Com. v. Merschat, J., 1479 WDA 2015

Background

On March 19, 2009, Merschat was stopped for speeding, failed field sobriety tests, and a hospital blood test showed BAC .195%.
The State Police erased the dash-cam recording before trial; the defense moved to suppress evidence under Pa. R. Crim. P. 573; the trial court denied suppression.
At trial the Commonwealth’s toxicologist, Jennifer Janssen, testified although no written expert report had been produced; defense counsel did not request one. Merschat was convicted of DUI–highest rate (second offense) and related offenses and sentenced to 90–180 days’ imprisonment plus probation.
Merschat pursued direct appeal (unsuccessful), then filed a timely counseled PCRA petition after other post-trial proceedings; the PCRA court dismissed the petition and this appeal followed.
On PCRA review Merschat alleged trial counsel was ineffective for (1) failing to preserve a Rule 573 dismissal claim on appeal, (2) failing to request Janssen’s expert report and object to her testimony, (3) failing to call Arvizu as an expert, and (4) that his sentence is illegal.

Issues

Issue	Merschat's Argument	Commonwealth's Argument	Held
1. Counsel ineffective for failing to preserve Rule 573 dismissal on appeal	Counsel’s appellate briefing waived the Rule 573 dismissal claim, so counsel lacked reasonable basis and prejudice exists; relief should exclude evidence or order new trial	Waiver did not equal total appellate default; counsel did preserve at least one appellate issue so defendant must prove all three Strickland-style prongs; dash-cam erasure was pursuant to routine policy, not bad faith, so underlying claim lacks arguable merit	Denied. No arguable merit because erasure followed standard retention policy; no bad faith; ineffective assistance not proven
2. Counsel ineffective for not obtaining Janssen’s expert report / not objecting to testimony	An expert report would have limited Janssen to lab results and exposed qualification gaps	Janssen was qualified to opine on alcohol effects; an expert report was unnecessary because qualifications were disclosed at trial and such testimony is routinely admissible	Denied. Claim lacks arguable merit
3. Counsel ineffective for not calling Arvizu as defense expert	Arvizu reviewed lab practices and could have undermined BAC reliability	To prove failure-to-call-witness, defendant must show witness existed, was available, known to counsel, willing to testify and prejudiced outcome; affidavit did not show availability/willingness	Denied. Affidavit failed to establish availability/willingness; no prejudice shown
4. Sentence legality	Argues maximum for second DUI–highest rate is 60 days	Statutory scheme at sentencing time makes second DUI–highest rate a first-degree misdemeanor under §3803(b)(4), punishable up to five years; Musau/Grow decisions concerned DUI–general impairment and do not alter DUI–highest rate penalty	Denied. Sentence lawful under statutes in effect at sentencing

Key Cases Cited

Arizona v. Youngblood, 488 U.S. 51 (U.S. 1988) (bad-faith standard for destroyed evidence in due process analysis)
Commonwealth v. Snyder, 963 A.2d 396 (Pa. 2009) (discusses bad-faith exception and routine policy destruction)
Commonwealth v. Grosella, 902 A.2d 1290 (Pa. Super. 2006) (when some issues preserved on appeal defendant must satisfy full ineffective-assistance test)
Commonwealth v. Johnson, 889 A.2d 620 (Pa. Super. 2005) (cases where appellate briefs were so deficient all claims were waived)
Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013) (interpretation of §3803 regarding DUI–general impairment with refusal)
Commonwealth v. Grow, 122 A.3d 425 (Pa. Super. 2015) (en banc) (statutory interpretation of §3803 in pre-amendment context)