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1 42 Pa.CS §§ 9541 et seq 2 Court Summary Report for CP-51-CR-0006071-2010 !I :I I ij I The Appellant appealed, challenging the sufficiency of evidence against him. On January Ir I 13, 2014, the Superior Court a'.ifirmed his judgments of sentence.' The Appellant did not seek :! t further appellate review.
On December 29, 2014, the Appellant filed a pro sk petition for relief pursuant to the Post t Conviction Relief Act. Appointed Counsel John P. Cotter; Esq. filed an Amended Petition on r
April 1, 2016, asserting that trial defense counsel was ineffective at trial because counsel did not r
object to the testimony of AD.A Thomas Lipscomb, Esq. Smee Judge Beloff was no longer
sitting, the PCRA matter was assigned to the Honorable Glynnis D. Hill on February 8, 2017.
On June 28, 2017, Judge Hill dismissed the Appellant's PCRA Petition. On July 12, 2017, Mr.
Cotter filed a Notice of Appeal' to the Superior Court of Pennsylvania raising the following
issues:"
1. Trial defense counsel was ineffective because counsel failed to object to the testimony of ADA Thomas Lipscomb, Esq., who testified that it was his opinion that the complaining witness was lying when the complainant testified at trial that the defendant was not the perpetrator of the crimes. This was improper opinion testimony.
2. Trial defense counsel was ineffective because counsel failed to object to the testimony of ADA Lipscomb, who represented the Commonwealth at the preliminary hearing in the matter and was an active counsel for the Commonwealth. A lawyer cannot testify in a case where he represents one of the parties.
3. The trial court erred in denying the defendant an evidentiary hearing on the ineffective assistance of trial defense counsel in this matter.
4. The sentence imposed was illegal because it was imposed under a mandatory minimum sentence statute that has been ruled to be unconstitutional and illegal. See Alleyne v. United States, 133 S.Ct. 2151 (2013).
3 Commonwealth v. Richards, 96 A 3d 1079 (Pa Super. 2014) 4 Appellant's Statement of Matters Complained ofon Appeal Pursuant to Pa R.A P 1925(b)
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I II. FACTS 'ItI On April 10, 2010, John Raksnis, the complainant, was repairing his girlfriend's car in
the driveway of the house he was renovating at 530 Moore St. in Philadelphia.5 The Appellant" s ! cousin began arguing with the complainant. The argument was encouraged by a group of
residents from the same block. 6 The Appellant later began argumg with the complainant. When
the complainant went into the house, Appellant tried to follow him. 7 However, the
complainant's three pitbulls prevented Appellant from entering the house. The Appellant stated,
"I got something real nice for you. I'll be back." He returned with a semi-automatic firearm and I shot at the complainant eight times. 8 The complainant was hit with two bullets in his abdomen
and side; his bowel was perforated and ultimately part of his colon was surgically removed.9
The first officer who responded at the scene transported the complainant to the hospital.!"
The next day the complainant told Lieutenant Brian Sprowal and Detective Gibson at the
hospital that a man he knew as.t'Ken-Ken" shot him.11 As a result, the officers contacted Officer
Edward Salaman of the Criminal Intelligence Unit. Officer Salaman told them the Appellant
was known as "Ken-Ken."12 Lieutenant Sprowal and Detective Gibson later put the Appellant's
picture in an eight-person photo array. When they showed complainant the array, he
immediately identified the Appellant as the man who shot him. He subsequently identified the
Appellant again at the preliminary hearing. 13
5 N.T. 1/31/12 at 46-47 6 Id at 49-50 7 Id at 51-53, 61-67, 73, 86, 91, 102-103, 173-182 8 Id at 165 9 Id. at 54-55 10 Id at 57. 11 Id at 68 12 Id. at 177-178. 13 Id at 68-69, 86, NT 211 /12 at 30, 43 I
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.; The trial was held on 31, 2012. At the tril, the complainant testified that the :1 l Appellant's cousin, "Dee," ha� shot him.14 The complainrt testified that he tried to tell the
previously assigned ADA (Thomas Lipscomb) 15 that "Dee" had shot him, but Lipscomb became
angry and kicked him out of his office. ADA Lipscomb later testified that he believed that the l complainant was recanting his testimony near the trial date because he was afraid of Appellant
and his family.16
III. DISCUSSION
I. Appellant's trial counsel was not ineffective when he failed to object to testimony as improper opinion testimony.
The Appellant claims that his trial counsel was ineffective because he did not object to
ADA Lipscomb's testimony as improper opinion testimony. However, the failure of trial
counsel to object to Lipscomb's testimony does not satisfythe burden required to prove
ineffective assistance of counsel.
It is well-settled law in Pennsylvania that the Appellant has the "burden to prove
allegations of ineffectiveness. Counsel is presumed effective." Commonwealth v. Baker, 61 7
A.2d 663, 673 (Pa. 1992). To prevail on an ineffectiveness claim, the Appellant must overcome . I the presumption of competence by showing 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 interests; and (3) but for counsel's ineffectiveness, there is a
reasonable probability that the outcome of the challenged proceeding would have been different.
Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002) (quoting Strickland v. Washington,
14 NT J/31/12at54-55, 119-120, 122-123 1 15 Thomas Lipscomb appeared on behalfof the Commonwealth at hearmgs on 5/23/2011 and 10/17/20 I I 6 ' NT 2/1/12 at 104-106.
4 I I I 466 U.S. 688; 122 S. Ct. 1843 (1984)). The Appellant's failure to satisfy any of these prongs
. requires . t he court to reject 11. _. h"is i c aim. Id Ir foc�s The first two prongs of.this ineffectiveness test on counsel's performance. See
Commonwealth v. Pierce, 527 A 2d 973, 975 (Pa. 1987). The first prong requires the Appellant
to show that the underlying claim has arguable merit. Id. The second prong requires the
Appellant to demonstrate that the actions taken by counsel had no reasonable basis. Id. If the
Appellant can show that counsel's performance had no reasonable basis, then counsel has
prejudiced his client. Id. The third prong requires the Appellant to show that there is a reasonable
probability that the outcome would have been different If the Appellant fails to satisfy the third
prong, his claim may be dismissed on this basis alone. If prejudice is not shown, the court need
not address the other prongs. Commonwealth v. Albrecht, 720 A.2d 693, 70 l (Pa. 1998) ( citing
Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. I 995)). 'I
In our case, the Appellant is unable to meet the first requirement because his underlying I
claims lack merit. He claims that ADA Lipscomb's testimony was improper opinion testimony. /
As a lay witness, Lipscomb's opinions were limited to those that were "(a) rationally based on
[his] perception; (b) helpful to clearly understanding [his] testimony or to determining a fact in : I
issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope
[of expert witness testimony]."1� Much of Lipscomb's testimony was "rationally based" on his I
perception ofRaksnis' demeanor. For example, Lipscomb described meeting Raksnis to discuss
the case, described the conversation they had, and described Raksnis' demeanor during the
conversation.18 He also described the complainant's nervous demeanor. He further testified that
the complainant's recantation close to trial suggested that he was afraid of the Defendant. On the
17 Pa R.E Rule 70 I 18 N.T. 2/1/12 at 102-108.
5 l whole, Lipscomb's testimony was rationally based on his perception and prior dealings with the 111 I complainant. Since Lipscom�' s testimony helped explainto the jury why Raksnis may have
recanted (and was based on personal . knowledge), it met tJe ' requirements of Rule 701.
Therefore, the Appellant's underlying claim fails the first prong.
Furthermore, the Appellant cannot show that his counsel acted unreasonably under the
second ineffectiveness prong. Trial counsel did not object to Lipscomb's testimony because it
was not inadmissible under the circumstances. As previously mentioned, Lipscomb's testimony
explained to the jury why the complainant recanted his earlier testimony. Arguably, counsel had
reasons not to object when the testimony was relevant. As counsel's actions were not
unreasonable, this prong fails as well.
Finally, Appellant is unable to meet the requirement of the third prong because there is no
reasonable probability that the outcome of the trial would have been different. Even if counsel
had objected, there would have been no reason for the court to exclude relevant opinion
testimony from the record. The testimony would have been admitted, and the trial would have
continued. Therefore, the Appellant's claim fails under the third prong. Overall, since the
Appellant cannot satisfy any of the three prongs, his first claim should be dismissed.
II. Appellant's trial counsel was not ineffective when he failed to object to ADA Lipscomb's testimony based on his representation of the Commonwealth.
The Appellant next claims that trial counsel was ineffective because he failed to object to
ADA Lipscomb's testifying as a witness at trial. This claim fails for two reasons. First, the
Appellant does not establish that counsel was ineffective. Second, the Appellant's claim was not
previously raised in the lower court.
As previously stated, three prongs must be satisfied in order to prove ineffective
assistance of counsel. The Appellant must show that his underlying claim has merit, that
6 counsel's course of conduct did not have any reasonable basis, and that there would have been a diff�rent reasonable probability that ., \rial would have had a outcome but for counsel's
ineffectiveness. l I Initially, the Appellant fails to satisfy the first prong because his underlying claim has no I
merit. While ADA Lipscomb did represent the Commonwealth during the preliminary hearings,
he was not the prosecuting attorney during the trial. Furthermore, any person with personal
knowledge of the matter at hand, other than the presiding Judge, may be a witness unless
otherwise provided by statute.19 Since there is no merit to the underlying claim, the Appellant
fails the first prong.
Going one step further, trial counsel did not act unreasonably when he did not object to
Lipscomb's testimony. Even if counsel had objected, he would have most likely been overruled. I
Therefore, the Appellant fails �<;> satisfy the second prong.
Lastly, even if counsel had objected to ADA Lipscomb's testimony, there was no ' reasonable probability that the outcome would have been different. Since the outcome would
have been the same, the third prong of the test fails.
In closing, the Appellant failed to meet the three prongs of the ineffectiveness test.
However, even if Appellant had satisfied the Strickland prongs (proved that counsel was
ineffective), this claim must be dismissed because it was not raised in the PCRA petition or at
any other time in the lower court. "Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.t''" This appeal is the first time that the Appellant is raising the
issue of ADA Lipscomb's representation of the Commonwealth. Therefore, this issue is waived.
19 Pa R.E. Rule 601, 602, 605 20 Pa.R.A.P. Rule 302
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l: Lidentiary
III. The Court did not erdn denying Appellant an hearing on the ineffective assistance of trial dcfe�se counsel matter. I The Appellant next contends that the Court erred by failing to hold an evidentiary hearing ' I to determine whether he was prejudiced by ineffective assistance of counsel as raised in the
Amended PCRA Petition. This court disagrees.
It is well settled that PCRA petitioners are not automatically entitled to evidentiary
hearings. Commonwealth v. Walker, 36 A.3d 1, 17 (Pa. Super. 2011). An evidentiary hearing is
only required when a petitioner presents a genuine issue of material fact. Id. The Court may use
its discretion to determine if any of the petitioner's claims warrant a hearing. In Walker, the court
dismissed the Appellant's PCRA Petition without an evidentiary hearing, asserting that his
claims did not entitle him to any relief. Upon further review, the Pennsylvania Supreme Court
found that the PCRA court did not abuse its discretion by not holdmg an evidentiary hearing
because there were no genuine issues of matenal fact.
Under Rule 907(4), when a PCRA petition is dismissed without a hearing, a judge
promptly shall issue an order to that effect and shall advise the defendant by certified mail, return
receipt requested, of the right t9 appeal from the final order disposing of the petition and of the
time limits within which the appeal must be filed.21 This is the procedure the Court must go
through in order to dispose of a PCRA petition without a hearing. 22 So long as the Court follows
this process, the Court has not unfairly rejected the petition or abused its discretion in doing so.
In our case, the Appellant was not entitled to an evidentiary hearing because, as in
Walker, he had not presented any issues of material fact. Nor were the issues he raised in the
21 Pa.R Crim P. Rule 907(4) 22 Id.
8 11 iI I l I I Amended PCRA Petition based on issues of fact. The Court also filed a dismissal notice of the · 1 I PCRA Petition in accordance with Rule 907. Hence, this �]aim is not persuasive. , I IV. The mandatory sentence was properly and legally imposed. l
The Appellant finally argues that his mandatory sentence was illegal because it was
"imposed under a minimum mandatory sentence statute that has been ruled to be unconstitutional
and illegal. See Alleyne v. United States, 133 S.Ct. 2151 (2013)."23 This claim must fail for two
reasons. First, the claim lacks substance because a jury found that he caused serious bodily
injury to the complainant. Therefore, his mandatory sentence was legal under Alleyne. Second,
any claim that he was sentenced under an unconstitutional statute is waived because he did not
raise an unconstitutionality issue in the lower court.24
In Alleyne v United States, the U.S. Supreme Court held that "any 'facts that increase
the prescribed range of penalties to which a criminal defendant is exposed' are elements of the
crime." Alleyne v. United States, 133 S.Ct. 2151, 2160 (2013). The Court determined that "the
Sixth Amendment provides defendants with the right to have a jury find those facts beyond a
reasonable doubt." Id. The Pennsylvania Supreme Court has also held that "[ w]hen a decision of
the [U.S. Supreme] Court results in a 'new rule,' that rule applies to all criminal cases still
pending on direct review,. Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.Super. 2014). The
Superior Court has also upheld a mandatory minimum sentence under 42 Pa.C.S.A. § 9712. l(a)
where the facts for determining the mandatory minimum were proven to a jury beyond a
reasonable doubt. Commonwealth v. Watley, 81 A.3d 108, 121 (Pa.Super. 2013).
23 Appellant's Statement of Matters Complained of on Appeal Pursuant to Pa R.A.P l 925(b) 24 See Pa RA P 302.
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I :: I In the present case, the Appellant was found guiltylof Attempted Murder of the First 1 \ I Degree. 25 The Appellant was sentenced to the maximum 20-40 years confinement as defined by I I
statute.26 Subsection C of the statute holds that an attempt "where serious bodily injury results"
may be punished by a sentence not to exceed 40 years. The statute also holds that "where
serious bodily injury does not result," the term of imprisonment shall be no more than 20 years.
As Alleyne requires, any fact that increases the minimum sentence must be submitted to the jury.
In his PCRA petition, the Appellant claimed that the jury did not make a specific finding
that the Appellant caused serious bodily injury to the complainant, and therefore the sentence I was illegal." This claim is patently false. The factor of serious bodily mjury was not
determined by the trial court by a preponderance of the evidence. On the contrary, this question
was submitted to the jury to be determined beyond a reasonable doubt separate from the inchoate
offense:
The Crier: ... charging the defendant with the following charge of attempted murder, how say you, guilty or not guilty? The Foreperson: Guilty. The Crier: To the question of serious bodily injury, yes or no? The Foreperson: Yes.28 '
Since a jury found that the Appellant caused serious bodily injury to the complainant
beyond a reasonable doubt, this claim is unfounded.
Furthermore, the Appellant's claim that the statute itself is unconstitutional under Alleyne
must fail. While the Appellant argued in his PCRA petition that he was sentenced illegally, he
25 Court Summary Report for CP-5I-CR-0006071-2010. 26 18 Pa C.S A § I 102(c) , 27 Appellant's Supplemental Petition Under Post-Conviction Relief Act 28 N.T 2/6/2012 at 5 .
IO :. I did not raise any issue as to the constitutionality of the statute itself. As stated above, "issues not ; I raised in the lower court are ;Jived and cannot be raised for the first time on appeal."29
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29 Pa.R.A.P. 302
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I : I I CONCLUSION I The Appellant contends that the Court erred in four ways. However, the Court finds no
merit in the Appellant's contentions. t First, the Appellant asserts that the Court erred in failing to grant him PCRA relief
because of counsel's failure to object to "improper" opinion testimony. However, the Appellant
failed to show that his counsel was ineffective under this claim. Second, the Appellant asserts
that the Court erred in failing to grant him PCRA rehef because of counsel's failure to object to
the introduction of a witness. However, the Appellant failed to show that his counsel's failure to
object was inappropriate under the circumstances. This is especially true since the complainant
recanted his testimony. Third, the Appellant asserts that the Court erred when it failed to hold an I
evidentiary hearing about the issues raised in his PCRA petition. However, the Appellant did not
show a dispute over a genuine issue of material fact. Finally, the Appellant asserts that the Court
erred by imposing an illegal sentence. However, the sentencing statute and procedure satisfied
the constitutional requirements of Alleyne. For these above reasons, no relief should be granted.
By the Court,