J-S12025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RYAN ANDREW MEHL

Appellant No. 793 MDA 2016

Appeal from the PCRA Order April 21, 2016

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0004500-2013

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED APRIL 10, 2017

Ryan Andrew Mehl appeals from the order entered April 21, 2016, in 

the York County Court of Common Pleas dismissing his petition for collateral 

relief filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-

9546. Mehl seeks relief from the judgment of sentence of an aggregate 

term of five to 10 years’ imprisonment, imposed following his jury conviction 

of sexual assault, indecent assault without consent, and indecent assault of 

an unconscious person.1 On appeal, he argues the PCRA court erred in 

dismissing his claims asserting trial counsel’s ineffectiveness for: (1) failing 

to meet with him and discuss trial strategy; (2) failing to adequately discuss 

the waiver of his right to testify; and (3) failing to object when the court 

____________________________________________

1 See 18 Pa.C.S. §§ 3124.1 and 3126(a)(1) and (a)(4), respectively.
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entered the jury room during deliberations. For the reasons below, we 

affirm.

The facts presented during Mehl’s jury trial were recounted in detail in 

this Court’s memorandum decision affirming his sentence on direct appeal. 

See Commonwealth v. Mehl, 120 A.3d 389 [877 MDA 2014] (Pa. Super. 

2014) (unpublished memorandum at 3-8). Therefore, we need not reiterate 

them herein. To summarize, Mehl sexually assaulted a friend of his sisterin-law after the victim had passed out following a night of drinking. He was 

subsequently charged with rape of an unconscious person,2sexual assault, 

and two counts of indecent assault. The case proceeded to a jury trial. On 

January 24, 2014, the jury returned a verdict of guilty on one count of 

sexual assault, and two counts of indecent assault (without consent and 

unconscious person). The jury was unable to reach a verdict on the charge 

of rape. 

On May 2, 2014, represented by new counsel, Mehl appeared for 

sentencing and presented an oral motion for extraordinary relief pursuant to 

Pa.R.Crim.P. 704(B). Mehl argued: (1) the trial court erred in denying an 

oral suppression motion he made during trial and permitting the 

Commonwealth to introduce testimony of a statement he made to a police 

____________________________________________

2 18 Pa.C.S. § 3121(a)(3).
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investigator absent Miranda warnings;3and (2) trial counsel was ineffective 

for advising him not to testify and for failing to present character witnesses. 

The court denied the motion before proceeding to sentencing. Thereafter, 

Mehl was sentenced to a term of five to 10 years’ imprisonment for sexual 

assault, and a concurrent term of one to two years’ imprisonment for 

indecent assault of an unconscious person. The court also imposed a 

consecutive period of two years’ probation for the second indecent assault 

charge. 

 Mehl filed a timely direct appeal challenging the sufficiency of the 

evidence and the trial court’s denial of his oral suppression motion. A panel 

of this Court affirmed his judgment of sentence on February 23, 2015. See

Mehl, supra. Mehl did not petition the Supreme Court for allowance of 

appeal. Thereafter, on December 23, 2015, Mehl filed a timely, pro se PCRA 

petition asserting the ineffectiveness of trial counsel for failing to file a 

pretrial suppression motion, failing to prepare for trial, and granting the 

court permission to enter the jury room during deliberations. See Motion for 

Post Conviction Collateral Relief, 12/23/2015, at 4. Counsel was promptly 

appointed and filed an amended petition on February 29, 2016, asserting 

____________________________________________

3 See Miranda v. Arizona, 384 U.S. 426 (1966). During trial, Mehl 

presented an oral motion to suppress a statement he made to an 

investigator while he was in a drug rehab facility. The court held a truncated 

hearing, and denied the motion. See N.T., 1/22-24/2014, at 279-289.
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claims of trial counsel’s ineffectiveness. The PCRA court conducted a hearing 

on March 2, 2016, and, on April 21, 2016, denied Mehl’s petition. This 

timely appeal follows.4 

When reviewing an order dismissing a PCRA petition, we must 

determine whether the PCRA court’s findings of fact are supported by the 

record, and whether its legal conclusions are free from error. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference 

is granted to the findings of the PCRA court, and these findings will not be 

disturbed unless they have no support in the certified record.” 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation 

omitted). Moreover, “[t]he PCRA court’s credibility determinations, when 

supported by the record, are binding on this Court.” Commonwealth v. 

Spotz, 18 A.3d 244, 259 (Pa. 2011). 

Moreover, where, as here, all of the petitioner’s claims assert trial 

counsel’s ineffectiveness, our review is well-settled:

“[C]ounsel is presumed effective, and [appellant] bears the 

burden of proving otherwise.” To prevail on an ineffectiveness 

claim, appellant must establish: (1) the underlying claim has 

arguable merit; (2) no reasonable basis existed for counsel’s 

actions or failure to act; and (3) [appellant] 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 

____________________________________________

4 On May 31, 2016, the court ordered Mehl to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Mehl 

complied with the court’s directive, and filed a concise statement on June 

15, 2016.
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different absent such error. Failure to prove any prong of this 

test will defeat an ineffectiveness claim.

Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014) (internal citations 

and footnote omitted).

In his first issue, Mehl contends trial counsel was ineffective for failing 

to meet with him and discuss defense strategy before trial. In support of 

this claim, Mehl states he met with counsel only twice before his jury trial –

the first time, for 15 minutes in October of 2012, and the second time, for 

15 minutes prior to the start of trial in January of 2013. See Mehl’s Brief at 

8-9. Further, Mehl maintains he attempted to call counsel 50 times before 

trial, but was never able to reach him. See id. at 9. Mehl’s father 

corroborated these allegations at the PCRA hearing, testifying Mehl tried to 

contact counsel “at least three times a day and three days a week before 

trial.” Id. Mehl argues there can be no reasonable basis for counsel’s “lack 

of communication.” Id. at 10. Moreover, he asserts counsel’s failure to 

communicate with him and discuss trial strategy prevented him “from 

participating in his own defense and providing critical, exculpatory evidence” 

which would have change the outcome of the trial. Id. at 11.

Here, the PCRA court concluded that Mehl failed to meet his burden of 

establishing counsel’s ineffectiveness. See PCRA Court Opinion, at 7. The 

court noted trial counsel testified that he spoke with Mehl several times 

before trial. See id. at 5-6. Our review of the PCRA hearing testimony 

supports this finding. Trial counsel testified he spoke with Mehl “at least 

once on the phone prior to the pre-trial conference, at the pre-trial 
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conference, the one time in our office [in October 2013], and at least one 

other time on the telephone between that October date and trial as well as 

prior to trial.” N.T., 3/2/2016, at 35. Although counsel acknowledged he 

probably never returned any messages Mehl may have left him, he stated, “I 

talked to him when he caught me in the office.” Id. at 45. With regard to 

trial strategy, counsel explained Mehl’s version of the events was consistent 

during their conversations, in that Mehl “admitted to the [sexual] conduct 

but not to the criminality.” Id. at 35. This Court has previously found a 

challenge to counsel’s stewardship based solely on the length and frequency 

of counsel’s consultations with the defendant does not support a finding of 

ineffectiveness. See Commonwealth v. Johnson, 51 A.3d 237, 244 (Pa. 

Super. 2012) (en banc) (finding that although “more contact may have been 

advisable,” in preparation for defendant’s first-degree murder trial, the 

attorney’s contact “allowed him to present a cogent trial strategy.”), appeal 

denied, 63 A.3d 1245 (Pa. 2013). Accordingly, Mehl’s claim has no arguable 

merit. 

Furthermore, we find Mehl has failed to establish he was prejudiced by 

counsel’s purported lack of contact. Indeed, while Mehl claims the lack of 

communication with counsel prevented him from “providing critical, 

exculpatory evidence[,]” he fails to identify this evidence or explain how the 

outcome of the trial would have been different. Mehl’s Briel at 11. 

Accordingly, he is entitled to no relief.
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In his second issue, Mehl contends trial counsel was ineffective for 

failing to “adequately discuss [his] right to testify prior to advising [him] to 

not testify.” Id. at 11. Mehl claims he was “eager to testify; mainly to tell 

his version of events and maintain his innocence.” Id. at 12. However, 

counsel advised him not to testify in order to preserve a potential 

suppression issue on appeal.5 Mehl acknowledges that following a “brief 

conversation with trial counsel, [he] followed counsel’s advice and did not 

testify.” Id. 

With regard to the ineffectiveness prongs, Mehl argues counsel’s 

failure to “adequately discuss his right to testify” has arguable merit, and 

counsel had no reasonable basis for this omission. Id. Mehl asserts the 

case was dependent upon circumstantial evidence, and without his 

testimony, the jury was “provided with only the Commonwealth’s version of 

events.” Id. at 13. Finally, he claims he suffered prejudice because he “was 

denied the opportunity to rebut the Commonwealth’s evidence with his own 

factual testimony and exculpatory evidence.” Id. 

____________________________________________

5 At the PCRA hearing, counsel explained Mehl wanted to appeal the trial 

court’s decision denying his oral suppression motion. See N.T., 3/2/2016, 

at 41-42. Counsel acknowledged he advised Mehl not to testify because he 

anticipated Mehl’s testimony would confirm what Mehl told the investigator. 

See id. at 42. Counsel feared that any error with regard to the admission of 

Mehl’s statement would then be viewed as harmless error on appeal. See 

id. Counsel also stated he was concerned how Mehl would be viewed by the 

jury because “his attitude toward the whole thing was very flippant at 

times.” Id. at 50.
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Preliminarily, we note: 

The decision of whether or not 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 advise the appellant of his rights in this 

regard, the appellant must demonstrate either that counsel 

interfered with his right to testify, or that counsel gave specific 

advice so unreasonable as to vitiate a knowing and intelligent 

decision to testify on his own behalf. 

Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (internal 

citations omitted). Our review of the trial transcript reveals that at the close 

of the Commonwealth’s case-in-chief, trial counsel indicated Mehl had 

elected to testify on his own behalf, but asked for a brief recess, which the 

trial court granted. See N.T., 1/22-24/2014, at 333. After the recess, 

counsel informed the court that Mehl decided not to testify. The following 

exchange took place:

THE COURT: ... All right, Mr. Mehl, did you have enough time to 

consider the decision about whether you wish to testify or not?

[MEHL]: Yes, Your Honor.

THE COURT: And what do you want to do?

[MEHL]: I’m choosing not to testify, I believe the facts are out 

there.

THE COURT: All right, do you have any question about your 

rights in this regard?

[MEHL]: No, Your Honor.

THE COURT: The Court finds that Mr. Mehl has knowingly, 

voluntarily and intelligently elected not to testify in this matter.

Id. at 334-335. 
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We again agree with the conclusion of the PCRA court that no relief is 

due on this claim. See PCRA Court’s Opinion, 4/20/2016, at 6-7. The 

colloquy performed by the trial court demonstrated that Mehl’s decision not 

to testify was his own, and made after adequate consultation with counsel. 

Moreover, counsel provided a reasonable basis for his advice, stating he 

believed Mehl’s testimony would harm a legitimate appellate issue, and he 

feared Mehl’s attitude might not be well received by the jury. See N.T., 

3/2/2016, at 41-42, 50. Furthermore, Mehl failed to demonstrate how he 

was prejudiced by counsel’s advice. While Mehl claims the jury did not hear 

his “factual testimony,” the jury did hear, through his statement to the 

police investigator, that he believed the sexual contact was consensual, and 

initiated by the victim. See N.T, 1/22-24/2014, at 295, 298. See also id.

at 339-343 (explaining Mehl’s recount of the incident through his statement 

to the investigator). Mehl does not identify any “exculpatory evidence” or 

testimony he would have provided had he testified at trial that would have 

raised a “reasonable probability that the result of the proceeding would have 

been different[.]” Fears, supra, 86 A.3d at 804. Therefore, no relief is 

warranted on this claim.
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Mehl’s final allegation of counsel’s ineffectiveness focuses on counsel’s 

failure to object when the trial court entered the jury room during 

deliberations.6 This issue is based on the following facts.

During deliberations, the trial court received a note from the jury 

indicating they were “having difficulty with one of the charges” and asking 

the court how to proceed. N.T., 2/22-24/2014, at 406. The court provided 

further instructions in the courtroom, and then sent the jury back to 

continue deliberations. Later, the jury sent another note explaining they 

were “hung” on one of the charges, and had made no further progress. Id.

at 417. At that point, the trial court stated the following to counsel:

I’m going to have them come out and take the verdict on the 

charges that we have reached a decision on, and I will first make 

an inquiry if there is anything else that the Court can provide to 

them that may assist them, or if they need more time. 

But before I do that, with the consent of both counsel, I’m going 

to briefly stick my head [in] the jury room to make sure that 

they’ve completed the verdict slip for the three charges on which 

they’ve reached a verdict, and that they’ve signed all 12 

signatures to the verdict slip as required under the procedure. 

Id. The court asked both prosecution and defense counsel if that procedure 

was “okay” with them, to which they both responded, “Yes, Your Honor.” 

____________________________________________

6 We note while PCRA counsel did not include this issue in his amended 

petition, Mehl preserved the claim in his pro se petition, and the PCRA court 

permitted testimony on the claim at the PCRA hearing. On appeal, PCRA 

counsel concedes that the claim lacks merit. See Mehl’s Brief at 14. 

However, in the interests of justice, we will address it, as did the PCRA 

court. See PCRA Court Opinion, 4/20/2016, at 7-10.
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Id. Shortly thereafter, the jury returned with the verdict. See id. at 418. 

At the PCRA hearing, trial counsel testified that he could not recall if Mehl 

was in the courtroom during that exchange. See N.T., 3/2/2016, at 49.

The PCRA Court addressed this issue as follows:

After review of the pertinent case law, we find [Mehl’s] 

claim of error meritless. In Commonwealth v. Bradley,

15 the 

Pennsylvania Supreme Court announced that it was eliminating 

the presumption of prejudice in cases involving unauthorized 

contact between a judge and the jury, which had been 

established in prior case law.16 Bradley requires that the 

moving party show that “a reasonable likelihood of prejudice” 

resulted from the trial court’s ex-parte communication with the 

jury before the reviewing court grants relief.17

__________

15 459 A.2d 733, 739 (Pa. 1983); see also 

Commonwealth v. Young, 748 A.2d 166, 175 (Pa. 1999) 

(stating “where there has been ex parte contact between 

the court and jury in a criminal case, we are constrained to 

reverse the defendant’s conviction unless there is no 

reasonable possibility that the error might have 

contributed to the conviction.”).

16 Argo v. Goodstein, 228 A.2d 195 (Pa. 1967).

17 Bradley, 459 A.2d at 739.

__________

Here, the trial judge stated that he wanted to inquire 

whether the jury completed the verdict form. As evidenced by 

the jury’s prior two notes, there were hung on one charge and

the resulting verdict was consistent in the respect. There was no 

evidence presented that the judge’s communication was more 

than administrative in nature, or that the jury was influenced 

either way by the judge. In absence of a showing of prejudice, 

no relief is warranted.18

__________
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18 Commonwealth v. Daniels, 104 A.3d 267, 296 (Pa. 

2014) (stating that, “Pennsylvania law generally requires a 

showing that ex parte communications with a jury resulted 

in prejudice in order to warrant relief.”).

PCRA Court Opinion, 4/20/2016, at 9-10.

Our review of the record and the pertinent case law reveals no basis to 

disturb the PCRA court’s ruling. The interaction between the trial court and 

the jury, after the jury indicated they were unable to reach a verdict on one 

count, appears to have been only administrative, that is, to ensure the 

jurors had signed the verdict slip. Indeed, after speaking with the jurors, 

the court returned to the courtroom and stated: “All right, good thing that I 

did that because they need to complete that. Just give them a couple of 

minutes to sign that and bring them out.” N.T., 1/22-24/2014, at 418. 

Because “counsel is not ineffective for failing to raise a meritless objection,” 

we find Mehl is entitled to no relief. Commonwealth v. Spotz, 47 A.3d 63, 

82 (Pa. 2012). 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2017