J-S33027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JASON ANDREW MERSCHAT

                         Appellant                 No. 1479 WDA 2015


              Appeal from the PCRA Order September 17, 2015
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0012256-2009

BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED JULY 25, 2016

      Appellant, Jason Andrew Merschat, appeals from the order entered on

September 17, 2015 dismissing his first petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm.

      The relevant factual background and procedural history of this case is

as follows. On March 19, 2009, a Pennsylvania State Police trooper pulled

Appellant over for speeding.         Because Appellant exhibited signs of

intoxication, the trooper administered field sobriety tests, which Appellant

failed.   Appellant was then transported to the hospital where a blood test

showed his blood alcohol concentration (“BAC”) was .195%.

      On October 6, 2009, the Commonwealth charged Appellant via

criminal information with driving under the influence (“DUI”)–highest rate




* Former Justice specially assigned to the Superior Court
J-S33027-16


(second    offense),1   DUI–general   impairment   (first   offense),2   and   five

summary traffic offenses. Prior to trial, the Pennsylvania State Police erased

the video recording of the traffic stop. Because of this, Appellant moved to

suppress all evidence gained as a result of the stop, including Appellant’s

BAC test results, pursuant to Pennsylvania Rule of Criminal Procedure 573.

The trial court denied the suppression motion.

        At trial, the Commonwealth called Jennifer Janssen (“Janssen”), a

toxicologist with the Allegheny County Medical Examiner’s Office.              The

Commonwealth did not produce an expert report authored by Janssen and

Appellant’s trial counsel did not request production of such a report.         On

August 3, 2010, Appellant was convicted of DUI–highest rate, DUI-general

impairment, and four summary offenses.       On November 3, 2010, the trial

court sentenced Appellant to 90 to 180 days’ imprisonment followed by four

years’ probation for DUI–highest rate. Appellant’s DUI-general impairment

conviction merged with his DUI-highest rate conviction and he was

sentenced to no further penalty on the remaining charges.

        This Court affirmed Appellant’s judgment of sentence and our Supreme

Court denied allowance of appeal. Commonwealth v. Merschat, 46 A.3d

811 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 48 A.3d

1248 (Pa. 2012). In affirming Appellant’s judgment of sentence, this Court

1
    75 Pa.C.S.A. § 3802(c).
2
    75 Pa.C.S.A. § 3802(a)(1).



                                      -2-
J-S33027-16


found that Appellant waived his claim that the charges against him should

have been dismissed for a violation of Rule 573 because he only sought

suppression of the evidence and not dismissal of the charges.      After our

Supreme Court denied allowance of appeal, the trial court ordered Appellant

to serve his sentence. Upon completion of his prison term, Appellant sought

early termination of his probation.   The trial court denied the request and

Appellant appealed that decision.

     While that appeal was pending, and within one year of his judgment of

sentence becoming final, Appellant filed a counseled PCRA petition.      The

PCRA court dismissed the petition because the appeal of the early

termination of probation ruling was still pending.   Appellant then appealed

the dismissal of his PCRA petition. Eventually, this Court consolidated those

appeals, affirmed the trial court’s denial of early termination of probation,

vacated the dismissal of the PCRA petition, and remanded for consideration

of the PCRA petition. Commonwealth v. Merschat, 107 A.3d 225, 2014

WL 10575178 (Pa. Super. 2014) (unpublished memorandum).

     On remand, Appellant filed an amended PCRA petition. On August 14,

2015, the PCRA court issued notice of its intent to dismiss the petition

without an evidentiary hearing. See Pa.R.Crim.P. 907. On September 17,




                                      -3-
J-S33027-16


2015, the PCRA court dismissed Appellant’s petition.                   This timely appeal

followed.3

       Appellant presents four issues for our review:

    1. [Did the PCRA court err in dismissing Appellant’s claim that
       counsel was ineffective for failing to preserve his Rule 573 issue
       for review?

    2. Did the PCRA court err in dismissing Appellant’s claim that
       counsel was ineffective for failing to request an expert report
       from the Commonwealth and failing to object to the expert’s
       testimony?

    3. Did the PCRA court err in dismissing Appellant’s claim that
       counsel was ineffective for failing to call Janine Arvizu (“Arvizu”)
       as an expert witness?

    4. Did the trial court err in dismissing Appellant’s claim that his
       sentence was illegal?]

See Appellant’s Brief at 1-2.

       As most PCRA appeals involve mixed questions of fact and law, “[o]ur

standard of review of an order granting or denying relief under the PCRA

requires us to determine 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)    (internal   alteration,   quotation     marks,        and     citation   omitted).


3
  On October 5, 2015, the PCRA court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On October 8, 2015, Appellant filed his concise
statement. On November 6, 2015, the PCRA court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.



                                        -4-
J-S33027-16


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

for the findings in the certified record.” Commonwealth v. Ruiz, 131 A.3d

54, 57 (Pa. Super. 2015) (citation omitted).

      Appellant’s first three claims relate to the purported ineffectiveness of

his counsel.    A “defendant’s right to counsel guaranteed by the Sixth

Amendment to the United States Constitution and Article I, [Section] 9 of

the Pennsylvania Constitution is violated where counsel’s performance so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” Commonwealth v. Simpson,

66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation

omitted). “Trial counsel is presumed to be effective[.]” Commonwealth v.

Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation omitted).

      In order to overcome the presumption that counsel was effective,

Appellant must establish that “(1) the underlying claim is of arguable merit;

(2) the particular course of conduct pursued by counsel did not have some

reasonable basis designed to effectuate his client’s interests; and (3) but for

counsel’s ineffectiveness, there is a reasonable probability that the outcome

of the proceedings would have been different.”             Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1255 (Pa. Super. 2014) (en banc), appeal

denied, 104 A.3d 1 (Pa. 2014) (internal alterations, quotation marks, and

citation omitted).    “A claim of ineffectiveness will be denied if the

defendant’s    evidence   fails   to   meet    any   one   of   these   prongs.”



                                       -5-
J-S33027-16


Commonwealth v. Oliver, 128 A.3d 1275, 1284 (Pa. Super. 2015)

(citation omitted).     The burden of proving ineffectiveness is on the

petitioner. Commonwealth v. Slaughter, 120 A.3d 992 (Pa. 2015).

      In his first issue, Appellant claims that counsel was ineffective for

failing to preserve his Rule 573 claim for direct appellate review.    At the

suppression hearing, Appellant sought suppression of all evidence, including

his BAC test results, based upon the Commonwealth’s erasure of the dash

cam video of Appellant’s traffic’s stop. The trial court denied the motion to

suppress.      On appeal, counsel argued that the trial court erred by not

dismissing the charges under Rule 573.     A panel of this Court found that

Appellant waived review of his Rule 573 claim because counsel only sought

suppression of the evidence before the trial court whereas, on appeal before

this Court, counsel sought dismissal of the charges.

      Appellant forwards a novel approach to demonstrate that his first claim

meets the criteria for proving ineffective assistance of counsel.   Appellant

argues that, because counsel failed to follow appellate rules and waived

appellate review of his Rule 573 claim, the first two parts of the ineffective

assistance test, arguable merit and lack of a reasonable basis, are

established.    Appellant concedes that he must satisfy the prejudice prong

since counsel’s conduct waived only some, but not all, appellate claims.

However, based on a merits analysis of his Rule 573 claim, Appellant asserts

there is a reasonable probability that he would have obtained appellate



                                    -6-
J-S33027-16


relief, if not for the actions of counsel. Consequently, Appellant asks for a

new trial with an order excluding all evidence gathered during the March 19,

2009 traffic stop.

      Appellant      misunderstands   our   precedent   that   addresses   the

appropriate remedy made available where counsel’s failure to follow

appellate rules of procedure effectively denies a defendant his right to direct

review.      Specifically, Appellant misunderstands this Court’s decisions in

Commonwealth v. Johnson, 889 A.2d 620 (Pa. Super. 2005) and

Commonwealth v. Franklin, 823 A.2d 906 (Pa. Super. 2003).                   In

Johnson and Franklin, the appellate “brief[s] on direct appeal w[ere] so

deficient under [Pennsylvania Rule of Appellate Procedure] 2119 that this

Court [was] unable to consider the merits of [the defendants’] claims.”

Johnson, 889 A.3d at 623. It was this waiver of all issues on appeal that

led this Court to find that the first two prongs of ineffectiveness were

satisfied.

      In this case, Appellant’s counsel filed a brief which complied with Rule

2119 and this Court addressed the merits of Appellant’s other issue raised

on direct appeal. Thus, Johnson and Franklin are inapposite. Instead, this

case is governed by Commonwealth v. Grosella, 902 A.2d 1290 (Pa.

Super. 2006). In Grosella, this Court held that when counsel waives all but

one issue on direct appeal, the defendant must still plead and prove all three

prongs of an ineffective assistance of counsel claim.       Id. at 1294.    As



                                      -7-
J-S33027-16


counsel in this case preserved one issue for appellate review, Appellant must

satisfy all three prongs of the test for ineffective assistance of counsel.

      Appellant’s first claim alleges counsel was ineffective for failing to

preserve his Rule 573 issue, which centered upon the Commonwealth’s

erasure and subsequent failure to produce dash cam video of Appellant’s

traffic stop.   Appellant concedes, for purposes of legal analysis, that the

recording is potentially useful evidence. In cases where the prosecution fails

to produce potentially useful evidence, a due process violation occurs only

where the Commonwealth’s failure to preserve was done in bad faith,

regardless of the centrality of the evidence for the prosecution or defense.

Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa. 2009).                Bad faith is

shown where evidence is destroyed under circumstances “in which the police

themselves by their conduct indicate that the evidence could form a basis for

exonerating the defendant.”      Arizona v. Youngblood, 488 U.S. 51, 58

(1988).

      In Snyder, our Supreme Court held that it is very difficult to find bad

faith when evidence is destroyed pursuant to a standard policy.         Snyder,

963 A.2d at 406, citing United States v. Beckstead, 500 F.3d 1154, 1159-

1160 (10th Cir. 2007). In this case, the Commonwealth erased the video

recording of Appellant’s traffic stop in accordance with a standard policy.




                                      -8-
J-S33027-16


See N.T., 4/7/10, at 74-77.4 Appellant points to no authority and offers no

reasons why the destruction of the recording in this case falls into the

narrow class of cases where bad faith is shown despite the destruction of

evidence pursuant to standard policy. As such, Appellant failed to plead and

prove that his underlying claim is of arguable merit.5

      In his second issue, Appellant argues that trial counsel was ineffective

for failing to request an expert report from Janssen. Appellant argues that,

if counsel had requested an expert report, counsel could have limited

Janssen’s testimony to the alcohol content in Appellant’s blood and excluded

testimony regarding the effect of alcohol in Appellant’s blood stream.

Second, Appellant argues that trial counsel was unaware of Janssen’s

qualifications and therefore could not challenge her on cross-examination.

Both of these arguments are without merit.

      As to limiting Janssen’s testimony, Appellant “does not even attempt

to offer any legal theories under which [Janssen’s testimony] could have


4
  Specifically, every camera has two tapes – one located in the camera and
one located in storage. After the tape in the camera is full (which occurs
after it is used for approximately 30 days), the tape in storage is erased and
the two tapes are switched. Thus, depending upon when in the cycle the
recording is made, recordings are destroyed between 30-60 days after they
are made unless a request to preserve the recording is made.
In this case, the preliminary hearing was delayed for several months. By
the time the preliminary hearing was held, the tape had been erased.
5
  For the same reasons, Appellant is unable to show any prejudice because
even if counsel would have preserved the issue, this Court would have
affirmed the trial court’s ruling.



                                     -9-
J-S33027-16


been [limited]. Therefore, this claim merits no relief.” Commonwealth v.

Copenhafer, 719 A.2d 242, 256 (Pa. 1998).        Furthermore, our review of

the record indicates that Janssen’s testimony would have been admissible

even if Appellant’s trial counsel requested an expert report.       This Court

routinely accepts the expert testimony of toxicologists as it relates to the

impact a given amount of alcohol has on an individual.        E.g., Braun v.

Target Corp., 983 A.2d 752, 760-761 (Pa. Super. 2009), appeal denied,

987 A.2d 158 (Pa. 2009) (collecting cases). Janssen testified that, as part of

her employment, she “interpret[s what] the significance of the alcohol

finding . . . is in a particular specimen.” N.T., 7/30/10, at 48.   Thus, she

was qualified to offer such an expert opinion and any attempt to limit such

testimony would have been rejected.

     As to Janssen’s qualification’s, an expert report is not the only means

to learn about an expert’s qualifications. In this case, Janssen testified on

direct examination to her qualifications.    See N.T., 7/30/10, at 46-48.

Appellant’s trial counsel could have cross-examined Janssen about her

qualifications based upon these disclosures at trial.   Therefore, Appellant’s

claim related to the lack of an expert report from Janssen lacks arguable

merit and Appellant is not entitled to relief on his second ineffectiveness

claim.




                                    - 10 -
J-S33027-16


      In his third issue, Appellant argues that trial counsel was ineffective for

failing to call Arvizu as an expert witness to rebut Janssen’s testimony.6 As

this Court has explained

      To establish ineffectiveness for failure to present a witness,
      Appellant must establish that: (1) the witness existed; (2) the
      witness was available; (3) counsel was informed of the existence
      of the witness or counsel should otherwise have known of [her];
      (4) the witness was prepared to cooperate and testify for
      Appellant at trial; and (5) the absence of the testimony
      prejudiced Appellant so as to deny him a fair trial. A defendant
      must establish prejudice by demonstrating that he was denied a
      fair trial because of the absence of the testimony of the
      proposed witness. Further, ineffectiveness for failing to call a
      witness will not be found where a defendant fails to provide
      affidavits from the alleged witnesses indicating availability and
      willingness to cooperate with the defense.

In re A.J., 829 A.2d 312, 316 (Pa. Super. 2003), appeal denied, 842 A.2d

405 (Pa. 2003) (citation omitted).

      In this case, Arvizu’s affidavit did not state that she was available and

willing to cooperate with the defense at the time of Appellant’s trial. See

Appellant’s Amended PCRA Petition, 1/2/15, at Exhibit A. As such, Appellant

is not entitled to relief on his third ineffectiveness claim.

      In his final issue, Appellant argues that his sentence was illegal. He

argues that the maximum sentence for a second DUI-highest rate conviction

is 60 days’ imprisonment. The legality of a sentence is a pure question of


6
 Arvizu is a chemist and lab auditor who allegedly reviewed the practices of
the lab that performed the BAC test on Appellant’s blood and, based on said
review, believes the lab may have deficiencies which could render the BAC
results unreliable.



                                      - 11 -
J-S33027-16


law, therefore our standard of review is de novo and our scope of review is

plenary.    Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super.

2014), appeal denied, 121 A.3d 494 (Pa. 2015) (citation omitted).

        Although Act 189 of 2014 amended section 3803(a), this case is

governed by the statute at the time Appellant was sentenced.               See

Commonwealth v. Grow, 122 A.3d 425, 427 n.3 (Pa. Super. 2015) (en

banc), superseded by statute on other grounds, 2014 P.L. 2905. Thus all of

our references to the relevant statutes are to those in effect at the time of

Appellant’s sentencing.    At that time, section 3803 provided, in relevant

part:

        (a) Basic offenses.—Notwithstanding the provisions of subsection
        (b):

        (1) An individual who violates section 3802(a) (relating to
        driving under influence of alcohol or controlled substance) and
        has no more than one prior offense commits a misdemeanor for
        which the individual may be sentenced to a term of
        imprisonment of not more than six months and to pay a fine
        under section 3804 (relating to penalties).

                                     ***

        (b) Other offenses.—

                                     ***

        (4) An individual who violates section 3802(a)(1) where the
        individual refused testing of blood or breath, or who violates
        section 3802(c) or (d) and who has one or more prior offenses
        commits a misdemeanor of the first degree.

75 Pa.C.S.A. § 3803 (Purdon’s 2009).




                                     - 12 -
J-S33027-16


     Appellant’s argument is based upon a misunderstanding of this Court’s

decisions in Grow and Commonwealth v. Musau, 69 A.3d 754 (Pa. Super.

2013), superseded by statute, 2014 P.L. 2905, interpreting section 3803. In

Musau    and   Grow,   the   defendants    were   convicted   of   DUI-general

impairment with refusal to consent to chemical testing. The defendants in

both cases argued that the maximum sentence for a second DUI-general

impairment with refusal to consent to chemical testing conviction was six

months’ imprisonment. The Commonwealth, on the other hand, argued that

the maximum sentence for a second DUI-general impairment with refusal to

consent to chemical testing conviction was five years’ imprisonment.      The

difference arose because of a conflict between sections 3803(a) and

3803(b)(4).    Specifically, section 3803(a) provided that the maximum

penalty for a first or second DUI-general impairment conviction was six

months’ imprisonment. On the other hand, section 3803(b)(4) provides that

a second or subsequent DUI-general impairment with refusal to consent to

chemical testing offense is a first-degree misdemeanor, which is punishable

by up to five years’ imprisonment. In addition, section 3803(b)(4) provides

that second and subsequent DUI-highest rate and DUI-controlled substances

convictions shall also constitute first-degree misdemeanors. In Musau and

Grow, this Court held that the “notwithstanding” language of section

3803(a) meant that the six month maximum punishment provided in section

3803(a) controlled what the maximum penalty for        a second DUI-general



                                  - 13 -
J-S33027-16


impairment with refusal to consent to chemical testing conviction was.

Grow, 122 A.3d at 428.

     Neither Musau nor Grow, nor any other of the litany of cases cited by

Appellant,7 addressed a DUI-highest rate conviction, the relevant section in

this appeal. Those cases did not address DUI-highest rate because section

3803(a) only addressed DUI-general impairment convictions.        Only section

3803(b)(4)    addresses   second   DUI-highest   rate   convictions.   Section

3803(b)(4) provides that a second DUI-highest rate conviction is a first-

degree misdemeanor, which carries a five-year maximum sentence.            18

Pa.C.S.A. § 106(b)(6), (e). Although this Court’s language in Musau may

not have been precise,8 a complete review of Musau and Grow reveals that

the passage relied upon by Appellant only referred to DUI-general

impairment convictions. As such, Appellant’s sentence was legal.

     Order affirmed.


7
  Appellant cites Commonwealth v. Schrock, 118 A.3d 459, 2015 Pa.
Super. Unpub. LEXIS 3331 (Pa. Super. 2015) (unpublished memorandum),
in support of his argument that section 3803(a) applies to convictions other
than DUI-general impairment, i.e., convictions under section 3802(d)(2).
The defendant in Schrock, however, was only convicted of DUI-general
impairment and the section 3802(d)(2) charge was withdrawn. Moreover,
we note that this Court’s operating procedures provide that unpublished
memoranda decisions “shall not be relied upon or cited…by a party in any
other action or proceeding”. Operating Procedures of the Superior Court §
65.37A.
8
  Specifically, this Court stated that “the maximum sentence for a first or
second DUI conviction is six months’ imprisonment.” Musau, 69 A.3d at
758.



                                    - 14 -
J-S33027-16

     Gantman, P.J. joins the memorandum.

     Fitzgerald, J. concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/25/2016




                                    - 15 -
