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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLAYTON RAYMOND AXE
Appellant No. 490 MDA 2015
Appeal from the PCRA Order of March 3, 2015
In the Court of Common Pleas of York County
Criminal Division at No.: CP-67-CR-0001975-2011
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY WECHT, J.: FILED DECEMBER 11, 2015
Clayton Raymond Axe appeals the order denying his petition for
collateral relief pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-46. We affirm.
In our memorandum responding to Axe’s direct appeal, we related the
factual and procedural history of this case as follows:
In February of 2011, C.R. (the victim) lived with Ryan Eaton and
her three-year-old son. On February 12, 2011, Ryan Eaton and
his cousin, Brandon Clutter, prepared to leave the house to
attend an outdoor show. At that time, Axe came to the house to
tell the men about his nipple piercings. The three men talked for
about five minutes before leaving the house. Ryan and Brandon
left for the show, and Axe headed down the street towards his
house.
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*
Retired Senior Judge assigned to the Superior Court.
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About two minutes after leaving the house, Axe returned and
knocked upon the door. When the victim answered the door,
Axe stated that he came back to speak with the victim about his
ex-girlfriend. At this time, the victim was wearing a robe as she
got ready to take a shower before travelling to her sister’s
house. The victim let Axe in and he took a seat on the couch;
she sat across from him on the love seat. During this time, the
victim’s son was sitting nearby watching television. After talking
for a short time, Axe told the victim he wanted to “have a little
fun.”
The victim told Axe she was not interested. Axe then got off the
couch and sat down on his knees on the floor in front of the
victim. He began kissing the victim’s neck. The victim continued
to tell him no and tried to push him away. Axe then undid his
belt buckle and took out his penis. He told the victim to “play
with it,” and when she said no he grabbed her hand and placed it
on his penis. The victim pulled her hand away and continued to
tell Axe no.
Axe proceeded to grab the victim, pull her further down on the
love seat, and open her robe. The victim again said no and tried
to push him away. Axe was close to putting his penis inside the
victim when Ryan walked back into the house to pick up the
directions he forgot. Upon Ryan’s entrance, Axe jumped up and
ran to the bathroom, while the victim headed to her bedroom
crying. When Ryan spoke to the victim, she told him to “get Axe
out of the house.” Ryan next spoke to Axe who told him, “I
messed up.”
During the police interview1, Axe stated that he asked the victim
if she wanted to “have some fun,” she said “no,” and then he
exposed his penis. He told police that the victim said “no”
several times. Axe admitted that it was his intent to have sex
with the victim, and that he messed up by fooling around with
his friend’s ex-girlfriend.
___________________
1 Defense counsel played pieces of the interview at trial.
Axe was subsequently charged with criminal attempt—rape by
forcible compulsion,2 criminal attempt—sexual assault,3 indecent
exposure,4 and corruption of minors.5 A jury convicted Axe of
criminal attempt—sexual assault and indecent exposure. Axe
was sentenced to incarceration for a minimum of 54 months,
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maximum ten years for criminal attempt—sexual assault, and a
minimum of six months, maximum twelve months for indecent
exposure. The sentences run concurrently. In addition, Axe was
required to register as a sexual offender with the Pennsylvania
State Police for a minimum of ten years.
___________________
2
18 Pa.C.S. § 901.
3
18 Pa.C.S. § 901.
4
18 Pa.C.S. § 3127(a).
5
18 Pa.C.S. § 6301(a)(1)(i).
Commonwealth v. Axe, 979 MDA 2012, slip op. at 1-4 (Pa. Super.
June 27, 2013) (memorandum) (record citations omitted).
Axe initiated the instant matter by filing a timely PCRA petition on
December 15, 2014.1 Therein, Axe raised, inter alia, two claims of
ineffective assistance of trial counsel. First, he maintained that trial counsel
erred by not seeking to suppress Axe’s self-incriminating statement to
investigators. Second, he contended that counsel was ineffective for failing
to call Axe to the stand to testify in his defense. After appointing PCRA
counsel, the court held a hearing on Axe’s petition on February 23, 2015.
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1
After this Court affirmed Axe’s judgment of sentence, our Supreme
Court denied Axe’s petition for allowance of appeal on January 6, 2014.
Axe’s judgment of sentence became final ninety days later, on April 7, 2014,
when the time period during which he could seek discretionary review before
the United States Supreme Court expired. See U.S.Sup.Ct.R. 13; 42 Pa.C.S.
§ 9545(b)(3). Axe filed his petition well within one year of April 7, 2014.
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Ultimately, the PCRA court rejected these and other claims either at the
hearing or in a later ruling, which was entered on March 4, 2015.
Axe filed the instant timely appeal of the PCRA court’s denial of relief
on March 12, 2015. On March 16, 2015, the PCRA court directed Axe to file
a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Axe timely complied on April 1, 2015. Thereafter, the
PCRA court filed an opinion pursuant to Rule 1925(a), ripening this matter
for review.
Before this Court, Axe raises the following issues:
1. Whether the PCRA court erred in denying [Axe’s] PCRA
petition when trial counsel was ineffective fo[r] failing to file a
pretrial motion to suppress [Axe’s] involuntary and coerced
statements to police?
2. Whether the PCRA court erred in denying [Axe’s] PCRA
petition when trial counsel was ineffective for advising [Axe] not
to testify at trial despite [Axe’s] desire to do so?
Brief for Axe at 4.
Our standard of review of a PCRA court order granting or denying relief
under the PCRA calls upon us to determine “whether the determination of
the PCRA court is supported by the evidence of record and is free of legal
error.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).
“The PCRA court’s findings will not be disturbed unless there is no support
for the findings in the certified record.” Commonwealth v. Wah, 42 A.3d
335, 338 (Pa. Super. 2012).
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In both of Axe’s issues, he contends that his trial attorney provided
constitutionally ineffective assistance of counsel (“IAC”). Pennsylvania has
recast the two-factor IAC inquiry set forth by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984), as a three-factor
inquiry:
[I]n order to obtain relief based on [an IAC] claim, a petitioner
must establish: (1) the underlying claim has arguable merit;
(2) no reasonable basis existed for counsel’s actions or failure to
act; and (3) 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.
Commonwealth v. Reed, 971 A.2d 1216, 1221 (Pa. 2005) (citing
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). Trial counsel is
presumed to be effective, and the appellant bears the burden of pleading
and proving each of the three factors by a preponderance of the evidence.
Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006); see
also Commonwealth v. Meadows, 787 A.2d 312, 319-20 (Pa. 2001).
“Failure to establish any prong of the test will defeat an [IAC] claim.”
Commonwealth v. Walker, 346 A.3d 1, 7 (Pa. 2011).
In his first issue, Axe maintains that trial counsel should have sought
to suppress his statement to police upon the basis that the statement was
involuntary under the circumstances. In order to determine whether trial
counsel was ineffective for this reason, we must review the standard that
determines whether a confession is voluntary. Whether a confession is
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voluntary is a conclusion of law, subject to plenary, de novo review.
Commonwealth v. Nester, 709 A.2d 879, 881 (Pa. 1998).
Voluntariness is determined from the totality of the
circumstances surrounding the confession. The question of
voluntariness is not whether the defendant would have
confessed without interrogation, but whether the interrogation
was so manipulative or coercive that it deprived the defendant of
his ability to make a free and unconstrained decision to confess.
****
When assessing voluntariness pursuant to the totality of the
circumstances, a court should look at the following factors: the
duration and means of the interrogation; the physical and
psychological state of the accused; the conditions attendant to
the detention; the attitude of the interrogator; and any and all
other factors that could drain a person’s ability to withstand
suggestion and coercion.
Id. at 882 (citations omitted).
The PCRA court, which also presided over the trial, has provided a
detailed account of its own review of Axe’s entire statement:
The initial interaction between [Axe] and the troopers is casual
in nature and is clearly focused on the troopers trying to get
some background information, such as [Axe’s] full name and
date of birth. After asking [Axe] some general questions about
his interactions with the victim and her boyfriend on the day of
the incident, Trooper [Christopher] Colarusso asked [Axe] if he
knew why troopers wanted to talk to him. [Axe] said “I’m
guessing about [C.R.] and Ryan.” After explaining who [the
victim] and Ryan were, [Axe] freely admitted that he was at
their house that day. In response to being asked why he went
over to Ryan and [the victim’s house, Axe] said “Just to talk to
Ryan, and then they left . . . . And I was gonna leave, and [the
victim] talks to my ex-girlfriend a lot, and I wanted to talk to her
about [the victim]—or to [the victim] about Carissa [i.e., Axe’s
ex-girlfriend], and I guess it just happened. The very next
question from Trooper Colarusso is, “Okay. Well, that’s what we
want to talk about, so tell me what happened.” [Axe] said he
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and [the victim] were talking about his ex-girlfriend and then his
“penis was out [and] [s]he didn’t have anything on under her
robe [and] [h]er vagina was out.”
Working off [Axe’s] version of events, the troopers asked [Axe]
how the situation went from them talking about his ex-girlfriend
to his penis being out and [Axe] said that he asked the victim if
she wanted to have sex, but she said no. [Axe] continued, “By
then my penis was already out. And I mean I didn’t—I don’t
know if you understand where I’m coming from. I didn’t hold
her down. I didn’t force her. I don’t know how else to explain
it.” Then he said Ryan walked back in the house.
[In t]he rest of the interview the troopers do press [Axe] for
more specifics regarding the entire situation, and there certainly
are points where the troopers cut [Axe] off. There are times
when the troopers raise their voices. However, hearing the
interview, it is clear that the raised voices come more from a
place of disbelief as opposed to an attempt to coerce [Axe] into
confessing. It was [Axe] who freely admitted that the victim
said “no” more than once. And it was [Axe] who told troopers
that he pulled his penis out even after the victim said she did not
want to have sex.
As previously mentioned, [the PCRA court] listened to the entire
interview again—even the redacted portions. Those parts of the
interview consisted of troopers asking [Axe] about his prior
record, which contained a crime similar in nature to the one with
the current victim. One of the troopers interviewing [Axe] was
the officer assigned to that earlier case, so there is a time in the
interview where he is asking [Axe] if he “remembers him.”
[Axe] stated he did not. Overall, the redacted portions of the
interview did not indicate to us that the interview was coercive in
any way.
Despite [Axe’s] testimony at his PCRA hearing that he was
scared and felt anxious, we cannot conclude that his statements
were coerced. At the end of the interview the troopers asked
[Axe] if everything that he had just told them was the truth and
[Axe] stated that it was. [Axe] was also asked whether he felt
threatened or coerced into giving those statements and he
answered no. Based on the totality of the circumstances,
specifically the length of the interview, the attitude of the
troopers, and psychological state of [Axe], we cannot conclude
that [Axe’s] statements were anything but voluntarily given.
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PCRA Court Opinion (“P.C.O.”), 4/16/2015, at 5-7 (citations omitted).
The trial court then turned to the Pierce standard. Despite finding
that the statement, even including its redacted sections, was not coercive,
the trial court bypassed the question of arguable merit and determined that
trial counsel reasonably opted not to seek suppression. We find this
conclusion questionable; whether to seek suppression of the statement and
figuring out how to use it to the defense’s advantage are not
contemporaneous considerations, nor are they mutually exclusive. Nothing
in trial counsel’s PCRA testimony suggests that counsel had a reasonable
basis for concluding that it was not worth at least attempting to seek
suppression, given the centrality of the statement to the Commonwealth’s
case, even if counsel thought it very unlikely that the trial court would grant
the motion.
That being said, we find implicit in the PCRA court’s discussion the
conclusion that this claim lacks arguable merit.2 The PCRA court in no
uncertain terms provided a detailed analysis based upon controlling law that
established that, had trial counsel sought suppression of the statement, he
would not have prevailed. This analysis and conclusion is supported by the
record. Hence, the premise underlying Axe’s argument that a suppression
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2
This Court may affirm the PCRA court’s decision upon any correct
basis. Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14
(Pa. Super. 1996).
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motion might have prevailed is unsound. Given that Axe has not pleaded
and proved that his claim has arguable merit, we need go no further to
conclude that this argument is unavailing.
In Axe’s second issue, he contends that trial counsel was ineffective
for discouraging him from testifying on his own behalf at trial.
It is well settled that the decision 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 call the appellant to the stand, the
appellant must demonstrate either (1) that counsel interfered
with his right to testify, or (2) that counsel gave specific advice
so unreasonable as to vitiate a knowing and intelligent decision
to testify on his own behalf. Counsel is not ineffective where
counsel’s decision to not call the defendant was reasonable.
Commonwealth v. Breisch, 719 A.2d 352, 354-55 (Pa. Super. 1998)
(citations and internal quotation marks omitted). Axe’s argument proceeds
only under the second theory, which hinges upon the reasonableness of
counsel’s advice discouraging the defendant from testifying.
Axe’s argument in support of this issue, and specifically the
reasonableness prong of the Pierce test, is quite brief:
[Trial counsel] testified at the PCRA hearing that his reason for
not wanting [Axe] to testify is he was worried how he would
perform on the stand and he was worried that [Axe] would
somehow open the door to prior bad acts. However, without
[Axe’s] testimony, the jury only heard from the Commonwealth
witnesses and the coerced interrogation with absolutely no
rebuttal. [Trial counsel] admitted [during the PCRA hearing]
that if he could change anything he would have put [Axe] on the
stand to testify.
Brief for Axe at 23.
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Axe further argues that this Court’s decision in Breisch compels this
Court to conclude that Axe’s trial counsel lacked a reasonable basis for
discouraging Axe from testifying. In Breisch, this Court found arguable
merit where the defendant claimed that counsel did not present her with the
choice of whether to testify and asserted that she did not know that counsel
did not intend to call her to testify until the defense rested. See 719 A.2d
at 355. This Court further found no reasonable basis for counsel’s choice.
At the PCRA hearing in Breisch, counsel testified that he advised the
defendant that he thought her testimony was unnecessary because he
believed that cross-examination of the Commonwealth’s witnesses would be
sufficient to create reasonable doubt. Counsel further attested that he was
worried about the defendant’s ability to testify on her own behalf. Notably,
the defendant in Breisch had no prior convictions, similar to the offense or
otherwise, to which the defendant’s testimony might open the door. As
noted, supra, Axe not only had a prior offense but that offense shared
certain characteristics with the assault alleged in this matter.
This case is distinguishable. First, Axe does not allege that trial
counsel was deficient or tardy in informing him of his right to testify or in
explaining the risks and benefits associated with that choice. Indeed, before
the defense presented its case, Axe was carefully colloquied by the trial
court regarding his right to testify on his own behalf. Axe indicated that he
understood that he had that right, had reviewed his options with counsel,
and chose voluntarily to waive that right. The trial court further made clear
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to Axe that he could change his mind and testify on his own behalf at any
time. See Notes of Trial Testimony, 1/9/2012, at 268. Second, Axe’s
attempt to minimize the importance of his prior offense, and the risk that an
errant statement by him or his attorney could result in that offense being
revealed to the jury, is utterly unconvincing. Plainly, the quantum of risk
associated with the jury learning of a prior similar offense cannot be
gainsaid, especially in a he-said-she-said case such as this one.
That trial counsel in the instant matter testified before the PCRA court
that he regretted not calling Axe to the stand is not dispositive. This Court
may not utilize hindsight in assessing the reasonableness of an attorney’s
decision in advance of and at the time of trial. Commonwealth v.
Thomas, 783 A.2d 328, 333 (Pa. Super. 2001) (quoting Commonwealth
v. Basemore, 744 A.2d 717, 735 (Pa. 2000)) (“[T]he reasonableness of
counsel’s decisions cannot be based upon the distorting effects of
hindsight.”). The only relevant inquiry is whether counsel’s decision was
reasonably crafted to serve his client’s interests at the time the decision was
made. In this case, the fact of Axe’s prior record, alone, provided a
reasonable basis for trial counsel to be leery of subjecting his client to cross-
examination. Furthermore, it cannot be said that this left Axe with no
defense: In opting to focus upon impeaching the confession upon which the
Commonwealth’s case principally rested, counsel made a reasonable tactical
choice. As well, it cannot be said that the choice reaped no benefits; the
jury in this matter acquitted Axe of the most serious charge, attempted rape
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by forcible compulsion. Thus, the record supported the PCRA court’s
determination that trial counsel’s advice reasonable, and Axe is not entitled
to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2015
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