J-S39045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
LENNARD PAUL FRANSEN,                     :
                                          :
                  Appellant               :           No. 274 EDA 2015

      Appeal from the PCRA Order entered on January 12, 2015
          in the Court of Common Pleas of Monroe County,
           Criminal Division, No. CP-45-CR-0001492-2002

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 16, 2015

      Lennard Paul Fransen (“Fransen”) appeals from the Order denying his

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court set forth the relevant procedural history as follows:

            On May 3, 2004, [Fransen] was convicted by a jury of
      Criminal Homicide-murder in the first degree of Robert Sandt
      [“Sandt”]; Criminal Homicide-as an accomplice; and Criminal
      Conspiracy. On July 20, 2004, [Fransen] was sentenced to life
      without parole.

            On July 29, 2004, [Fransen’s] then-counsel Attorney
      [Brett] Riegel [“Attorney Riegel”] filed a Notice of Appeal. On
      August 13, 2004, [trial court], through then President Judge
      Ronald E. Vican, directed [Fransen] to file a concise statement
      pursuant to Pa.R.A.P. 1925(b) within fourteen days.          On
      September 2, 2004, [Fransen] filed his [C]oncise [S]tatement.
      On October 13, 2006, the Superior Court affirmed the judgment
      of sentence on the grounds that [Fransen’s Rule] 1925(b)
      statement was three days late and all claims therein were
      waived.    Commonwealth v. Fransen, 913 A.2d 940 (Pa.
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     Super.  2006)    (unpublished   memorandum);     see   also
     Commonwealth v. Fransen, 986 A.2d 154, 155 (Pa. Super.
     2009). On April 25, 2007, the Supreme Court of Pennsylvania
     denied  [Fransen’s]  Petition  for  Allowance   of   Appeal.
     Commonwealth v. Fransen, 921 A.2d 495 (Pa. 2007).

            On April 3, 2008, [Fransen] filed his first pro se PCRA
     Petition, seeking to reinstate his appeal rights nunc pro tunc. On
     July 24, 2008, [the PCRA court] granted [Fransen’s] PCRA
     Petition [, and reinstated his appeal rights] on the grounds that
     counsel failed to file a timely [C]oncise [S]tatement.

           On August 12, 2008, [Fransen] filed a pro se Motion for a
     New Trial. On August 14, 2008, [the trial court] dismissed
     [Fransen’s] Motion because of [the PCRA court’s] July 24, 2008
     Order reinstating [Fransen’s] appellate rights.

           On August 20, 2008, [Fransen] filed a Notice of Appeal,
     appealing [the trial court’s] Sentencing Order, dated July 20,
     2004. [The trial court] directed [Fransen] to file a concise
     statement within 21 days.

           At some point before the Superior Court rendered a
     decision, [Fransen] filed a [pro se] “Motion to Withdraw
     Unrequested Counsel” with the Superior Court.        See
     Commonwealth v. Fransen, 986 A.2d 154, 155 (Pa. Super.
     2009).

           On appeal the Superior Court declined to reinstate
     [Fransen’s] right to file post-sentence motions, emphasizing he
     may raise ineffectiveness claims in a second PCRA [petition].
     Commonwealth v. Fransen, 986 A.2d 154, 158 (Pa. Super.
     2009). The Superior Court then remanded [Fransen’s] case to
     [the PCRA court] to conduct a Grazier hearing, stating that after
     such determination, [Fransen] would have 30 days to file a
     notice of appeal nunc pro tunc pursuant to the [c]ourt’s July 24,
     2008 PCRA Order. Id. at 159.

            Thereafter, [Fransen] withdrew his request to proceed pro
     se. In an Order dated February 12, 2010, [the trial court]
     appointed Attorney [Robin] Spishock [“Attorney Spishock] to
     represent [Fransen]. On March 12, 2010, Attorney Spishock
     filed a Notice of Appeal from [the trial court’s] Sentencing Order.



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             [Fransen] filed a timely [C]oncise [S]tatement and [the
      trial court] filed a 1925(a) Opinion. On March 2, 2012, the
      Superior Court affirmed [the trial court’s] judgment of sentence.
      Commonwealth v. Fransen, 42 A.3d 1100 (Pa. Super. 2012).
      A Petition for Allowance of Appeal was not filed.

             On September 14, 2012, [Fransen] filed his second pro se
      PCRA [Petition]. On September 28, 2012, [the PCRA court]
      appointed    Attorney     [Bradley]   Weidenbaum      [“Attorney
      Weidenbaum”] to represent [Fransen]. Attorney Weidenbaum
      filed an Amended PCRA Petition. The Commonwealth timely filed
      an Answer and Response, respectively. A hearing was held on
      February 25, 2013. [Fransen], Attorney Riegel, and Attorney
      Spishock all testified regarding representation of [Fransen] at
      trial and on appeal. While up to eight claims were raised in
      [Fransen’s] Amended PCRA Petition, only one was addressed in
      his brief. Consequently, [the PCRA court] only addressed that
      claim.

            [Fransen] asserted that Attorney Spishock failed to
      preserve and perfect a Petition for Allowance of Appeal to the
      Supreme Court from the Superior Court’s March 2, 2012
      decision. In an Opinion and Order dated April 23, 2013, [the
      PCRA court] granted [Fransen’s] Amended PCRA Petition and
      reinstated his right to file a Petition for Allowance of Appeal from
      the Superior Court’s March 2, 2012 Order, nunc pro tunc.

            [Fransen] filed his Petition for Allowance of Appeal with the
      Supreme Court on May 28, 2013. The Supreme Court denied
      [Fransen’s] Petition on October 2, 2013. Commonwealth v.
      Fransen, 76 A.3d 538 (Pa. 2013).

             On June 6, 2014, [Fransen] filed the present (his third) pro
      se PCRA Petition. On June 18, 2004, [the PCRA court] appointed
      Hillary Madden, Esq. [“Attorney Madden”] to represent
      [Fransen]. On August 13, 2014, Attorney Madden filed an
      Amended PCRA Petition.          On August 25, 2014, the
      Commonwealth filed its Answer.

PCRA Court Opinion, 1/12/2015, at 1-4. The PCRA court held a hearing, and

then issued an Order denying the Petition on January 12, 2014.         Fransen

filed a timely Notice of Appeal.


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      On appeal, Fransen raises the following question for our review:

“Whether the [PCRA] court erred in finding [Fransen’s] claim of ineffective

assistance of counsel meritless based on its ultimate determination that

[Attorney    Riegel’s]   decision   to   refrain   from   calling   a   witness   was

reasonable.” Brief for Appellant at 5.

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      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) (citations

and quotation marks omitted).

      Fransen argues that Attorney Riegel was ineffective because he failed

to call Teri Levanduski (“Levanduski”) as a witness.1 Brief for Appellant at

12-13.    Fransen asserts that Levanduski was available to testify; Attorney

Riegel knew of her existence; and she would have testified on Fransen’s

behalf.     Id. at 13.    Fransen and Levanduski exchanged letters, which

discussed a “mission,” and, Fransen claims, Levanduski would have testified

that the “mission” was actually referring to his child support case in Florida,


1
   Levanduski was the common-law wife of Sandt, and Fransen’s co-
defendant in this case. Levanduski and Fransen were having an affair prior
to Sandt’s murder. Levanduski was convicted of murder in the first degree
as an accomplice, conspiracy to commit murder in the first degree, hindering
apprehension, and solicitation to commit murder in the first degree. See
Commonwealth v. Levanduski, 907 A.2d 3, 7 (Pa. Super. 2006) (en
banc). This Court affirmed Levanduski’s judgment of sentence. See id. at
30.


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not to murdering Sandt. Id. at 14-16. Fransen contends that the absence

of this testimony prejudiced him because Levanduski was the only person

who could testify as to the meaning of certain words in letters that the

Commonwealth had used as evidence in his trial. Id. Fransen argues that

Attorney Riegel’s actions were not reasonable because during the PCRA

hearing, Levanduski stated that she would have testified on Fransen’s

behalf, despite the advice from her lawyer. Id. at 13. Fransen also argues

that Attorney Riegel could have questioned Levanduski before she took the

stand to see if she would invoke her Fifth Amendment rights. Id. at 13, 19.

Further, Fransen claims that Attorney Riegel’s testimony that his strategy

would have been different if he had received a statement from Levanduski

saying that the word “mission” in the letters had a different meaning was

unreasonable and irrational. Id. at 18.

      To   succeed   on   an   ineffectiveness   claim,   the   appellant   must

demonstrate by the preponderance of the evidence 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 proceedings would have
      been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 165, 177 (Pa. 2010).                  Counsel is




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presumed to be effective and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

     To establish that counsel was ineffective for failure to call a witness,

appellant must prove that

     (1) the witness existed; (2) the witness was available; (3) that
     counsel was informed of the existence of the witness or should
     have known of the witness’s existence; (4) that the witnesses
     were available and prepared to cooperate and would have
     testified on [a]ppellant’s behalf; and (5) the absence of the
     testimony prejudiced the [a]ppellant.

Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa. Super. 2000).

     Our review of the record discloses that Fransen’s argument lacks merit

because Attorney Riegel had a reasonable basis for his actions. At the PCRA

hearing, Attorney Riegel conceded that he knew of Levanduski and that she

was available. N.T., 9/19/2014, at 12. Attorney Riegel further testified that

Levanduski’s attorney had told him that he was not going to allow Attorney

Riegel to speak with Levanduski, and that if Attorney Riegel subpoenaed

Levanduski, she would invoke her Fifth Amendment rights on the stand. Id.

at 13. Attorney Riegel also testified that he advised Fransen that it was not

a wise idea to put Levanduski on the stand without having access to her

beforehand to determine what she would say. Id. at 15; see also id. at 23

(wherein Attorney Riegel stated that, from his professional experience, he

had three cases in which he called a witness to the stand that he had not

previously spoken with, and in two of those three cases, it hurt his client’s

chances of acquittal).      Attorney Riegel determined that based on his


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judgment, given the evidence introduced at trial, including the love letters

and statements to the police, calling Levanduski to testify would not serve

Fransen’s interests. Id. at 23-24.

      Our conclusion is consistent with the PCRA court’s determination that

Attorney Riegel had a reasonable basis for not calling Levanduski as a

witness.     See   PCRA    Court     Opinion,   1/12/15,   at   13;   see   also

Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003) (stating

that if a reasonable basis exists for counsel’s actions, then the inquiry ends

and counsel’s performance is deemed constitutionally effective). The PCRA

court’s determination is supported by the record and free of legal error, and

Attorney Riegel cannot be deemed ineffective for failing to pursue a futile

claim. See Commonwealth v. Collins, 616 A.2d 1012, 1015 (Pa. Super.

1992) (stating that “the trial court’s refusal to allow a witness for the

defense to take the stand was proper where the witness had been indicted

for the same crime, and counsel had informed the trial court that the witness

had been advised to invoke his Fifth Amendment privilege…”); see also

Pa.R.P.C 4.2 (stating that “a lawyer shall not communicate about the subject

of the representation with a person the lawyer knows to be represented by

another lawyer….”); Commonwealth v. Treadwell, 911 A.2d 987, 991-92

(Pa. Super. 2006) (stating that counsel is not ineffective for failure to pursue




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a futile claim).2

      Based upon the forgoing evidence, we conclude that Attorney Riegel

had a reasonable basis for not calling Levanduski as a witness. Accordingly,

Fransen has not met his burden and his ineffectiveness claim fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/16/2015




2
  We note that the Commonwealth produced substantial forensic and
physical evidence tying Fransen to the murder, testimony of multiple
witnesses, evidence of the affair between Fransen and Levanduski, and
evidence of their behavior after the murder.


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