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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

RONALD L. HEICHEL

                            Appellant                 No. 1821 MDA 2015


               Appeal from the PCRA Order September 21, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001690-2009


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                           FILED AUGUST 26, 2016

        Appellant, Ronald Heichel, appeals from the order denying his petition

pursuant to the Post Conviction Relief Act (“PCRA”). Heichel argues that the

PCRA court erred in concluding that his trial counsel was not ineffective in

failing to pursue and develop evidence that that another man had committed

the murder for which Heichel is serving a lifetime sentence. We affirm.

        Heichel was accused of murdering Samuel Boob at the behest of

Boob’s wife, Mirinda Boob. Heichel’s and Mirinda’s cases were consolidated

for trial, with the Commonwealth presenting evidence that Heichel laid in

wait in the Boobs’ garage and shot Samuel at the direction of and with the

assistance of Mirinda. The co-defendants pursued antagonistic defenses at
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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trial, with Heichel arguing that Mirinda had shot Samuel herself, or had hired

another person to do so. In contrast, Mirinda contended that Heichel had

killed her husband, and that she was unaware of his actions.

      During the trial, the District Attorney’s Office provided the defense

with a report of a police interview with a potential witness, “Eddy, the pizza

guy.” “Eddy” stated that Mirinda had asked him to kill her husband for her.

Heichel’s trial counsel reviewed the report, and ultimately declined to call

“Eddy” or pursue a theory that Eddy had killed Samuel Boob.

      The jury convicted both Heichel and Mirinda of first degree murder,

among others, and the trial court sentenced both to life in prison without the

possibility of parole. In his post-sentence motion, Heichel argued that the

trial court had erred in precluding him from presenting evidence that “Eddy”

was the shooter. In response, the trial court noted that it had not precluded

Heichel   from   pursuing   this   theory,   but   had   merely   prohibited   the

Commonwealth from doing so. This Court affirmed the judgment of

sentence, and on October 2, 2012, the Supreme Court of Pennsylvania

denied review.

      On March 13, 2013, Heichel filed a pro se PCRA petition. Counsel was

appointed to represent Heichel, and an amended PCRA petition was

subsequently filed. After a hearing, the PCRA court denied Heichel relief. This

timely appeal followed.




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      On appeal, Heichel has abandoned all claims save one. See Appellant’s

Brief, at 10, n.1. Heichel contends that trial counsel was ineffective in failing

to pursue and present evidence supporting the theory that “Eddy” had killed

Samuel Boob. “On appeal from the denial of PCRA relief, our standard and

scope of review is limited to determining whether the PCRA court’s findings

are supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] scope of review

is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted).

      “[T]his Court applies a de novo standard of review to the PCRA court’s

legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted). In order to be eligible for PCRA relief, a petitioner must

plead and prove by a preponderance of the evidence that his conviction or

sentence arose from one or more of the errors listed at 42 Pa.C.S.A.

§ 9543(a)(2).

      It is well settled that

      [t]o plead and prove ineffective assistance of counsel a
      petitioner must establish: (1) that the underlying issue has
      arguable merit; (2) counsel’s actions lacked an objective
      reasonable basis; and (3) actual prejudice resulted from
      counsel's act or failure to act.


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Commonwealth v. Rykard, 55 A.3d 1177, 1189-1190 (Pa. Super. 2012).

“Arguable merit exists when the factual statements are accurate and could

establish cause for relief. Whether the facts rise to the level of arguable

merit is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534,

540 (Pa. Super. 2015) (citation omitted). Counsel cannot be deemed

ineffective for failing to pursue a meritless claim. See Commonwealth v.

Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

     The PCRA court found that Heichel had not proved that pursuing the

theory that “Eddy” had killed Samuel Boob “would have been successful or

even reasonable.” PCRA Court Opinion, 9/21/15, at 3. Heichel presented the

testimony of trial counsel at the PCRA hearing in an effort to establish this

claim:

     Q.     Let’s talk about the issue of Eddie the pizza guy. Can you
     remember exactly what came up with that, and why was that
     significant to your defense?

     A.    I believe [District Attorney] Ms. Stacy Parks Miller at the
     end of one of the trial days just received a report, further
     information about in Centre Hall somebody named Eddie working
     at [a pizza shop] or something like that, and provided – it was
     either a one- or two-page I guess police report of this interview
     with this gentleman.

     I believe Judge Ruest gave – maybe I have it wrong, gave us the
     weekend to try to figure out what was going on, to research it,
     maybe it was the night.

     That being said, my trial strategy all along, especially
     considering most of the witnesses dealt with Mirinda, was to pin
     the blame on Mirinda.




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      The testimony regarding what she told Wes Decker and what he
      ultimately testified to was that she wanted her husband dead.
      She would do anything to make it happen, and if Wes wouldn’t
      do it, quote, I’ll do it myself. I thought that was the best
      strategy possible, if you have somebody who had the motive,
      the means and the opportunity and then frankly says I will do it
      myself.

      With regard to Eddie the pizza guy, it was interesting, but at
      best, all it did was call for Mirinda soliciting somebody else to try
      to kill her husband. It wasn’t evidence of this other person
      actually killing her husband.

      I thought it was cumulative in that we already had Wes Decker
      saying she asked me to kill her husband. I didn’t think it
      furthered the strategy, and quite frankly, I think it would have
      watered down the strategy of – instead of saying well, somebody
      did it, I wanted to make sure Mirinda was the person I blamed
      the entire time, and I did not feel that it added to our strategy.

      Q.    You’re aware that the Commonwealth had … Eddie the
      pizza guy, there and ready to testify at trial as well, correct?

      A.    That’s my understanding, yes.

      Q.    And based on the substance of his statement, he would
      have indicated that Mirinda had, you know, believed he was in
      the mafia and tried to talk with him about this, but he had
      absolutely nothing to do with the murder in this case, correct?

      A.     Something along the lines of because he worked at a pizza
      shop he must be involved in the mafia. Again, I was aware of
      that. It just didn’t seem like something I wanted to divert the
      jury’s attention to.

      Q.    And absolutely none of the other physical evidence,
      including the text messages or other statements, pointed to
      Eddie at all, correct?

      A.    As far as I’m aware, nothing pointed to Eddie.

N.T., PCRA Hearing, 10/24/14, at 25-27 (emphasis supplied). Heichel points

to no other evidence linking “Eddy” to the slaying.

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      Heichel argues that we should disbelieve trial counsel’s testimony on

strategy due to his mistaken assertion, in post-sentence motions, that the

trial court had prohibited him from pursuing this theory of the case.

However, we agree with the PCRA court that we need not even reach the

issue of strategy, as Heichel has not established arguable merit. He has

presented no evidence that trial counsel should have presented evidence

regarding “Eddy.” Heichel can point to no evidence that links “Eddy” to the

crime. Furthermore, “Eddy’s” testimony would have only been cumulative to

other testimony that established that Mirinda was looking for someone to

murder her husband. The trial court therefore did not err in dismissing

Heichel’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2016




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