J-S12025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RYAN ANDREW MEHL

                            Appellant                 No. 793 MDA 2016


                  Appeal from the PCRA Order April 21, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0004500-2013


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED APRIL 10, 2017

        Ryan Andrew Mehl appeals from the order entered April 21, 2016, in

the York County Court of Common Pleas dismissing his petition for collateral

relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-

9546.     Mehl seeks relief from the judgment of sentence of an aggregate

term of five to 10 years’ imprisonment, imposed following his jury conviction

of sexual assault, indecent assault without consent, and indecent assault of

an unconscious person.1         On appeal, he argues the PCRA court erred in

dismissing his claims asserting trial counsel’s ineffectiveness for: (1) failing

to meet with him and discuss trial strategy; (2) failing to adequately discuss

the waiver of his right to testify; and (3) failing to object when the court

____________________________________________


1
    See 18 Pa.C.S. §§ 3124.1 and 3126(a)(1) and (a)(4), respectively.
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entered the jury room during deliberations.               For the reasons below, we

affirm.

        The facts presented during Mehl’s jury trial were recounted in detail in

this Court’s memorandum decision affirming his sentence on direct appeal.

See Commonwealth v. Mehl, 120 A.3d 389 [877 MDA 2014] (Pa. Super.

2014) (unpublished memorandum at 3-8). Therefore, we need not reiterate

them herein. To summarize, Mehl sexually assaulted a friend of his sister-

in-law after the victim had passed out following a night of drinking. He was

subsequently charged with rape of an unconscious person,2 sexual assault,

and two counts of indecent assault. The case proceeded to a jury trial. On

January 24, 2014, the jury returned a verdict of guilty on one count of

sexual assault, and two counts of indecent assault (without consent and

unconscious person). The jury was unable to reach a verdict on the charge

of rape.

        On May 2, 2014, represented by new counsel, Mehl appeared for

sentencing and presented an oral motion for extraordinary relief pursuant to

Pa.R.Crim.P. 704(B). Mehl argued: (1) the trial court erred in denying an

oral    suppression    motion     he   made      during   trial   and   permitting   the

Commonwealth to introduce testimony of a statement he made to a police



____________________________________________


2
    18 Pa.C.S. § 3121(a)(3).




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investigator absent Miranda warnings;3 and (2) trial counsel was ineffective

for advising him not to testify and for failing to present character witnesses.

The court denied the motion before proceeding to sentencing. Thereafter,

Mehl was sentenced to a term of five to 10 years’ imprisonment for sexual

assault, and a concurrent term of one to two years’ imprisonment for

indecent assault of an unconscious person.        The court also imposed a

consecutive period of two years’ probation for the second indecent assault

charge.

        Mehl filed a timely direct appeal challenging the sufficiency of the

evidence and the trial court’s denial of his oral suppression motion. A panel

of this Court affirmed his judgment of sentence on February 23, 2015. See

Mehl, supra.       Mehl did not petition the Supreme Court for allowance of

appeal. Thereafter, on December 23, 2015, Mehl filed a timely, pro se PCRA

petition asserting the ineffectiveness of trial counsel for failing to file a

pretrial suppression motion, failing to prepare for trial, and granting the

court permission to enter the jury room during deliberations. See Motion for

Post Conviction Collateral Relief, 12/23/2015, at 4. Counsel was promptly

appointed and filed an amended petition on February 29, 2016, asserting
____________________________________________


3
  See Miranda v. Arizona, 384 U.S. 426 (1966). During trial, Mehl
presented an oral motion to suppress a statement he made to an
investigator while he was in a drug rehab facility. The court held a truncated
hearing, and denied the motion. See N.T., 1/22-24/2014, at 279-289.




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claims of trial counsel’s ineffectiveness. The PCRA court conducted a hearing

on March 2, 2016, and, on April 21, 2016, denied Mehl’s petition.                    This

timely appeal follows.4

       When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record,     and   whether      its   legal     conclusions    are   free   from     error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed    unless     they    have    no     support   in   the    certified    record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).    Moreover, “[t]he PCRA court’s credibility determinations, when

supported by the record, are binding on this Court.”                Commonwealth v.

Spotz, 18 A.3d 244, 259 (Pa. 2011).

       Moreover, where, as here, all of the petitioner’s claims assert trial

counsel’s ineffectiveness, our review is well-settled:

       “[C]ounsel is presumed effective, and [appellant] bears the
       burden of proving otherwise.” To prevail on an ineffectiveness
       claim, appellant must establish: (1) the underlying claim has
       arguable merit; (2) no reasonable basis existed for counsel’s
       actions or failure to act; and (3) [appellant] 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
____________________________________________


4
  On May 31, 2016, the court ordered Mehl to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).         Mehl
complied with the court’s directive, and filed a concise statement on June
15, 2016.



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      different absent such error. Failure to prove any prong of this
      test will defeat an ineffectiveness claim.

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (internal citations

and footnote omitted).

      In his first issue, Mehl contends trial counsel was ineffective for failing

to meet with him and discuss defense strategy before trial.       In support of

this claim, Mehl states he met with counsel only twice before his jury trial –

the first time, for 15 minutes in October of 2012, and the second time, for

15 minutes prior to the start of trial in January of 2013. See Mehl’s Brief at

8-9. Further, Mehl maintains he attempted to call counsel 50 times before

trial, but was never able to reach him.          See id. at 9.    Mehl’s father

corroborated these allegations at the PCRA hearing, testifying Mehl tried to

contact counsel “at least three times a day and three days a week before

trial.” Id. Mehl argues there can be no reasonable basis for counsel’s “lack

of communication.”       Id. at 10.    Moreover, he asserts counsel’s failure to

communicate with him and discuss trial strategy prevented him “from

participating in his own defense and providing critical, exculpatory evidence”

which would have change the outcome of the trial. Id. at 11.

      Here, the PCRA court concluded that Mehl failed to meet his burden of

establishing counsel’s ineffectiveness. See PCRA Court Opinion, at 7. The

court noted trial counsel testified that he spoke with Mehl several times

before trial.   See id. at 5-6.       Our review of the PCRA hearing testimony

supports this finding.    Trial counsel testified he spoke with Mehl “at least

once on the phone prior to the pre-trial conference, at the pre-trial

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conference, the one time in our office [in October 2013], and at least one

other time on the telephone between that October date and trial as well as

prior to trial.”   N.T., 3/2/2016, at 35.    Although counsel acknowledged he

probably never returned any messages Mehl may have left him, he stated, “I

talked to him when he caught me in the office.” Id. at 45. With regard to

trial strategy, counsel explained Mehl’s version of the events was consistent

during their conversations, in that Mehl “admitted to the [sexual] conduct

but not to the criminality.”    Id. at 35.   This Court has previously found a

challenge to counsel’s stewardship based solely on the length and frequency

of counsel’s consultations with the defendant does not support a finding of

ineffectiveness. See Commonwealth v. Johnson, 51 A.3d 237, 244 (Pa.

Super. 2012) (en banc) (finding that although “more contact may have been

advisable,” in preparation for defendant’s first-degree murder trial, the

attorney’s contact “allowed him to present a cogent trial strategy.”), appeal

denied, 63 A.3d 1245 (Pa. 2013). Accordingly, Mehl’s claim has no arguable

merit.

      Furthermore, we find Mehl has failed to establish he was prejudiced by

counsel’s purported lack of contact. Indeed, while Mehl claims the lack of

communication      with   counsel   prevented   him   from    “providing   critical,

exculpatory evidence[,]” he fails to identify this evidence or explain how the

outcome of the trial would have been different.              Mehl’s Briel at 11.

Accordingly, he is entitled to no relief.




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       In his second issue, Mehl contends trial counsel was ineffective for

failing to “adequately discuss [his] right to testify prior to advising [him] to

not testify.” Id. at 11. Mehl claims he was “eager to testify; mainly to tell

his version of events and maintain his innocence.”          Id. at 12.    However,

counsel advised him not to testify in order to preserve a potential

suppression issue on appeal.5          Mehl acknowledges that following a “brief

conversation with trial counsel, [he] followed counsel’s advice and did not

testify.” Id.

       With regard to the ineffectiveness prongs, Mehl argues counsel’s

failure to “adequately discuss his right to testify” has arguable merit, and

counsel had no reasonable basis for this omission.          Id.   Mehl asserts the

case   was    dependent      upon    circumstantial   evidence,   and   without   his

testimony, the jury was “provided with only the Commonwealth’s version of

events.” Id. at 13. Finally, he claims he suffered prejudice because he “was

denied the opportunity to rebut the Commonwealth’s evidence with his own

factual testimony and exculpatory evidence.” Id.

____________________________________________


5
  At the PCRA hearing, counsel explained Mehl wanted to appeal the trial
court’s decision denying his oral suppression motion. See N.T., 3/2/2016,
at 41-42. Counsel acknowledged he advised Mehl not to testify because he
anticipated Mehl’s testimony would confirm what Mehl told the investigator.
See id. at 42. Counsel feared that any error with regard to the admission of
Mehl’s statement would then be viewed as harmless error on appeal. See
id. Counsel also stated he was concerned how Mehl would be viewed by the
jury because “his attitude toward the whole thing was very flippant at
times.” Id. at 50.



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      Preliminarily, we note:

      The decision of whether or not to testify on one’s own behalf is
      ultimately to be made by the defendant after full consultation
      with counsel. In order to sustain a claim that counsel was
      ineffective for failing to advise the appellant of his rights in this
      regard, the appellant must demonstrate either that counsel
      interfered with his right to testify, or that counsel gave specific
      advice so unreasonable as to vitiate a knowing and intelligent
      decision to testify on his own behalf.

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (internal

citations omitted). Our review of the trial transcript reveals that at the close

of the Commonwealth’s case-in-chief, trial counsel indicated Mehl had

elected to testify on his own behalf, but asked for a brief recess, which the

trial court granted.   See N.T., 1/22-24/2014, at 333.        After the recess,

counsel informed the court that Mehl decided not to testify. The following

exchange took place:

      THE COURT: … All right, Mr. Mehl, did you have enough time to
      consider the decision about whether you wish to testify or not?

      [MEHL]: Yes, Your Honor.

      THE COURT: And what do you want to do?

      [MEHL]: I’m choosing not to testify, I believe the facts are out
      there.

      THE COURT: All right, do you have any question about your
      rights in this regard?

      [MEHL]: No, Your Honor.

      THE COURT: The Court finds that Mr. Mehl has knowingly,
      voluntarily and intelligently elected not to testify in this matter.

Id. at 334-335.




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      We again agree with the conclusion of the PCRA court that no relief is

due on this claim.    See PCRA Court’s Opinion, 4/20/2016, at 6-7.       The

colloquy performed by the trial court demonstrated that Mehl’s decision not

to testify was his own, and made after adequate consultation with counsel.

Moreover, counsel provided a reasonable basis for his advice, stating he

believed Mehl’s testimony would harm a legitimate appellate issue, and he

feared Mehl’s attitude might not be well received by the jury.     See N.T.,

3/2/2016, at 41-42, 50.    Furthermore, Mehl failed to demonstrate how he

was prejudiced by counsel’s advice. While Mehl claims the jury did not hear

his “factual testimony,” the jury did hear, through his statement to the

police investigator, that he believed the sexual contact was consensual, and

initiated by the victim. See N.T, 1/22-24/2014, at 295, 298. See also id.

at 339-343 (explaining Mehl’s recount of the incident through his statement

to the investigator). Mehl does not identify any “exculpatory evidence” or

testimony he would have provided had he testified at trial that would have

raised a “reasonable probability that the result of the proceeding would have

been different[.]”   Fears, supra, 86 A.3d at 804.    Therefore, no relief is

warranted on this claim.




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       Mehl’s final allegation of counsel’s ineffectiveness focuses on counsel’s

failure to object when the trial court entered the jury room during

deliberations.6 This issue is based on the following facts.

       During deliberations, the trial court received a note from the jury

indicating they were “having difficulty with one of the charges” and asking

the court how to proceed. N.T., 2/22-24/2014, at 406. The court provided

further instructions in the courtroom, and then sent the jury back to

continue deliberations.       Later, the jury sent another note explaining they

were “hung” on one of the charges, and had made no further progress. Id.

at 417. At that point, the trial court stated the following to counsel:

       I’m going to have them come out and take the verdict on the
       charges that we have reached a decision on, and I will first make
       an inquiry if there is anything else that the Court can provide to
       them that may assist them, or if they need more time.

       But before I do that, with the consent of both counsel, I’m going
       to briefly stick my head [in] the jury room to make sure that
       they’ve completed the verdict slip for the three charges on which
       they’ve reached a verdict, and that they’ve signed all 12
       signatures to the verdict slip as required under the procedure.

Id. The court asked both prosecution and defense counsel if that procedure

was “okay” with them, to which they both responded, “Yes, Your Honor.”
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6
  We note while PCRA counsel did not include this issue in his amended
petition, Mehl preserved the claim in his pro se petition, and the PCRA court
permitted testimony on the claim at the PCRA hearing. On appeal, PCRA
counsel concedes that the claim lacks merit. See Mehl’s Brief at 14.
However, in the interests of justice, we will address it, as did the PCRA
court. See PCRA Court Opinion, 4/20/2016, at 7-10.




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Id. Shortly thereafter, the jury returned with the verdict. See id. at 418.

At the PCRA hearing, trial counsel testified that he could not recall if Mehl

was in the courtroom during that exchange. See N.T., 3/2/2016, at 49.

     The PCRA Court addressed this issue as follows:

           After review of the pertinent case law, we find [Mehl’s]
     claim of error meritless. In Commonwealth v. Bradley,15 the
     Pennsylvania Supreme Court announced that it was eliminating
     the presumption of prejudice in cases involving unauthorized
     contact between a judge and the jury, which had been
     established in prior case law.16     Bradley requires that the
     moving party show that “a reasonable likelihood of prejudice”
     resulted from the trial court’s ex-parte communication with the
     jury before the reviewing court grants relief.17

     __________
        15
             459 A.2d 733, 739 (Pa. 1983); see also
        Commonwealth v. Young, 748 A.2d 166, 175 (Pa. 1999)
        (stating “where there has been ex parte contact between
        the court and jury in a criminal case, we are constrained to
        reverse the defendant’s conviction unless there is no
        reasonable possibility that the error might have
        contributed to the conviction.”).
        16
             Argo v. Goodstein, 228 A.2d 195 (Pa. 1967).
        17
             Bradley, 459 A.2d at 739.

     __________

           Here, the trial judge stated that he wanted to inquire
     whether the jury completed the verdict form. As evidenced by
     the jury’s prior two notes, there were hung on one charge and
     the resulting verdict was consistent in the respect. There was no
     evidence presented that the judge’s communication was more
     than administrative in nature, or that the jury was influenced
     either way by the judge. In absence of a showing of prejudice,
     no relief is warranted.18

     __________



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         18
            Commonwealth v. Daniels, 104 A.3d 267, 296 (Pa.
         2014) (stating that, “Pennsylvania law generally requires a
         showing that ex parte communications with a jury resulted
         in prejudice in order to warrant relief.”).

PCRA Court Opinion, 4/20/2016, at 9-10.

      Our review of the record and the pertinent case law reveals no basis to

disturb the PCRA court’s ruling. The interaction between the trial court and

the jury, after the jury indicated they were unable to reach a verdict on one

count, appears to have been only administrative, that is, to ensure the

jurors had signed the verdict slip.    Indeed, after speaking with the jurors,

the court returned to the courtroom and stated: “All right, good thing that I

did that because they need to complete that.       Just give them a couple of

minutes to sign that and bring them out.”        N.T., 1/22-24/2014, at 418.

Because “counsel is not ineffective for failing to raise a meritless objection,”

we find Mehl is entitled to no relief. Commonwealth v. Spotz, 47 A.3d 63,

82 (Pa. 2012).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017




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