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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN M. LINGAFELT, :
:
Appellant : No. 1340 WDA 2016
Appeal from the PCRA Order August 18, 2016
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002539-2009
BEFORE: PANELLA, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JULY 13, 2017
Appellant, Brian M. Lingafelt, appeals from the August 18, 2016 Order
denying his first Petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, and challenges, inter alia, the
effectiveness of trial counsel. After careful review, we affirm.
At issue in the instant appeal is the manner in which Appellant’s co-
conspirator-turned-wife, Jessica Roe (“Roe”), waived her spousal privilege
and testified against him at trial. The parties are familiar with the details of
this case, and the trial court’s Pa.R.A.P. 1925(a) Opinion discusses the
circumstances surrounding her testimony in detail with appropriate
references to the record. See Trial Court Opinion, filed 8/18/16, at 9-17.
Therefore, we briefly summarize those circumstances, as gleaned from the
certified record, as follows.
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On November 9, 2006, agents of the Blair County Adult Probation and
Parole Office went to the residence of Roe, Appellant’s then-girlfriend, to
serve her with an arrest warrant. Appellant was present at the time, and let
agents into the apartment. Inside the apartment, agents found methadone,
cocaine, marijuana, drug paraphernalia, a handgun, a scale, plastic baggies,
a safe, money, and other evidence that agents believed was indicative of
narcotics trafficking. Appellant and Roe were both arrested and charged
with numerous drug-related offenses, including charges that they conspired
with one another to deliver the controlled substances found in the
apartment. At some point subsequent to their arrests, Appellant and Roe
got married.
Roe pled guilty to charges that she conspired with Appellant to possess
methadone, cocaine, and marijuana with the intent to deliver. The trial
court sentenced her to 3½ to 7 years of incarceration. When Roe reported
to the prison to begin serving her sentence, prison staff caught her
attempting to bring contraband into the facility, and Roe was charged with
additional offenses.1
Appellant elected to proceed by way of a jury trial. Appellant was
represented by Joel Peppetti, Esquire. Peter Weeks, Esquire, prosecuted the
case on behalf of the Commonwealth.
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1
The certified record in the instant case does not contain the exact charges
pending against Roe at the time of Appellant’s trial.
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At the close of the Commonwealth’s case, Attorney Weeks informed
the trial court that there was an unresolved question regarding whether Roe
would offer limited testimony against Appellant, or instead invoke
Pennsylvania’s spousal privilege.2 Attorney Peppetti noted that Roe had an
absolute right not to testify under spousal privilege, and told the trial court:
“I just wanna make sure that she is aware of that right. If she has a lawyer,
I wanna make sure that she’s been advised.” N.T., 2/28/11, at 151.
The trial court called a brief recess, wherein Attorney Weeks, Attorney
Peppetti, and Agent Randy Feathers met with Roe in a side room off of the
courtroom. Attorney Weeks advised Roe that she had an absolute right not
to testify against Appellant, but asked that she consider testifying to: (i) her
name; (ii) the fact that she was married to Appellant; and (iii) the fact that
she had plead guilty to conspiracy charges.
The Commonwealth negotiated an agreement in exchange for this
testimony. Initially, Agent Feathers offered to amend Roe’s 3½ to 7 year
sentence on the conspiracy charges in order to make her RRRI eligible.
Attorney Weeks was unwilling to agree to those terms, however, and noted
that, due to the time elapsed, the trial court lacked authority to amend her
original Judgment of Sentence. Instead, Attorney Weeks offered to take her
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2
Under the laws of this Commonwealth, “in a criminal proceeding a person
shall have the privilege, which he or she may waive, not to testify against
his or her then lawful spouse.” 42 Pa.C.S. § 5913.
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cooperation into consideration on the new charges related to bringing
contraband into the prison. Roe then spoke to her own attorney, Philip
Robertson, Esquire, before agreeing to give limited testimony against
Appellant.
When the trial court reconvened, Attorney Weeks provided the trial
court with a summary of the side-room discussions. Attorney Weeks
emphasized that he had agreed that Roe would receive consideration on her
new charges for cooperation in the instant case, and that he had refused to
agree to modify her sentence for the conspiracy charges.
The Commonwealth then called Roe to the stand, where she testified
to three things: (i) her name; (ii) the fact that she was married to Appellant;
and (iii) the fact that she had pled guilty to “conspiring with [Appellant] to
possess methadone, cocaine[,] and marijuana with the intent to deliver[.]”
Id. at 156-57.
On cross-examination, Attorney Peppetti asked Roe about her pending
charges. Roe admitted that she was facing new charges for bringing
“anxiety pills” into the prison, and that those pending charges were
punishable by a mandatory minimum sentence of two to four years of
imprisonment. Id. at 158-59. She further testified that she was only
testifying against Appellant because the Commonwealth had offered to give
her “favorable consideration on [the] new charges[.]” Id. at 159.
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The jury convicted Appellant of Possession of a Controlled Substance
with Intent to Deliver (“PWID”) methadone; Possession of methadone,
cocaine, and marijuana; Possession of Drug Paraphernalia; and Criminal
Conspiracy to commit PWID. The trial court sentenced Appellant to an
aggregate term of 19 to 38 years of incarceration, which included two five-
year mandatory minimum terms due to Appellant’s possession of a firearm
and the weight of the methadone.
Appellant filed a timely appeal, and this Court affirmed Appellant’s
Judgment of Sentence on February 8, 2013. Commonwealth v. Lingafelt,
No. 1518 WDA 2011, (Pa. Super. filed February 8, 2013) (unpublished
memorandum). Appellant filed a Petition for Allowance of Appeal, which our
Supreme Court denied. Commonwealth v. Lingafelt, 72 A.3d 601 (Pa.
2013).
On July 11, 2014, Appellant filed a timely pro se PCRA Petition.
Appellant subsequently retained private counsel, who filed a series of
Amended PCRA Petitions.
The PCRA court held an evidentiary hearing on May 6, 2016. On
August 18, 2016, the PCRA court entered an Order granting Appellant’s
PCRA Petition in part, finding that the trial court imposed unconstitutional
mandatory minimum sentences in light of Alleyne v. United States, 133
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S.Ct. 2151 (2013).3 The PCRA court vacated Appellant’s Judgment of
Sentence, and ordered a new sentencing hearing. The PCRA court denied all
of Appellant’s other claims.
Appellant timely appealed, and all parties complied with Pa.R.A.P.
1925. On appeal, Appellant raises three issues.
1. Whether the Commonwealth committed prosecutorial
misconduct in dealing with the issue of spousal privilege with
Appellant’s wife, Jessica Roe Lingafelt?
2. Whether the trial court erred and/or abused its discretion in
its failure to conduct a colloquy and have Appellant’s wife
specifically waive spousal privilege under oath?
3. Whether trial counsel was ineffective for failing to fully raise
and argue the issue of spousal privilege in regards to Appellant’s
wife, Jessica Roe Lingafelt?
Appellant’s Brief at 4.
When reviewing the denial of PCRA Petition, “we examine whether the
PCRA court’s determination is supported by the record and free of legal
error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal
quotation marks and citation omitted). We grant great deference to the
findings of the PCRA court, and “these findings will not be disturbed unless
they have no support in the certified record.” Commonwealth v. Wilson,
824 A.2d 331, 333 (Pa. Super. 2003). “The scope of review is limited to the
findings of the PCRA court and the evidence of record, viewed in the light
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3
Appellant’s direct appeal was still pending before our Supreme Court when
Alleyne was decided.
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most favorable to the prevailing party at the trial level.” Commonwealth
v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). Moreover,
“[w]here a PCRA court’s credibility determinations are supported by the
record, they are binding on the reviewing court.” Commonwealth v.
White, 734 A.2d 374, 381 (Pa. 1999). With this standard in mind, we
address each of Appellant’s claims.
Prosecutorial Misconduct and Trial Court Error
In his first two claims, Appellant avers that Attorney Weeks committed
prosecutorial misconduct and that the trial court erred when both permitted
Roe to testify against Appellant without conducting an on-the-record
colloquy of her decision to waive spousal privilege. Appellant did not
attempt to raise these claims at trial or on direct appeal and they are,
therefore, waived.4
Section 9543(a)(3) of the PCRA provides that, to be eligible for relief
under the statute, a petitioner must plead and prove that “the allegation of
error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3).
“An issue is waived if [a petitioner] could have raised it but failed to do so
before trial, at trial, . . . on appeal or in a prior state post[-]conviction
proceeding.” Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa.
2013) (quotation marks omitted); 42 Pa.C.S. § 9543(a)(3). But see
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4
Appellant has waived his first two claims on identical grounds. We,
therefore, address each of these claims together.
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Commonwealth v. Oliver, 128 A.3d 1275, 1281-82 (Pa. Super. 2015)
(declining to find petitioner’s claim—that the Department of Corrections
placed additional conditions on his parole in violation of his negotiated plea
agreement—waived for failure to raise it on direct appeal because at the
time he filed his direct appeal he could not have known that the Department
of Corrections would later impose conditions on his parole and, therefore, he
could not have raised the claim on direct appeal).
In the instant case, Appellant’s first two claims were apparent at the
time he filed his direct appeal. He was present in the courtroom when Roe
testified without either the trial court or Attorney Weeks conducting a formal
colloquy of her decision to waive her spousal privilege. Appellant was also
present in the courtroom when Attorney Weeks informed the trial court that
Roe had attempted to negotiate a modification of her 3½ to 7 year sentence,
but that Attorney Weeks had only been willing to offer her consideration on
her pending charges in exchange for her testimony against Appellant.
Finally, Appellant was present in the courtroom when Roe testified against
him.
Appellant did not object to Roe’s testimony, nor did he request that
the trial court colloquy Roe. Moreover, although he filed a direct appeal,
Appellant did not raise the instant allegations of prosecutorial misconduct or
trial court error in that appeal. We, therefore, conclude that Appellant
waived his first two contentions.
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Ineffective Assistance of Counsel
In his final issue, Appellant avers that trial counsel was ineffective for
“failing to adequately fully raise and argue the issue of spousal privilege
after the recess and court had reconvened.” Appellant’s Brief at 15.
Specifically, Appellant faults trial counsel for failing to “demand a colloquy of
the witness on the record regarding spousal privilege.” Id. at 17.
In analyzing claims of ineffective assistance of counsel, we presume
that counsel was effective unless the PCRA petitioner proves otherwise.
Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). In order to
succeed on a claim of ineffective assistance of counsel, Appellant must
demonstrate (1) that the underlying claim is of arguable merit; (2) that
counsel’s performance lacked a reasonable basis; and (3) that the
ineffectiveness of counsel caused the appellant prejudice. Commonwealth
v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Appellant bears the burden of
proving each of these elements, and his “failure to satisfy any prong of the
ineffectiveness test requires rejection of the claim of ineffectiveness.”
Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation
omitted).
To demonstrate prejudice, a petitioner must establish that “there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984); accord Commonwealth v. Cox,
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983 A.2d 666, 678 (Pa. 2009). A reasonable probability is a probability
sufficient to undermine confidence in the outcome of the
proceeding. See Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.
2010). Finally, “when it is clear that the party asserting a claim of
ineffectiveness has failed to meet the prejudice prong, the claim may be
dismissed on that basis alone without a determination of whether the first
two prongs of the ineffectiveness standard have been met.”
Commonwealth v. Zook, 887 A.2d 1218, 1227 (Pa. 2005) (citation
omitted).
In the instant case, Appellant has failed to meet his burden of
establishing prejudice. His only attempt at demonstrating prejudice is his
bald assertion that “[a]llowing [Roe] to testify clearly prejudiced . . .
Appellant” because she “linked this Appellant as a Co-Conspirator in this
case.” Appellant’s Brief at 17. Appellant wholly fails to establish how
counsel’s request for an on-the-record colloquy of Roe would have prevented
her from testifying. At most, a colloquy of Roe would have confirmed (i)
that Roe was aware of her right to refuse to testify under Pennsylvania’s
spousal privilege; and (ii) that she was knowingly and voluntarily waiving
that right in return for consideration from the Commonwealth on her
pending charges.
Moreover, during her trial testimony Roe stated that she chose to
testify in hopes of receiving consideration from the Commonwealth on her
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new charges. At the PCRA hearing, Attorney Peppetti, Attorney Robertson,
and Roe all testified that Roe was aware of her right to claim spousal
privilege and understood that she had “the absolute right not to testify[.]”
N.T., 5/6/16, at 38-39; see also id. at 53, 68.
It is clear that Roe made a knowing and voluntary waiver of her right
to claim spousal privilege. Given these facts, we cannot see how a formal
colloquy would have changed the outcome in this case.
Having concluded that Appellant waived his first two claims, and failed
to demonstrate prejudice on his remaining claim, we affirm the PCRA court’s
August 18, 2016 Order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2017
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