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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 filed pursuant to the PostConviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546. We affirm. 

 The relevant factual background and procedural history of this case is 

as follows. On March 19, 2009, a Pennsylvania State Police trooper pulled 

Appellant over for speeding. Because Appellant exhibited signs of 

intoxication, the trooper administered field sobriety tests, which Appellant 

failed. Appellant was then transported to the hospital where a blood test 

showed his blood alcohol concentration (“BAC”) was .195%. 

 On October 6, 2009, the Commonwealth charged Appellant via 

criminal information with driving under the influence (“DUI”)–highest rate 
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(second offense),1 DUI–general impairment (first offense),2 and five 

summary traffic offenses. Prior to trial, the Pennsylvania State Police erased 

the video recording of the traffic stop. Because of this, Appellant moved to 

suppress all evidence gained as a result of the stop, 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 Examiner’s Office. The 

Commonwealth did not produce an expert report authored by Janssen and 

Appellant’s trial counsel did not request production of such a report. On 

August 3, 2010, Appellant was convicted of DUI–highest rate, DUI-general 

impairment, and four summary offenses. On November 3, 2010, the trial 

court sentenced Appellant to 90 to 180 days’ imprisonment followed by four 

years’ probation for DUI–highest rate. Appellant’s DUI-general impairment 

conviction merged with his DUI-highest rate conviction and he was 

sentenced to no further penalty on the remaining charges. 

 This Court affirmed Appellant’s judgment of sentence 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). 
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found that Appellant waived his claim that the charges against him should 

have been dismissed for a violation of Rule 573 because he only sought 

suppression of the evidence and not dismissal of the charges. After our 

Supreme Court denied allowance of appeal, the trial court ordered Appellant 

to serve his sentence. Upon completion of his prison term, Appellant sought 

early termination of his probation. The trial court 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 counseled PCRA petition. The 

PCRA court dismissed the petition because the appeal of the early 

termination of probation ruling was still pending. Appellant then appealed 

the dismissal of his PCRA petition. Eventually, this Court consolidated those 

appeals, affirmed the trial court’s denial of early termination of probation, 

vacated the dismissal of the PCRA petition, and remanded for consideration 

of the PCRA petition. Commonwealth v. Merschat, 107 A.3d 225, 2014 

WL 10575178 (Pa. Super. 2014) (unpublished memorandum). 

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, 
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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 claim that 

counsel was ineffective for failing to preserve his Rule 573 issue 

for review? 

2. Did the PCRA court err in dismissing Appellant’s claim that 

counsel was ineffective for failing to request an expert report 

from the Commonwealth and failing to object to the expert’s 

testimony? 

3. Did the PCRA court err in dismissing Appellant’s claim 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 claim that his 

sentence was illegal?] 

See Appellant’s Brief at 1-2. 

As most PCRA appeals involve mixed questions of fact 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 the 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 citation omitted). 

 

3

 On October 5, 2015, 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 October 8, 2015, Appellant filed his concise 

statement. On November 6, 2015, the PCRA court issued its Rule 1925(a) 

opinion. All issues raised on appeal were included in Appellant’s concise 

statement. 
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“The PCRA court’s findings will not be disturbed unless 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 purported ineffectiveness of 

his counsel. A “defendant’s right to counsel guaranteed by the Sixth 

Amendment to the United States Constitution and Article I, [Section] 9 of 

the Pennsylvania Constitution is violated where counsel’s performance so 

undermined the truth-determining process that no reliable adjudication of 

guilt or innocence could have taken place.” Commonwealth v. Simpson, 

66 A.3d 253, 260 (Pa. 2013) (internal quotation marks and citation 

omitted). “Trial counsel is presumed to be effective[.]” Commonwealth v. 

Perry, 128 A.3d 1285, 1289 (Pa. Super. 2015) (citation omitted). 

In order to overcome the presumption that counsel was effective, 

Appellant must establish that “(1) the underlying claim is of arguable merit; 

(2) the particular course of conduct pursued by counsel did not have some 

reasonable basis designed to effectuate his client’s interests; and (3) but for 

counsel’s ineffectiveness, there is a reasonable probability 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, quotation marks, and 

citation omitted). “A claim of ineffectiveness will be denied if the 

defendant’s evidence fails to meet any one of these prongs.” 
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Commonwealth v. Oliver, 128 A.3d 1275, 1284 (Pa. Super. 2015) 

(citation omitted). The burden of proving ineffectiveness is on the 

petitioner. Commonwealth v. Slaughter, 120 A.3d 992 (Pa. 2015). 

In his first issue, Appellant claims that counsel was ineffective for 

failing to preserve his Rule 573 claim for direct appellate review. At the 

suppression hearing, Appellant sought suppression of 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 because 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 assistance of counsel. Appellant 

argues that, because counsel failed to follow appellate rules and waived 

appellate review of his Rule 573 claim, the first two parts of the ineffective 

assistance test, arguable merit and lack of a reasonable basis, are 

established. Appellant concedes that he must satisfy the prejudice prong 

since counsel’s conduct waived only some, but not all, appellate claims. 

However, based on a merits analysis of his Rule 573 claim, Appellant asserts 

there is a reasonable probability that he would have obtained appellate 
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relief, if not for the actions of counsel. Consequently, Appellant asks for a 

new trial with an order excluding all evidence gathered during the March 19, 

2009 traffic stop. 

Appellant misunderstands our precedent that addresses the 

appropriate remedy made available where counsel’s failure to follow 

appellate rules of procedure effectively denies a defendant his right to direct 

review. Specifically, Appellant misunderstands this 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] so 

deficient under [Pennsylvania Rule of Appellate Procedure] 2119 that this 

Court [was] unable to consider the merits of [the defendants’] claims.” 

Johnson, 889 A.3d at 623. It was this waiver of all issues 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 which complied with Rule 

2119 and this Court addressed the merits of Appellant’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 still plead and prove all three 

prongs of an ineffective assistance of counsel claim. Id. at 1294. As 
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counsel in this case preserved one issue for appellate review, Appellant must 

satisfy all three prongs of the test for ineffective assistance of counsel. 

Appellant’s first claim alleges counsel was ineffective for failing to 

preserve his Rule 573 issue, which centered upon the 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 process violation occurs only 

where the Commonwealth’s failure to preserve was done in bad faith, 

regardless of the centrality of the evidence for the prosecution or defense. 

Commonwealth v. Snyder, 963 A.2d 396, 404 (Pa. 2009). Bad faith is 

shown where evidence is destroyed under circumstances “in which the police 

themselves by their conduct indicate that the evidence 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 standard 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 Commonwealth erased the video 

recording of Appellant’s traffic stop in accordance with a standard policy. 
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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 this case falls into the 

narrow class of cases where bad faith is shown despite the destruction of 

evidence pursuant to standard policy. As such, Appellant failed to plead and 

prove that his underlying claim is of arguable merit.5

In his second issue, Appellant argues that trial counsel was ineffective 

for failing to request an expert report from Janssen. Appellant argues that, 

if counsel had requested an expert report, counsel could have limited 

Janssen’s testimony to the alcohol content in Appellant’s blood and excluded 

testimony regarding the effect of alcohol in Appellant’s blood stream. 

Second, Appellant argues that trial counsel was unaware of Janssen’s 

qualifications and therefore could not challenge her 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 located in the camera and 

one located in storage. After the tape in the camera is full (which occurs 

after it is used for approximately 30 days), the tape in storage is erased and 

the two tapes are switched. Thus, depending upon when 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 for 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, this Court would have 

affirmed the trial court’s ruling. 
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been [limited]. Therefore, this claim merits no relief.” Commonwealth v. 

Copenhafer, 719 A.2d 242, 256 (Pa. 1998). Furthermore, our review of 

the record indicates that Janssen’s testimony would have been admissible 

even if Appellant’s trial counsel requested an expert report. This Court 

routinely accepts the expert testimony of toxicologists as it relates to the 

impact a given amount of alcohol has on an individual. 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). Janssen testified that, as part of 

her employment, she “interpret[s what] the significance 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 any attempt to limit such 

testimony would have been rejected. 

As to Janssen’s qualification’s, an expert report is 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 trial. 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 his second ineffectiveness 

claim. 
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In his third issue, Appellant argues that trial counsel was ineffective for 

failing to call Arvizu as an expert witness to rebut 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 existed; (2) the 

witness was available; (3) counsel was informed of the existence 

of the witness or counsel should otherwise have known of [her]; 

(4) the witness was prepared to cooperate and testify for 

Appellant at trial; and (5) the absence of the testimony 

prejudiced Appellant so as to deny him a fair trial. A defendant 

must establish prejudice by demonstrating that he was denied a 

fair trial because of the absence of the testimony of the 

proposed witness. Further, ineffectiveness for failing to call a 

witness will not be found where a defendant fails to provide 

affidavits from the alleged witnesses indicating availability 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 that she was available and 

willing to cooperate with the defense at the time of Appellant’s trial. See

Appellant’s Amended PCRA Petition, 1/2/15, at Exhibit A. As such, Appellant 

is not entitled to relief on his third ineffectiveness claim. 

 In his final issue, Appellant argues that his sentence was illegal. He 

argues that the maximum sentence for a second DUI-highest rate conviction 

is 60 days’ imprisonment. The legality of a sentence is a pure question of 

 

6 Arvizu is a chemist and lab auditor who allegedly reviewed 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 which could render the BAC 

results unreliable. 
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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 sentenced. 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 those in effect at the time of 

Appellant’s sentencing. At that time, section 3803 provided, in relevant 

part: 

(a) Basic offenses.—Notwithstanding the provisions of subsection 

(b): 

(1) An individual who violates section 3802(a) (relating to 

driving under influence of alcohol or controlled substance) and 

has no more than one prior offense commits a misdemeanor 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) where the 

individual refused testing of blood or breath, or who violates 

section 3802(c) or (d) and who has one or more prior offenses 

commits a misdemeanor of the first degree. 

75 Pa.C.S.A. § 3803 (Purdon’s 2009). 
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 Appellant’s argument is based upon a misunderstanding 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 testing. The defendants in 

both cases argued that the maximum sentence for a second DUI-general 

impairment with refusal to consent to chemical testing conviction was six 

months’ imprisonment. The Commonwealth, on the other hand, argued that 

the maximum sentence for a second DUI-general impairment with refusal to 

consent to chemical testing conviction was five years’ imprisonment. The 

difference arose because of a conflict between sections 3803(a) and 

3803(b)(4). Specifically, section 3803(a) provided that the maximum 

penalty for a first or second DUI-general impairment conviction was six 

months’ imprisonment. On the other hand, section 3803(b)(4) provides that 

a second or subsequent DUI-general impairment with refusal to consent to 

chemical testing offense is a first-degree misdemeanor, which is punishable 

by up to five years’ imprisonment. In addition, section 3803(b)(4) provides 

that second and subsequent DUI-highest rate and DUI-controlled substances 

convictions shall also constitute first-degree misdemeanors. In Musau and 

Grow, this Court held that the “notwithstanding” language 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-general 
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impairment with refusal to consent to chemical testing 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 relevant section in 

this appeal. Those cases did not address DUI-highest rate because section 

3803(a) only addressed DUI-general impairment convictions. Only section 

3803(b)(4) addresses second DUI-highest rate convictions. Section 

3803(b)(4) provides that a second DUI-highest rate conviction is a firstdegree misdemeanor, which carries a five-year maximum 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 sentence was legal. 

 Order affirmed. 

 

7

 Appellant cites Commonwealth v. Schrock, 118 A.3d 459, 2015 Pa. 

Super. Unpub. LEXIS 3331 (Pa. Super. 2015) (unpublished memorandum), 

in support of his argument that section 3803(a) applies 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 withdrawn. Moreover, 

we note that this Court’s operating procedures provide that unpublished 

memoranda decisions “shall not be relied upon or cited...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. 
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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