J-S40038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH RICHARDS :
:
Appellant : No. 2253 EDA 2017
Appeal from the PCRA Order June 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006071-2010
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 13, 2018
Kenneth Richards appeals from the order, entered in the Court of
Common Pleas of Philadelphia County, denying his petition filed under the
Post-Conviction Relief Act (PCRA)1. After careful review, we affirm on the
basis of the opinion authored by the Honorable Glynnis Hill.
On April 10, 2010, John Raksnis got into an argument with Richards’
cousin, “Dee.” Richards also began arguing with Raksnis, and attempted to
follow Raksnis into Raksnis’ home. Richards was prevented from entering the
home by Raksnis’ pitbulls. Richards left and returned with a semi-automatic
firearm, firing eight shots at Raksnis. Raksnis was hit twice, once in his side
and once in his abdomen. When interviewed by police the next day, Raksnis
____________________________________________
1 42 Pa.C.S. §§ 9541-9546.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40038-18
told the officer that “Ken-Ken” shot him, and he identified Richards as the
shooter in a photo array. Raksnis again identified Richards as the shooter at
the preliminary hearing. At trial, however, Raksnis testified that it was
actually Richards’ cousin, Dee, who shot him. Raksnis testified that he
informed the former prosecutor, Thomas Lipscomb, Esquire, of this fact, but
Dee was never investigated. Attorney Lipscomb testified that he believed
Raksnis recanted his testimony out of fear of Richards and his family.
Richards was convicted of attempted murder, aggravated assault and
related firearms offenses. The court sentenced him to twenty to forty years’
imprisonment followed by ten years’ probation. Richards appealed,
challenging the sufficiency of the evidence, and on January 13, 2014, this
Court affirmed his judgment of sentence. On December 29, 2014, Richards
filed a pro se PCRA petition. The court appointed new counsel, who filed an
amended petition on April 1, 2016, claiming ineffectiveness of trial counsel.
Richards’ PCRA petition was denied on June 28, 2017.
This timely appeal follows, in which Richards claims that trial counsel
was ineffective for failing to object to the testimony of Attorney Lipscomb,
who said that he believed Raksnis was lying when Raksnis testified at trial that
Richards was not the shooter. Richards contends that Attorney Lipscomb’s
testimony constituted improper opinion testimony and that it was
inappropriate because Lipscomb was counsel for the Commonwealth during
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the preliminary hearings. Richards also claims that he is entitled to an
evidentiary hearing pursuant to the PCRA.
Our scope and standard of review of decisions denying relief pursuant
to the PCRA is well-settled. Our review of a PCRA court’s decision is limited
to examining whether the PCRA court’s findings of fact are supported by the
record and whether its conclusions of law are free from legal error.
Commonwealth v. Chmiel,
173 A.3d 617, 624 (Pa. 2017). Our review of
questions of law is de novo.
Id. at 625. Under Pennsylvania Rule of Criminal
Procedure 907, the PCRA court may dismiss a petition without a hearing if,
after reviewing the petition, it is “satisfied from this review that there are no
genuine issues concerning any material fact,” and thus, the defendant is not
entitled to relief. Pa.R.Crim.P. 907(1). When performing this review, the
court must find that “the facts alleged would not, even if proven, entitle the
defendant to relief[.]”
Id. at comment.
Richards’ claim implicates the effectiveness of trial counsel. To prove
ineffectiveness, an appellant must first overcome a presumption of counsel’s
competence by showing that:
(1) his 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). For the
reasons laid out by Judge Hill in his opinion filed on October 2, 2017, Richards’
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claims of ineffectiveness fail to overcome the presumption of counsel’s
competence.
Richards’ underlying claim is that Attorney Lipscomb’s testimony was
inadmissible as improper opinion testimony. “[W]e will not reverse a trial
court’s decision to allow a witness to testify absent a showing that the trial
judge abused his discretion.” Commonwealth v. Randall,
758 A.2d 669,
676 (Pa. Super. 2001). Opinion testimony from a lay witness is admissible as
long as it is “(a) rationally based on the witness'[] perception; (b) helpful to
clearly understanding the witness'[] testimony or to determining a fact in
issue; and (c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.” Pa.R.E. 701.
Here, as the trial court properly notes, Attorney Lipscomb’s testimony
was rationally based on his experience with Raksnis and his perception of
Raksnis’ demeanor. Moreover, the testimony was helpful to explain why
Raksnis may have recanted to the jury. Finally, “there is no per se rule which
prohibits an assistant district attorney who has handled the preliminary
hearing phase of the prosecution of a defendant from later testifying at the
defendant’s trial, particularly whenever the trial is being conducted by a
different assistant district attorney altogether.” Commonwealth v. Randall,
supra, at 676.
Richards is also not entitled to an evidentiary hearing under the PCRA.
As the trial court correctly notes, a petitioner is only entitled to an evidentiary
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hearing when he presents a genuine issue of material fact. See Pa.R.Crim.P.
909(B)(2); see also Commonwealth v. Walker,
36 A.3d 1, 17 (Pa. 2011)
(PCRA petitioner not entitled to evidentiary hearing as matter of right). Here,
there is no genuine issue of material fact because Richards’ claim of counsel’s
ineffectiveness is meritless on its face.
Upon careful review of the record, the briefs, and the relevant law, we
can discern no abuse of discretion or error of law on the part of the trial court
in denying Richards’ PCRA petition. We conclude that Judge Hill thoroughly
addresses Richards’ claims and we affirm on the basis of his opinion. The
parties are directed to attach a copy of that opinion in the event of further
proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/18
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0031_Opinion
Circulated 07/19/2018 11:48 AM
IN THE COURT OF; COMMON PLEAS OF i;-nILADELPHIA COUNTY
l FILED
OCT O 2 2017
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
II Office of Judicial Records
COMMONWEALTH OF PENNSYLVANIA: TRIAL DIVISION Appeals/PostTrial
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v. 11
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CP 51-CR-0006071-2010
KENNETH RICHARDS, APPELLANT No. 2253 EDA 2017
OPINION
This opinion addresses Appellant Kenneth Richards' appeal of this Court's dismissal of
his Amended Petition for Relief pursuant to the Post Conviction Relief Act. 1 The issues raised in
the Appellant's appeal lack merit for the reasons set forth Iater in this opinion.
I. CASE HISTORY
On April 15, 2010, the police arrested Appellant for attempted murder. The
Commonwealth later charged the Appellant with Criminal Attempt (Hl), Aggravated Assault
(F 1 ), Possession of a Firearm Prohibited (F2), Carrying Firearms in Public (M 1 ), Possession of
an Instrument of Crime with Intent (PIC) (Ml), Simple Assault (M2), and Recklessly
Endangering Another Person (M2). The trial was assigned to the Honorable Adam Beloff.
01). February 6, 2012, a jury found the Appellant guilty of attempted murder, aggravated
assault, possession of prohibited firearms, carrying firearms without a license, carrying firearms
in public in Philadelphia, and possessing an instrument of crime.2 On June 5, 2012, the court
sentenced Appellant to an aggregate term of imprisonmer:it of twenty to forty years, followed by
ten years of probation.
f O 1133 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)
2
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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
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The trial was held on 31, 2012. At the tril, the complainant testified that the
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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
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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
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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.
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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)).
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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
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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
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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.
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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
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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
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Initially, the Appellant fails to satisfy the first prong because his underlying claim has no
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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.
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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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Lidentiary
III. The Court did not erdn denying Appellant an hearing on the ineffective
assistance of trial dcfe�se counsel matter.
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The Appellant next contends that the Court erred by failing to hold an evidentiary hearing
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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.
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Amended PCRA Petition based on issues of fact. The Court also filed a dismissal notice of the
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PCRA Petition in accordance with Rule 907. Hence, this �]aim is not persuasive.
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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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In the present case, the Appellant was found guiltylof Attempted Murder of the First
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Degree. 25 The Appellant was sentenced to the maximum 20-40 years confinement as defined by
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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 .
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did not raise any issue as to the constitutionality of the statute itself. As stated above, "issues not
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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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CONCLUSION
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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
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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,
12