J-S31024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
____________________________________________


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

____________________________________________


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
____________________________________________


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
____________________________________________


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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