Opinion
J-S40038-18 No. 2253 EDA 2017
08-13-2018
COMMONWEALTH OF PENNSYLVANIA v. KENNETH RICHARDS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order June 28, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006071-2010 BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J. MEMORANDUM BY LAZARUS, J.:
Retired Senior Judge assigned to the Superior Court.
Kenneth Richards appeals from the order, entered in the Court of Common Pleas of Philadelphia County, denying his petition filed under the Post-Conviction Relief Act (PCRA). After careful review, we affirm on the basis of the opinion authored by the Honorable Glynnis Hill.
On April 10, 2010, John Raksnis got into an argument with Richards' cousin, "Dee." Richards also began arguing with Raksnis, and attempted to follow Raksnis into Raksnis' home. Richards was prevented from entering the home by Raksnis' pitbulls. Richards left and returned with a semi-automatic firearm, firing eight shots at Raksnis. Raksnis was hit twice, once in his side and once in his abdomen. When interviewed by police the next day, Raksnis told the officer that "Ken-Ken" shot him, and he identified Richards as the shooter in a photo array. Raksnis again identified Richards as the shooter at the preliminary hearing. At trial, however, Raksnis testified that it was actually Richards' cousin, Dee, who shot him. Raksnis testified that he informed the former prosecutor, Thomas Lipscomb, Esquire, of this fact, but Dee was never investigated. Attorney Lipscomb testified that he believed Raksnis recanted his testimony out of fear of Richards and his family.
Richards was convicted of attempted murder, aggravated assault and related firearms offenses. The court sentenced him to twenty to forty years' imprisonment followed by ten years' probation. Richards appealed, challenging the sufficiency of the evidence, and on January 13, 2014, this Court affirmed his judgment of sentence. On December 29, 2014, Richards filed a pro se PCRA petition. The court appointed new counsel, who filed an amended petition on April 1, 2016, claiming ineffectiveness of trial counsel. Richards' PCRA petition was denied on June 28, 2017.
This timely appeal follows, in which Richards claims that trial counsel was ineffective for failing to object to the testimony of Attorney Lipscomb, who said that he believed Raksnis was lying when Raksnis testified at trial that Richards was not the shooter. Richards contends that Attorney Lipscomb's testimony constituted improper opinion testimony and that it was inappropriate because Lipscomb was counsel for the Commonwealth during the preliminary hearings. Richards also claims that he is entitled to an evidentiary hearing pursuant to the PCRA.
Our scope and standard of review of decisions denying relief pursuant to the PCRA is well-settled. Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record and whether its conclusions of law are free from legal error. Commonwealth v. Chmiel , 173 A.3d 617, 624 (Pa. 2017). Our review of questions of law is de novo. Id . at 625. Under Pennsylvania Rule of Criminal Procedure 907, the PCRA court may dismiss a petition without a hearing if, after reviewing the petition, it is "satisfied from this review that there are no genuine issues concerning any material fact," and thus, the defendant is not entitled to relief. Pa.R.Crim.P. 907(1). When performing this review, the court must find that "the facts alleged would not, even if proven, entitle the defendant to relief[.]" Id. at comment.
Richards' claim implicates the effectiveness of trial counsel. To prove ineffectiveness, an appellant must first overcome a presumption of counsel's competence by showing 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 proceeding would have been different.Commonwealth v. Wharton , 811 A.2d 978, 986 (Pa. 2002). For the reasons laid out by Judge Hill in his opinion filed on October 2, 2017, Richards' claims of ineffectiveness fail to overcome the presumption of counsel's competence.
Richards' underlying claim is that Attorney Lipscomb's testimony was inadmissible as improper opinion testimony. "[W]e will not reverse a trial court's decision to allow a witness to testify absent a showing that the trial judge abused his discretion." Commonwealth v. Randall , 758 A.2d 669, 676 (Pa. Super. 2001). Opinion testimony from a lay witness is admissible as long as it is "(a) rationally based on the witness'[] perception; (b) helpful to clearly understanding the witness'[] testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Pa.R.E. 701.
Here, as the trial court properly notes, Attorney Lipscomb's testimony was rationally based on his experience with Raksnis and his perception of Raksnis' demeanor. Moreover, the testimony was helpful to explain why Raksnis may have recanted to the jury. Finally, "there is no per se rule which prohibits an assistant district attorney who has handled the preliminary hearing phase of the prosecution of a defendant from later testifying at the defendant's trial, particularly whenever the trial is being conducted by a different assistant district attorney altogether." Commonwealth v. Randall , supra , at 676.
Richards is also not entitled to an evidentiary hearing under the PCRA. As the trial court correctly notes, a petitioner is only entitled to an evidentiary hearing when he presents a genuine issue of material fact. See Pa.R.Crim.P. 909(B)(2); see also Commonwealth v. Walker , 36 A.3d 1, 17 (Pa. 2011) (PCRA petitioner not entitled to evidentiary hearing as matter of right). Here, there is no genuine issue of material fact because Richards' claim of counsel's ineffectiveness is meritless on its face.
Upon careful review of the record, the briefs, and the relevant law, we can discern no abuse of discretion or error of law on the part of the trial court in denying Richards' PCRA petition. We conclude that Judge Hill thoroughly addresses Richards' claims and we affirm on the basis of his opinion. The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/13/18
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