Com. v. Sykes, L.



                                               :        PENNSYLVANIA
                v.                             :
    LEWIS VINCENT SYKES                        :
                       Appellant               :   No. 3456 EDA 2019

              Appeal from the Order Entered November 12, 2019
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0005667-2015


MEMORANDUM BY OLSON, J.:                              FILED: MARCH 15, 2021

        Appellant, Lewis Vincent Sykes, appeals from the order entered on

November 12, 2019, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        We briefly summarize the facts of this case as follows. On June 18,

2015, the victim was in her bedroom at the Montgomery County residence she

shared with her mother. She awoke to find a man inside, without permission,

peeking through her bedroom door. He left the residence and she called the

police. Sometime later, the victim responded to noises in the living room and

found Appellant cutting the window screen with his hand inside the window.

The victim went outside, confronted Appellant, and video recorded the

encounter on her cellular telephone. In the video, Appellant claimed to be a


*   Retired Senior Judge assigned to the Superior Court.

friend of the victim’s mother and asserted that he had forgotten his cellular

telephone inside the house. The victim called the police and gave them a

description of Appellant, who had left the scene. While investigating, police

saw Appellant and he fled. The police eventually apprehended Appellant on

his porch, frantically trying to enter his residence. In a search of Appellant’s

person incident to his arrest, police recovered a jar of Vaseline petroleum jelly,

black work gloves, and a full-length stocking from a pair of women’s black

stockings. The victim identified Appellant to the police as the man trying to

enter her living room window.1         Appellant’s cellular telephone was not found

inside the victim’s residence.

       Procedurally, this case progressed as follows:

       Appellant proceeded to a bench trial on June 6, 2016. On June
       7, 2016, the [trial] court convicted Appellant of three counts of
       criminal trespass and one count each of attempted burglary and
       criminal mischief.[2] The [trial] court sentenced Appellant on
       September 16, 2016, to an aggregate term of twenty-three (23)
       to fifty-six (56) years' incarceration [because prior to the current
       convictions, Appellant had been convicted twice of rape and
       Appellant's attempted burglary conviction constituted a
       third-strike offense]. Appellant filed no post-sentence motions
       and sought no direct review.


1  The victim also claimed that Appellant was the person who had initially
entered her home and looked through her bedroom window. The police were
able to view video surveillance (that was subsequently erased) and believed
“that the man, while matching the physical description, was not [Appellant].”
Trial Court Opinion, 12/12/2017, a 2-3.

2 18 Pa.C.S.A. §§ 3503(a)(1)(ii), 3503(a)(1)(i) (2 counts), 3304(a)(5), and
901/3502(a)(1), respectively.


       On March 3, 2017, Appellant timely filed his first pro se PCRA
       petition. The PCRA court appointed PCRA counsel on March 17,
       2017. On May 23, 2017, Appellant filed an amended PCRA
       petition, asserting several claims of ineffective assistance of trial
       counsel and seeking reinstatement of his direct appeal rights nunc
       pro tunc.

       The PCRA court conducted an evidentiary hearing on August 11,
       2017. On September 26, 2017, the PCRA court granted relief in
       part and reinstated Appellant's direct appeal rights nunc pro tunc.
       [The PCRA court did not consider Appellant’s ineffective assistance
       of counsel claims.3]

Commonwealth v. Sykes, 

2018 WL 3405487

, at *1 (Pa. Super. 2018)

(footnote incorporated) (unpublished memorandum).

       Thereafter, Appellant timely filed a direct appeal with this Court.

Appellant claimed that the Commonwealth failed to produce sufficient

identification evidence and generally failed to support his convictions with

sufficient evidence. Appellant also argued that his convictions were against

the weight of the evidence presented. On July 13, 2018, this Court adopted

the trial court’s opinion and affirmed Appellant’s judgment of sentence in an

unpublished memorandum decision.               Relevant to the current appeal, in

examining the trial court’s decision on direct appeal, the prior panel of this

Court noted:

       (1) Appellant's cutting window screen, his possession of items
       which can be used to conceal identity, possession of Vaseline,
       flight from Victim and police, and spurious excuse constitute

3 “[O]nce a PCRA court determines that a petitioner's right to direct appeal
has been violated, the PCRA court is precluded from reaching the merits of
other issues raised in the petition.” Commonwealth v. Harris, 

114 A.3d 1

3–4 (Pa. Super. 2015) (citation omitted). “Rather, once the PCRA court finds
that the petitioner's appellate rights have been abridged, it should grant leave
to file a direct appeal and end its inquiry there.”

Id. at 4

(citation omitted).


       sufficient evidence to establish Appellant intended to commit
       crime within Victim's home; to extent Appellant raises weight of
       evidence claim, Appellant waived that claim; Appellant did not
       request and PCRA court did not grant reinstatement of Appellant's
       post-sentence motion rights nunc pro tunc, and Appellant filed no
       post-sentence motions; (2-3) Victim credibly testified Appellant
       was individual who twice entered her house; based on record and
       court's credibility determinations, Appellant's claim cannot be
       basis for finding conviction against weight or sufficiency of


2018 WL 3405487

, at *2.                 Appellant did not appeal this Court’s

decision to the Pennsylvania Supreme Court.

       Appellant filed the current PCRA petition on July 2, 2019, asserting

claims of ineffective assistance of trial counsel.         The PCRA court held an

evidentiary hearing on November 1, 2019. By order entered on November

12, 2019, the PCRA court dismissed Appellant’s PCRA petition. This timely

appeal resulted.4

4  Appellant filed a notice of appeal on December 3, 2019. On December 4,
2019, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on December 23, 2019. The PCRA court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 30, 2020.

On appeal, the Commonwealth requested and received several extensions to
file a brief with this Court, but still filed its appellate brief approximately two
months late. On December 21, 2020, Appellant filed a motion to strike the
Commonwealth’s untimely brief. We decline to strike the Commonwealth’s
brief because Appellant was not prejudiced. We remind the Commonwealth,
however, of its obligation to comply with our procedural rules, including
briefing deadlines, as well as other orders of this Court.

Finally, on January 27, 2021, Appellant filed a motion to remand this case to
the PCRA court to allow him to amend his Rule 1925(b) statement to address
an issue in light of a decision from the United States District Court in the


       On appeal, Appellant presents the following issues for our review:

        I.    Whether Appellant’s trial counsel was per se ineffective in
              proceeding with Appellant’s trial without disclosing to
              Appellant that he was arrested in the same county for
              driving under the influence mere hours before the
              commencement of Appellant’s trial?

       II.    Whether Appellant’s trial counsel was ineffective for failing[,
              adequately, to arrange] for the appearances of Appellant’s
              material witnesses at Appellant’s trial?

              1. The [PCRA] court committed an error of fact in
                 determining that Appellant’s witnesses were not
                 available and willing to testify.

              2. The [PCRA] court committed errors of law and fact in
                 determining that the absence of the witnesses was not
                 so prejudicial as to have denied Appellant a fair trial.

Appellant’s Brief at 4 (complete capitalization omitted).

       We have stated:


Eastern District of Pennsylvania, Roselli v. Smith, 

2020 WL 6449267

November 2, 2020). We decline to do so because Appellant did not raise the
issue in his PCRA petition. See Commonwealth v. Johnson, 

240 A.3d 179

(Pa. Super. 2020), citing Pa.R.Crim.P. 905(a) (“[Johnson] fails to point to any
authority, and we can find none, which would permit the amendment of a
PCRA petition that the PCRA court dismissed over eight months previously
[and] it is long settled a PCRA petitioner must seek leave of PCRA court prior
to filing a supplemental petition.); see also Commonwealth v. Pitts, 

981 A.2d 875

, 880 n.4 (Pa. 2009)(“issue not raised in the proceedings below
amounts to a serial PCRA petition on PCRA appeal”); see also
Commonwealth v. Coleman, 

19 A.3d 1111

, 1118 (Pa. Super. 2011) (an
appellant may not raise an issue for the first time in a Rule 1925(b)
statement.) Because Appellant’s claim predicated on Roselli was not raised
before the PCRA court, Appellant may raise the issue via a subsequent PCRA
petition, subject to the PCRA jurisdictional limitations. As such, we deny
Appellant's instant request for remand, without prejudice, to allow him to raise
his new issue in a subsequent PCRA petition, should he choose to do so.


      This Court's standard of review regarding an order dismissing a
      petition under the PCRA is to ascertain whether the determination
      of the PCRA court is supported by the evidence of record and is
      free of legal error. The PCRA court's findings will not be disturbed
      unless there is no support for the findings in the certified record.

Commonwealth v. Larkin, 

235 A.3d 350

, 355 (Pa. Super. 2020) (en banc)

(citation omitted). Moreover, “[a] PCRA court passes on witness credibility at

PCRA hearings, and its credibility determinations should be provided great

deference by reviewing courts.” Commonwealth v. Johnson, 

966 A.2d 523


539 (Pa. 2009) (citation omitted).

      In his first issue presented, Appellant claims

      mere hours before Appellant's trial began, Appellant's privately
      retained attorney [] was arrested in Montgomery County by the
      Montgomery Township Police Department and charged with
      Driving under the Influence of Drugs and Alcohol [(DUI)].
      Specifically, [trial counsel] had a blood alcohol content of .177 and
      [a]mphetamines in his system, appeared impaired to the arresting
      officer, and had an open alcohol container in his car at the time of
      his arrest. [Trial counsel] proceeded with the bench trial without
      advising [Appellant] or the [trial] court of his recent arrest.

Appellant’s Brief at 5 (record citation omitted). Appellant contends that, after

sentencing in this matter, the Commonwealth provided him with the affidavit

of probable cause for trial counsel’s DUI arrest, as well as, a negotiated guilty

plea agreement for reduced charges against trial counsel “with the same

District Attorney's Office that prosecuted [] Appellant.”

Id. at 12.

Accordingly, Appellant argues:

      failure [of] an attorney to disclose [an] arrest to his client, when
      both parties are facing actual or potential prosecution by the same
      district attorney's office, is per se ineffectiveness of counsel. In
      this case, [trial counsel’s] decision to proceed to trial hours after
      his arrest for [DUI] in Montgomery County, without advising the


       Appellant of his arrest, made his representation of [] Appellant per
       se ineffective due to an actual conflict of interest between
       Appellant and his counsel, as both were facing criminal
       prosecution by the Montgomery County District Attorney's Office.

Id. at 16.

       Regarding per se ineffective assistance of counsel claims, “the United

States Supreme Court [has] categorized circumstances where the court will

presume prejudice and the defendant need not prove it.” Commonwealth

v. Diaz, 

183 A.3d 417

, 422 (Pa. Super. 2018) (citation omitted), affirmed,

226 A.3d 995

(Pa. 2020). “The presumption is based on the High Court's

recognition that there are some ‘circumstances that are so likely to prejudice

the accused that the cost of litigating their effect in a particular case is


Id. (citation omitted). Presumed

prejudice in the context of per

se trial counsel ineffectiveness “has been applied in three circumstances:

where there was an actual or constructive denial of counsel, the state

interfered with counsel's assistance, or counsel had an actual conflict of

interest” and “is limited to situations where counsel's failure is complete, i.e.,

where counsel has entirely failed to function as the client's advocate.” 5

Commonwealth v. Lawrence, 

165 A.3d 34

, 46 (Pa. Super. 2017) (internal

citations omitted).

       Here, the PCRA court noted:


5 In this case, as mentioned, Appellant argues only that trial counsel had an
actual conflict of interest.


       [I]t is true that [Appellant’s] trial counsel was arrested by [police
       within the jurisdiction of] the same District Attorney's Office [that]
       was prosecuting his client, but [trial counsel] was not facing
       charges at the time of [Appellant’s] trial. […Appellant’s] trial
       counsel testified that it was not until six weeks later that he faced
       charges and that the arrest had no bearing on his representation
       of [Appellant].

PCRA Court Opinion, 1/30/2020, at 7.             The PCRA court determined that

“[Appellant’s] trial counsel credibly testified that his arrest did not have any

impact on his ability to effectively represent [Appellant], which [wa]s

substantiated by the fact that the Commonwealth, [Appellant], and [the trial

court6] did not detect any effect of the arrest on trial counsel's performance[.]”

Id. at 6.

More specifically, the PCRA court noted that “[a]t trial, [Appellant]

testified that he was satisfied with his trial counsel's performance [] and [the

trial court] even praised [] trial counsel's cross-examination of the victim.”

Id. (record citations omitted).

       Upon review, we conclude that the PCRA did not err or abuse its

discretion in rejecting Appellant’s claim alleging per se ineffective assistance

of counsel. Initially, we note that Appellant does not cite legal precedent to

support his proposition that an actual conflict of interest arises any time an

attorney represents a criminal defendant in a county where that same

attorney faces arrest and/or criminal charges in his or her own right.7


6   The same judge presided over the trial and PCRA proceedings.

7 Appellant solely cites a Third Circuit plurality decision, United States v.

644 F.2d 132

(3d Cir. 1979). See Appellant’s Brief at 16. However,


Moreover, our independent research has not revealed any Pennsylvania

decisions finding per se ineffective assistance of counsel in those instances.

Here, the PCRA court properly examined whether trial counsel had an actual

conflict of interest when representing Appellant. Because trial counsel was

not facing criminal charges for DUI at the time of Appellant’s trial and the trial

court credited counsel’s testimony that his arrest did not affect his

representation of Appellant in any way, the PCRA court concluded that there

was no actual conflict of interest.            We will not usurp that determination.

Further, we are mindful that per se counsel ineffectiveness claims are limited

to situations where counsel has completely failed to advocate on behalf of his

client. In this matter, Appellant makes no such allegation. Hence, for all of

the foregoing reasons, Appellant’s claim of per se ineffective assistance of

claim fails.

       Next, Appellant argues that trial counsel was ineffective for failing to call

two particular witnesses at trial. More specifically, “Appellant [] expected and

believed that [trial counsel would summon witnesses who] would show the

legitimate, non-criminal purposes” for the items in his possession at the time

of his arrest: work gloves, a stocking, and a jar of Vaseline. Appellant’s Brief

at 6-7. Appellant’s Brief. Appellant maintains that “despite the importance of


“federal court decisions do not control the determinations of the Superior
Court. Our law clearly states that, absent a United States Supreme Court
pronouncement, the decisions of federal courts are not binding on
Pennsylvania state courts[.]” NASDAQ OMX PHLX, Inc. v. PennMont Sec.,

52 A.3d 296

, 303 (Pa. Super. 2012).


such explanations, no such witnesses, or any other witnesses, were called to

testify on Appellant's behalf.”

Id. at 7.

      First, Appellant claims that trial counsel failed to call “Appellant's

[m]anager at Friendly's [Restaurant], Mauro Bignotti” to testify that Appellant

was employed there at the time of his arrest.

Id. at 13.

At a PCRA evidentiary

hearing, Bignotti testified that he was available to testify at trial that Appellant

did not wear a uniform while he worked, but wore work gloves and what

Bignotti described as a “sock” on his head when Appellant engaged in janitorial

work and unloading trucks.

Id. (record citation omitted).

Next, Appellant

argues that trial counsel was ineffective for failing to call his sister, Vanessa

Sykes, as a trial witness.

Id. at 13.

At a PCRA evidentiary hearing, Vanessa

Sykes claimed she was available to testify, but was never asked to do so by

trial counsel.

Id. at 15

(record citation omitted). She further testified that

Appellant carries “a large container of Vaseline” on his person “all year round

to treat his itchiness and dry skin.”

Id. (record citation omitted).

Based upon

the testimony of these two witnesses at the PCRA hearing, Appellant argues:

      Had the appearances of [the two aforementioned] witnesses been
      properly arranged, they would have been able to provide
      testimony at Appellant's trial regarding the gloves, stocking cap,
      and Vaseline that, left unexplained, plagued [] Appellant
      throughout his trial. Due to the importance placed upon these
      three items by both the Commonwealth and the trial judge to
      show criminal intent for the [b]urglary (i.e. a crime to be
      committed inside), the failure to have such witnesses provide
      testimony explaining [] Appellant's legitimate, reoccurring use of
      [the] items would have been helpful to the defense, beneficial
      under the circumstances of the case, and would have established

                                      - 10 -

      a reasonable probability that the outcome of the proceedings
      would have been different.

Appellant’s Brief at 26-27. Appellant assails the PCRA court’s findings that the

witnesses were unavailable or unwilling to testify at trial and that Appellant

was not otherwise prejudiced by their absence.

      Our Supreme Court has stated:

      To prevail on a claim that counsel was constitutionally ineffective,
      the defendant must overcome the presumption that counsel was
      effective by showing that: (1) the underlying substantive claim
      has arguable merit; (2) counsel whose effectiveness is being
      challenged did not have a reasonable basis for his or her actions
      or failure to act; and (3) the petitioner suffered prejudice as a
      result of counsel's deficient performance.

                           *           *           *

      When raising a claim of ineffectiveness for the failure to call a
      potential witness, a petitioner [must establish] that: (1) the
      witness existed; (2) the witness was available to testify for the
      defense; (3) counsel knew of, or should have known of, the
      existence of the witness; (4) the witness was willing to testify for
      the defense; and (5) the absence of the testimony of the witness
      was so prejudicial as to have denied the defendant a fair trial. To
      demonstrate [] prejudice, a petitioner must show how the uncalled
      witnesses' testimony would have been beneficial under the
      circumstances of the case. Thus, counsel will not be found
      ineffective for failing to call a witness unless the petitioner can
      show that the witness's testimony would have been helpful to the
      defense. A failure to call a witness is not per se ineffective
      assistance of counsel for such decision usually involves matters of
      trial strategy.

Commonwealth v. Sneed, 

45 A.3d 1096

, 1106-1109 (Pa. 2012) (internal

citations and quotations omitted).

      Here, the PCRA court first determined that Appellant failed to prove that

the witnesses were available or willing to testify at trial.    With regard to

                                     - 11 -

Appellant’s manager, Mario Bignotti, the PCRA court found that Bignotti was

the only manager available to work at the restaurant on the first day of

Appellant’s trial.       Bignotti had a family emergency the second day of

Appellant’s trial. Therefore, the PCRA court determined he was unavailable as

a trial witness. See PCRA Court Opinion, 1/30/2020, at 11-12. With regard

to Vanessa Sykes, the PCRA court did not find her credible when she testified

that trial counsel did not ask her to testify.8 Instead, the PCRA court found

trial counsel credible when he testified that Appellant’s sister never responded

to his witness request and, thus, she was unwilling to testify.

Id. We discern no

error, as the record supports the PCRA court’s assessment.

       In the alternative, the PCRA court determined “the absence of the

witness testimony was not so prejudicial as to have denied [Appellant] a fair


Id. at 12.

   The PCRA court opined that “although both witnesses

spoke directly to providing explanations for the stocking cap, the work gloves,

and the petroleum jelly found on [Appellant], none of the testimony provided

at the evidentiary hearings was such that its absence could be said to have

prejudiced [Appellant].”

Id. at 14.

The PCRA court concluded:

       The witnesses, at best, would have been called to assert the
       reasons, other than related to criminal intent, to have the items
       found on [Appellant] at the time of the offense. However, the
       victim[‘s identification of Appellant as the perpetrator of the


8 More specifically, the PCRA court found Vanessa Sykes’ testimony “riddled
with significant credibility issues, not to mention [her] potential bias [] as a
close member of [Appellant’s] immediate family.” PCRA Court Opinion,
1/30/2020, at 14.

                                          - 12 -

       attempted burglary] makes the [proffered] reasons supporting the
       possession of said items, even if believed, to be of no moment.

Id. at 16.

       Again, we agree with the PCRA court’s determination. Here, Appellant

suggests that his convictions hinged on the evidence found on his person

incident to his arrest and that trial counsel’s failure to present witnesses to

explain the innocuous nature of those items prejudiced him. However, when

viewing the totality of the evidence presented, there was sufficient additional

evidence to support Appellant’s convictions. As set forth by a panel of this

Court on direct appeal, the victim videotaped and confronted Appellant cutting

her window screen. Moreover, we rejected Appellant’s “spurious excuse” that

he was a mere trespasser when caught attempting entry into the home under

the auspice of retrieving his cellular telephone. We further recognized that

following the incident Appellant fled when confronted by police, further

showing his consciousness of guilt.            As such, when taken all together, the

absence of the proffered witness testimony was not so prejudicial as to have

denied Appellant a fair trial.9 Finally, there was no prejudice to Appellant since


9 In addition, we note that Appellant concedes that “he stated during his
elocution that he was only attempting to enter the apartment to retrieve his
phone, and that the stocking cap and gloves were in his possession because
of his work, and his sister gave him the Vaseline right before he was
stopped by the police in order to do his nephew's hair.” Appellant’s
Brief at 12, citing N.T. Sentencing Hearing, 9/16/2016, at 13. Appellant now
relies upon his sister’s PCRA evidentiary hearing testimony wherein she
claimed that Appellant always carried a large container of Vaseline, on his
person or in a backpack, for his own personal use. Because these contentions

                                          - 13 -

the witnesses’ testimony would not have precluded the Commonwealth’s

argument that the items are capable of multiple uses and could support intent

to commit an offense even if they were regularly carried for other purposes,

as well. For all of the foregoing reasons, Appellant’s claim that trial counsel

was ineffective for failing to call witnesses fails.

       Order affirmed.       Application to strike Commonwealth’s brief denied.

Application for remand denied without prejudice to pursuit of relief through

future filings before the trial court.

       Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 3/15/21


are contradictory, we find further support for, and agree with, the PCRA court’s
determination that Vanessa Sykes was not credible. Her lack of trial testimony
was not so prejudicial as to have denied Appellant a fair trial.

                                          - 14 -

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