J-S34006-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. WILLIAM E. RIDENBAUGH Appellant No. 981 WDA 2013

Appeal from the PCRA Order May 8, 2013 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000166-2006
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J. MEMORANDUM BY OTT, J.: FILED JANUARY 14, 2015 William E. Ridenbaugh appeals from the order enter ed on May 8, 2013, in the Court of Common Pleas of Clarion County, aft er a hearing, denying him relief on his petition filed pursuant to the Po st Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq

. 1 Ridenbaugh claims trial counsel was ineffective for (1) failing to properly advise him on entering a guilty plea; and (2) failing to file a motion to suppress statem ent made during custodial interrogation. After a thorough review of the submi ssions by the parties, relevant law, and the certified record, we affirm.

____________________________________________ 1 Ridenbaugh was convicted by a jury of third-degree murder and related offenses. The trial court sentenced him to an aggr egate term of 28-56 years’ incarceration.J-S34006-14

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We rely upon the factual statement found in the PC RA court’s decision of May 8, 2013. Because the parties are familiar w ith the facts, we will not reiterate them herein. Rather, we refer to pages t wo through six of the PCRA court opinion. Initially, we note: Our standard of review of a trial court order grant ing or denying relief under the PCRA calls upon us to determine wh ether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Heredia , 97 A.3d 392, 394 (Pa. Super. 2014) (citation omitted). Additionally, [I]n order to obtain relief based on [an ineffectiv e assistance of counsel] claim, a petitioner must establish: (1) th e underlying claim has arguable merit; (2) no reasonable basis e xisted for counsel's actions or failure to act; and (3) petiti oner suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proce eding would have been different absent such error. Trial counsel is presumed to be effective, and Appe llant bears the burden of pleading and proving each of the thre e factors by a preponderance of the evidence. Commonwealth v. Lippert , 85 A.3d 1095, 1100 (Pa. Super. 2014) (citation omitted). Finally, “[c]ounsel is not ine ffective for failing to raise meritless claims.” Commonwealth v. Wright , 961 A.2d 119, 149 (Pa. 2008).J-S34006-14

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In Ridenbaugh’s first issue, he argues counsel was ineffective for failing to properly advise him on the “risks, hazar ds and prospects” 2 of his case. Because of this failure, Ridenbaugh claims h e refused a negotiated plea offer that would have resulted in the impositi on of a 10-20 year term of incarceration. Ridenbaugh specifically argues coun sel improperly informed him that if he accepted the offer, he would likely serve all of it. But for this advice, Ridenbaugh claims he would have accepted th e terms of the negotiated plea, including the requirement he testi fy against his codefendant. Regarding the circumstances surrounding a guilty p lea, Ridenbaugh correctly notes: The decision whether to plead guilty or contest a c riminal charge is probably the most important single decision in a ny criminal case. This decision must finally be left to the cli ent's wishes; counsel cannot plead a man guilty, or not guilty, a gainst his will. But counsel may and must give the client the benefi t of his professional advice on this crucial decision, and o ften he can protect the client adequately only by using a consi derable amount of persuasion to convince the client that on e course or the other is in the client's best interest. Such pe rsuasion is most often needed to convince the client to plead guilty in a case where a not guilty plea would be totally destructiv e. Commonwealth v. Copeland , 554 A.2d 54, 60 (Pa. Super. 1988) (citation omitted).

____________________________________________ 2 Appellant’s Brief at 7.J-S34006-14

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However, in Copeland , trial counsel failed to convey the existence of an offer to his client. That is not the instant sit uation. The record demonstrates that Ridenbaugh knew of the Commonweal th’s plea offers. His claim of ineffective assistance of counsel is t hat counsel failed to fully discuss the options. Ridenbaugh is complaining about counsel’s failure t o discuss a plea offer of 10-20 years’ incarceration, however, this claim ignores the fact that the Commonwealth had previously offered him a 7 to 20 year sentence, which counsel recommended he accept, and which Ride nbaugh refused, claiming he did not commit the crime and would not accept any jail time due to his poor health. See N.T. PCRA Hearing, 11/21/2012, at 9, 24-28. Additionally trial counsel testified he fully discu ssed the strengths and weaknesses of the case and gave Ridenbaugh his prof essional opinion, specifically, because Ridenbaugh had just been conv icted of illegal drug and weapons offenses in a different case, he would like ly serve the majority of the offered sentence. 3

____________________________________________ 3 Having reviewed the certified record, we see nothi ng to indicate that the strengths and weaknesses of Ridenbaugh’s case chang ed between the first offer of 7 to 20 years’ incarceration and the subse quent offer of 10 to 20 years’ incarceration. Moreover, Ridenbaugh has not claimed there was any change in circumstances between the two plea offers . Therefore, any discussions regarding the first plea would be appli cable to the second.J-S34006-14

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Based upon this evidence, the PCRA court determined trial counsel had properly discussed the plea offers with Ridenbaugh and, therefore, Ridenbaugh’s decision not to accept the plea was fu lly informed and not the product of ineffective assistance of counsel. The PCRA court did not abuse its discretion or commit an error of law in denying this claim. Ridenbaugh’s second claim is that trial counsel was ineffective for failing to file a motion to suppress statements mad e to the police during his August 12, 2005 and September 1, 2005 interviews. Ridenbaugh claims both instances were custodial interrogations. In t he first, he argues he was not provided his Miranda 4 rights; in the second, he argues he was represented by counsel in a different case and ther efore could not validly waive his Miranda rights without access to that counsel. Both of t hese claims fail.
Miranda warnings are only required when a defendant is sub ject to a custodial interrogation. Commonwealth v. Fisher , 564 Pa. 505, 769 A.2d 1116, 1125 (2001); Commonwealth v. Johnson , 556 Pa. 216, 727 A.2d 1089, 1100 (1999); Commonwealth v. Gwynn , 555 Pa. 86, 723 A.2d 143, 149 (1998); Commonwealth v. Jones , 546 Pa. 161, 683 A.2d 1181, 1188 (1996). A person is in custody for purpo ses of Miranda only when the objective circumstances suggest that she was physically deprived of her freedom or was i n a situation where she reasonably could have believed that her f reedom of movement was being restricted. See Commonwealth v. Gibson , 553 Pa. 648, 720 A.2d 473, 480 (1998); Commonwealth v. Rucci , 543 Pa. 261, 670 A.2d 1129, 1139

____________________________________________ 4 Miranda v. Arizona , 384 U.S. 436 (1966).J-S34006-14

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(1996). See also Stansbury v. California , 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-29, 128 L.Ed.2d 293 (1994) ( per curiam ) (“‘the ultimate inquiry is simply whether there [wa s] a formal arrest or restraint on freedom of movement of the d egree associated with a formal arrest’”) ( quoting California v. Beheler , 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983)) (further citation omitted). Th e fact that the officer questioning a person has “focused” on t hat individual does not in itself prove custody for Miranda purposes. See Minnesota v. Murphy , 465 U.S. 420, 431, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409 (1984); Beckwith v. United States , 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2 d 1 (1976). Similarly, the fact that the officer subjectively b elieves that the individual being interviewed is a suspect is irrele vant to the question of custody, if the officer has not communi cated the fact to the individual. Stansbury , 511 U.S. at 324, 114 S.Ct. at 1530 (“Save as they are communicated or otherwise manife sted to the person being questioned, an officer's evolving but unarticulated suspicions do not affect the objective circumstance s of an interrogation or interview, and thus cannot affect the Miranda custody inquiry.”); Gibson , 720 A.2d at 480 (“[T]he test for custodial interrogation does not depend upon the su bjective intent of the law enforcement officer interrogator. Rather, the test focuses on whether the individual being interr ogated reasonably believes his freedom of action is being restricted.”) ( quoting Commonwealth v. Williams , 539 Pa. 61, 650 A.2d 420, 247 (1994)).

Commonwealth v. Smith , 836 A.2d 5, 18 (Pa. 2003). Regarding the first interview, conducted on August 12, 2005, the PCRA court concluded Ridenbaugh was not subject to a cus todial interrogation, and therefore, was not entitled to Miranda warnings. Our review of the certified record leads us to agree with the PCRA co urt’s determination. The PCRA court opinion states: Ridenbaugh argues that when he as picked up by Troo per Powell and transported to the Clarion barracks for an inte rview he was in custody and should have been given his Miranda warnings.J-S34006-14

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He points to the fact that he was transported to th e barracks by Trooper Powell and had no way of leaving on his own and the total time between when he was picked up and droppe d off was over five hours. Ridenbaugh asserts that during th e interview, he was detained in a locked interrogation room with multiple officers present. [5] He believes the totality of the circumstances show the interview was so coercive that he was in f act in custody. Considering the totality of the circumstances, Ride nbaugh is incorrect. Prior to the August 12, 2005 interview, Ridenbaugh, by his own admission, had met voluntarily with poli ce on multiple occasions. On June 5, 2005, one of those voluntary meetings took place at the Clarion barracks. On August 12, 2005, Trooper Powell was not overly c oercive when he picked up Ridenbaugh. He spotted him ridin g his 4- wheeler down the road and asked him to get in the p olice car. Ridenbaugh complied. Trooper Powell told him to pu sh the 4- wheeler behind a tree and Ridenbaugh got in the fro nt seat of the police car. He was not handcuffed or touched i n any way. It is not clear exactly how long Ridenbaugh was at the barracks being interviewed, but Trooper Powell testified he was not interviewed for the entire five hours. During the interview, both the troopers and Ridenbaugh agreed that one of the main topics of conversation was Jesse McFadden. Ridenbaugh agr eed to wear a wire and to discuss the murder with McFadden . The troopers spent time during the interview going over the procedures of him wearing the wire. On the night o f August 12, 2005, Ridenbaugh did in fact wear a wire during his interactions with Jesse McFadden. He wore the wire again on two more occasions. He was also given a cell phone to conta ct the troopers.

____________________________________________ 5 Trooper Powell testified the interview took place in the “Crime Unit”, a room “probably 24 feet wide and some 30 feet long, a couple of desks and so forth in there.” See N.T. PCRA Hearing at 71. Additionally, “You can leave by just pushing the door, but to get in you h ave to have somebody push the button.” Id

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With Jesse McFadden being the primary subject of th e interview it is reasonable to conclude that Ridenbaugh was pr esent at the barracks as a witness and not as a suspect. He was working with the troopers in the general investigation and specifically their investigation of Jesse McFadden. Approximately forty one minutes of the August 12, 2 005 interview was recorded. The first question Trooper Felmlee asked Ridenbaugh on the record was, “Bill you under stand that you’re here voluntarily?” Ridenbaugh responded, sa ying “That’s correct.” He then proceeded to give a statement to the police which strongly implicated Jesse McFadden in the mur der, while reiterating that he never had left his house. It is true Ridenbaugh had no ride to get back to hi s home from the barracks other than the troopers, however, at n o time did Ridenbaugh refuse to answer any questions, refuse t o cooperate, or communicate in any way that he wished to end the interview and be transported home. It appears from the condu ct of the officers that had he made such a request, the inter view would have ended and the police would have transported hi m back home without delay. This court finds that Ridenbaugh was not prejudiced by attorney Vrobel’s [defense counsel] failure to present a sup pression motion regarding the August 12, 2005 interview beca use Ridenbaugh was not in custody and he would not have prevailed on his motion. Additionally, Ridenbaugh failed to meet the prejudi ce prong of the test regarding the August 12, 2005 interview be cause he failed to demonstrate there is a reasonable probabi lity that, but for attorney Vrobel’s error, the outcome of the tri al would have been different. Ridenbaugh has failed to point to any statement he gave during the August 12, 2005 interview that p rejudiced him at trial. In fact, the record shows that at th e interview he was working with the troopers in their investigatio n of Jesse McFadden. He agreed to wear a wire to obtain addit ional incriminating evidence against McFadden. Any state ment he did give at the August 12, 2005 interview affirmed that Jesse McFadden committed the murder on his own while Ride nbaugh remained at his residence. Having failed to meet t he prejudiceJ-S34006-14

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prong of the test for ineffectiveness, Ridenbaugh’s claim regarding the August 12, 2005 interview fails. PCRA Court Opinion, 5/10/2013 at 11-14. Based on our review, the record fully supports the PCRA court’s findings and, in light of the standard set forth in Smith , supra , we discern no error of law in the determination that Ridenbaug h was not entitled to relief on this claim. We agree with the PCRA court ’s findings that under the totality of the circumstances, it appears that the August 12, 2005 meeting was in the nature of an interview with a cooperatin g witness, and further, Ridenbaugh has pointed to no statement from the Aug ust 12, 2005 interview that prejudiced him a trial. Regarding the September 1, 2005, interview, Ridenb augh admits he was given the Miranda warnings and signed a waiver. However, he claims that because he had been appointed counsel for a se parate (drug) crime, the police were required to question him only in the pr esence of counsel and therefore, the signed waiver was invalid. This cla im would have arguable merit if Ridenbaugh had, at any time, claimed he ha d invoked his Fifth Amendment right to counsel in his drug case. Becau se he did not, he cannot prevail.J-S34006-14

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Here, the PCRA court correctly notes the differenc e between a person’s Fifth Amendment right to counsel and a Sixth Amendm ent right to counsel, 6 and the import of that difference to the outcome of this matter. By way of background, at the time of the September 1, 2005 in terview, Ridenbaugh had been arrested and was in custody on drug charge s that were unrelated to the murder charge instantly at issue. Pursuant to the Sixth Amendment, Ridenbaugh had been appointed counsel to defend him against the drug charges. However, because he had not been arrested for murder, no Sixth Amendment right to counsel attached to that case. Further, the PCRA court correctly notes that a Sixth Amendment right to cou nsel is offense specific, and cannot be invoked once for all future prosecuti ons. See Commonwealth v. Wyatt , 669 A.2d 954, 956 (Pa. Super. 1996) citing United States v. Gouveia , 467 U.S. 180, 104 S.Ct. 2922 (1984). It is undenied that Ridenbaugh invoked his Sixth Amendmen t right to counsel for his drug charge. However, he had no Sixth Amendmen t right to counsel for the murder charge because he had not been charged w ith that crime. Therefore, the fact that Ridenbaugh was represented by counsel in a different matter is not, by itself, helpful to Ride nbaugh.

____________________________________________ 6 The Fifth Amendment right to counsel is based upon due process rights and the prohibition against compelled self-incriminatio n. The Sixth Amendment right to counsel is based on the explicit language that “In all criminal prosecutions the accused shall have the right...to ha ve the Assistance of Counsel for his defense.” U.S.Const., Amend VI.J-S34006-14

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Therefore, the Miranda waiver must be examined under the Fifth Amendment. A person’s Fifth Amendment right to cou nsel is not offense specific. Wyatt , supra , 669 A.2d at 957, citing Arizona v. Roberson , 486 U.S. 675 (1988). Further, Wyatt acknowledges that once a person invokes his Fifth Amendment right to counsel, the police ma y not initiate any further questioning of the defendant in the absence of coun sel. Id ., citing Edwards v. Arizona , 451 U.S. 477, 101 S.Ct. 1880 (1981). Wyatt holds that once a person invokes his Fifth Amendment right to counsel , that invocation operates, pursuant to Roberson , to prevent the police from questioning a defendant on any offense unless counsel is present. Id . Accordingly, for Ridenbaugh to prevail on this claim, he was require d to demonstrate that he had invoked his Fifth Amendment right to counsel in his drug case. Ridenbaugh never asserted, much less proved, that h e had invoked his Fifth Amendment right to counsel in his drug case. There fore, the fact that he was represented in the drug case, without ever invo king his Fifth Amendment rights in that case, did not prevent the troopers from questioning him regarding the murder. Because the troopers were entitled to initiate questioning, Ridenbaugh was entitled to waive his Miranda rights without counsel being present. Accordingly, we agree with the PCRA court that the waiver was valid and Ridenbaugh would not have prevailed in an attem pt to suppress any statements or other evidence that was a product of the September 1, 2005,J-S34006-14

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interview. Counsel cannot be ineffective for faili ng to file a meritless motion. Wright , supra . Ridenbaugh’s final two issues were impliedly reject ed in the prior appeal; 7 however, we will briefly discuss them. Ridenbaugh argues that trial counsel was ineffectiv e for failing to object to hearsay evidence presented at trial. How ever, the PCRA court noted in both the order denying the petition withou t a hearing, 3/11/2011, and in its Pa.R.A.P. 1925(a) Opinion, 5/10/2011, th at Ridenbaugh failed to identify any specific hearsay statement. PCRA Cour t Opinion at 2. Additionally, the PCRA court reviewed the notes of testimony and failed to locate any such objectionable testimony. The PCRA court speculated Ridenbaugh might have been complaining about the te stimony of Corporal Felmlee, who testified about what Ridenbaugh told T rooper Davis during an interview. However, Corporal Felmlee was present a t that interview, and so was testifying from first-hand knowledge, not hears ay. Id . The record supports this determination and Ridenbaugh is not e ntitled to relief on this
issue.

____________________________________________ 7 In the prior appeal, the PCRA court had denied all of Ridenbaugh’s claims without a hearing. A panel of this Court remanded for hearing on the two issues discussed above. That memorandum implied th at the other issues were properly disposed of by the PCRA court. Howev er, the prior decision did not expressly affirm the PCRA court on the rema ining issues. Therefore, in an abundance of caution, we expressly affirm the PCRA court on the remaining issues.J-S34006-14

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Finally, Ridenbaugh claims PCRA counsel was ineffec tive for failing to investigate and request a hearing on the above disc ussed issues. However, counsel cannot be ineffective for failing to pursue meritless claims. See Wright , supra . See also, Commonwealth v. Roney , 79 A.3d 595, 604 (Pa. 2013) (no PCRA hearing required when there are no genuine issues of material fact, defendant is not entitled to relief and no legitimate purpose would be served by a hearing). Having determined that all issues raised by Ridenba ugh in both the initial PCRA petition and those issues addressed pu rsuant to the remand are meritless, we affirm the denial of PCRA relief.
Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/14/2015