J-S29017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HENRY RICKY LANZ

                            Appellant                 No. 1134 WDA 2015


                   Appeal from the PCRA Order July 21, 2015
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0002519-2007


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.:                              FILED JUNE 14, 2016

        Appellant, Henry Ricky Lanz, appeals from the order dismissing,

without a hearing, his petition pursuant to the Post Conviction Relief Act

(“PCRA”). Lanz argues that the PCRA court erred in denying him a hearing

on his claims of trial counsel ineffectiveness. After careful review, we

conclude that the PCRA court did not err, and therefore affirm.

        The history surrounding the convictions underlying Lanz’s PCRA

petition were set forth by this Court previously in reviewing his direct appeal.

        Lanz and the victim, Paula Lanz, were married and had two
        children together. At the time of Paula’s disappearance on
        January 28, 2007, the couple had been separated for some time.
        Paula had an active Protection From Abuse order against Lanz,
        and was seeking a divorce. Paula was living in the marital
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     residence, while Lanz was living in a second separate residence
     that the couple had been in the process of purchasing. The
     couple had been having a disagreement over the disposition of
     the second residence in the divorce.

     On the afternoon of January 28, 2007, Lanz and his two
     daughters were at the home of a neighbor, Tina Aubrey. Aubrey
     overheard Lanz and Paula arguing and heard Paula ask Lanz to
     bring the children to the local Wal-Mart at 6:00 pm to exchange
     custody. While Aubrey was speaking with Lanz on the phone
     later that evening, she overheard the children in the
     background. When asked why the girls were not with their
     mother, Lanz responded that Paula had to leave town at the last
     minute for business and had left the children with him. Paula
     was never seen alive again after January 28, 2007.

     On January 31, 2007, Aubrey called the police and told Sergeant
     Paul Abel that she had not seen or heard from Paula in several
     days, and that she thought something might have happened to
     her. Sergeant Abel called Paula’s phone several times, but
     nobody answered. He then contacted Lanz and informed him
     that a friend of Paula’s had contacted him expressing concern
     about Paula’s disappearance. Lanz again repeated his story that
     Paula was away on a business trip, and stated that he had
     spoken with her the night before. Sergeant Abel then contacted
     Paula’s mother, who said she had not heard from Paula in
     several days, and Paula’s supervisor, who said that the victim
     would have no reason to leave town on a business trip. Paula’s
     supervisor also said that he had tried to contact Paula several
     times, but his text and voice messages were not returned.

     Anthony Perry, a detective with the county homicide unit,
     interviewed Lanz on February 1, 2007. Lanz told Detective Perry
     that he had turned the children over to Paula as planned on the
     evening of January 28th, but that she called him later that night
     and asked him to watch the kids because she had to leave early
     the next morning for a business trip. Lanz claimed that he had
     spoken with Paula on Monday and Tuesday evening, and that
     both times Paula had told him she had to stay longer on her trip.
     Lanz claimed that he did not report Paula missing because he
     thought he had to wait 48 hours before he could file a missing
     persons report.




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     Lanz accompanied Detective Perry to the police station to
     complete the interview, where he consented to a search of his
     residence, the residence he had shared with his wife, and his
     vehicle. When Detective Perry discovered that Lanz was subject
     to an active PFA order that barred him from his wife’s residence,
     he placed Lanz under arrest for violating the order. Detective
     Perry also issued a nationwide alert to law enforcement
     authorities to be on the lookout for Paula and her vehicle. A
     short time later, law enforcement authorities in Nashville,
     Tennessee, called and reported that they had found Paula’s
     vehicle burning in a parking lot. A body later identified as Paula
     was found inside the vehicle wrapped in blankets, which were
     fastened with duct tape. An autopsy determined that the cause
     of death was two gunshot wounds to the head.

     When confronted by the police with news of his wife’s death,
     Lanz volunteered that he did not kill Paula, but instead that his
     friend, Karl Laughlin, did. Forensic testing at Lanz’s residence
     revealed the presence of blood splatters at the bottom of the
     basement stairs. DNA analysis confirmed the blood belonged to
     Paula. There was also an area at the bottom of the stairs where
     a rug had obviously been recently removed.

     According to Lanz, he had been complaining to Laughlin about
     Paula and the problems they were having. Laughlin allegedly told
     Lanz not to worry, and that he would “take care of his problem.”
     Lanz claims that while he was outside playing with his children
     Paula arrived at the house. A short time later Laughlin came
     outside and told Lanz, “I took care of your problem.” Lanz then
     claims that he took his kids out to eat, and when he returned to
     the house questioned Laughlin about what he had done. Lanz
     claims that Laughlin then told him, “I shot her. I’ll take care of
     everything. I’ll take care of the cleanup. You work about your
     alibi.” According to Lanz, Laughlin left early the next morning in
     Paula’s van to get rid of the body. Lanz claims that he gave
     Laughlin $300 and the PIN to Paula’s ATM card. Lanz kept in
     touch with Laughlin over the next several days and sent him
     money.

     Neighbors, who were aware of the problems between Lanz and
     Paula, said that they frequently watched events at Lanz’s
     residence. According to the neighbors, and contrary to Lanz’s
     story, on the evening of January 28th Lanz was not outside with
     his daughters during the time he said that he was and that he

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     claimed Laughlin had murdered Paula. The neighbors also told
     the police that they saw Paula’s minivan at the home that
     evening backed up against the garage door. The neighbors said
     that they were alerted to the vehicle’s presence because they
     heard tires squealing as Lanz attempted to pull the vehicle out of
     the icy driveway.

     In addition, several witnesses testified that in the months
     leading up to Paula’s death, Lanz made comments about killing
     his wife. According to a former co-worker of Lanz’s, Lanz had
     once asked him if he knew anyone who could “take care of” his
     wife, had indicated that he would be pay someone to do it, and
     asked if he could get him a small handgun. Another co-worker
     testified that he once heard Lanz say that he was going to “kill
     the bitch,” referring to Paula, and had later told the co-worker
     that he was looking to buy a gun.

     Laughlin was arrested on an outstanding warrant for assaulting
     his girlfriend, and was also charged with arson related offenses
     for setting Paula’s van on fire. Laughlin advised the police that
     he wanted to talk to them about Paula’s death. In exchange for
     an agreement that he would not be charged with criminal
     homicide, Laughlin told the police his version of the story.
     According to Laughlin, he had seen Lanz shoot and kill his wife.
     At trial, Laughlin testified that he was hiding out at Lanz’s house
     because of the outstanding warrant. Laughlin testified that he
     was with Lanz all day on January 28th, and that he had
     overheard several phone conversations Lanz had that day.
     During one of the calls, Lanz said, “[t]hat bitch is making me
     move out of this house on the 31st.”

     Laughlin went on to add that after Paula arrived at Lanz’s house,
     he overheard Paula demand the “land contract” for the second
     house from Lanz. Lanz allegedly replied that the contract was in
     the basement, and he and Paula went downstairs to retrieve it.
     Laughlin then claims he heard Lanz and Paula arguing. According
     to Laughlin, Lanz called Paula a “fucking bitch.” Laughlin stated
     that he then heard Paula call Lanz an “asshole,” followed by a
     scream and a “popping sound.” Laughlin claims that he was
     alerted by the sound and went downstairs. When he was near
     the bottom of the stairs, he saw Lanz backing through a door
     between rooms in the basement, followed by Paula. Paula was
     holding her jaw and had blood dripping through her hands. Paula
     then stumbled and fell back into a corner. According to Laughlin,

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     he then saw Lanz walk up to Paula, stand over her, point a gun
     at her, and fire two rounds into the top of her head, killing her
     instantly. Lanz then allegedly pointed the gun at Laughlin and
     said, “I’ll kill you. You’re going to help me get away with this. I’ll
     kill everybody involved. I’m done. I’ve reached the end.”

     According to Laughlin, Lanz then left the room briefly and
     returned with blankets and duct tape, which he used to wrap
     Paula’s body. Laughlin and Lanz then moved the body into
     Paula’s minivan, and covered it with tires and other debris.
     Laughlin said he then overheard Lanz make several phone calls,
     including one to his daughters’ babysitter, telling her that Paula
     was going out of town and that he needed her to come to Paula’s
     house in the morning to watch the girls. Lanz then had Laughlin
     take one of the girls and drive the van containing Paula’s body to
     Paula’s house, while Lanz took his other daughter and drove to
     Paula’s house in his truck. The next morning when the babysitter
     arrived, Lanz gave Laughlin $300, Paula’s ATM card and PIN
     number, and Paula’s cell phone, and asked him to get rid of the
     body. Lanz told Laughlin that he would call him at several
     prearranged times.

     Laughlin drove south with the body, but stopped at a truck stop
     to call Lanz and ask for more money. After Lanz wired him the
     money, Laughlin continued driving, and ended up in Nashville,
     Tennessee. Laughlin then set Paula’s van, still containing her
     body, on fire, and hitchhiked home to Pennsylvania. Despite
     reaching an agreement with the police that he would not be
     charged with criminal homicide, no agreement was made
     regarding the other charges Laughlin faced for his involvement in
     the incident. Laughlin was ultimately charged with one count
     each of arson endangering persons, reckless burning, receiving
     stolen property, hindering apprehension of prosecution, fraud,
     abuse of a corpse, tampering with physical evidence, and three
     counts of criminal conspiracy.

     Lanz was charged with one count each of the following: criminal
     solicitation, criminal homicide; criminal conspiracy, criminal
     homicide; hindering apprehension/concealing evidence; false
     reports to law enforcement; and criminal homicide. On
     September 2, 2008, a jury found Lanz guilty of first-degree
     murder, criminal conspiracy in connection with the charges of
     abuse of a corpse and tampering with evidence, false reports to


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      law enforcement, abuse of a corpse, and tampering with
      evidence.

      On December 2, 2008, the trial court sentenced Lanz to life
      without parole for first degree murder, and to concurrent terms
      of one to two years’ incarceration each for false reports to law
      enforcement, abuse of a corpse, and tampering with evidence.

Commonwealth v. Lanz, No. 871 WDA 2009, at 1-8 (Pa. Super. filed

8/24/11) (unpublished memorandum). This Court affirmed the judgment of

sentence, and the Supreme Court of Pennsylvania denied review of the

appeal on April 10, 2012.

      Shortly thereafter, Lanz filed a timely PCRA petition pro se. The PCRA

court appointed counsel to represent Lanz. After multiple extensions of time

for filing, and a breakdown in the operation of the PCRA court, Lanz filed the

instant second amended PCRA petition raising two claims of trial counsel

ineffectiveness. The PCRA court subsequently filed a notice of its intent to

dismiss the petition without a hearing, and on July 21, 2015, the PCRA court

entered a final order dismissing Lanz’s PCRA petition. This timely appeal

followed.

      On appeal, Lanz presents two separate assertions of trial counsel

ineffectiveness that he believes entitle him to a hearing before the PCRA

court. This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. See

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA


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court’s findings will not be disturbed unless there is no support for the

findings in the certified record. See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold

a hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support either in the

record or from other evidence. See Commonwealth v. Jordan, 772 A.2d

1011, 1014 (Pa. Super. 2001).

      Because Appellant’s claims challenge the stewardship of prior counsel,

we apply the following principles. Counsel is presumed to be effective, and

Appellant has the burden of proving otherwise. See Commonwealth v.

Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

     In order for Appellant to prevail on a claim of ineffective
     assistance of counsel, he must show, by a preponderance of the
     evidence, ineffective assistance 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. Appellant must demonstrate:
     (1) the underlying claim is of arguable merit; (2) that counsel
     had no reasonable strategic basis for his or her action or
     inaction; and (3) but for the errors and omissions of counsel,
     there is a reasonable probability that the outcome of the
     proceedings would have been different. The petitioner bears the
     burden of proving all three prongs of the test.

Commonwealth v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. 2005)

(citations omitted). In assessing a claim of ineffectiveness, when it is clear

that appellant has failed to meet the prejudice prong, the court may dispose

of the claim on that basis alone, without a determination of whether the first

two prongs have been met. See Commonwealth v. Travaglia, 661 A.2d

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352, 357 (Pa. 1995). Counsel cannot be deemed ineffective for failing to

pursue a meritless claim. See Commonwealth v. Loner, 836 A.2d 125,

132 (Pa. Super. 2003) (en banc).

      Lanz first argues that trial counsel was ineffective for failing to argue

that Karl Laughlin’s testimony regarding the number of shots fired by Lanz

was inherently contradictory. Lanz alleges that Laughlin first testified that

Lanz fired two shots into the victim’s head, before later testifying that there

were three shots. Lanz therefore contends that had trial counsel aggressively

attacked this alleged inconsistency during closing arguments, the result of

the trial would likely have been different.

      The primary problem with Lanz’s argument is that it misconstrues the

record. He is correct that Laughlin first testified on direct examination that

he watched Lanz shoot the victim twice in the head. See N.T., Trial,

8/27/08, at 321. Furthermore, he is correct in stating that Laughlin

subsequently testified to a total of three shots. See id., at 382. However,

the critical distinction elided by Lanz is that Laughlin testified that he heard

the first shot before he proceeded downstairs to observe the altercation

between Lanz and the victim. See id., at 378. Therefore, there is no actual

contradiction between Laughlin’s statements that he saw Lanz shoot the

victim twice and that there were a total of three shots. We thus conclude

that Lanz’s first claim of trial counsel ineffectiveness lacks arguable merit,

and affirm the PCRA court’s decision to dismiss it without a hearing.


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      Next, Lanz argues that trial counsel was ineffective by failing to

present the testimony of his daughter and of an unnamed case worker from

the Allegheny County Office of Children, Youth and Families (“CYF”). It is

undisputed on appeal that notes generated by an unknown caseworker at

CYF indicate that Lanz’s daughter had claimed to witness Laughlin murder

the victim. Lanz contends that trial counsel was ineffective for failing to call

either his daughter or the caseworker at trial.

      With respect to Lanz’s argument that counsel should have called his

daughter to testify, Lanz did not plead or certify that his daughter would

have testified consistently with the statement contained in CYF’s notes. This

failure is fatal to Lanz’s contention that he is entitled to a hearing on this

claim. See Commonwealth v. Reid, 99 A.3d 427, 438 (Pa. 2014); 42

Pa.C.S.A. § 9545(d)(1).

      Regarding Lanz’s argument that trial counsel should have called the

unnamed CYF caseworker to testify, Lanz’s failure is even more basic: He

has failed to even identify who this person is, let alone that he or she would

have testified in conformity with the notes held by CYF. Thus, the PCRA

court was correct in finding that Lanz had not established his right to a

hearing on this argument.

      Finally, Lanz makes a passing argument that trial counsel should have

presented the CYF notes at trial pursuant to hearsay exceptions. The PCRA

court addressed the substance of this claim as follows.


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      Finally, given the facts of the case and the evidence presented,
      even if this statement could have somehow made it into
      evidence, it could not possibly have changed the outcome of the
      trial. It was not disputed that Karl was present in the home when
      the victim was shot. Nor was it disputed that the defendant’s
      daughters were in the home though it is not clear that they were
      aware of what happened. Laughlin testified that he heard the
      shot when he was upstairs. It must be remembered that the girls
      were in their fathers’ custody after the murder of their mother
      until his arrest several days later. What, if anything, he told the
      girls is unknown. Where they were when their mother was shot
      is also unknown. It would not be unreasonable for a five-year-
      old child to assume, after learning that her mother had been
      shot, that the person who shot her was the only other person in
      her home than her father, Karl Laughlin. In the absence of any
      corroboration of the statement, there is no way that this
      comment by a 5 ½-year-old-child could have possibly changed
      the outcome of the trial.

PCRA court opinion, 1/2/15, at 8. Thus, it is clear the PCRA court found that

even assuming the admissibility of the CYF notes, Lanz did not establish the

prejudice prong of his claim. We cannot conclude that this reasoning

constitutes an abuse of the PCRA court’s discretion, and therefore Lanz’s

second argument on appeal merits no relief.

      As we conclude that neither of Lanz’s arguments on appeal merit

relief, we affirm the PCRA court’s order dismissing Lanz’s PCRA petition.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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