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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 PostConviction 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 exboyfriend, Appellant. [Victim] and Appellant dated from 

approximately August of 2006 to November of 2007 and suffered 

a miscarriage on December 5, 2007. 
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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 
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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,1rape,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.
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terroristic threats,5simple assault,6and 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)
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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.
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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 
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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 
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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 -
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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. 
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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. 
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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