J-S32024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

DALE METZGER,

                          Appellant                No. 1822 WDA 2014


              Appeal from the PCRA Order of September 18, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002367-2008

BEFORE: SHOGAN, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                             FILED JULY 30, 2015

      Appellant, Dale Metzger, appeals pro se from the order entered on

September 18, 2014, dismissing his first petition filed under the Post-

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

      This Court previously summarized the factual background of this case

as follows:

      On the morning of January 18, 2008, [Victim] was awoken by
      noise by her bedroom door at approximately 7:45 [a.m. Victim]
      lives . . . with her mother and brother. [Victim] knew the house
      to be empty when she heard the noise because her mother and
      brother had already left for work. When [Victim] attempted to
      exit her room, a disguised subject who had covered his face and
      hands with a hood and gloves attacked her. This assailant
      physically forced her back on the bed and instructed her to be
      quiet. He used a “high-pitched voice with a southern accent” that
      [Victim] immediately recognized as a voice used by her ex-
      boyfriend, Appellant.      [Victim] and Appellant dated from
      approximately August of 2006 to November of 2007 and suffered
      a miscarriage on December 5, 2007.
J-S32024-15



     Once [Appellant] had [Victim] on the bed, he duct taped her
     eyes and mouth shut and hands together. He proceeded to rub
     his hands on her chest, telling her that he was going to “tell her
     to do stuff that she didn’t want to do, but she was going to do it
     unless she wanted to get hurt, and he told her that she needed
     to try and enjoy herself.”      Appellant freed her hands and
     removed her clothes, and instructed her to “play with herself.”
     When [Victim] covered herself, Appellant reminded her that she
     had to do what he told her or she would be hurt. At this point,
     [Victim] gained a small amount of visibility from underneath the
     duct tape that was over her eyes and nose. She also heard a
     “click” which sounded like a [disposable] camera, so she covered
     herself. Appellant climbed on top of her, grabbed her neck and
     wrists, and squeezed, telling her to “shut the F up and do what
     he said and don’t touch him.” Appellant th[en] inserted his penis
     into her vagina and remained inside of her until he ejaculated.
     [Victim] consented to none of this sexual activity.

     After ejaculating, Appellant questioned [Victim] extensively
     about her ex-boyfriend, if she knew where he was and why she
     broke up with him.       Appellant brought up topics that only
     Appellant could have known. Appellant told [Victim] that his
     name was “Junior” and that he was a friend of her current
     boyfriend. He said that she “had given him the cold shoulder,
     but she was just too pretty to pass up.” After this conversation,
     Appellant instructed [Victim] to get into the shower and “rinse
     herself out.” He gave her a “squirt bottle” and told her to place
     it inside of her vagina and squeeze to rinse out the semen.
     [Victim] took the squirt bottle and used it, but did not place it
     inside of her vagina because she wanted to preserve the DNA
     evidence from the sexual assault. Appellant also wanted her to
     use her fingers to “get the evidence out.”

     After they left the bathroom and came back to her room,
     Appellant went through [Victim]’s purse and wallet and took
     money ($24[.00]) and a $50[.00] gift card to Applebee’s. He
     also took her down to her mother’s room and took medication in
     pill bottles that [Victim]’s mother used for her cancer. Appellant
     then took [Victim] to the kitchen where he tied her up with a
     phone cord and told [Victim] not to call the police when he left.
     To make sure she would not, he disassembled her cell phone and
     said he was going to call her to make sure she complied. He
     asked her for her phone number and she gave him a false


                                   -2-
J-S32024-15


        number. At this point, Appellant went down the basement and
        exited through a door that only someone who had been in the
        house [previously] could have known about. [Victim] then freed
        herself with a kitchen knife, ran to the living room, grabbed the
        house phone[,] and dialed 911. As she looked out the living
        room window, she could see Appellant “walking up the hill with
        his hood up.” Though she never saw his face, [Victim] was able
        to identify a small tattoo on Appellant’s hand, at the base of his
        thumb once he had removed the gloves. They had gotten
        matching tattoos while they were dating of the “infinity sign.”
        Further, at 9:54 [a.m.], right after the assault, Appellant left a
        voicemail, from his number, on [Victim]’s phone that said “Hi,
        Darlin, looks like you’re not answering your phone like we talked
        about. I guess I will be in touch.” He used the same high[-
        ]pitched voice with a southern accent as her assailant had during
        the assault. Lastly, experts from the Allegheny County Medical
        Examiners Office were able to find DNA evidence from the [r]ape
        [k]it confirming that [Victim] did have intercourse with Appellant
        within 24 hours of the reported assault. [Victim] states that
        prior to her assault on January 18, she had not had sex with
        [Appellant] since November of 2007.

Commonwealth v. Metzger, 63 A.3d 830 (Pa. Super. 2012) (unpublished

memorandum), at 3-5, appeal denied, 80 A.3d 776 (Pa. 2013) (internal

alterations, footnote, citations, and ellipsis omitted).

        The relevant procedural history of this case is as follows. On April 9,

2008, Appellant was charged via criminal information with burglary, 1 rape,2

sexual assault,3 unlawful restraint causing serious bodily injury,4 making




1
    18 Pa.C.S.A. § 3502.
2
    18 Pa.C.S.A. § 3121.
3
    18 Pa.C.S.A. § 3124.1.
4
    18 Pa.C.S.A. § 2902.



                                      -3-
J-S32024-15


terroristic threats,5 simple assault,6 and theft by unlawful taking.7             On

February 22, 2011, following a non-jury trial, Appellant was found guilty of

all charges.    On May 23, 2011, Appellant was sentenced to an aggregate

term of 14 to 28 years’ imprisonment. On direct appeal, this Court affirmed.

See id.

        On July 15, 2014, Appellant filed a pro se PCRA petition. On July 17,

2014, PCRA counsel was appointed. On July 25, 2014, PCRA counsel filed a

motion     to   withdraw   as    counsel   along   with   a   letter   pursuant    to

Commonwealth          v.    Turner,    544    A.2d    927     (Pa.     1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On

August 25, 2014, the PCRA court granted PCRA counsel’s motion to

withdraw.       That same day, the PCRA court issued notice pursuant to

Pennsylvania Rule of Criminal Procedure 907 of its intent to dismiss

Appellant’s petition without an evidentiary hearing. On September 9, 2014,

Appellant filed a response to the Rule 907 notice. On September 22, 2014,

the PCRA court dismissed the petition. This timely appeal followed. 8


5
    18 Pa.C.S.A. § 2706.
6
    18 Pa.C.S.A. § 2701.
7
    18 Pa.C.S.A. § 3921.
8
  On November 14, 2014, 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 December 8, 2014, Appellant filed his concise
statement. On January 22, 2015, the PCRA court issued its Rule 1925(a)
(Footnote Continued Next Page)


                                       -4-
J-S32024-15


      Appellant presents two issues for our review:

   1. Did PCRA counsel’s failure to investigate trial counsels’
      strategic/tactical decisions and the reasonableness thereof result
      in ineffective assistance of PCRA counsel and a failure to create
      any substantive PCRA record to support any viable appeal?

   2. In failing to apply a more stringent review of PCRA counsel’s
      Turner/Finley letter and without any actual opinion, was there
      an abuse of discretion violating due process when the PCRA
      court allowed PCRA counsel to withdraw while subsequently
      dismissing [Appellant’s] timely filed first PCRA petition?

Appellant’s Brief at 5 (complete capitalization removed).

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (internal

quotation marks and citation omitted).            “In PCRA appeals, our scope of

review is limited to the findings of the PCRA court and the evidence on the

record of the PCRA court’s hearing, viewed in the light most favorable to the

prevailing party.”      Commonwealth v. Reyes-Rodriguez, 111 A.3d 775,

                       _______________________
(Footnote Continued)
opinion. Both issues raised on appeal were included in Appellant’s concise
statement.

Although Appellant’s concise statement was docketed after the applicable
deadline, we conclude that the concise statement was timely pursuant to the
prisoner mailbox rule. See Commonwealth v. Jones, 700 A.2d 423, 425–
426 (Pa. 1997) (explaining the prisoner mailbox rule). Appellant dated the
concise statement December 2, 2014 – a Tuesday. The concise statement
was docketed on December 8, 2014 – a Monday. It is reasonable to assume
that Appellant placed the concise statement in the stream of prison mail on
or before December 4, 2014 and that it was delayed in reaching the PCRA
court because of (1) prison mail procedures; (2) USPS transit time; and (3)
the weekend. Therefore, we decline to find all of Appellant’s issues waived.



                                            -5-
J-S32024-15


779 (Pa. Super. 2015) (en banc) (internal quotation marks and citations

omitted).

      In his first issue, Appellant claims that PCRA counsel rendered

ineffective assistance. Our Supreme Court has explained:

      [T]o prove counsel ineffective, [a PCRA] petitioner must
      demonstrate: (1) the underlying claim has arguable merit; (2)
      no reasonable basis existed for counsel’s actions or failure to
      act; and (3) the 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. Counsel is presumed to have rendered effective
      assistance.

      A court is not required to analyze the elements of an
      ineffectiveness claim in any particular order of priority; instead,
      if a claim fails under any necessary element of the
      ineffectiveness test, the court may proceed to that element first.
      Finally, counsel cannot be deemed ineffective for failing to raise
      a meritless claim.

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations

omitted). As Appellant challenges the effectiveness of PCRA counsel – and

not trial counsel – he raises a layered ineffectiveness claim. While a layered

ineffectiveness claim presents a separate and distinct claim from the

underlying ineffectiveness claim, if the underlying ineffectiveness claim is

without merit then the resultant layered ineffectiveness claim is likewise

without merit. See Commonwealth v. King, 57 A.3d 607, 624 (Pa. 2012)

(citations omitted).

      We    conclude   that   in   the   instant   case,   Appellant’s   layered

ineffectiveness claims fail for the same reason that the underlying claims of



                                     -6-
J-S32024-15


ineffectiveness fail.   In his first claim of ineffectiveness, Appellant argues

that PCRA counsel was ineffective for failing to raise trial counsel’s alleged

ineffectiveness in not presenting evidence relating to the location of his cell

phone during the attack. Appellant argues that such evidence would have

given him an alibi.     We agree with the PCRA court that failure to present

evidence relating to the location of Appellant’s cell phone did not cause

actual prejudice.    The evidence presented at trial was overwhelming that

Appellant was at the crime scene and committed the attack.           As noted

above, Appellant’s DNA was recovered from Victim’s vagina. Furthermore,

Victim was able to identify a tattoo of an infinity sign on Appellant’s thumb.

Victim was also able to identify Appellant’s voice and was certain that the

attacker had previously been in her home because he knew of the basement

door. Finally, comments made by the attacker during the course of the rape

included facts known only by Appellant.         This evidence overcame any

probative value relating to the location of Appellant’s cell phone during the

attack as Appellant could have left his cell phone in another location while

assaulting Victim.

      To the extent that Appellant argues that trial counsel was ineffective

for failing to call an expert witness to testify regarding his cell phone data,

that argument is without merit. “[T]o establish ineffectiveness for failing to

call an expert witness, an appellant must establish that the witness existed

and was available; counsel was aware of, or had a duty to know of the



                                      -7-
J-S32024-15


witness; the witness was willing and able to appear; and the proposed

testimony was necessary in order to avoid prejudice to the appellant.”

Commonwealth v. Weiss, 81 A.3d 767, 804 (Pa.2013) (citation omitted).

In this case, Appellant failed to show that an expert witness was willing and

able to appear at trial. As such, Appellant’s argument that trial counsel was

ineffective for failing to call an expert witness lacks arguable merit.

Accordingly, the corresponding layered ineffectiveness claim is without

merit.

      In his second claim of ineffectiveness, Appellant argues that his PCRA

counsel   was   ineffective   for   failing   to   raise   trial   counsel’s   alleged

ineffectiveness in failing to pursue Victim’s mental health records. Appellant

contends that Victim was a “woman scorned.” Appellant argues that Victim

engaged in consensual sexual intercourse with him on January 17, 2008 and

then concocted the story about the rape on January 18, 2008 in order to

retaliate for a miscarriage suffered by Victim in December 2007. According

to Appellant, Victim blamed him for the miscarriage and attempted to buy a

firearm on the date she learned of the miscarriage in order to exact revenge.

Appellant argues that Victim’s mental health records would have shown that

she was mentally unstable and that this evidence would have helped to

undermine Victim’s credibility.

      We conclude that Appellant failed to plead and prove that failure to

seek Victim’s mental health records caused actual prejudice. The evidence -



                                       -8-
J-S32024-15


physical, documentary, and testimonial - was overwhelming that Appellant

was the individual that attacked Victim. The DNA test proved that Appellant

had sexual intercourse with Victim during the 24-hour period prior to the

test.   The documentary evidence showed that Appellant contacted Victim

mere minutes after the attack.          During her testimony, Victim was able to

identify Appellant as the attacker in multiple ways. First, she recognized his

voice during the attack.         Second, only someone familiar with the house

would have escaped through the basement door.                 Third, she recognized a

tattoo on Appellant’s thumb. Fourth, the attacker relayed information only

known by Appellant.       Finally, Victim recognized Appellant’s voice when he

called to ensure she had not reassembled her cell phone.                    Evidence of

Victim’s alleged mental disorders would not have overcome the probative

force of the inculpatory evidence.         Because Appellant cannot demonstrate

actual prejudice, Appellant’s second claim of ineffectiveness fails.

        In his third claim of ineffectiveness, Appellant argues that PCRA

counsel    was     ineffective   for   failing   to   raise   trial   counsel’s   alleged

ineffectiveness in conceding that Appellant made an incriminating telephone

call and that the piece of tape introduced at trial had been used to restrain

Victim’s wrist.9     Appellant first argues that trial counsel conceded that

Appellant placed the incriminating phone call. Appellant’s counsel, however,

9
  The Commonwealth argues this issue is waived for failure to develop it in
his brief. We disagree and conclude that the issue was properly developed
in Appellant’s brief.



                                          -9-
J-S32024-15


made no such concession.         Instead, he merely examined the witness

regarding her testimony. See N.T., 1/19/11, at 65-66. Furthermore, even

if counsel had made such a concession, it did not actually prejudice

Appellant. As noted above, Victim testified that she recognized Appellant’s

voice. Thus, even if the telephone call came from a different phone, it could

still have been placed by Appellant.

       Appellant also argues that the duct tape introduced at trial was used to

blind Victim, not restrain her wrists.     We agree with the PCRA court that

Appellant failed to prove that trial counsel’s admission led to actual

prejudice. Whether the tape was used to restrain Victim’s wrists or blind her

did not impact the trial court’s finding that Appellant restrained Victim.

Therefore, all three of Appellant’s claims of ineffective assistance of trial

counsel are without merit. Accordingly, Appellant’s layered ineffective claim

fails.10




10
    In addition to the three ineffectiveness claims discussed in his brief,
Appellant raised an additional claim of ineffectiveness in his PCRA petition,
i.e., trial counsel was ineffective for failing to call a witness to discuss the
circumstances surrounding Appellant’s apprehension. As Appellant failed to
develop that claim of ineffectiveness in his brief, it is waived. See Pa.R.A.P.
2101, 2119(a). Furthermore, even if the issue were preserved, we would
conclude that this claim is likewise without merit. Finally, Appellant raises
claims of ineffectiveness in his brief that were not properly preserved below,
e.g., trial counsel was ineffective for advising him to waive his right to a jury
trial. As such, those issues are also waived. See Pa.R.A.P. 302(a). Again,
even if the issue were preserved, we would conclude that this claim is
without merit.



                                       - 10 -
J-S32024-15


     In his second issue, Appellant claims that the PCRA court abused its

discretion by not applying a more stringent standard of review when

reviewing PCRA counsel’s Turner/Finley letter.       We disagree.      The PCRA

court conducted an independent review of the record and determined that

the issues discussed in PCRA counsel’s Turner/Finley letter were without

merit.    See PCRA Court Opinion, 1/22/15, at 6.          Thus, the PCRA court

applied   the   proper    standard   of   review   when    reviewing   counsel’s

Turner/Finley letter.     See Commonwealth v. Pitts, 981 A.2d 875, 876

(Pa. 2009).

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2015




                                     - 11 -
