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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RALTO LINDSAY

                            Appellant                 No. 2541 EDA 2015


                   Appeal from the PCRA Order July 23, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011932-2008


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                            FILED FEBRUARY 15, 2017

        Ralto Lindsay appeals from the order entered in the Philadelphia

County Court of Common Pleas, dated July 23, 2015, dismissing his first

petition filed under the Post-Conviction Relief Act (“PCRA”).1 Lindsay seeks

relief from the judgment of sentence imposed on July 1, 2009, following his

convictions of attempted murder, aggravated assault, possession of an

instrument of crime (“PIC”), simple assault, and recklessly endangering




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*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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another person (“REAP”).2             On appeal, Lindsay raises an ineffective

assistance of counsel claim. Based on the following, we affirm.

        The PCRA court set forth the facts as follows:

              On July 7, 2008 and July 20, 2008 the Defendant, Ralto
        Lindsay, engaged in two separate attacks on Linda Jeune. On
        July 7, 2008, [Lindsay] and Ms. Jeune had an argument which
        culminated in [Lindsay] slamming Ms. Jeune against a brick wall
        and choking her while threatening her life. Ms. Jeune sought
        medical treatment for her injuries and filed a Protection From
        Abuse order (“PFA”) to be served against [Lindsay]. Ms. Jeune
        ultimately decided not to follow through with the necessary court
        procedures to finalize the PFA. She later told [Lindsay] that she
        “needed some space.”

               On July 20, 2008, [Lindsay] called Ms. Jeune and
        attempted to reconcile with her.            Following this phone
        conversation, [Lindsay] entered the home and sliced Ms. Jeune’s
        hand with a knife from the kitchen, severing the index finger of
        her left hand. Ms. Jeune convinced [Lindsay] to let her go by
        telling him that they could fix their problems and “make it work.”
        Ms. Jeune’s reassurances ultimately calmed [Lindsay], who then
        left the room and proceeded downstairs with Ms. Jeune following
        closely. As [Lindsay] headed toward the kitchen, Ms. Jeune ran
        out the door. [Lindsay] chased Ms. Jeune down the street,
        calling her a liar, and slamming her into a parked van. As Ms.
        Jeune lay on the ground, [Lindsay] stabbed her approximately
        eight to nine times. [Lindsay] then proceeded to walk back
        towards the house while Ms. Jeune screamed for help and
        ultimately collapsed on a neighbor’s property.

PCRA Court Opinion, 11/16/2015, at 1-2.

        Lindsay was arrested and charged with attempted murder, aggravated

assault, PIC, simple assault, and REAP.           On March 30, 2009, a non-

consecutive four-day bench trial began.          On April 20, 2009, the court
____________________________________________


2
    18 Pa.C.S. §§ 2502(a), 2702(a), 907(a), 2701(a), and 2705, respectively.



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convicted Lindsay of all counts.         On July 1, 2009, the court imposed the

following sentence:       (1) a term of 20 to 40 years’ incarceration for the

attempted murder charge; (2) a term of ten to 20 years’ incarceration for

the aggravated assault charge; and (3) a term of two and one half to five

years’ incarceration for the PIC count.          All sentences were to be served

consecutively.3

       On July 31, 2009, Lindsay filed a notice of appeal.          However, the

appeal was dismissed on September 29, 2009 for failure to comply with

Pa.R.A.P. 3517 (failure to file a docketing statement).         Subsequently, on

February 22, 2010, Lindsay filed a timely pro se PCRA petition, alleging

ineffective assistance of counsel. On July 5, 2011, the PCRA court ordered

that Lindsay’s direct appeal rights be reinstated nunc pro tunc.        Two days

later, Lindsay filed a direct appeal, alleging his convictions for attempted

murder and aggravated assault should have merged for sentencing

purposes, and the trial court’s deviation from the sentencing guidelines

constituted an abuse of discretion.            A panel of this Court affirmed the

judgment of sentence on April 17, 2012. Commonwealth v. Lindsay, 48

A.3d 479 [1801 EDA 2011] (Pa. Super. 2012) (unpublished memorandum).



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3
  The counts of simple assault and REAP merged by operation of law and no
further penalty was given for the charges.




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Lindsay did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

       On August 15, 2012, Lindsay filed the present, pro se PCRA petition.4

Counsel was retained, who filed an amended PCRA petition on April 9, 2014.

After reviewing the matter, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss the petition without first conducting an evidentiary

hearing on June 26, 2015. Specifically, the court found the issues raised in

the petition lacked merit.        Lindsay did not file a response.5   On July 23,

2015, the PCRA court dismissed Lindsay’s petition. This appeal followed. 6

       In his sole argument on appeal, Lindsay contends the PCRA court

erred in finding trial counsel was not ineffective for failing to properly

investigate and inform Lindsay, prior to waiving his right to a jury trial, that




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4
    He also filed a pro se attachment to his petition on November 26, 2012.
5
  Lindsay did file a pro se response on July 15, 2015. However, because he
had counsel, his response is a legal nullity. See Commonwealth v. Ali, 10
A.3d 282, 293 (Pa. 2010) (explaining that a pro se filing presented by an
appellant represented by counsel is a “legal nullity”).
6
   On August 27, 2015, the PCRA court ordered Lindsay to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Lindsay filed a concise statement on September 17, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 16, 2015.




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he could receive an aggregate sentence that was effectively a term of life in

prison. See Lindsay’s Brief at 6.7

       Our review of an order dismissing a PCRA petition is well-established:

we must determine whether the PCRA court’s findings of fact are supported

by the record, and whether its legal conclusions are free from error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted 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. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted), appeal denied, 72 A.3d 600 (Pa. 2013).               It is well-settled that

“there is no absolute right to a hearing pursuant to the PCRA. A petition for

post-conviction relief may be denied without a hearing when the court

determines that there are no genuine issues concerning any material fact,

and that the petitioner is not entitled to relief.” Commonwealth v. Camps,

772 A.2d 70, 75 (Pa. Super. 2001) (citations omitted); see Pa.R.Crim.P.

907.

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7
   In his argument, Lindsay also argues that trial counsel was ineffective for
failing to preserve a weight of the evidence claim. See Lindsay’s Brief at 20.
A review of the record reveals that he did not raise this issue in his PCRA
petition. Accordingly, his weight claim is waived for failure to properly
preserve it for appellate review. See Commonwealth v. Santiago, 855
A.2d 682, 691 (Pa. 2004) (“We have stressed that a claim not raised in a
PCRA petition cannot be raised for the first time on appeal.”); see also
Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).



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        With respect to a claim of ineffective assistance of counsel, we are

guided by the following:

        It is well-settled that counsel is presumed effective, and to rebut
        that presumption, the PCRA petitioner must demonstrate that
        counsel’s performance was deficient and that such deficiency
        prejudiced him. Strickland v. Washington, 466 U.S. 668,
        687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court
        has described the Strickland standard as tripartite by dividing
        the performance element into two distinct components.
        Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
        (Pa. 1987). Accordingly, to prove trial counsel ineffective, the
        petitioner must demonstrate that: (1) the underlying legal issue
        has arguable merit; (2) counsel’s actions lacked an objective
        reasonable basis; and (3) the petitioner was prejudiced by
        counsel’s act or omission. Id. A claim of ineffectiveness will be
        denied if the petitioner’s evidence fails to satisfy any one of
        these prongs.

        Regarding the reasonable basis prong of the ineffectiveness test,
        we will conclude that counsel’s chosen strategy lacked a
        reasonable basis only if the petitioner proves that the alternative
        strategy not selected offered a potential for success substantially
        greater than the course actually pursued. Commonwealth v.
        Koehler, 614 Pa. 159, 36 A.3d 121, 132 (Pa. 2012). To
        establish the prejudice prong, the petitioner must demonstrate
        that there is a reasonable probability that the outcome of the
        proceedings would have been different but for counsel’s
        ineffectiveness. Id.

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013), cert. denied, 135

S.Ct. 50 (U.S. 2014).

        Turning to the present matter, Lindsay claims that at the time of his

trial   and    sentencing,   counsel    was   “apparently    unaware     of   the

Commonwealth’s position that the actions discussed herein constituted two

(2) distinct events[, referring to the attempted murder and aggravated

assault convictions].    This exposed [Lindsay] to an additional twenty (20)

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years of incarceration that was not addressed at trial.” Lindsay’s Brief at 20.

With respect to the arguable merit prong, Lindsay notes a bill of particulars

provides notice to the accused of the offenses charged in the indictment, but

a bill of particulars was not filed in this case because it is not routine practice

in Philadelphia County. Id. at 20-21. He states:

         However, … the Information that was filed in this matter simply
         indicated the one (1) count of aggravated assault and provided
         the complainant’s name. A seasoned attorney, such as trial
         counsel in this matter, should be well aware by the time of trial
         that case law allows consecutive sentences “when a criminal act
         has been committed, broken off, and then resumed, at least two
         crimes have occurred and sentences may be imposed on each.”
         Commonwealth v. Belsar, 676 A.2d 632 ([Pa.] 1996).

                                         …

         The failure to investigate whether [Lindsay] was facing an
         additional twenty (20) years of state incarceration is no trivial
         matter. Trial counsel knew or should have known that this was a
         possibility and acted accordingly.

Id. at 21-22.

         With regard to the reasonable trial strategy prong, Lindsay alleges: “It

appears from the record, that trial counsel had not spent much time, if any,

contemplating this issue. As is the case with virtually all cases of failures to

investigate, there can be no strategic basis for this course of inaction.” Id.

at 22.

         Lastly, with respect to the prejudice prong, Lindsay claims counsel’s

failure to inform him about the potential time he was facing affected his

ability to knowingly and intelligently reject a plea offer and waive the right to


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a jury trial.   Id.   Moreover, he argues counsel’s actions permitted “the

Commonwealth to present testimony that added an additional twenty (20)

years to the sentence, without those particular statements being tested

through cross-examination.    Namely, a determination of whether this was

two (2) acts or one (1), which was not determined until approximately ten

(10) weeks after the trial concluded.” Id. at 23.

      Here, the PCRA court found the following:

             [Lindsay] has failed to show that his underlying claim has
      arguable merit.     [Lindsay] offers no evidence that his trial
      attorney was unaware of the possibility that the charges of
      Aggravated Assault and Attempted Murder would not merge, or
      that the absence of this information impacted [Lindsay]’s
      decision to waive his right to a jury trial. The three required
      pieces of information that must be shared when informing a
      defendant of his right to waive a jury are “1) that the jury (is)
      chosen from members of the community, 2) that the accused
      (is) allowed to participate in the selection of the jury panel, and
      3) that the verdict (must) be unanimous.” As [Lindsay] is not
      claiming that he did not understand the difference between a
      waiver trial and a jury trial, or the rights enumerated above, he
      has failed to demonstrate that his decision to proceed to a
      waiver trial was uninformed, or that counsel was ineffective in
      advising him.     [Lindsay] also offers no evidence that plea
      bargains were offered, let alone turned down because of an
      erroneously perceived lower sentencing exposure. Furthermore,
      by [Lindsay]’s own admission, his criminal information included
      all three of the offenses of which he was ultimately convicted.
      Because [Lindsay] has not supported his allegations with
      necessary offers of proof, his claim must fail.

             Even if [Lindsay]’s claims were meritorious, he cannot
      show that the actions of trial counsel were so unreasonable that
      no competent lawyer would have chosen them.               [Lindsay]
      asserts that counsel was ineffective for failing “to test this
      accusation during the trial stage of this matter, as he was
      unaware of this allegation.” In essence, [Lindsay] is asserting
      that, in order to be effective, trial counsel must anticipate every

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      aspect of the Commonwealth’s strategy, as well as the outcome
      of the trial. Were this the case, precious few attorneys would
      pass muster.       During trial, counsel took the position –
      presumably in light of [Lindsay]’s decision to plead not guilty –
      that the second assault never occurred. Nothing about that
      strategy is unreasonable.     Furthermore, by [Lindsay]’s own
      admission, the Commonwealth did not raise the argument that
      [Lindsay]’s conduct constituted separate, distinct acts until
      sentencing, at which time trial counsel was prepared to argue
      that the charges should merge, and, in fact, did so even before
      the District Attorney argued that they should not. While trial
      counsel’s only argument was a legal assertion that Aggravated
      Assault is a lesser-included offense of Attempted Murder, there
      were no factual arguments to be made because the facts have
      already been determined at trial, in favor of the
      Commonwealth’s narrative.

             Even assuming that [Lindsay]’s claims have arguable merit
      and that the actions of trial counsel were unreasonable,
      [Lindsay] cannot show that he was prejudiced by trial counsel’s
      actions. A showing of prejudice requires some evidence to
      support [Lindsay]’s claim that he would have accepted a plea
      offer if he had known about the potentially more severe
      punishment. Not only does [Lindsay] offer no facts to support
      this claim, [he] fails to offer any evidence that plea offers were
      made or what they were, rendering it totally impossible to
      speculate whether there was a reasonable chance of a different
      outcome. Because the burden rests with [Lindsay] to allege
      prejudice, the lack of any supporting facts other than bald
      allegations will automatically cause [Lindsay]’s argument to fail.

PCRA Court Opinion, 11/16/2015, at 6-8 (citations omitted).

      We agree with the PCRA court’s well-reasoned opinion.                While

Lindsay’s arguments have failings with respect to all prongs of the ineffective

assistance of counsel test, as analyzed by the PCRA court above, we

emphasize the following.     First, Lindsay fails to explain what any of his

complaints have to do his ability to knowingly and intelligently waive the

right to a jury trial. We find his assertion regarding the question of whether

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attempted murder and aggravated assault crimes merged for sentencing

purposes does not go to the elements required to properly inform a

defendant of his right to waive a jury. See Commonwealth v. Houck, 948

A.2d 780, 787 (Pa. 2008) (“stating the three requirements are as follows:

“1) that the jury be chosen from members of the community (i.e., a jury of

one’s peers), 2) that the accused be allowed to participate in the selection of

the jury panel, and 3) that the verdict be unanimous.”), cert. denied, 555

U.S. 1056 (2008). Indeed, in his argument, Lindsay does not complain that

the court did not make him aware of the essential components that are

inherent to a jury trial.

      Furthermore, we note that contrary to Lindsay’s assertion regarding

the bill of information, his criminal complaint included both the attempted

murder    and    aggravated   assault    charges.    See   Criminal   Complaint,

7/21/2008, at 1.       Likewise, his written jury trial waiver colloquy also

indicated the same.     See Jury Trial Waiver Colloquy, 3/30/2009, at ¶ 38.

During his jury waiver colloquy, he stated that no one threatened or forced

him to give up his right to a jury trial and he understood his right to have a

jury trial.   N.T., 3/30/2009, at 4-5.     The court also informed Lindsay that

that the jury was to be chosen from citizens of the community, he and his

counsel were allowed to participate in the selection of the jury panel, and

the verdict had to be unanimous. Id. at 5. Lindsay also provided testimony

regarding both incidents that occurred on July 20, 2008. N.T., 4/20/2009,


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at 10-18 (describing his version of events for what happened in the house

and outside the house). As such, we can reasonably infer that Lindsay was

well aware of the separate crimes he was facing.

      Third, and most importantly, we find Lindsay offers no evidence of the

existence of a plea offer or even describes the terms of that alleged offer.

As such, his argument that he suffered prejudice because counsel’s failure to

inform him about the potential time he was facing affected his ability to

knowingly and intelligently reject a plea offer fails. Further, Lindsay has not

demonstrated that there is a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s ineffectiveness.

See Elliott, 80 A.3d at 427. Therefore, because the PCRA court’s decision is

supported by the record and is free from legal error, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2017




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