J-S02040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

FRANK ADAM YEAGER

                        Appellant                     No. 1266 EDA 2016


                Appeal from the PCRA Order April 4, 2016
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0000377-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                             FILED JUNE 13, 2017

     Frank Adam Yaeger appeals from the April 4, 2016 order of the Lehigh

County Court of Common Pleas denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.

     The trial court set forth the following facts:

            The victim was a salesperson for Pulte Homes at its new
        development in Upper Macungie Township, Lehigh County.
        On November 25, 2012, just before closing time at 7:00
        p.m., she was alone in the office at the development.
        [Yeager] entered the office and asked the victim if she
        would show him one of the model homes. The victim
        became suspicious because of the way [Yeager] was acting
        and because he did not ask for information about the
        home. She told him to look at the home himself. He went
        to the model home and was there for about 45 minutes. It
        was [Yeager]’s plan to get the woman alone in an upstairs
        bedroom of the model home and to rape her there. When
        he was upstairs in the model home, he looked from the
        windows to see if the victim was coming. To prepare for
        the rape, he closed the curtains in a bedroom and turned
        off the lights.
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          When the victim did not come to the model home,
       [Yeager] returned to the office and told her there was a
       water leak in the home and he wanted to show it to her.
       She was still suspicious and she refused to go with him.
       [Yeager] continued to ask her to inspect the leak. A male
       co-worker of the victim then entered the office at which
       point [Yeager] quickly left. [Yeager] went to his pickup
       truck and waited for the male co-worker to leave. After a
       while, [Yeager] got tired of waiting and drove off.

          In various statements, [Yeager] admitted that it was his
       plan to lure the victim into a bedroom on the second floor
       of the model home and to rape her there. He stated that
       he chose the office closing time because of the likelihood
       that the woman would be alone.

          [Yeager] fantasized about raping women for many
       months before this incident. He developed a plan for the
       rape of this victim. Included in his statement to the pre-
       sentence investigator was the following:

                 I did a massive on-line search of these
              people (realtors) . . . I had a plan of action. . .
              For three months, I drove around every
              Sunday. I used my truck-driving skills to map
              out my route. Once I lost my job, I really put
              myself into it. It was full-time work. I want to
              attack every girl I see so I was drinking all the
              time. . . I had a profile. I wanted someone,
              one of them pretty looking Paris Hilton type
              thing. I had a very specific guideline. . . The
              urges were so compelling, I was fighting it with
              alcohol.

          On December 3, 2012, the police executed search
       warrants of [Yeager]’s pickup truck and his home. At
       [Yeager]’s home, they found numerous realty packages,
       the victim’s business card and handwritten notes and
       pictures drawn by [Yeager] about rape. Among the items
       was a note . . . written by [Yeager] which begins
       “11/[2]5/12, 7:14 a.m.” The attempted rape occurred on
       November 25, 2012, later in the day. The note reads:

                If your (sic) reading this, I found a realtor
              woman and raped her. I have been planning
              and have wanted this my whole life. . . . After

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              the rape, I have to shut down because I know
              I will either get caught and go to jail the rest of
              my life or keep raping until I am stopped. I
              know it is wrong but I cannot fight the urges.
              I enjoy this when I sit in the back of some
              shopping center when there (sic) about to
              close the hair salon and a woman comes out all
              alone. I sit, watch her, rubbing myself with a
              knife in one hand knowing I can rape her at
              any time or go into an open house in some
              new development and no one else is around
              but some realtor bitch and that I could rape
              her and know (sic) one will hear her scream.
              No one will come by or in the park watch some
              bitch jogging and no one else is around. I
              truly enjoy the hunt and cannot wait for my
              prize.

           Among [Yeager]’s materials at his home was a suicide
        note which includes the statement that he planned to rape
        two other realtors instead of the victim but the other
        realtors were accompanied by a number of people.
        [Yeager] wrote that he would kill himself after the rape by
        setting the model home on fire. There were also drawings
        by [Yeager] of him raping women.

           When the state police executed the search warrant on
        [Yeager]’s pickup truck, they found matches, a lighter,
        knives, binoculars, a ski mask, gloves, rope, two
        handguns, several magazines and ammunition, a chain,
        padlocks, duct tape and realty brochures. In none of the
        hearings did [Yeager] contest what is described to this
        point in the Factual Background section.

           [Yeager] had contemplated suicide often before the
        date of this crime. Before he was arrested, he recognized
        that he had mental health issues. He pursued only limited
        talk therapy for his psychological problems. [Yeager] has
        regularly and increasingly abused alcohol over the past
        decade.      There were many episodes of [Yeager]’s
        becoming intoxicated in the weeks leading up to this
        crime. [Yeager] admitted that his alcoholism fueled what
        he planned and what he did to the victim.

Dir. App. Pa.R.A.P. 1925(a) Opinion, 3/13/14, at 3-5.


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       On April 29, 2013, Yeager pled guilty to attempted rape. 1 On October

21, 2013, the trial court found Yeager to be a sexually violent predator and

sentenced him to 10 to 20 years’ incarceration.            On October 30, 2013,

Yeager filed a post-sentence motion, which the trial court denied on

November 5, 2013. Yeager timely appealed, and we affirmed his judgment

of sentence on February 26, 2015. On September 9, 2015, Yeager filed a

timely PCRA petition.        Following an evidentiary hearing, the PCRA court

denied Yeager’s petition on April 4, 2016. On April 27, 2016, Yeager timely

filed his notice of appeal.

       Yeager raises the following issue on appeal:

            A. Did [Yeager]’s conviction result from ineffective
               assistance of counsel which so undermined the truth-
               determining process that no reliable adjudication of
               guilt or innocence could have taken place, in that the
               defense attorney advised [Yeager] to plead guilty after
               he failed to consider, explain to [Yeager], or raise the
               possibility of a corpus delicti objection to [Yeager]’s
               confessions and other statements and writings, in
               violation of Const. Art. 1, § 9, Pa Const Art. 1, § 9,
               U.S.C.A. Const. Amend. V, VI, and XIV.

                  1. Was trial counsel was [sic] ineffective for failing
                     to advise [Yeager] that the corpus delicti rule
                     could be invoked to preclude a conviction of all of
                     the charges?

                  2. Does the corpus delicti rule apply?

                  3. Does the closely related crime exception apply to
                     these statements?

____________________________________________


       1
           18 Pa.C.S. § 901(a).



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                4. Did the course of conduct pursued by counsel
                   have some reasonable basis designed to
                   effectuate [Yeager]’s interests; and but for
                   counsel’s ineffectiveness, was there a reasonable
                   probability that the outcome of the challenged
                   proceeding would have been different[?]

Yeager’s Br. at 4 (full capitalization and answers omitted).

      Taken together, Yeager’s issue and sub-issues challenge trial counsel’s

ineffectiveness for not discussing with Yeager the corpus delicti rule and its

potential applicability to his case.

      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez–Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.

      To prevail on an ineffective assistance of counsel claim, the petitioner

must establish: “(1) his underlying claim is of arguable merit; (2) counsel

had no reasonable basis for his action or inaction; and (3) the petitioner

suffered actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014).           “In determining whether counsel’s action was

reasonable, we do not question whether there were other more logical

courses of action which counsel could have pursued; rather, we must

examine    whether        counsel’s    decisions   had    any    reasonable    basis.”

Commonwealth         v.    Washington,       927   A.2d   586,    594   (Pa.   2007).

“[C]ounsel is presumed to be effective and the burden of demonstrating

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ineffectiveness rests on appellant.”           Commonwealth v. Ousley, 21 A.3d

1238, 1244 (Pa.Super. 2011).           “The failure to prove any one of the three

[ineffectiveness] prongs results in the failure of petitioner’s claim.” Id.

       The PCRA court found:

           [Trial counsel] recognized that [Yeager] provided a lot of
           damaging detail to the troopers in his statement with
           regard to taking a substantial step towards commission of
           the crime. In particular, [Yeager] related, inter alia, that
           he had done “reconnaissance” work to find out personal
           information about the victim . . .; he had gone into the
           model home, closed the drapes and turned off the lights in
           the bedroom, and waited approximately forty-five (45)
           minutes for the victim to arrive; he was going to kill
           himself, but he first wanted to see what it was like to rape
           a realtor.

               After reviewing the confession, [trial counsel] spoke
           with [Yeager] again.        Based on his education and
           experience, [trial counsel] believed that the best option for
           [Yeager] was not to challenge the confession, as he did not
           believe that the challenge would ultimately be successful,
           especially in light of the victim’s statement. Additionally,
           [trial counsel] noted that if [Yeager] did challenge the
           confession and the victim had to testify at a pretrial
           hearing, then the offer of an open guilty plea to Attempted
           Rape[2] would be withdrawn. Consequently, [trial counsel]
           thought that pursuing the path of cooperation was in
           [Yeager]’s best interest, as it would limit his exposure with
           regard to the other counts of the Criminal Information.
           [Trial counsel]’s strategy was to then focus on mitigation
           at the time of sentencing, as [Yeager] was a sympathetic
____________________________________________


       2
         In exchange for Yeager’s guilty plea to attempted rape, the
Commonwealth withdrew the charges for firearms not to be carried without
a license, 18 Pa.C.S. § 6106(a)(2), and possessing an instrument of crime,
18 Pa.C.S. § 907(a).




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         man with a sad background and upbringing. [Yeager]
         agreed with [trial counsel]’s evaluation and accepted the
         offer extended by the Commonwealth.          The ultimate
         decision to accept the plea was made by [Yeager].

Opinion, 4/4/16, at 6-7 (“PCRA Ct. Op.”).

      Trial counsel “reviewed the voluminous discovery,” id. at 6, which

included the incident report, the victim’s statement, and conversations with

Yeager, N.T., 3/22/16, at 45. Further, during the evidentiary hearing, trial

counsel testified that he consulted with Yeager and told him that there were

“two ways we can go about this.”         N.T., 3/22/16, at 31.     Trial counsel

explained to Yeager that they could “challenge the confession.          We can

challenge those things and try and get those knocked out. But if we do that,

once we file that . . . motion, there will be no plea bargains, and so you’ll be

irrevocably committed to going to trial at that point.”      Id.    Although he

advised Yeager that the plea deal was in Yeager’s best interest, ultimately it

was Yeager’s decision to plead guilty.       Id. at 22, 31-33.   Further, Yeager

stated at his guilty plea hearing that he was satisfied with trial counsel’s

representation. N.T., 4/29/13, at 4.

      Yeager argues that there was no reasonable basis for trial counsel’s

course of conduct because, under the corpus delicti rule, the confession

would have been excluded and the remaining evidence would have been

insufficient to support a conviction. We disagree.

      The Supreme Court of Pennsylvania has explained:

         The corpus delicti rule requires the Commonwealth to
         present evidence that: (1) a loss has occurred; and (2) the
         loss occurred as a result of a criminal agency. Only then

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            can the Commonwealth . . . rely upon statements and
            declarations of the accused to prove that the accused was,
            in fact, the criminal agent responsible for the loss.

Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003) (internal citation

and quotation omitted).          Here, the Commonwealth presented sufficient

corroborating evidence3 to satisfy the corpus delicti rule: “the police reports,

the victim’s statement detailing [Yeager]’s overt acts, [and] statements of

other realtors.” PCRA Ct. Op. at 10.           Therefore, a motion challenging the

admission of Yeager’s confession likely would not have been successful.

       The evidence trial counsel reviewed, coupled with his education and

experience, led him to believe that challenging the confession was not in

Yeager’s best interest. Rather, trial counsel’s strategy was to focus on

mitigation at the time of sentencing.

       We conclude that the PCRA court’s finding that trial counsel had a

reasonable basis for not challenging the confession is supported by the

____________________________________________


       3
           Our Supreme Court has explained that

            corroborative evidence need not be sufficient, independent
            of the statements, to establish the corpus delicti. It is
            necessary, therefore, to require the Government to
            introduce substantial independent evidence which would
            tend to establish the trustworthiness of the statement.
            Thus, the independent evidence serves a dual function. It
            tends to make the admission reliable, thus corroborating it
            while also establishing independently the other necessary
            elements of the offense.

Taylor, 831 A.2d at 594.



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evidence and is free of legal error.   See Washington, 927 A.2d at 594

(stating that inquiry is not whether there was more logical course of action,

but whether course of action pursued by trial counsel had reasonable basis);

Commonwealth v. Fowler, 670 A.2d 153, 155 (Pa.Super. 1996) (“Trial

counsel inherently has broad discretion to determine the course of defense

tactics employed.”).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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