Com. v. Lasky (memorandum)
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J-S69009-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT EDWARD LASKY, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 827 MDA 2012 Appeal from the Order entered on April 2, 2012 in the Court of Common Pleas of Lackawanna County, Criminal Division, No. CP-35-CR-0001615-2000 BEFORE: MUSMANNO, BENDER and COLVILLE*, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: March 11, 2013 Robert Edward Lasky ( Lasky ) appeals from the denial of his first Petition for relief filed pursuant to the Post Conviction Relief Act ( PCRA ). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. After being charged with a variety of sexual offenses committed against his girlfriend s minor daughter, Lasky was tried and convicted, on November 1, 2001, of rape, sexual abuse of children, aggravated indecent assault, indecent assault of a victim under the age of 13, indecent assault of a victim under the age of 16, endangering the welfare of children, and corruption of minors.1 The trial court sentenced Lasky, on July 12, 2002, to an aggregate prison term of 10½ to 31 years. Following a protracted 1 We note that this Court has set forth a recitation of the underlying facts of this case. See Commonwealth v. Lasky, 964 A.2d 944 (Pa. Super. 2009) (unpublished memorandum at 1-3). *Retired Senior Judge assigned to the Superior Court. J-S69009-12 procedural history that is not relevant to this case, this Court affirmed Lasky s convictions, but vacated the sentence and remanded the case for resentencing. See Lasky, 964 A.2d 944 (unpublished memorandum). On November 23, 2009, the trial court re-sentenced Lasky to an aggregate prison term of 9½ to 30 years. This Court affirmed the judgment of sentence. See Commonwealth v. Lasky, 24 A.3d 447 (Pa. Super. 2011) (unpublished memorandum). Lasky, through counsel, filed a timely PCRA Petition. At the hearing on the Petition, Lasky, through counsel, withdrew all of his claims except for an ineffective assistance of trial counsel claim. Thereafter, the PCRA court denied Lasky s PCRA Petition. Lasky filed a timely Notice of appeal.2 On appeal, Lasky raises the following question for our review: Did the [PCRA] court err in determining that trial counsel was effective despite the fact that trial counsel represented to the jury in his opening statement that [Lasky] would testify when in fact that decision was not final, and [Lasky] ultimately elected not to testify? Brief for Appellant at 4 (capitalization omitted). 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. 2 We note that following his appeal of the PCRA court s denial of his first PCRA Petition, Lasky filed a second PCRA Petition on August 3, 2012. The PCRA court concluded that it lacked jurisdiction to address the second Petition because his first PCRA Petition was pending on appeal. The PCRA court further found that the second Petition was untimely filed. Nevertheless, the PCRA court addressed Lasky s claims in an Opinion dated November 29, 2012. However, in this case, we will only address Lasky s sole claim raised at the hearing on the first PCRA Petition and on appeal. -2- J-S69009-12 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). Lasky contends that his trial counsel was ineffective for stating to the jury during the opening statement that Lasky would testify on his own behalf when that decision had not been finalized and when he ultimately decided not to testify. Brief for Appellant at 8. Lasky argues that counsel stated to the jury that Lasky would provide his own version of the events for the jury to consider. Id. at 10-11. Lasky asserts that he decided not to testify following an outburst by the victim s mother after the close of the Commonwealth s case. Id. at 11. Lasky claims that even though the outburst was out of counsel s control, he should have been aware of the possibility of outside factors altering the decision to testify. Id. Lasky argues that there was no reasonable basis for counsel s statement and that the outcome of trial may have been different. Id. at 8. Lasky cites to Commonwealth v. Montgomery, 626 A.2d 109 (Pa. 1993), to support his claims. Brief for Appellant at 9. To succeed on an ineffectiveness claim, Lasky 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 -3- J-S69009-12 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 177, 183 (Pa. 2010). Counsel is presumed to be effective and the burden is on the appellant to prove otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). The PCRA court has addressed Lasky s claims and determined that they are without merit. See PCRA Court Opinion, 4/2/12, at 4-8.3 We adopt the sound reasoning of the PCRA court for the purpose of this appeal. See 3 As noted by the PCRA court, following Lasky s decision to not testify on his own behalf, the trial court instructed the jury that it could not use Lasky s election to exercise his constitutional right to remain silent against him. N.T., 11/1/01, at 50; see also PCRA Court Opinion, 4/2/12, at 6. Thereafter, the trial court provided a more comprehensive instruction during the jury charge. See N.T., 11/1/01, at 124-25 (stating, inter alia, that Lasky has an absolute right founded on the constitution to remain silent, and that the jury could not draw any inference of guilt or any inference adverse to the defendant from the fact that he did not testify. ). The trial court further stated that the jury was only to consider the evidence that it had heard during the trial. N.T., 11/1/01, at 50; see also id. at 122-23 (stating that the Commonwealth has the burden of proving Lasky guilty and that the person accused of a crime is not required to present evidence or prove anything in his own defense). It is well-settled that juries are presumed to follow the trial court s instructions as to the applicable law. See Commonwealth v. Passarelli, 789 A.2d 708, 713 (Pa. Super. 2001). -4- J-S69009-12 id.4 As an addendum, we note that Lasky has not demonstrated that the result of his trial would have been different had counsel not told the jury that Lasky would testify during the opening statement. Indeed, at trial, the victim testified that Lasky touched her private parts with his private parts. N.T., 10/30/01, at 14-17. Furthermore, Dr. Andrea Taroli, Medical Director for the Children s Advocacy Center of Northeastern Pennsylvania, testified that the victim stated that Lasky had put his private inside her private [and] it hurt[] a lot. N.T., 10/31/01, at 176 77; see also N.T., 10/29/01, at 34 (wherein Elizabeth Smiley ( Smiley ), the caseworker in this case, testified that the victim had stated that Lasky put his private in my private, and that it hurts a lot. ). Dr. Taroli stated that the victim s statement was corroborated by her physical examination, which revealed that K.G. had been repeatedly sexually assaulted. N.T., 10/31/01, at 183. The victim further stated that Lasky told her not to tell her mother because she would get mad and the police would take them away. Id. at 177; N.T., 10/29/01, at 34-35. The Commonwealth also presented statements that Lasky made to the police wherein he admitted that (1) he took naked pictures of the 4 We note that Lasky also cites to Commonwealth v. Sparks, 539 A.2d 887 (Pa. Super. 1988), and United States v. Johnson, 531 F.2d 169 (3d Cir. 1976), to support his claims. However, neither of these cases are applicable to facts of this case. Further, as to the Johnson decision, we note that [d]ecisions of federal courts other than the United States Supreme Court are not binding on Pennsylvania state courts. Commonwealth v. James, 12 A.3d 388, 394 (Pa. Super. 2010). -5- J-S69009-12 victim, (2) his penis slid into the victim s vagina, (3) the victim s hand bumped his penis when they took a bath together, and (4) he grabbed the victim s hand and placed it near his penis. N.T., 10/31/01, at 206-08. Finally, the victim s mother discovered photos of Lasky having sex with the victim, as well as naked photos of the victim on Lasky s digitial camera. Id. at 22; see also id. at 176 (wherein Dr. Taroli testified that the victim stated that Lasky took pictures of her without her clothes on); N.T., 10/29/01, at 34 (wherein Smiley testified that the victim stated that Lasky took pictures of her with no clothes on). Thus, any potential ineffectiveness did not contribute to the verdict as the Commonwealth presented overwhelming evidence of Lasky s guilt. Based upon the foregoing, we conclude that the PCRA court properly denied Lasky s PCRA Petition. Order affirmed. -6-
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