29, 2016. In his Amended

Petition, Appellant raised claims challenging the effectiveness of Attorney

Hoebler for advising him to speak with police prior to his arrest. Appellant

also challenged the effectiveness of Attorney Gettleman’s assistance, alleging

that Attorney Gettleman was ineffective when he: (1) failed to contact

Attorney Hoebler to obtain Appellant’s file and notes from him; (2) failed to

present evidence of Appellant’s non-violent character; (3) advised Appellant

not to testify at trial due to a concern of being impeached with his testimony

at the suppression hearing; and (4) failed to investigate and present

mitigating evidence at the time of Appellant’s sentencing.

       The PCRA court held a two-day hearing on Appellant’s Amended Petition.

On December 12, 2017, the PCRA court dismissed Appellant’s Petition.

       This timely appeal followed. Appellant complied with Pa.R.A.P. 1925

and the PCRA court adopted its December 12, 2017 Findings of Fact and Order

of Court in lieu of a Pa.R.A.P. 1925(a) Opinion.

       Appellant raises the following issues on appeal:




____________________________________________


2Douglas Sughrue, Esquire, represented Appellant before the PCRA court and
submitted Appellant’s Brief to this court. George A. Mizak, Esquire, submitted
a Reply Brief on Appellant’s behalf.

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            1. Whether Attorney Hoebler was ineffective for advising
               [Appellant] to speak to police?

            2. Whether Attorney Gettleman was ineffective for
               interfering with [Appellant’s] right to testify by telling him
               he was not going to testify because [Appellant] could be
               impeached with [Appellant’s] testimony at the
               suppression hearing?

            3. Whether Attorney Gettleman was ineffective for failing to
               present evidence of [Appellant’s] character for non-
               violence?

Appellant’s Brief at 2.

      We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if the record

supports them. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super.

2007). We give no such deference, however, to the court’s legal conclusions.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012).

      To be eligible for relief pursuant to the PCRA, Appellant must establish,

inter alia, that his conviction or sentence resulted from one or more of the

enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a

constitutional violation; ineffective assistance of counsel; an unlawfully

induced plea; improper obstruction by governmental officials; a case where

exculpatory evidence has been discovered; an illegal sentence has been

imposed; or the tribunal conducting the proceeding lacked jurisdiction. See

42 Pa.C.S. § 9543(a)(2)(i)-(viii). Appellant must also establish that the issues




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raised in the PCRA petition have not been previously litigated or waived. 42

Pa.C.S. § 9543(a)(3).

      In each of his issues, Appellant claims his trial counsel was ineffective.

The    law        presumes    counsel     has    rendered     effective    assistance.

Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). “[T]he

burden of demonstrating ineffectiveness rests on [A]ppellant.” Id. To satisfy

this burden, Appellant must plead and prove by a preponderance of the

evidence that: “(1) his underlying claim is of arguable merit; (2) the particular

course of conduct pursued by counsel did not have some reasonable basis

designed to effectuate his interests; and, (3) but for counsel’s ineffectiveness,

there is a reasonable probability that the outcome of the challenged

proceeding would have been different.” Commonwealth v. Fulton, 830 A.2d

567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in

rejection    of    the   appellant’s   ineffective   assistance   of   counsel   claim.

Commonwealth v. Jones, 811 A.2d 994, 1002 (Pa. 2002).

      In his first issue, Appellant claims that Attorney Hoebler was ineffective

when he advised Appellant, who was “sleep-deprived, high, and shocked,” to

immediately give a statement to police the morning after the incident.

Appellant’s Brief at 10, 12.           He alleges that Attorney Hoebler did not

investigate whether making a statement to police was in Appellant’s best

interest before advising him to do so, and faults Attorney Hoebler for

encouraging Appellant to provide the police with the evidence that the

Commonwealth used against him.             Id. at 12-13.     He claims that, in the

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absence of this evidence, the jury could have reached a different verdict. Id.

at 13. Although Appellant concedes that the right to effective counsel does

not attach to a defendant until the police place him under arrest, he argues

that “that does not provide a sufficient remedy” in this case. Id. at 13-14.

       The right of a criminal defendant to effective assistance of counsel arises

from his right to counsel found in the guarantees of the Sixth Amendment of

the United States Constitution. See U.S. Const. amend. VI (“In all criminal

prosecutions, the accused shall . . . have the Assistance of Counsel for his

defense.”). That right first attaches at the time of a defendant’s “appearance

before a judicial officer, where he learns the charge against him [and] his

liberty is subject to restriction.” Commonwealth v. Colavita, 993 A.2d 874,

890 (Pa. 2010). See also Commonwealth v. Arroyo, 723 A.2d 162, 167

(Pa. 1999) (“[T]he Sixth Amendment right to counsel . . . does not attach until

the suspect has been charged with the offense in question.”).

       At the time he made his initial statement to police, Appellant’s

constitutionally protected right to counsel had not yet attached. Accordingly,

Appellant’s claim that Attorney Hoebler was ineffective for encouraging him to

speak to police promptly after the incident garners no relief.3
____________________________________________



3 In Strickland v. Washington, 466 U.S. 668 (1984), the United States
Supreme Court explained that the Sixth Amendment right to counsel “is the
right to effective counsel.” Id. at 686 (quoting McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970)). Thus, the right to effective assistance of counsel
arises when the Sixth Amendment right to counsel attaches. Arroyo explains



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       In his second issue, Appellant claims that Attorney Gettleman was

ineffective for advising him not to testify out of concern that the

Commonwealth would impeach him with testimony from the suppression

hearing.      Appellant’s Brief at 15.            According to Appellant, despite

“longstanding precedent which foreshadowed” the trial court’s denial of

Appellant’s Motion in Limine, Attorney Gettleman neglected to advise

Appellant in a timely manner that it was likely the court would admit his

suppression testimony.        Id. at 18.       Appellant alleges that he had always

intended to testify at trial and, by the time the court ruled on the Motion, “only

a short period of time remained for meaningful discussion” about counsel’s

trial strategy vis-à-vis Appellant’s right to testify. Id. He posits that counsel’s

advice that he not testify was so unreasonable as to vitiate his knowing and

intelligent waiver of his right. Id. at 19.

____________________________________________


that the Sixth Amendment right to counsel is coterminous with the right to
counsel under Article I, Section 9 of the Pennsylvania Constitution, and that,
under the federal and state constitutions, the right attaches when the
Commonwealth charges a defendant with a crime. In Colavita, our Supreme
Court held that application of the right to counsel prior to arrest would depend
upon a substantive due process analysis, and the Court reserved ruling on the
issue until it was “properly presented and preserved.” Colavita, 993 A.2d at
894. Instantly, Appellant acknowledges that the right to counsel does not
attach prior to arrest. See Appellant’s Brief at 13-14. Appellant argues,
however, that the Constitution should provide a remedy for ineffectiveness of
counsel when counsel represents a defendant before the police arrest the
defendant. Appellant’s Brief at 14. Unfortunately, because Appellant makes
this argument in a single sentence and without any legal analysis, he has,
thus, not “properly presented and preserved” this issue. We must, therefore,
decline to address this significant issue of first impression.



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      A criminal defendant is estopped from asserting an ineffectiveness claim

for failure to testify where he makes a knowing, voluntary, and intelligent

waiver of his right to do so. Commonwealth v. Lawson, 762 A.2d 753, 755

(Pa. Super. 2000). However, counsel may be ineffective where a defendant

can demonstrate that counsel interfered with the defendant’s right to testify

or “gave specific advice so unreasonable as to vitiate a knowing and intelligent

decision to testify.” Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa.

2000).

      The PCRA court explained that, when it sat as the trial court, it had

conducted a full colloquy with Appellant and found that Appellant voluntarily,

knowingly, and intelligently waived his right to testify.      PCRA Ct. Order,

12/12/17, at 6 (unpaginated). Thus, the court concluded that no one had

interfered with Appellant’s right to testify. Id.

      In addition, the PCRA court found that Attorney Gettleman’s advice was

reasonable and did not vitiate Appellant’s knowing and intelligent decision not

to testify. Id. In particular, the PCRA court noted that Attorney Gettleman’s

advice to Appellant was legally correct—the trial court had permitted the

admission of Appellant’s suppression testimony for purposes of impeachment.

The PCRA court concluded, therefore, that Attorney Gettleman had a

reasonable strategic basis to advise Appellant not to testify. The record in this

matter supports the PCRA court’s conclusion. This claim, thus, fails.

      Last, Appellant avers that Attorney Gettleman was ineffective for failing

to introduce evidence of Appellant’s character for non-violence. Appellant’s

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Brief at 20.    In particular, Appellant emphasizes that his father, Larry

O’Connell, testified that he spoke to Appellant’s friends about their knowledge

of Appellant’s reputation for non-violence. Id. at 21. Appellant did not specify

which of his friends his father spoke to and whether those friends would have

been willing to testify at Appellant’s trial about his peaceful character.

      “The failure to call character witnesses does not constitute per se

ineffectiveness.” Commonwealth v. Treiber, 121 A.3d 435, 463 (Pa. 2015).

In order to establish a successful ineffectiveness claim for failing to call

witnesses, a defendant must demonstrate that: (1) the witness existed; (2)

the witness was available to testify for the defense; (3) counsel knew of, or

should have known of the existence of the witness; (4) the witness was willing

to testify for the defense; and (5) the absence of the testimony of the witness

was so prejudicial as to have denied the defendant a fair trial. Id. at 463-64.

      Attorney Gettleman testified at the PCRA hearing that he did not present

evidence of Appellant’s character for non-violence because he was concerned

about the possibility of the Commonwealth offering rebuttal testimony

concerning Appellant’s reputation for violence, including bar fights and street

fights. N.T. PCRA Hearing, at 7-8, 43-45. In fact, the Commonwealth did

offer such rebuttal testimony at Appellant’s PCRA hearing, establishing that

Attorney Gettleman had a reasonable basis for choosing not to offer testimony

of Appellant’s reputation for non-violence.

      The record supports the PCRA court’s conclusion that Attorney

Gettleman had a reasonable and strategic basis for not calling Appellant’s

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character witnesses to testify. Moreover, the court also properly concluded

that Appellant failed to prove that the absence of his character witness’s

testimony was so prejudicial as to deny him his right to a fair trial. Thus, this

claim fails.

      Having determined that the record supports the PCRA court’s findings

and its Order is free of legal error, we affirm the Order dismissing Appellant’s

PCRA Petition.

      Order affirmed.

      Judge Stabile joins the memorandum.

      Judge Nichols concurs in result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2019




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