J-S33027-16

* Former Justice specially assigned to the Superior Court NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JASON ANDREW MERSCHAT Appellant No. 1479 WDA 2015

Appeal from the PCRA Order September 17, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012256-2009 BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ. MEMORANDUM BY OLSON, J.: FILED JULY 25, 2016 Appellant, Jason Andrew Merschat, appeals from the order entered on September 17, 2015 dismissing his first petition fi led pursuant to the PostConviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 -9546. We affirm. The relevant factual background and procedural his tory of this case is as follows. On March 19, 2009, a Pennsylvania Stat e Police trooper pulled Appellant over for speeding. Because Appellant exh ibited signs of intoxication, the trooper administered field sobrie ty tests, which Appellant failed. Appellant was then transported to the hosp ital where a blood test showed his blood alcohol concentration (“BAC”) was .195%. On October 6, 2009, the Commonwealth charged Appel lant via criminal information with driving under the influen ce (“DUI”)–highest rateJ-S33027-16

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(second offense), 1 DUI–general impairment (first offense), 2 and five summary traffic offenses. Prior to trial, the Penn sylvania State Police erased the video recording of the traffic stop. Because o f this, Appellant moved to suppress all evidence gained as a result of the sto p, including Appellant’s BAC test results, pursuant to Pennsylvania Rule of Criminal Procedure 573. The trial court denied the suppression motion. At trial, the Commonwealth called Jennifer Janssen (“Janssen”), a toxicologist with the Allegheny County Medical Exam iner’s Office. The Commonwealth did not produce an expert report autho red by Janssen and Appellant’s trial counsel did not request productio n of such a report. On August 3, 2010, Appellant was convicted of DUI–high est rate, DUI-general impairment, and four summary offenses. On November 3, 2010, the trial court sentenced Appellant to 90 to 180 days’ impris onment followed by four years’ probation for DUI–highest rate. Appellant’s DUI-general impairment conviction merged with his DUI-highest rate convict ion and he was sentenced to no further penalty on the remaining ch arges. This Court affirmed Appellant’s judgment of senten ce and our Supreme Court denied allowance of appeal. Commonwealth v. Merschat , 46 A.3d 811 (Pa. Super. 2012) (unpublished memorandum), appeal denied , 48 A.3d 1248 (Pa. 2012). In affirming Appellant’s judgment of sentence, this Court

1 75 Pa.C.S.A. § 3802(c).

2 75 Pa.C.S.A. § 3802(a)(1).J-S33027-16

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found that Appellant waived his claim that the char ges against him should

have been dismissed for a violation of Rule 573 bec ause he only sought suppression of the evidence and not dismissal of th e charges. After our Supreme Court denied allowance of appeal, the trial court ordered Appellant to serve his sentence. Upon completion of his pris on term, Appellant sought early termination of his probation. The trial cour t denied the request and Appellant appealed that decision. While that appeal was pending, and within one year of his judgment of sentence becoming final, Appellant filed a counsele d PCRA petition. The PCRA court dismissed the petition because the appea l of the early termination of probation ruling was still pending. Appellant then appealed the dismissal of his PCRA petition. Eventually, th is Court consolidated those appeals, affirmed the trial court’s denial of early termination of probation, vacated the dismissal of the PCRA petition, and rem anded for consideration of the PCRA petition. Commonwealth v. Merschat , 107 A.3d 225, 2014 WL 10575178 (Pa. Super. 2014) (unpublished memorand um). On remand, Appellant filed an amended PCRA petition . On August 14, 2015, the PCRA court issued notice of its intent to dismiss the petition without an evidentiary hearing. See Pa.R.Crim.P. 907. On September 17,J-S33027-16

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2015, the PCRA court dismissed Appellant’s petition . This timely appeal

followed. 3 Appellant presents four issues for our review:

1. [Did the PCRA court err in dismissing Appellant’s c laim that counsel was ineffective for failing to preserve his Rule 573 issue for review?

2. Did the PCRA court err in dismissing Appellant’s cl aim that counsel was ineffective for failing to request an e xpert report from the Commonwealth and failing to object to the expert’s testimony?

3. Did the PCRA court err in dismissing Appellant’s cl aim that counsel was ineffective for failing to call Janine Arvizu (“Arvizu”) as an expert witness?

4. Did the trial court err in dismissing Appellant’s c laim that his sentence was illegal?]

See Appellant’s Brief at 1-2. As most PCRA appeals involve mixed questions of fac t and law, “[o]ur standard of review of an order granting or denying relief under the PCRA requires us to determine whether the decision of th e PCRA court is supported by the evidence of record and is free of legal error.” Commonwealth v. Melendez-Negron , 123 A.3d 1087, 1090 (Pa. Super. 2015) (internal alteration, quotation marks, and ci tation omitted).

3 On October 5, 2015, the PCRA court ordered Appella nt to file a concise statement of errors complained of on appeal (“conci se statement”). See Pa.R.A.P. 1925(b). On October 8, 2015, Appellant f iled his concise statement. On November 6, 2015, the PCRA court iss ued its Rule 1925(a) opinion. All issues raised on appeal were included in Appellant’s concise statement.J-S33027-16

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“The PCRA court’s findings will not be disturbed un less there is no support for the findings in the certified record.” Commonwealth v. Ruiz , 131 A.3d 54, 57 (Pa. Super. 2015) (citation omitted). Appellant’s first three claims relate to the purpor ted ineffectiveness of his counsel. A “defendant’s right to counsel guara nteed by the Sixth

Amendment to the United States Constitution and Art icle I, [Section] 9 of the Pennsylvania Constitution is violated where cou nsel’s performance so undermined the truth-determining process that no re liable adjudication of guilt or innocence could have taken place.” Commonwealth v. Simpson , 66 A.3d 253, 260 (Pa. 2013) (internal quotation mar ks and citation omitted). “Trial counsel is presumed to be effecti ve[.]” Commonwealth v. Perry , 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation o mitted). In order to overcome the presumption that counsel w as effective, Appellant must establish that “(1) the underlying c laim is of arguable merit; (2) the particular course of conduct pursued by cou nsel did not have some reasonable basis designed to effectuate his client’ s interests; and (3) but for counsel’s ineffectiveness, there is a reasonable pr obability that the outcome of the proceedings would have been different.” Commonwealth v. Buterbaugh , 91 A.3d 1247, 1255 (Pa. Super. 2014) ( en banc ), appeal

denied , 104 A.3d 1 (Pa. 2014) (internal alterations, quot ation marks, and citation omitted). “A claim of ineffectiveness wil l be denied if the defendant’s evidence fails to meet any one of these prongs.”J-S33027-16

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Commonwealth v. Oliver , 128 A.3d 1275, 1284 (Pa. Super. 2015) (citation omitted). The burden of proving ineffect iveness is on the petitioner. Commonwealth v. Slaughter , 120 A.3d 992 (Pa. 2015). In his first issue, Appellant claims that counsel w as ineffective for failing to preserve his Rule 573 claim for direct a ppellate review. At the suppression hearing, Appellant sought suppression o f all evidence, including his BAC test results, based upon the Commonwealth’s erasure of the dash cam video of Appellant’s traffic’s stop. The trial court denied the motion to suppress. On appeal, counsel argued that the trial court erred by not dismissing the charges under Rule 573. A panel of this Court found that Appellant waived review of his Rule 573 claim becau se counsel only sought suppression of the evidence before the trial court whereas, on appeal before this Court, counsel sought dismissal of the charges

. Appellant forwards a novel approach to demonstrate that his first claim meets the criteria for proving ineffective assistan ce of counsel. Appellant argues that, because counsel failed to follow appel late rules and waived appellate review of his Rule 573 claim, the first t wo parts of the ineffective assistance test, arguable merit and lack of a reaso nable basis, are established. Appellant concedes that he must satis fy the prejudice prong since counsel’s conduct waived only some, but not a ll, appellate claims. However, based on a merits analysis of his Rule 573 claim, Appellant asserts there is a reasonable probability that he would hav e obtained appellateJ-S33027-16

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relief, if not for the actions of counsel. Consequ ently, Appellant asks for a new trial with an order excluding all evidence gath ered during the March 19, 2009 traffic stop. Appellant misunderstands our precedent that address es the appropriate remedy made available where counsel’s f ailure to follow appellate rules of procedure effectively denies a d efendant his right to direct review. Specifically, Appellant misunderstands thi s Court’s decisions in

Commonwealth v. Johnson , 889 A.2d 620 (Pa. Super. 2005) and

Commonwealth v. Franklin , 823 A.2d 906 (Pa. Super. 2003). In

Johnson and Franklin , the appellate “brief[s] on direct appeal w[ere] s o deficient under [Pennsylvania Rule of Appellate Pro cedure] 2119 that this Court [was] unable to consider the merits of [the d efendants’] claims.”

Johnson , 889 A.3d at 623. It was this waiver of all issue s on appeal that led this Court to find that the first two prongs of ineffectiveness were

satisfied. In this case, Appellant’s counsel filed a brief whi ch complied with Rule 2119 and this Court addressed the merits of Appella nt’s other issue raised on direct appeal. Thus, Johnson and Franklin are inapposite. Instead, this case is governed by Commonwealth v. Grosella , 902 A.2d 1290 (Pa. Super. 2006). In Grosella , this Court held that when counsel waives all but one issue on direct appeal, the defendant must stil l plead and prove all three prongs of an ineffective assistance of counsel clai m. Id. at 1294. AsJ-S33027-16

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counsel in this case preserved one issue for appell ate review, Appellant must satisfy all three prongs of the test for ineffectiv e assistance of counsel. Appellant’s first claim alleges counsel was ineffec tive for failing to preserve his Rule 573 issue, which centered upon th e Commonwealth’s erasure and subsequent failure to produce dash cam video of Appellant’s traffic stop. Appellant concedes, for purposes of legal analysis, that the recording is potentially useful evidence. In cases where the prosecution fails to produce potentially useful evidence, a due proce ss violation occurs only where the Commonwealth’s failure to preserve was do ne in bad faith, regardless of the centrality of the evidence for th e prosecution or defense. Commonwealth v. Snyder , 963 A.2d 396, 404 (Pa. 2009). Bad faith is shown where evidence is destroyed under circumstanc es “in which the police themselves by their conduct indicate that the evide nce could form a basis for exonerating the defendant.” Arizona v. Youngblood , 488 U.S. 51, 58 (1988).

In Snyder , our Supreme Court held that it is very difficult to find bad faith when evidence is destroyed pursuant to a stan dard policy. Snyder , 963 A.2d at 406, citing United States v. Beckstead , 500 F.3d 1154, 1159- 1160 (10th Cir. 2007). In this case, the Commonwea lth erased the video recording of Appellant’s traffic stop in accordance with a standard policy.J-S33027-16

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See N.T., 4/7/10, at 74-77. 4 Appellant points to no authority and offers no reasons why the destruction of the recording in thi s case falls into the narrow class of cases where bad faith is shown desp ite the destruction of evidence pursuant to standard policy. As such, App ellant failed to plead and prove that his underlying claim is of arguable meri t. 5 In his second issue, Appellant argues that trial co unsel was ineffective for failing to request an expert report from Jansse n. Appellant argues that, if counsel had requested an expert report, counsel could have limited Janssen’s testimony to the alcohol content in Appel lant’s blood and excluded testimony regarding the effect of alcohol in Appell ant’s blood stream. Second, Appellant argues that trial counsel was una ware of Janssen’s qualifications and therefore could not challenge he r on cross-examination. Both of these arguments are without merit. As to limiting Janssen’s testimony, Appellant “does not even attempt to offer any legal theories under which [Janssen’s testimony] could have

4 Specifically, every camera has two tapes – one loc ated in the camera and one located in storage. After the tape in the came ra is full (which occurs after it is used for approximately 30 days), the ta pe in storage is erased and the two tapes are switched. Thus, depending upon w hen in the cycle the recording is made, recordings are destroyed between 30-60 days after they are made unless a request to preserve the recording is made. In this case, the preliminary hearing was delayed f or several months. By the time the preliminary hearing was held, the tape had been erased.

5 For the same reasons, Appellant is unable to show any prejudice because even if counsel would have preserved the issue, thi s Court would have affirmed the trial court’s ruling.J-S33027-16

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been [limited]. Therefore, this claim merits no re lief.” Commonwealth v. Copenhafer , 719 A.2d 242, 256 (Pa. 1998). Furthermore, our r eview of the record indicates that Janssen’s testimony would have been admissible even if Appellant’s trial counsel requested an expe rt report. This Court routinely accepts the expert testimony of toxicolog ists as it relates to the impact a given amount of alcohol has on an individu al. E.g., Braun v. Target Corp. , 983 A.2d 752, 760-761 (Pa. Super. 2009), appeal denied , 987 A.2d 158 (Pa. 2009) (collecting cases). Jansse n testified that, as part of her employment, she “interpret[s what] the signific ance of the alcohol finding . . . is in a particular specimen.” N.T., 7/30/10, at 48. Thus, she was qualified to offer such an expert opinion and a ny attempt to limit such testimony would have been rejected. As to Janssen’s qualification’s, an expert report i s not the only means to learn about an expert’s qualifications. In this case, Janssen testified on direct examination to her qualifications. See N.T., 7/30/10, at 46-48. Appellant’s trial counsel could have cross-examined Janssen about her qualifications based upon these disclosures at tria l. Therefore, Appellant’s claim related to the lack of an expert report from Janssen lacks arguable merit and Appellant is not entitled to relief on hi s second ineffectiveness

claim.J-S33027-16

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In his third issue, Appellant argues that trial cou nsel was ineffective for failing to call Arvizu as an expert witness to rebu t Janssen’s testimony. 6 As this Court has explained To establish ineffectiveness for failure to present a witness, Appellant must establish that: (1) the witness exis ted; (2) the witness was available; (3) counsel was informed of the existence of the witness or counsel should otherwise have kno wn of [her]; (4) the witness was prepared to cooperate and testi fy for Appellant at trial; and (5) the absence of the test imony prejudiced Appellant so as to deny him a fair trial . A defendant must establish prejudice by demonstrating that he w as denied a fair trial because of the absence of the testimony of the proposed witness. Further, ineffectiveness for fai ling to call a witness will not be found where a defendant fails t o provide affidavits from the alleged witnesses indicating av ailability and willingness to cooperate with the defense.

In re A.J. , 829 A.2d 312, 316 (Pa. Super. 2003), appeal denied , 842 A.2d 405 (Pa. 2003) (citation omitted). In this case, Arvizu’s affidavit did not state tha t she was available and willing to cooperate with the defense at the time o f Appellant’s trial. See Appellant’s Amended PCRA Petition, 1/2/15, at Exhib it A. As such, Appellant

is not entitled to relief on his third ineffectiven ess claim. In his final issue, Appellant argues that his sent ence was illegal. He argues that the maximum sentence for a second DUI-h ighest rate conviction is 60 days’ imprisonment. The legality of a senten ce is a pure question of

6 Arvizu is a chemist and lab auditor who allegedly r eviewed the practices of the lab that performed the BAC test on Appellant’s blood and, based on said review, believes the lab may have deficiencies whic h could render the BAC results unreliable.J-S33027-16

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law, therefore our standard of review is de novo and our scope of review is plenary. Commonwealth v. Cardwell , 105 A.3d 748, 750 (Pa. Super. 2014), appeal denied , 121 A.3d 494 (Pa. 2015) (citation omitted). Although Act 189 of 2014 amended section 3803(a), this case is governed by the statute at the time Appellant was s entenced. See

Commonwealth v. Grow , 122 A.3d 425, 427 n.3 (Pa. Super. 2015) ( en banc ), superseded by statute on other grounds , 2014 P.L. 2905. Thus all of

our references to the relevant statutes are to thos e in effect at the time of Appellant’s sentencing. At that time, section 3803 provided, in relevant part: (a) Basic offenses.—Notwithstanding the provisions o f subsection (b): (1) An individual who violates section 3802(a) (rel ating to driving under influence of alcohol or controlled su bstance) and has no more than one prior offense commits a misdem eanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section 3804 (relating to penalties).

* * * (b) Other offenses.—

* * * (4) An individual who violates section 3802(a)(1) w here the individual refused testing of blood or breath, or w ho violates section 3802(c) or (d) and who has one or more prio r offenses commits a misdemeanor of the first degree. 75 Pa.C.S.A. § 3803 (Purdon’s 2009).J-S33027-16

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Appellant’s argument is based upon a misunderstand ing of this Court’s

decisions in Grow and Commonwealth v. Musau , 69 A.3d 754 (Pa. Super. 2013), superseded by statute , 2014 P.L. 2905, interpreting section 3803. In

Musau and Grow , the defendants were convicted of DUI-general impairment with refusal to consent to chemical test ing. The defendants in both cases argued that the maximum sentence for a s econd DUI-general impairment with refusal to consent to chemical test ing conviction was six months’ imprisonment. The Commonwealth, on the oth er hand, argued that the maximum sentence for a second DUI-general impai rment with refusal to consent to chemical testing conviction was five yea rs’ imprisonment. The

difference arose because of a conflict between sect ions 3803(a) and 3803(b)(4). Specifically, section 3803(a) provided that the maximum penalty for a first or second DUI-general impairmen t conviction was six months’ imprisonment. On the other hand, section 3 803(b)(4) provides that a second or subsequent DUI-general impairment with refusal to consent to chemical testing offense is a first-degree misdemea nor, which is punishable by up to five years’ imprisonment. In addition, se ction 3803(b)(4) provides that second and subsequent DUI-highest rate and DUI -controlled substances convictions shall also constitute first-degree misd emeanors. In Musau and

Grow , this Court held that the “notwithstanding” langua ge of section 3803(a) meant that the six month maximum punishment provided in section 3803(a) controlled what the maximum penalty for a second DUI-generalJ-S33027-16

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impairment with refusal to consent to chemical test ing conviction was.

Grow , 122 A.3d at 428.

Neither Musau nor Grow , nor any other of the litany of cases cited by Appellant, 7 addressed a DUI-highest rate conviction, the relev ant section in this appeal. Those cases did not address DUI-highe st rate because section 3803(a) only addressed DUI-general impairment convi ctions. Only section 3803(b)(4) addresses second DUI-highest rate convic tions. Section 3803(b)(4) provides that a second DUI-highest rate conviction is a firstdegree misdemeanor, which carries a five-year maxim um sentence. 18 Pa.C.S.A. § 106(b)(6), (e). Although this Court’s language in Musau may not have been precise, 8 a complete review of Musau and Grow reveals that the passage relied upon by Appellant only referred to DUI-general impairment convictions. As such, Appellant’s sente nce was legal.

Order affirmed.

7 Appellant cites Commonwealth v. Schrock , 118 A.3d 459, 2015 Pa. Super. Unpub. LEXIS 3331 (Pa. Super. 2015) (unpubli shed memorandum), in support of his argument that section 3803(a) app lies to convictions other than DUI-general impairment, i.e. , convictions under section 3802(d)(2). The defendant in Schrock , however, was only convicted of DUI-general impairment and the section 3802(d)(2) charge was wi thdrawn. Moreover, we note that this Court’s operating procedures prov ide that unpublished memoranda decisions “shall not be relied upon or ci ted...by a party in any other action or proceeding”. Operating Procedures of the Superior Court § 65.37A.

8 Specifically, this Court stated that “the maximum sentence for a first or second DUI conviction is six months’ imprisonment.” Musau , 69 A.3d at 758.J-S33027-16

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Gantman, P.J. joins the memorandum. Fitzgerald, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 7/25/2016