J-S42012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHRISTOPHER ADAM WIRTH                   :
                                          :
                    Appellant             :   No. 263 MDA 2018

               Appeal from the PCRA Order January 2, 2018
     In the Court of Common Pleas of Union County Criminal Division at
                      No(s): CP-60-CR-0000110-2012


BEFORE:    BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 27, 2018

      Christopher Adam Wirth appeals from the January 2, 2018 order

denying PCRA relief. After thorough review, we affirm.

      On January 7, 2012, Appellant was the driver of an automobile involved

in a single-vehicle accident that resulted in the death of Allison Vonneida, and

serious injuries to himself and a backseat passenger, Desiree Cronin. He was

subsequently charged with homicide by vehicle while driving under the

influence (DUI), aggravated assault by vehicle while DUI, homicide by vehicle,

accident involving death/personal injury while not properly licensed, DUI,

driving under suspension, and other related offenses.      At trial in February

2013, evidence was adduced that the vehicle was traveling at ninety-one miles

per hour when it left the two-lane road on a curve. Appellant’s blood alcohol

was .13 within two hours of the accident, and he was unlicensed at the time.

Appellant was convicted by a jury of all charges, and subsequently sentenced

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* Retired Senior Judge assigned to the Superior Court.
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in the aggregate to eight years and ten months to twenty-five years

imprisonment.1

       After the court denied Appellant’s timely post-sentence motion, he

appealed.     A panel of this Court affirmed judgment of sentence and our

Supreme      Court     denied    allowance     of   appeal   on   May   12,    2015.

Commonwealth v. Wirth, 108 A.3d 125 (Pa.Super. 2014) (unpublished

memorandum), allowance of appeal denied, 116 A.3d 605 (Pa. 2015).

Appellant filed a timely PCRA petition, his first, and counsel was appointed.

Counsel filed an amended PCRA petition, followed by a first amended petition

and a supplement to that petition (collectively “Amended PCRA petition”).

After an evidentiary hearing on October 26, 2017, the PCRA court denied relief

on January 2, 2018. Appellant timely filed this appeal.

       Appellant raises six issues for our review, which we have re-ordered for

ease of disposition:

       I.     Whether trial counsel was ineffective for failing to object to
              the trial court’s incomplete and misleading consciousness of
              guilt instruction?
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1  Appellant was sentenced as follows: at count 1 (homicide by vehicle while
DUI) – sixty to 120 months imprisonment; at count 2 (aggravated assault by
vehicle while DUI) - 24 to 120 months consecutive to sentence at count 1; at
count 3 (homicide by vehicle with a DUI conviction) - 30 to 84 months
concurrent to the sentences imposed at counts 1 and 2; at count 5 (accident
involving death or personal injury while not properly licensed) - 22 to 60
months consecutive to counts 1 and 2. The court did not impose sentence at
counts 4, 6, and 7, finding that counts 2 and 4 merged, count 6 merged with
count 7, and both merged with count 1 for purposes of sentencing. N.T.
Revocation and Sentencing Hearing, 4/11/13, at 49. The court imposed fines
only at counts 8, 9, 10, 11, and 12. Id. at 49.

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      II.    Whether trial counsel was ineffective for failing to object to
             the trial court’s seat belt instruction?

      III.   Whether trial counsel was ineffective for failing to file a
             motion to sever the offense of accident involving death or
             personal injury while not properly licensed and driving under
             suspension?

      IV.    Whether trial counsel was ineffective for failing to file a pre-
             trial motion to suppress Mr. Wirth’s statements he made to
             the police while hospitalized?

      V.     Whether trial counsel was ineffective for failing to object to
             the imposition of a consecutive sentence in Count 5,
             accident involving death/injury?

      VI.    Whether the cumulative effect of these errors deprived
             [Appellant] of effective assistance of counsel?

Appellant’s brief at 4 (unnecessary capitalization omitted).

      On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error.   Commonwealth v. Lesko, 15 A.3d 345, 358

(Pa. 2011). We will review an order dismissing a PCRA petition in the light

most favorable to the prevailing party at the PCRA level. Commonwealth v.

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

      The law is well settled that counsel is presumed to be effective. Id. In

order to overcome that presumption and establish that counsel was

ineffective, a petitioner must establish all of the following three elements, as

set forth in Commonwealth v. Pierce, 527 A.2d 973, 975-76 (Pa. 1987):

(1) the underlying legal claim has arguable merit; (2) counsel had no


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reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice because of counsel’s ineffectiveness. Commonwealth v.

Dennis, 950 A.2d 945, 954 (Pa. 2008). Both the U.S. Supreme Court and

our High Court have stated that the elements need not be analyzed in any

particular order; if a claim fails under any necessary element of the test, the

reviewing court may proceed to that element first. See Lesko, supra at 373

(citing Strickland v. Washington, 466 U.S. 668 (1984)).

      As our High Court explained in Commonwealth v. Paddy, 15 A.3d 431,

442-43 (Pa. 2011), “[w]ith regard to the second, reasonable basis prong, ‘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.’”      Counsel’s chosen strategy lacks a

reasonable basis only if a petitioner proves that “an alternative not chosen

offered a potential for success substantially greater than the course actually

pursued.” Id. at 443 (quoting Commonwealth v. Williams, 899 A.2d 1060,

1064 (Pa. 2006) (citation omitted)). Finally, in order to satisfy the prejudice

prong, “the petitioner must show that there is a reasonable probability that

the outcome of the proceedings would have been different but for counsel’s

ineffectiveness.”   Id.   “In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence before the

judge or jury. . . .Moreover, a verdict or conclusion only weakly supported by




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the record is more likely to have been affected by errors than one with

overwhelming record support.”    Lesko, supra (emphasis in original).

      Regarding proof of prejudice, we observe the following. The evidence

supporting Appellant’s convictions was overwhelming. It was conceded that

Appellant was the driver of the vehicle, his blood alcohol was .13 within two

hours of the accident, and that he did not have a license at the time. N.T.,

Trial, 2/15/13, at 34. While the defense attempted to discredit the rear seat

passenger’s testimony at trial that she saw the speedometer reach eighty-

seven miles per hour prior to the accident, the Commonwealth’s accident

reconstructionist placed the speed at ninety-one miles per hour when the

vehicle left the road and crashed into trees. Despite defense counsel’s attempt

to characterize the accident as a tragedy rather than a crime, the jury was not

persuaded.

      Appellant’s first and second ineffectiveness claims pertain to counsel’s

failure to object to what he claims were erroneous jury instructions.       In

determining whether there was arguable merit in his underlying claim, we

examine the charge as a whole.       “The trial court has broad discretion in

formulating jury instructions, as long as the law is presented to the jury in a

clear, adequate, and accurate manner.” Commonwealth v. Lukowich, 875

A.2d 1169, 1173 (Pa.Super. 2005) (internal citation omitted).

      First, Appellant alleges that the consciousness of guilt instruction was

inaccurate because the court initially referred to false testimony instead of


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false statements and, since Appellant did not testify at trial, it highlighted that

fact. Appellant also faults the court for failing to tell the jury that they “were

not required to consider” such evidence as consciousness of guilt, the precise

wording used in PA.S.S.J.I. (Crim.) 3.15. He maintains that the trial court’s

use of the word “can” was not a proper substitute for advising the jury that

they “were not required to do so.” Appellant’s brief at 15. In support of his

position, Appellant cites Francis v. Franklin, 471 U.S. 307 (1985) and

Commonwealth v. Gonzalez, 116 A.3d 696 (Pa.Super. 2014) (unpublished

memorandum).

      The court instructed the jury as follows:

      There was evidence in this case that the Defendant gave false
      testimony under two circumstances to Trooper Boucher, David
      Boucher. One was in the hospital shortly after the accident, a
      second time was on February 1, 2012, at the State Police Barracks
      ...

      Giving false testimony can be a circumstance tending to prove
      what we call consciousness of guilt. Such statements may be
      made with an intent to divert suspicion or mislead the police or
      other authorities or to establish an alibi or innocence and, hence,
      can be indicative of guilt.

      You may not find Mr. Wirth guilty simply because he gave false
      statements, there may be other reasons why he did so; but it is a
      factor that you can consider in your deliberations.

N.T. Trial, 2/15/13, at 68.

      The trial court gave the instruction because Appellant falsely stated to

police that Ms. Vonneida was driving the vehicle at the time of the accident.

When interviewed later at the State Police Barracks, he did not correct that


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statement. He subsequently admitted that he was the driver. It is undisputed

that the trial court used the word “testimony” instead of “statement,” then

advised the jury that false statements alone were not a basis to find guilt, “but

it is a factor that you can consider in your deliberations.” N.T., 2/15/13, at

68.

      The PCRA court found that Appellant’s underlying claim lacked arguable

merit. See PCRA Court Opinion, 1/2/18, at 3. The court acknowledged that

it used the word testimony in error, but that it correctly used the word

statement in the remainder of the instruction. The court concluded that the

instruction, while not identical to the suggested standard jury instruction, did

not confuse the jury or improperly highlight his choice not to testify. The court

stated that the jury would have noted that Appellant did not testify at trial,

and furthermore, at the request of the defense, it instructed the jury that his

choice not to testify could not be used against him.      PCRA Court Opinion,

1/2/18, at 3 (citing N.T., 2/15/12, at 66).

      Based on its wide latitude in the wording of jury instructions, the PCRA

court reasoned that advising the jury that it “can consider,” in lieu of “was not

required to consider” was “a distinction without a difference.” PCRA Court

Opinion, 1/2/18, at 3 (citing Commonwealth v. Sattazahn, 952 A.2d 640,

688 (Pa. 2008)). Both versions conveyed the idea that one was permitted,

but not required, to consider the statements as consciousness of guilt.




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       We find misplaced Appellant’s reliance upon Gonzalez, supra, as it is

an unpublished memorandum that has no precedential or persuasive value

under our rules and does not support his position.2 Francis involved a type

of instruction not deemed to be permissive that was found to violate due

process. In contrast, the instruction herein was phrased in permissive terms,

suggesting to the jury that it could infer consciousness of guilt from Appellant’s

prior false statements to police, but was not required to do so. We find no

abuse of discretion on the part of the PCRA court.

       In addition, trial counsel stated he did not object because he felt the

instruction was adequate, an assessment with which we agree. Furthermore,

as a matter of strategy, he did not want to draw additional attention to his

client’s false statements to police, which the PCRA court deemed to be a

reasonable strategy. See PCRA Court Opinion, 1/2/18, at 4. Finally, the court

concluded that, “the evidence of guilt was so great, that even if the erroneous

instruction were all that the Defendant contends, it could not have been

prejudicial.” Id.



____________________________________________


2 Ironically, Commonwealth v. Gonzalez, 116 A.3d 696 n.5 (Pa.Super.
2014) (unpublished memorandum) undercuts Appellant’s argument. A panel
of this Court approved of language almost identical to that used by the trial
court herein in the consciousness of guilt instruction. (“But if you find that he
did flee and you find that he did so because of a guilty [conscience] you can
consider that as evidence in this case.”) (emphasis added). We concluded
that this language “clearly, adequately, and correctly advised the jury that it
could consider the evidence of flight as demonstrating Appellant’s
consciousness of guilt, but that it was not required to do so.” Id.

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      We find no abuse of discretion. The record supports the PCRA court’s

conclusion that Appellant failed to satisfy any of the three prongs of the

ineffectiveness test. No relief is due.

      Appellant argues next that the jury instruction regarding seat belt usage

and direct cause was erroneous, but that counsel failed to object. The court

incorrectly informed the jury that it was not permitted to consider whether

Desiree Cronin, the seriously injured rear seat passenger, was wearing a seat

belt in determining whether Appellant’s conduct was a direct cause of her

serious bodily injury.   The PCRA court conceded that its instruction was

erroneous under Commonwealth v. Huggins, 790 A.2d 1042 (Pa.Super.

2002), rev’d on other grounds, 836 A.2d 862 (Pa. 2003) (holding that the

prohibition against admission of evidence of a passenger’s failure to use a

seatbelt to prove causation of injury in a criminal case only applies to front

seat passengers). The PCRA court found, however, that no prejudice resulted

from counsel’s failure to object.    The court pointed to Ms. Cronin’s initial

testimony that she did not fasten her seatbelt when she entered the vehicle,

but that she subsequently stated she was unsure whether she was able to get

it on prior to the accident.   While Ms. Cronin stated that she was not one

hundred percent sure that she was wearing her seatbelt, she later testified

that just before the accident, “I yelled at Chris to slow down and for Allie to

sit back or put her seat belt on as I put my seat belt on.” N.T. Jury Trial,

2/14/13, at 72. Notably, she was the only occupant who was not ejected from


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the vehicle. Thus, the PCRA court concluded there was evidence from which

the fact finder could conclude that she was wearing her seatbelt at the time

of the accident. PCRA Court Opinion, 1/2/18, at 9-10. The PCRA court found

persuasive the Commonwealth’s claim that any error was harmless in light of

the totality of proof. Id. at 9.

      We find no abuse of discretion on the part of the PCRA court. There was

evidence from which the factfinder could have concluded that Ms. Cronin was

wearing her seatbelt when the impact occurred, rendering the error in the

instruction harmless.   Furthermore, the PCRA court properly examined the

totality of the circumstances, and given proof that Appellant was driving a

vehicle ninety-one miles per hour when it left the roadway, that the vehicle

crashed into trees and flipped over, ejecting both front seat passengers,

Appellant failed to demonstrate that if counsel had objected, the result of the

proceedings likely would have been different. Id. at 10. We find no abuse of

discretion.

      Next Appellant argues that trial counsel was ineffective for not seeking

to sever the charges of driving with a suspended license and accident involving

death or personal injury while not properly licensed. Appellant argues that

proof of these two crimes required that the fact finder learn that he had

“previously been convicted of a crime and/or prior bad act,” but in the next

breath, he charges that his prior license suspension was irrelevant to his guilt

or innocence.    Appellant’s brief at 18.     He claims that he was prejudiced


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because the license suspension “was utilized to prove disposition on [his part]

to commit crime generally, rather than guilt of the specific crime[s] for which

[Appellant] was on trial[,]” and “only served to prejudice the jury against him

from the outset as someone who violated the law by driving illegally.” Id. at

19-20.

      In   support   of   his   position,   Appellant   directs   our   attention   to

Commonwealth v. Boyd, 461 A.2d 1294 (Pa.Super. 1983), where this Court

found that the trial court erred in refusing to sever charges of possession of

heroin and possession of predulin that arose on different dates, and had

unrelated proof. He also points to Commonwealth v. Galassi, 442 A.2d 328

(Pa.Super. 1982), wherein we determined that the charge of convict not to

possess firearm should have been severed from the charge of firearm not to

be carried without a license because the prejudice of the introduction of the

defendant’s former conviction affected all of the other charges.

      The Commonwealth counters that none of the cases relied upon by

Appellant involved a summary offense such as a license suspension.

Furthermore, it points out that defense counsel had a strategic reason for

stipulating to the license suspension and not attempting to sever the two

charges from the remainder of the charges against Appellant.                 Counsel

testified that the suspension was easy to prove, and by stipulating to that fact,

the jury would not hear and dwell on the Commonwealth’s proof. N.T. PCRA

Hearing, 10/26/17, at 17. Furthermore, defense counsel testified that he saw


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a benefit in keeping all of the offenses together so that the jury would see the

incident as a horrible accident, and out of sympathy, impose guilt at these

lesser offenses. Id. at 18.

      Pa.R.Crim.P. 583 provides that “The court may order separate trials of

offenses or defendants, or provide other appropriate relief, if it appears that

any party may be prejudiced by offenses or defendants being tried together.”

Where a prior conviction is an element of a crime charged, defense counsel

commonly will request severance of that charge from the other charges, to

avoid the jury hearing evidence pertaining to a defendant’s prior conviction,

which is not admissible for the sole purpose of demonstrating criminal

propensity. See Commonwealth v. Cobb, 28 A.3d 930 (Pa.Super. 2011)

(severing charge of persons not to possess firearms from nine remaining

charges). In making a severance determination, the court determines: “[1]

whether the evidence of each of the offenses would be admissible in a separate

trial for the other; [2] whether such evidence is capable of separation by the

jury so as to avoid danger of confusion; and, if the answers to these inquiries

are in the affirmative; [3] whether the defendant will be unduly prejudiced by

the consolidation of offenses.” Commonwealth v. Melendez-Rodriguez,

856 A.2d 1278, 1283 (Pa.Super. 2004) (quoting Commonwealth v. Collins,

703 A.2d 418, 422 (Pa. 1997).

      Herein, having a suspended license was an element of both driving

under suspension and accident involving death or personal injury while not


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properly licensed.     However, that prior suspension was merely a summary

offense, distinguishing the facts herein from those in Boyd, which involved

proof of another unrelated drug transaction, and Galassi, where the

conviction was for a prior violent felony. The PCRA court concluded that in

light of the overwhelming evidence of guilt in the instant case, Appellant’s

suspended license “was of little moment in the big picture.”        PCRA Court

Opinion, 1/2/18, at 6. We agree. Appellant failed to prove that the outcome

of the proceeding would have been different had counsel sought to sever the

license suspension-related charges.

        Appellant alleges next that counsel was ineffective in failing to file a

motion to suppress the statement he made to police while he was in the

hospital.   He contends that his situation was custodial, and that Miranda

warnings3 were required.         He also maintains that the PCRA court erred in

concluding that he was not in custody when he was questioned in the hospital.

He cites Commonwealth v. D’Nicuola, 292 A.2d 333 (Pa. 1972), and

Commonwealth v. Whitehead, 629 A.2d 142 (Pa.Super. 1993), in support

of his contention that a hospital room may be a custodial setting for purposes

of Miranda.

        The Commonwealth points to Trooper David Boucher’s report, indicating

that Appellant was given Miranda warnings prior to the interview in the



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3   Miranda v. Arizona, 384 U.S. 436 (1996).

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hospital. Defense counsel had a copy of that report when he determined that

a motion to suppress would be unsuccessful.          See N.T. PCRA Hearing,

10/26/17, at 36. Furthermore, the Commonwealth argues that Appellant’s

reliance upon Whitehead is misplaced as its “focus of the investigation”

analysis subsequently was rejected in Commonwealth v. Ellis, 549 A.2d

1323 (Pa.Super. 1988), and Commonwealth v. Fento, 526 A.2d 784, 788

(Pa.Super. 1987).      The Commonwealth maintains further that Miranda

warnings were not necessary because Appellant was not in custody at the

time.

        We note preliminarily that Appellant failed to establish the factual

predicate of his claim. There is simply no evidence that Trooper Boucher did

not apprise Appellant of his Miranda warnings prior to questioning, and it was

Appellant’s burden to plead and prove entitlement to relief. It is well-settled

that counsel cannot be deemed ineffective for failing to pursue a meritless

claim. Commonwealth v. Padden, 783 A.2d 299, 314 (Pa.Super. 2001).

        Second, the mere fact that a suspect was questioned in a hospital does

not, as a matter of law, render the interrogation custodial. See Ellis supra

at 1332 (where restriction on a defendant’s freedom of movement based on

his medical condition did not constitute custody for purposes of the totality of

the circumstances test).    Appellant offered no proof of circumstances that

would support a finding that he was in custody in the hospital.




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       Furthermore, Appellant gave a second statement to police at the

barracks, and he does not contest that Miranda warnings were given prior to

questioning at that time. The second statement was consistent with his earlier

statement at the hospital, and thus, Appellant cannot prove prejudice from

counsel’s failure to seek to suppress the earlier statement. No relief is due on

this basis.

       In his penultimate issue, Appellant alleges that counsel was ineffective

for failing to object to the imposition of a consecutive sentence at count five,

accident involving death/injury while not properly licensed. He claims that his

sentence on that count should have merged with the sentences imposed at

counts one through four, i.e., homicide by vehicle while DUI, aggravated

assault by vehicle while DUI, homicide by vehicle, and aggravated assault by

vehicle, as they included the same conduct. 4

       In finding no merger, the PCRA court adopted the Commonwealth’s

position that 42 Pa.C.S. § 9765 governed: “No crimes shall merge for

sentencing purposes unless the crimes arise from a single criminal act and all

of the statutory elements of one offense are included in the statutory elements

of the other offense. Where crimes merge for sentencing purposes, the court

may sentence the defendant only on the higher graded offense.”             See



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4 The court did not impose sentence at count 4 (aggravated assault by
vehicle), finding that the offense merged with count 2 (aggravated assault by
vehicle while DUI) for purposes of sentencing.

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Commonwealth v. Grays, 167 A.3d 793, 814 (Pa.Super. 2017) (finding no

merger of homicide by vehicle and homicide by vehicle while DUI for

sentencing purposes where defendant was convicted of numerous laws

relating to the use of his vehicle in addition to DUI).

      The PCRA court agreed with the Commonwealth that count five

contained an element of driving while license suspended that was not an

element of the offenses charged at counts one through four.           We find no

sentencing error, and adopt the PCRA court’s disposition of this issue as our

own. See PCRA Court Opinion, 1/2/18, at 8-9.

      Finally, Appellant urges us to grant relief based on cumulative instances

of ineffective assistance of counsel. Since we have rejected Appellant’s claims

in toto, there is no cumulative error. See Commonwealth v. Rainey, 928

A.2d 215, 245 (Pa. 2007) (“As this Court has often held, no number of failed

claims may collectively warrant relief if they fail to do so individually.”).

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/27/2018



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