J-S18017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEFFREY P. LIBENGOOD                       :
                                               :
                       Appellant               :   No. 1836 MDA 2018

             Appeal from the PCRA Order Entered October 11, 2018
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0000918-2015


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 30, 2019

        Appellant Jeffrey P. Libengood appeals from the order denying his first

timely petition under the Post Conviction Relief Act1 (PCRA). Appellant argues

that trial counsel was ineffective for failing to file a motion to suppress the

statement Appellant gave to police following a polygraph examination. We

affirm.

        We adopt the PCRA court’s facts and procedural history. See PCRA Ct.

Op., 10/11/18, at 1-4.

        Appellant raises the following issues for our review:

        1. Did the [PCRA court] commit an error of law by denying
           [Appellant’s] PCRA claim that [Appellant’s] trial counsel
           committed ineffective assistance of counsel by failing to file a
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
J-S18017-19


         motion to suppress [Appellant’s] March 26, 2015 statement to
         the police?

      2. Did [Appellant’s] trial counsel commit ineffective assistance of
         counsel by failing to file a motion to suppress [Appellant’s]
         March 26, 2015 statement to the police?

Appellant’s Brief at 4.

      Following our review of the record, the parties’ briefs, and the well-

reasoned opinion of the PCRA court, we find no error of law in the PCRA court’s

ruling. See Commonwealth v. Watley, 153 A.3d 1034, 1039 (Pa. Super.

2016).   Specifically, we agree with the PCRA court that Appellant did not

establish that his statements were involuntary under the totality of the

circumstances. See PCRA Ct. Op. at 4-8. Therefore, we affirm on the basis

of the PCRA court’s opinion concluding that trial counsel was not ineffective

for failing to litigate a meritless suppression issue. Id. at 8.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/30/2019




                                      -2-
                                                                                            Circulated 07/31/2019



    COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY-CRIMINAL DIVISION


COMMONWEALTH OF PENNSYLVANIA                                :   No. 918-15
                                                                                                    17.14
                                                                                                             f
                                                                                                    GO       ,21
                   vs.
                                                                                                             771
                                                                                                             C-)
JEFFREY P. LIBENGOOD,
                Defendant
                                                                                                             --1
                                                                                                             cn
                                                                                                             fc)
                    District Attorney's Office - for the Commonwealth
       Christopher M. Riedlinger, Esquire, Public Defender's Office - for efendant                           C)
                                                                                                             rn

                                                 DECISION


RUSSELL,      J.


        Defendant Jeffrey P. Libengood filed a post-conviction collateral relief petition on

June 5, 2018. Via order of June 8, 2018, the Court directed the Schuylkill County Office

of Public Defender to appoint counsel for           efendant as       he previously had been

represented by private counsel. Although the Court further allowed counsel to amend

the pro se filing, no counseled amendment to Defendant's pro se petition was thereafter

filed,1 At the hearing on September 6, 2018,              efendant's counsel represented that               he

had reviewed his client's pro se filing and determined that the only issue which had

merit and which would be pursued was that Defendant's statement                     t   police had been

coerced, as alleged at paragraph 68 of the petition. Defendant otherwise waived the

balance of the issues set forth in his petition.

        efendant, found guilty        by a jury of rape of a child and related charges, was

sentenced on January 25, 2016, inter alia, to serve ten to twenty years' incarceration,


 In the past, Defendant had filed post -conviction collateral relief petitions; however, the June 5, 2018
petition is considered his first as the prior filings had been withdrawn/dismissed as premature.

                                                      1
followed by five years' probation. The jury's verdict was based on evidence that

efendant    had committed various sexual assaults upon the granddaughter of his

girlfriend over an approximate twelve month period. Numerous witnesses, including the

then third grade child and Pennsylvania State Police Trooper Wesley Levan,                      II   -   t
whom   efendant had confessed - testified             at trial. Defendant offered character witness

testimony and   als testified in   his own defense.

       Following sentencing, Defendant filed a post -sentence motion which was denied.

A direct appeal followed. The Pennsylvania Superior Court affirmed this court's

judgment of sentence by published opinion of December                16, 2016.2 By         order of July 11,

2017, Defendant's petition for allowance of appeal to the Pennsylvania Supreme Court

was denied.

       At the September 6, 2418 hearing, Defendant and Trooper Levan were called as

witnesses. Defendant testified that the day of his interview with Trooper Levan he arose

about 4:30 a.m., started work at 5:30 a.m. and worked until he met with the trooper.

The police interaction began about 5A5 p.m. during which Defendant underwent a

polygraph examination which was preceded and followed                 by   interviews with the

examining trooper. Initially, Defendant was advised verbally and               in   writing that the

procedure would involve     a   pre-test interview and polygraph examination and could

include a post-test interview.     In       addition, Defendant was told that his submission to the

testing was voluntary. He also read and was advised, inter alia, the following:

                        2, By signing my name at the bottom of this form,              I




                acknowledge that have read and fully understand the rights
                                        I


                stated herein, that no promises have been made to me and
                that have not been threatened in any manner:
                    I




2A memorandum opinion filed November 29, 2016 was subsequently withdrawn via order of December 7,
2016.

                                                       2
                        A.   Ihave the absolute right to remain silent.
                        B.  If I give up this right, anything that I say can and
                 will be used against me in a court of law.
                         C.  Ihave the right to talk to an attorney before,
                 and have an attorney present during, questioning.
                         D. If I cannot afford an attorney, one will be
                 appointed to represent me, without charge, before
                 any questioning, if so desire,
                                          I




                        E. If decide to answer any questions, may
                                 I                                       1




                 stop anytime that wish.
                                      I




                 Commonwealth's Exhibit No.        1,   September   6,   2018).


       Defendant testified that as of May 26, 2615, the date of the polygraph

examination, he was taking medication for congestive heart failure and that during the

testing he had heart palpitations and felt light-headed. After the polygraph testing,

efendant claimed that Trooper Levan's demeanor toward him changed dramatically -

namely, like night and day that he slammed a chair on the floor and got in Defendant's

face. Defendant characterized the trooper as being aggressive and claimed that he got

loud and began angrily asking questions such that Defendantfelt threatened and not

free to leave.

       According to the evidence, Defendant's interaction with police, including the

polygraph procedure and pre -and post -interviews, encompassed about two one -hour

twenty minute sessions with an intervening fifteen minute break during which efendant

left the police barracks. After the polygraph examination and Defendant's being advised

that he had failed the test, he admitted      t   having committed various sexual assaults

upon the young child.

       The entire procedure with perhaps the exception of the fifteen minute break

period was depicted on       a   video/audio recording. Portions of the recording which



                                                   3
counsel believed were relevant            t   the Court's determination were played at the

September 6, 2018 hearing. They included pre-test and test excerpts and the entire

post-test interview. Trooper Levan's testimony that he did not slam a chair on the floor

at the start of the post-test interview was confirmed by the recording, as was his

testimony that he did not yell at Defendant during the interview. In fact, the entire

recording did not support Defendant's claim that the trooper exhibited anger or

aggression, got loud, threatening             r,   as   efendant testified, got in the latter's face.
Nothing depicted in the recording conveyed that efendant's ability to terminate the

discussion or leave the state police barracks had changed from the pre-test interview

stage. At the end of the post-test interview and his having made inculpatory statements

DefendantLemainelifreetaleave_thP piPmises



                                                       Discussion

          efendant asserts that he         is   nly pursuing a      claim that his trial attorney had been

ineffective    in    not filing a pre-trial motion to suppress the inculpatory statements

Defendant made to Trooper Levan during the post-test interview. Defendant's claim is

entitled to consideration in collateral proceedings as he has been convicted of crimes, is

serving   a   sentence of imprisonment, contends that the convictions resulted from

ineffective assistance of counsel, and, the issue has not been previously litigated or

waived. To          btain relief he   is required to have both pled and proved that the convictions

resulted from ineffective assistance               f   counsel, "which, in the circumstances of the

particular case, so undermined the truth -determining process that no reliable

adjudication of guilt or innocence could have taken place." (42 Pa.C.S. 9543(a)(2)(ii)                  ).




                                                           4
       In     this regard, Defendant must "satisfy the performance and prejudice test" of

Strickland     v.   Washington, 466 U.S. 668 (1984) and prove that: "(1) the underlying claim

has arguable merit; (2) no reasonable basis existed for counsel's action or failure to

act; and (3) [he] suffered prejudice as           a   result of counsel's error, with prejudice

measured by whether there is            a   reasonable probability that the result of the proceeding

would have been different." Commonwealth                    v.   VanDivner, 178 A.3d 108, 114 (Pa.

2018) (citations omitted). In examining the claim, Defendant's trial counsel is

"presumed to have rendered effective assistance, and, if [his] claim fails under any

required prong of the Strickland test, the court may dismiss the claim on that basis." Id.

       Consequently, Defendant is required to plead and prove that the claim he has

desired to pursue, namely, that his confession had been coerced, has merit. If the

confession was not coerced, he would not have been entitled                   t   suppression relief and,

therefore, would not have suffered any prejudice from his trial counsel's failure to file

and litigate the issue pre-trial. When an accused's statements are sought to be

suppressed, the Commonwealth bears the burden of establishing by                      a   preponderance

of the evidence that statements were not obtained in violation of his rights and are

admissible. Commonwealth           v.   Busch, 713 A.2d 97 (Pa. Super. 1998).

       A confession given during custodial interrogation is presumptively involuntary

unless an accused is advised of Miranda warnings - the rights to remain silent and to

counsel   -   and he has knowingly, voluntarily and intelligently waived those rights.

Commonwealth v. Williams, 650 A.2d 420 (Pa. 1994). However, Miranda warnings are

not required where the interrogation is not custodial.




                                                        5
          A police detention is "custodial when under the totality of the circumstances the

conditions and/or duration of the detention become so coercive as to become the

functional equivalent of arrest" - namely by                   ne's        being "physically deprived of his

freedom in any significant way or [being] placed in a situation in which he reasonably

believes that his freedom of action or movement is restricted by the interrogation."

Commonwealth                v.   DiStefano} 782 A.2d 574, 579 (Pa. Super. 2001), appeal denied, 806

A.2d 858 (Pa. 2002).                 Factors to be considered when examining the totality of the

circumstances and whether the detention became so coercive as to be the functional

equivalent of arrest include, "the basis for the detention; the location; whether the

suspect was transported against his will; how far, and why; whether restraints were

used; the show, threat or use of force; and the methods of investigation used to confirm

r   dispel suspicions." Id. at 580.

          Whether or not Defendant was               in    custody, the voluntariness of the inculpatory

statements will also be examined. The test for voluntariness of a confession is whether

it was   the "product of an essentially free and unconstrained choice." Commonwealth                               v.


Alston, 317 A.2d 241, 243 (Pa. 1974).                    In   deciding whether statements were voluntarily

made, the surrounding circumstances must be examined as a "noncustodial

interrogation might possibly in some situations, by virtue of some special circumstances,

be characterized as one where the behavior of                      .   .   .   .   law enforcement officials was such

as to    verbear [the accused's] will to resist                and bring about confessions not freely self-

determined     .   .   .   .",   thereby resulting in them being classified as involuntary. Beckwith               v.


United States, 425 U.S. 341, 347-48 (1976) (citations omitted). Similar to the issue of

custodial interrogation, voluntariness              is    assessed pursuant to the totality of the



                                                               6
circumstances with factors to be examined including "the duration and means of the

interrogation; the accused's physical and psychological state; the conditions attendant

to the detention; the attitude exhibited by the police during the interrogation; and any

and all other factors which may serve to drain one's powers of resistance to suggestion

and coercion." Commonwealth v. Jones, 683 A.2d 1181, 1189 (Pa. 1996) (citations

mitted).

       In   his petition,   efendant did not precisely state that     he had been   subject to

custodial interrogation or that he had not voluntarily waived his rights to remain silent

and to be represented by counsel. However, it is assumed that these issues are

encompassed within his complaint that his statements were coerced. Nevertheless, the

evid-_nce does not support such contentions. The totality of the circumstances establish

both that Defendant had never been           in   custody at any relevant time and that the

statements made by him had not been the result of anything other than his free choice.

The reliable evidence elicited at the September 6, 2018 hearing which included the

video/audio recording       f   the interaction between Defendant and Trooper Levan

establishes that Defendant's statements to the trooper were not the product of mental or

physical duress     r   the result of coercion, threats or other improper influence.

efendant's interaction with the trooper lasted about three hours during which

efendant was permitted           t   and did leave the police barracks on one occasion for about

fifteen minutes. The trooper neither displayed threatening actions or raised his voice as

claimed by Defendant.

       Defendant was advised both verbally and in writing of his ability to terminate the

encounter with the trooper at any time and of his rights to remain silent and to counsel



                                                      7
and waived those rights without coercion. No basis existed to require that     efendant be

advised a second time of his ability   t   terminate the encounter and leave the barracks.

Further, the credible evidence produced did not support finding that Defendant was

excessively tired from work or lack of sleep, was experiencing medical problems or was

under psychological stress such that any such conditions era combination thereof

would or did result in an involuntary confession.    efendant was not brought to the

police barracks against his will, was not restrained while there, was at all times free to

leave and was interviewed/tested less than three hours - which period included a fifteen

minute break. The interrogator displayed neither an aggressive nor angry attitude but

spoke calmly throughout the interaction, including during the post-test interview. The

fact that Trooper Levan raised doubts about the credibility of efendant's claim of

innocence does not change the voluntary nature       f  the confession.

       As Defendant would not have been entitled      t   suppression relief on the grounds

that his statements had been coerced, his trial counsel was not ineffective in failing to

raise the issue. Because the only claim Defendant desired to pursue in the petition is

without merit, his petition is being denied.




                                                8
