Opinion
J-S36037-18 No. 1908 EDA 2017
08-23-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAVID LAFANTANO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 5, 2017
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002295-2012, CP-39-CR-0002298-2012 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, David Lafantano, appeals pro se from the order entered in the Lehigh County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them.
Appellant raises the following issues for our review:
DID THE PCRA COURT ERR IN LAW WHEN [APPELLANT] WAS ENTITLED UNDER PENNSYLVANIA'S WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT TO THE SUPPRESSION OF RECORDINGS OF CONVERSATIONS, BEFORE TRIAL, THAT OCCURRED BETWEEN CO-DEFENDANT AND HIS VISITOR IN A COUNTY
CORRECTIONAL FACILITY'S VISITING ROOM, WHERE INMATES CONVERSE WITH VISITORS THROUGH A GLASS PARTITION, USING A TELEPHONE-LIKE HAND-SET APPARATUS?(Appellant's Brief at 4).
DID THE PCRA COURT ERR IN LAW WHEN IT HELD THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO REQUEST THE SUPPRESSION OF THE VISITING ROOM RECORDINGS, IN LIGHT OF THE PENNSYVLANIA SUPREME COURT'S RECENT RULING IN COMMONWEALTH V. FANT , [637 PA. 135,] 146 A.3D 1254 (2016)?
DID THE PCRA COURT ERR IN LAW WHEN IT RULED THAT APPELLATE AND PCRA COUNSELS WERE NOT INEFFECTIVE FOR FAILING TO REQUEST AND/OR PROPERLY RAISE ON APPEAL TRIAL COUNSEL'S FAILURE TO MOVE FOR SUPPRESSION OF THE RECORDINGS, WHICH WERE NOT AN EXCEPTION TO THE PENNSYLVANIA WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT?
WAS PCRA COUNSEL INEFFECTIVE IN FAILING TO RAISE AND PRESERVE FOR APPEAL THE TRIAL COURT'S ERROR IN LAW, WHEN THE COURT DENIED [APPELLANT] HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW, WHEN THE COMMONWEALTH WAS ALLOWED TO INTRODUCE THE VISITING ROOM RECORDINGS TO ESTABLISH THAT [APPELLANT] WAS A CO-CONSPIRATOR, WHEN SAID RECORDINGS WERE NOT AN EXCEPTION TO PA.C.S.A. § 5704(14)?
Our standard of review of the denial of a PCRA petition is limited to examining whether the evidence of record supports the court's determination and whether its decision is free of legal error. Commonwealth v. Conway , 14 A.3d 101, 109 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd , 923 A.2d 513, 515 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). We give no such deference, however, to the court's legal conclusions. Commonwealth v. Ford , 44 A.3d 1190, 1194 (Pa.Super. 2012). Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA court can decline to hold a hearing if there is no genuine issue concerning any material fact, the petitioner is not entitled to PCRA relief, and no purpose would be served by any further proceedings. Commonwealth v. Wah , 42 A.3d 335, 338 (Pa.Super. 2012); Pa.R.Crim.P. 907.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Douglas G. Reichley, we conclude Appellant's issues merit no relief. The PCRA court's opinion comprehensively discusses and properly disposes of the questions presented. ( See PCRA Court Opinion, filed July 7, 2017, at 11-15) (finding (1-2) at trial, counsel objected to introduction of wiretap recordings as hearsay and court overruled counsel's objections; Commonwealth presented testimony of Detective Edward Ressler, custodian of records for Lehigh County prison; Detective Ressler testified that when one uses internal prison telephone system to communicate with inmate or visitor, user hears warning that conversation is being recorded; in light of warning, Appellant could not assert any reasonable expectation of privacy in prison visit conversation and his reliance on Fant , supra is misplaced; consequently, trial counsel could not be deemed ineffective for failing to object based on Wiretap Act; (3-4) appellate counsel was not ineffective for failing to raise trial counsel's alleged ineffectiveness on direct appeal, where allegations of counsel's ineffectiveness are properly raised in PCRA petition, not on direct appeal; further, Appellant's court-appointed PCRA counsel properly reviewed Appellant's claims, filed Turner/Finley letter, and PCRA court granted leave to withdraw). The record supports the PCRA court's reasoning. Accordingly, we affirm on the basis of the PCRA court opinion.
Commonwealth v. Turner , 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988) (en banc).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/23/18
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