J-A07029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LONNY LYSAK                                :
                                               :
                       Appellant               :   No. 1291 MDA 2017

                    Appeal from the PCRA Order July 18, 2017
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0001226-2015,
                             CP-35-CR-0001234-2015


BEFORE:      PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                                  FILED MAY 08, 2018

        Appellant, Lonny Lysak, appeals pro se from the order entered on July

18, 2017, dismissing his petition filed under the Post-Conviction Relief Act

(PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

        As the PCRA court explained:

          On July 8, 2015, [Appellant pleaded] guilty to one count of
          rape of a mentally disabled person, one count of indecent
          assault of a person less than 16 years of age, and one count
          of indecent assault of a person with a mental disability.[1] [In
          exchange for this plea, the Commonwealth agreed to nolle
          pros the remaining charges against Appellant]. . . .

          The rape charge arose in 2014[,] when [Appellant] engaged
          in sexual intercourse with [victim] M.M., who suffers from a
          mental disability. [That same year, Appellant committed the
          crime of] indecent assault of a person less than 16 years of
          age against victim] T.J., who was 13 years of age. [Appellant
____________________________________________


1   18 Pa.C.S.A. §§ 3121(a)(5), 3126(a)(8), and 3126(a)(6), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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          committed the crime of indecent assault of a person with a
          mental disability sometime between January 2005 and
          February 2015, when Appellant] had indecent contact on
          numerous occasions with [victim] T.H., who suffers from a
          mental disability. . . .

          On October 27, 2015, a sentencing hearing was held and
          [Appellant] was found to be a sexually violent predator.
          [That day, the trial court sentenced Appellant to serve an
          aggregate term of 78 to 240 months in prison for his
          convictions].

PCRA Court Opinion, 9/21/17, at 1-2.

        On October 25, 2016, Appellant filed a timely, pro se PCRA petition.

Within the petition, Appellant claimed that his trial counsel was ineffective

because counsel “failed to investigate and prepare a defense[,] which caused

[Appellant] to involuntarily plead guilty.” Appellant’s PCRA Petition, 10/25/16,

at 4.

        On November 30, 2016, the PCRA court appointed counsel to represent

Appellant. However, on March 22, 2017, appointed counsel filed a no-merit

letter and a request to withdraw as counsel, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc).

        After reviewing counsel’s Turner/Finley letter, the PCRA court entered

orders that: granted counsel’s petition to withdraw and notified Appellant that

it intended to dismiss the PCRA petition in 20 days, without holding a hearing.

See PCRA Court Order, 6/12/17, at 1; PCRA Court Order, 6/12/17, at 1;

Pa.R.Crim.P. 907(1). Appellant responded to the PCRA court’s notice of intent




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to dismiss by expounding upon the claim he initially raised in his PCRA petition.

Specifically, Appellant claimed:

        In the case [sub judice], trial counsel never interviewed
        [Appellant], nor did he discuss the possibility of a defense or
        witnesses. Counsel never interviewed Ms. Lisa Healey, the
        girlfriend of [Appellant] and the caretaker of the alleged
        victims. Had counsel interviewed Ms. Healey, he would have
        discovered that there [were] numerous defenses to these
        charges and therefore, no need to [compel Appellant] to
        plead guilty.

        First, counsel would have learned that the only time that
        [Appellant] had access to the alleged victims [was] while they
        were in the care of his girlfriend, Ms. Healey. Counsel would
        have learned that a witness named Kelly, who was also
        receiving care from Ms. Healey, was always present when the
        alleged victims were at [Appellant’s] house. Kelly had told
        authorities that she never [saw Appellant] interact with her
        or anyone else under Ms. Healey’s care inappropriately.

        Second, counsel would have learned that [Ms. Healey] was
        fired from her position as caretaker before the dates that
        these alleged incidents occurred. Since Ms. Healey was no
        longer giving care to these alleged victims, [Appellant] did
        not have access to them in order to perpetrate these alleged
        indecent incidents.

Appellant’s Response to Notice of Intent to Dismiss, 6/26/17, at ¶¶ 4-7

(internal paragraphing and some internal capitalization omitted).

      On July 18, 2017, the PCRA court finally dismissed Appellant’s PCRA

petition. PCRA Court Order, 7/18/17, at 1. Appellant filed a timely notice of

appeal and Appellant now raises one claim to this Court:

        [The] PCRA court erred in dismissing [Appellant’s] PCRA
        petition as meritless where trial counsel was ineffective for
        failing to investigate and prepare a defense which caused
        Appellant to involuntarily plead guilty.


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Appellant’s Brief at ii (some internal capitalization omitted).

      To be eligible for relief under the PCRA, the petitioner must plead and

prove by a preponderance of the evidence that his conviction or sentence

resulted from “one or more” of the seven, specifically enumerated

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily

enumerated circumstances is the “[i]neffectiveness of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

      Counsel is, however, presumed to be effective and “the burden of

demonstrating ineffectiveness rests on [A]ppellant.”       Commonwealth v.

Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010).           To satisfy this burden,

Appellant must plead and prove by a preponderance of the evidence 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
        proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has

explained:

        A claim has arguable merit where the factual averments, if
        accurate, could establish cause for relief.                 See
        Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
        (“if a petitioner raises allegations, which, even if accepted as
        true, do not establish the underlying claim . . . , he or she
        will have failed to establish the arguable merit prong related



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        to the claim”). Whether the facts rise to the level of arguable
        merit is a legal determination.

        The test for deciding whether counsel had a reasonable basis
        for his action or inaction is whether no competent counsel
        would have chosen that action or inaction, or, the alternative,
        not chosen, offered a significantly greater potential chance of
        success. Counsel’s decisions will be considered reasonable if
        they effectuated his client's interests. We do not employ a
        hindsight analysis in comparing trial counsel's actions with
        other efforts he may have taken.

        Prejudice is established if there is a reasonable probability
        that, but for counsel’s errors, the result of the proceeding
        would have been different. A reasonable probability is a
        probability sufficient to undermine confidence in the
        outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some

internal quotations and citations omitted). “A failure to satisfy any prong of

the test for ineffectiveness will require rejection of the claim.” Id.

      “A criminal defendant has the right to effective counsel during a plea

process as well as during trial.” Commonwealth v. Hickman, 799 A.2d 136,

141 (Pa. Super. 2002). Yet, where the ineffectiveness of counsel is claimed

in connection with the entry of a guilty plea, a petitioner may only obtain relief

where “counsel’s deficient stewardship resulted in a manifest injustice, for

example, by facilitating [the] entry of an unknowing, involuntary, or

unintelligent plea.” Commonwealth v. Moser, 921 A.2d 526, 530 n.3 (Pa.

Super. 2007) (en banc) (internal citations and quotations omitted). As we

have explained:

        once a defendant has entered a plea of guilty, it is presumed
        that he was aware of what he was doing, and the burden of


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        proving involuntariness is upon him. Therefore, where the
        record clearly demonstrates that a guilty plea colloquy was
        conducted, during which it became evident that the
        defendant understood the nature of the charges against him,
        the voluntariness of the plea is established.

Commonwealth v. Stork, 737 A.2d 789, 791 (Pa. Super. 1999) (internal

quotations, citations, and corrections omitted), quoting Commonwealth v.

Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994). “To prove prejudice, [an]

appellant must prove he would not have [pleaded] guilty and would have

achieved a better outcome at trial.” Commonwealth v. Fears, 86 A.3d 795,

807 (Pa. 2014) (internal quotations and citations omitted).

     Moreover,

        With regard to the voluntariness of a plea, a guilty plea
        colloquy must “affirmatively demonstrate the defendant
        understood what the plea connoted and its consequences.”
        Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super.
        1998). Once the defendant has entered a guilty plea, “it is
        presumed that he was aware of what he was doing, and the
        burden of proving involuntariness is upon him.”
        Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa.
        Super. 2008). Competence to plead guilty requires a finding
        that the defendant comprehends the crime for which he
        stands accused, is able to cooperate with his counsel in
        forming a rational defense, and has a rational and factual
        understanding    of   the    proceedings   against     him.
        Commonwealth v. Turetsky, 925 A.2d 876 (Pa. Super.
        2007).

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013).          “A

defendant is bound by the statements which he makes during his plea

colloquy.” Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa. Super. 1998)

(internal citation omitted).   “A defendant may not assert grounds for



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withdrawing the plea that contradict statements made when he pled guilty.”

Id.

      Finally, a PCRA petitioner is not automatically entitled to an evidentiary

hearing on his petition. A PCRA petition may be dismissed without a hearing

if the PCRA court “is satisfied from [its review of the petition] that there are

no genuine issues concerning any material fact and that the [petitioner] is not

entitled to post-conviction collateral relief, and no purpose would be served

by any further proceedings.” Pa.R.Crim.P. 907(1). However, when the PCRA

petition raises material issues of fact, the PCRA court “shall order a hearing.”

Pa.R.Crim.P. 908(A)(2). Thus, “[t]o obtain reversal of a PCRA court's decision

to dismiss a petition without a hearing, an appellant must show that he raised

a genuine issue of fact which, if resolved in his favor, would have entitled him

to relief, or that the court otherwise abused its discretion in denying a

hearing.” Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011) (internal

quotations and citations omitted).

      On appeal, Appellant claims that his trial counsel was ineffective for

“failing to investigate and prepare a defense which cause[d] Appellant to

involuntarily plead guilty.”   Appellant’s Brief at 9.   Specifically, Appellant

claims that his plea counsel was ineffective: for failing to interview Appellant

and for failing to interview Appellant’s girlfriend, Lisa Healey. See id. at 18-

22.




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         Appellant first claims that his trial counsel was ineffective for failing to

interview Appellant. Id. However, this claim immediately fails, as Appellant

has not explained how he would “have achieved a better outcome at trial” if

his plea counsel would have conducted this interview.           See id.; see also

Fears, 86 A.3d at 807 (“[t]o prove prejudice, [an] appellant must prove he

would not have [pleaded] guilty and would have achieved a better

outcome at trial”) (internal quotations and citations omitted) (emphasis

added). Therefore, as to this issue, Appellant failed to plead the “prejudice”

prong of his ineffective assistance of counsel claim and the claim necessarily

fails.

         Next, Appellant claims that counsel was ineffective for failing to

interview Ms. Healey.        According to Appellant, if counsel interviewed Ms.

Healey, Ms. Healey would have informed counsel:              “that the complaining

witness[es] never left her sight when they were under her care;” that

“Appellant was never left alone with the complaining witnesses for a period of

time in which these alleged criminal acts could have been perpetrated;” and,

that she was not the victims’ caretaker when the assaults occurred.

Appellant’s Brief at 18-19.

         As we have explained:

           The failure to investigate presents an issue of arguable merit
           where the record demonstrates that counsel did not perform
           an investigation. It can be unreasonable per se to conduct
           no investigation into known witnesses.         Importantly, a
           petitioner still must demonstrate prejudice. To demonstrate
           prejudice where the allegation is the failure to interview a

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         witness, the petitioner must show that there is a reasonable
         probability that the testimony the witness would have
         provided would have led to a different outcome at trial.

         In this respect, a failure to investigate and interview a
         witness claim overlaps with declining to call a witness since
         the petitioner must prove: (i) the witness existed; (ii) the
         witness was available to testify; (iii) counsel knew of, or
         should have known of, the existence of the witness; (iv) the
         witness was willing to testify; and (v) the absence of the
         testimony was so prejudicial as to have denied the defendant
         a fair trial.

Commonwealth v. Pander, 100 A.3d 626, 638-639 (Pa. Super. 2014)

(internal quotations and citations omitted).

      In the case at bar, Appellant did not attach “a signed certification” for

Ms. Healey to his PCRA petition, containing her “address, date of birth and

substance of testimony.”     42 Pa.C.S.A. § 9545(d)(1).      Further, and more

importantly, Appellant’s petition never declared that Ms. Healey was willing or

available to testify on behalf of Appellant, at Appellant’s trial. See Appellant’s

PCRA Petition, 10/25/16, at 1-9; Appellant’s Response to Notice of Intent to

Dismiss, 6/26/17, at 1-4; Pander, 100 A.3d at 638-639. Because of this

failure, Appellant did not properly plead his ineffective assistance of counsel

claim. Appellant’s claim that the PCRA court erred in dismissing his petition

thus fails.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/2018




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