J-S61022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CLAYTON RAYMOND AXE

                            Appellant                 No. 490 MDA 2015


                 Appeal from the PCRA Order of March 3, 2015
                 In the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0001975-2011


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                        FILED DECEMBER 11, 2015

       Clayton Raymond Axe appeals the order denying his petition for

collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-46. We affirm.

       In our memorandum responding to Axe’s direct appeal, we related the

factual and procedural history of this case as follows:

       In February of 2011, C.R. (the victim) lived with Ryan Eaton and
       her three-year-old son. On February 12, 2011, Ryan Eaton and
       his cousin, Brandon Clutter, prepared to leave the house to
       attend an outdoor show. At that time, Axe came to the house to
       tell the men about his nipple piercings. The three men talked for
       about five minutes before leaving the house. Ryan and Brandon
       left for the show, and Axe headed down the street towards his
       house.


____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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     About two minutes after leaving the house, Axe returned and
     knocked upon the door. When the victim answered the door,
     Axe stated that he came back to speak with the victim about his
     ex-girlfriend. At this time, the victim was wearing a robe as she
     got ready to take a shower before travelling to her sister’s
     house. The victim let Axe in and he took a seat on the couch;
     she sat across from him on the love seat. During this time, the
     victim’s son was sitting nearby watching television. After talking
     for a short time, Axe told the victim he wanted to “have a little
     fun.”

     The victim told Axe she was not interested. Axe then got off the
     couch and sat down on his knees on the floor in front of the
     victim. He began kissing the victim’s neck. The victim continued
     to tell him no and tried to push him away. Axe then undid his
     belt buckle and took out his penis. He told the victim to “play
     with it,” and when she said no he grabbed her hand and placed it
     on his penis. The victim pulled her hand away and continued to
     tell Axe no.

     Axe proceeded to grab the victim, pull her further down on the
     love seat, and open her robe. The victim again said no and tried
     to push him away. Axe was close to putting his penis inside the
     victim when Ryan walked back into the house to pick up the
     directions he forgot. Upon Ryan’s entrance, Axe jumped up and
     ran to the bathroom, while the victim headed to her bedroom
     crying. When Ryan spoke to the victim, she told him to “get Axe
     out of the house.” Ryan next spoke to Axe who told him, “I
     messed up.”

     During the police interview1, Axe stated that he asked the victim
     if she wanted to “have some fun,” she said “no,” and then he
     exposed his penis. He told police that the victim said “no”
     several times. Axe admitted that it was his intent to have sex
     with the victim, and that he messed up by fooling around with
     his friend’s ex-girlfriend.

     ___________________

       1 Defense counsel played pieces of the interview at trial.

     Axe was subsequently charged with criminal attempt—rape by
     forcible compulsion,2 criminal attempt—sexual assault,3 indecent
     exposure,4 and corruption of minors.5 A jury convicted Axe of
     criminal attempt—sexual assault and indecent exposure. Axe
     was sentenced to incarceration for a minimum of 54 months,

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       maximum ten years for criminal attempt—sexual assault, and a
       minimum of six months, maximum twelve months for indecent
       exposure. The sentences run concurrently. In addition, Axe was
       required to register as a sexual offender with the Pennsylvania
       State Police for a minimum of ten years.

       ___________________
          2
              18 Pa.C.S. § 901.
          3
              18 Pa.C.S. § 901.
          4
              18 Pa.C.S. § 3127(a).
          5
              18 Pa.C.S. § 6301(a)(1)(i).

Commonwealth v. Axe, 979 MDA 2012, slip op. at 1-4 (Pa. Super.

June 27, 2013) (memorandum) (record citations omitted).

       Axe initiated the instant matter by filing a timely PCRA petition on

December 15, 2014.1            Therein, Axe raised, inter alia, two claims of

ineffective assistance of trial counsel. First, he maintained that trial counsel

erred by not seeking to suppress Axe’s self-incriminating statement to

investigators. Second, he contended that counsel was ineffective for failing

to call Axe to the stand to testify in his defense.     After appointing PCRA

counsel, the court held a hearing on Axe’s petition on February 23, 2015.




____________________________________________


1
      After this Court affirmed Axe’s judgment of sentence, our Supreme
Court denied Axe’s petition for allowance of appeal on January 6, 2014.
Axe’s judgment of sentence became final ninety days later, on April 7, 2014,
when the time period during which he could seek discretionary review before
the United States Supreme Court expired. See U.S.Sup.Ct.R. 13; 42 Pa.C.S.
§ 9545(b)(3). Axe filed his petition well within one year of April 7, 2014.



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Ultimately, the PCRA court rejected these and other claims either at the

hearing or in a later ruling, which was entered on March 4, 2015.

      Axe filed the instant timely appeal of the PCRA court’s denial of relief

on March 12, 2015. On March 16, 2015, the PCRA court directed Axe to file

a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).    Axe timely complied on April 1, 2015. Thereafter, the

PCRA court filed an opinion pursuant to Rule 1925(a), ripening this matter

for review.

      Before this Court, Axe raises the following issues:

      1.     Whether the PCRA court erred in denying [Axe’s] PCRA
      petition when trial counsel was ineffective fo[r] failing to file a
      pretrial motion to suppress [Axe’s] involuntary and coerced
      statements to police?

      2.     Whether the PCRA court erred in denying [Axe’s] PCRA
      petition when trial counsel was ineffective for advising [Axe] not
      to testify at trial despite [Axe’s] desire to do so?

Brief for Axe at 4.

      Our standard of review of a PCRA court order granting or denying relief

under the PCRA calls upon us to determine “whether the determination of

the PCRA court is supported by the evidence of record and is free of legal

error.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).

“The PCRA court’s findings will not be disturbed unless there is no support

for the findings in the certified record.” Commonwealth v. Wah, 42 A.3d

335, 338 (Pa. Super. 2012).




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      In both of Axe’s issues, he contends that his trial attorney provided

constitutionally ineffective assistance of counsel (“IAC”). Pennsylvania has

recast the two-factor IAC inquiry set forth by the United States Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984), as a three-factor

inquiry:

      [I]n order to obtain relief based on [an IAC] claim, a petitioner
      must establish: (1) the underlying claim has arguable merit;
      (2) no reasonable basis existed for counsel’s actions or failure to
      act; and (3) petitioner 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 different absent such error.

Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is

presumed to be effective, and the appellant bears the burden of pleading

and proving each of the three factors by a preponderance of the evidence.

Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006); see

also Commonwealth v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001).

“Failure to establish any prong of the test will defeat an [IAC] claim.”

Commonwealth v. Walker, 346 A.3d 1, 7 (Pa. 2011).

      In his first issue, Axe maintains that trial counsel should have sought

to suppress his statement to police upon the basis that the statement was

involuntary under the circumstances.     In order to determine whether trial

counsel was ineffective for this reason, we must review the standard that

determines whether a confession is voluntary.        Whether a confession is




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voluntary is a conclusion of law, subject to plenary, de novo review.

Commonwealth v. Nester, 709 A.2d 879, 881 (Pa. 1998).

      Voluntariness is determined from the totality of the
      circumstances surrounding the confession.       The question of
      voluntariness 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.

                                    ****

      When assessing voluntariness pursuant to the totality of the
      circumstances, a court should look at the following factors: the
      duration and means of the interrogation; the physical and
      psychological state of the accused; the conditions attendant to
      the detention; the attitude of the interrogator; and any and all
      other factors that could drain a person’s ability to withstand
      suggestion and coercion.

Id. at 882 (citations omitted).

      The PCRA court, which also presided over the trial, has provided a

detailed account of its own review of Axe’s entire statement:

      The initial interaction between [Axe] and the troopers is casual
      in nature and is clearly focused on the troopers trying to get
      some background information, such as [Axe’s] full name and
      date of birth. After asking [Axe] some general questions about
      his interactions with the victim and her boyfriend on the day of
      the incident, Trooper [Christopher] Colarusso asked [Axe] if he
      knew why troopers wanted to talk to him. [Axe] said “I’m
      guessing about [C.R.] and Ryan.” After explaining who [the
      victim] and Ryan were, [Axe] freely admitted that he was at
      their house that day. In response to being asked why he went
      over to Ryan and [the victim’s house, Axe] said “Just to talk to
      Ryan, and then they left . . . . And I was gonna leave, and [the
      victim] talks to my ex-girlfriend a lot, and I wanted to talk to her
      about [the victim]—or to [the victim] about Carissa [i.e., Axe’s
      ex-girlfriend], and I guess it just happened. The very next
      question from Trooper Colarusso is, “Okay. Well, that’s what we
      want to talk about, so tell me what happened.” [Axe] said he

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     and [the victim] were talking about his ex-girlfriend and then his
     “penis was out [and] [s]he didn’t have anything on under her
     robe [and] [h]er vagina was out.”

     Working off [Axe’s] version of events, the troopers asked [Axe]
     how the situation went from them talking about his ex-girlfriend
     to his penis being out and [Axe] said that he asked the victim if
     she wanted to have sex, but she said no. [Axe] continued, “By
     then my penis was already out. And I mean I didn’t—I don’t
     know if you understand where I’m coming from. I didn’t hold
     her down. I didn’t force her. I don’t know how else to explain
     it.” Then he said Ryan walked back in the house.

     [In t]he rest of the interview the troopers do press [Axe] for
     more specifics regarding the entire situation, and there certainly
     are points where the troopers cut [Axe] off. There are times
     when the troopers raise their voices. However, hearing the
     interview, it is clear that the raised voices come more from a
     place of disbelief as opposed to an attempt to coerce [Axe] into
     confessing. It was [Axe] who freely admitted that the victim
     said “no” more than once. And it was [Axe] who told troopers
     that he pulled his penis out even after the victim said she did not
     want to have sex.

     As previously mentioned, [the PCRA court] listened to the entire
     interview again—even the redacted portions. Those parts of the
     interview consisted of troopers asking [Axe] about his prior
     record, which contained a crime similar in nature to the one with
     the current victim. One of the troopers interviewing [Axe] was
     the officer assigned to that earlier case, so there is a time in the
     interview where he is asking [Axe] if he “remembers him.”
     [Axe] stated he did not. Overall, the redacted portions of the
     interview did not indicate to us that the interview was coercive in
     any way.

     Despite [Axe’s] testimony at his PCRA hearing that he was
     scared and felt anxious, we cannot conclude that his statements
     were coerced. At the end of the interview the troopers asked
     [Axe] if everything that he had just told them was the truth and
     [Axe] stated that it was. [Axe] was also asked whether he felt
     threatened or coerced into giving those statements and he
     answered no.      Based on the totality of the circumstances,
     specifically the length of the interview, the attitude of the
     troopers, and psychological state of [Axe], we cannot conclude
     that [Axe’s] statements were anything but voluntarily given.


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PCRA Court Opinion (“P.C.O.”), 4/16/2015, at 5-7 (citations omitted).

       The trial court then turned to the Pierce standard.             Despite finding

that the statement, even including its redacted sections, was not coercive,

the trial court bypassed the question of arguable merit and determined that

trial counsel reasonably opted not to seek suppression.                  We find this

conclusion questionable; whether to seek suppression of the statement and

figuring   out    how    to   use    it   to   the   defense’s    advantage   are   not

contemporaneous considerations, nor are they mutually exclusive. Nothing

in trial counsel’s PCRA testimony suggests that counsel had a reasonable

basis for concluding that it was not worth at least attempting to seek

suppression, given the centrality of the statement to the Commonwealth’s

case, even if counsel thought it very unlikely that the trial court would grant

the motion.

       That being said, we find implicit in the PCRA court’s discussion the

conclusion that this claim lacks arguable merit.2                The PCRA court in no

uncertain terms provided a detailed analysis based upon controlling law that

established that, had trial counsel sought suppression of the statement, he

would not have prevailed. This analysis and conclusion is supported by the

record. Hence, the premise underlying Axe’s argument that a suppression


____________________________________________


2
       This Court may affirm the PCRA court’s decision upon any correct
basis.     Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14
(Pa. Super. 1996).



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motion might have prevailed is unsound.         Given that Axe has not pleaded

and proved that his claim has arguable merit, we need go no further to

conclude that this argument is unavailing.

      In Axe’s second issue, he contends that trial counsel was ineffective

for discouraging him from testifying on his own behalf at trial.

      It is well settled that the decision 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 call the appellant to the stand, the
      appellant must demonstrate either (1) that counsel interfered
      with his right to testify, or (2) that counsel gave specific advice
      so unreasonable as to vitiate a knowing and intelligent decision
      to testify on his own behalf. Counsel is not ineffective where
      counsel’s decision to not call the defendant was reasonable.

Commonwealth v. Breisch, 719 A.2d 352, 354-55 (Pa. Super. 1998)

(citations and internal quotation marks omitted). Axe’s argument proceeds

only under the second theory, which hinges upon the reasonableness of

counsel’s advice discouraging the defendant from testifying.

      Axe’s   argument   in   support    of   this   issue,   and   specifically   the

reasonableness prong of the Pierce test, is quite brief:

      [Trial counsel] testified at the PCRA hearing that his reason for
      not wanting [Axe] to testify is he was worried how he would
      perform on the stand and he was worried that [Axe] would
      somehow open the door to prior bad acts. However, without
      [Axe’s] testimony, the jury only heard from the Commonwealth
      witnesses and the coerced interrogation with absolutely no
      rebuttal. [Trial counsel] admitted [during the PCRA hearing]
      that if he could change anything he would have put [Axe] on the
      stand to testify.

Brief for Axe at 23.

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      Axe further argues that this Court’s decision in Breisch compels this

Court to conclude that Axe’s trial counsel lacked a reasonable basis for

discouraging Axe from testifying.      In Breisch, this Court found arguable

merit where the defendant claimed that counsel did not present her with the

choice of whether to testify and asserted that she did not know that counsel

did not intend to call her to testify until the defense rested. See 719 A.2d

at 355. This Court further found no reasonable basis for counsel’s choice.

At the PCRA hearing in Breisch, counsel testified that he advised the

defendant that he thought her testimony was unnecessary because he

believed that cross-examination of the Commonwealth’s witnesses would be

sufficient to create reasonable doubt. Counsel further attested that he was

worried about the defendant’s ability to testify on her own behalf. Notably,

the defendant in Breisch had no prior convictions, similar to the offense or

otherwise, to which the defendant’s testimony might open the door.        As

noted, supra, Axe not only had a prior offense but that offense shared

certain characteristics with the assault alleged in this matter.

      This case is distinguishable.     First, Axe does not allege that trial

counsel was deficient or tardy in informing him of his right to testify or in

explaining the risks and benefits associated with that choice. Indeed, before

the defense presented its case, Axe was carefully colloquied by the trial

court regarding his right to testify on his own behalf. Axe indicated that he

understood that he had that right, had reviewed his options with counsel,

and chose voluntarily to waive that right. The trial court further made clear

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to Axe that he could change his mind and testify on his own behalf at any

time.     See Notes of Trial Testimony, 1/9/2012, at 268.            Second, Axe’s

attempt to minimize the importance of his prior offense, and the risk that an

errant statement by him or his attorney could result in that offense being

revealed to the jury, is utterly unconvincing.         Plainly, the quantum of risk

associated with the jury learning of a prior similar offense cannot be

gainsaid, especially in a he-said-she-said case such as this one.

        That trial counsel in the instant matter testified before the PCRA court

that he regretted not calling Axe to the stand is not dispositive. This Court

may not utilize hindsight in assessing the reasonableness of an attorney’s

decision in advance of and at the time of trial.               Commonwealth v.

Thomas, 783 A.2d 328, 333 (Pa. Super. 2001) (quoting Commonwealth

v. Basemore, 744 A.2d 717, 735 (Pa. 2000)) (“[T]he reasonableness of

counsel’s    decisions   cannot   be   based    upon    the   distorting   effects   of

hindsight.”).    The only relevant inquiry is whether counsel’s decision was

reasonably crafted to serve his client’s interests at the time the decision was

made.       In this case, the fact of Axe’s prior record, alone, provided a

reasonable basis for trial counsel to be leery of subjecting his client to cross-

examination.     Furthermore, it cannot be said that this left Axe with no

defense: In opting to focus upon impeaching the confession upon which the

Commonwealth’s case principally rested, counsel made a reasonable tactical

choice.    As well, it cannot be said that the choice reaped no benefits; the

jury in this matter acquitted Axe of the most serious charge, attempted rape

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by forcible compulsion.    Thus, the record supported the PCRA court’s

determination that trial counsel’s advice reasonable, and Axe is not entitled

to relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




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