J-S39045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

LENNARD PAUL FRANSEN, :

:

Appellant : No. 274 EDA 2015

Appeal from the PCRA Order entered on January 12, 2015

in the Court of Common Pleas of Monroe County,

Criminal Division, No. CP-45-CR-0001492-2002

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 16, 2015

Lennard Paul Fransen (“Fransen”) appeals from the Order denying his 

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 

See 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

The PCRA court set forth the relevant procedural history as follows: 

 On May 3, 2004, [Fransen] was convicted by a jury of 

Criminal Homicide-murder in the first degree of Robert Sandt 

[“Sandt”]; Criminal Homicide-as an accomplice; and Criminal 

Conspiracy. On July 20, 2004, [Fransen] was sentenced to life 

without parole. 

On July 29, 2004, [Fransen’s] then-counsel Attorney 

[Brett] Riegel [“Attorney Riegel”] filed a Notice of Appeal. On 

August 13, 2004, [trial court], through then President Judge 

Ronald E. Vican, directed [Fransen] to file a concise statement 

pursuant to Pa.R.A.P. 1925(b) within fourteen days. On 

September 2, 2004, [Fransen] filed his [C]oncise [S]tatement. 

On October 13, 2006, the Superior Court affirmed the judgment 

of sentence on the grounds that [Fransen’s Rule] 1925(b) 

statement was three days late and all claims therein were

waived. Commonwealth v. Fransen, 913 A.2d 940 (Pa. 
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Super. 2006) (unpublished memorandum); see also 

Commonwealth v. Fransen, 986 A.2d 154, 155 (Pa. Super. 

2009). On April 25, 2007, the Supreme Court of Pennsylvania 

denied [Fransen’s] Petition for Allowance of Appeal. 

Commonwealth v. Fransen, 921 A.2d 495 (Pa. 2007). 

On April 3, 2008, [Fransen] filed his first pro se PCRA 

Petition, seeking to reinstate his appeal rights nunc pro tunc. On 

July 24, 2008, [the PCRA court] granted [Fransen’s] PCRA 

Petition [, and reinstated his appeal rights] on the grounds that 

counsel failed to file a timely [C]oncise [S]tatement. 

On August 12, 2008, [Fransen] filed a pro se Motion for a 

New Trial. On August 14, 2008, [the trial court] dismissed 

[Fransen’s] Motion because of [the PCRA court’s] July 24, 2008 

Order reinstating [Fransen’s] appellate rights. 

On August 20, 2008, [Fransen] filed a Notice of Appeal, 

appealing [the trial court’s] Sentencing Order, dated July 20, 

2004. [The trial court] directed [Fransen] to file a concise 

statement within 21 days. 

At some point before the Superior Court rendered a 

decision, [Fransen] filed a [pro se] “Motion to Withdraw 

Unrequested Counsel” with the Superior Court. See 

Commonwealth v. Fransen, 986 A.2d 154, 155 (Pa. Super.

2009). 

On appeal the Superior Court declined to reinstate 

[Fransen’s] right to file post-sentence motions, emphasizing he 

may raise ineffectiveness claims in a second PCRA [petition]. 

Commonwealth v. Fransen, 986 A.2d 154, 158 (Pa. Super. 

2009). The Superior Court then remanded [Fransen’s] case to 

[the PCRA court] to conduct a Grazier hearing, stating that after 

such determination, [Fransen] would have 30 days to file a 

notice of appeal nunc pro tunc pursuant to the [c]ourt’s July 24, 

2008 PCRA Order. Id. at 159. 

Thereafter, [Fransen] withdrew his request to proceed pro 

se. In an Order dated February 12, 2010, [the trial court] 

appointed Attorney [Robin] Spishock [“Attorney Spishock] to 

represent [Fransen]. On March 12, 2010, Attorney Spishock 

filed a Notice of Appeal from [the trial court’s] Sentencing Order. 
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[Fransen] filed a timely [C]oncise [S]tatement and [the 

trial court] filed a 1925(a) Opinion. On March 2, 2012, the 

Superior Court affirmed [the trial court’s] judgment of sentence. 

Commonwealth v. Fransen, 42 A.3d 1100 (Pa. Super. 2012). 

A Petition for Allowance of Appeal was not filed. 

On September 14, 2012, [Fransen] filed his second pro se

PCRA [Petition]. On September 28, 2012, [the PCRA court] 

appointed Attorney [Bradley] Weidenbaum [“Attorney 

Weidenbaum”] to represent [Fransen]. Attorney Weidenbaum 

filed an Amended PCRA Petition. The Commonwealth timely filed 

an Answer and Response, respectively. A hearing was held on 

February 25, 2013. [Fransen], Attorney Riegel, and Attorney 

Spishock all testified regarding representation of [Fransen] at 

trial and on appeal. While up to eight claims were raised in 

[Fransen’s] Amended PCRA Petition, only one was addressed in 

his brief. Consequently, [the PCRA court] only addressed that 

claim. 

[Fransen] asserted that Attorney Spishock failed to 

preserve and perfect a Petition for Allowance of Appeal to the 

Supreme Court from the Superior Court’s March 2, 2012 

decision. In an Opinion and Order dated April 23, 2013, [the 

PCRA court] granted [Fransen’s] Amended PCRA Petition and 

reinstated his right to file a Petition for Allowance of Appeal from 

the Superior Court’s March 2, 2012 Order, nunc pro tunc. 

[Fransen] filed his Petition for Allowance of Appeal with the 

Supreme Court on May 28, 2013. The Supreme Court denied 

[Fransen’s] Petition on October 2, 2013. Commonwealth v. 

Fransen, 76 A.3d 538 (Pa. 2013). 

On June 6, 2014, [Fransen] filed the present (his third) pro 

se PCRA Petition. On June 18, 2004, [the PCRA court] appointed 

Hillary Madden, Esq. [“Attorney Madden”] to represent 

[Fransen]. On August 13, 2014, Attorney Madden filed an 

Amended PCRA Petition. On August 25, 2014, the 

Commonwealth filed its Answer. 

PCRA Court Opinion, 1/12/2015, at 1-4. The PCRA court held a hearing, and 

then issued an Order denying the Petition on January 12, 2014. Fransen 

filed a timely Notice of Appeal. 
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On appeal, Fransen raises the following question for our review: 

“Whether the [PCRA] court erred in finding [Fransen’s] claim of ineffective 

assistance of counsel meritless based on its ultimate determination that 

[Attorney Riegel’s] decision to refrain from calling a witness was 

reasonable.” Brief for Appellant at 5. 

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. 

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). 

Fransen argues that Attorney Riegel was ineffective because he failed 

to call Teri Levanduski (“Levanduski”) as a witness.1 Brief for Appellant at 

12-13. Fransen asserts that Levanduski was available to testify; Attorney 

Riegel knew of her existence; and she would have testified on Fransen’s 

behalf. Id. at 13. Fransen and Levanduski exchanged letters, which 

discussed a “mission,” and, Fransen claims, Levanduski would have testified 

that the “mission” was actually referring to his child support case in Florida, 

 

1

Levanduski was the common-law wife of Sandt, and Fransen’s codefendant in this case. Levanduski and Fransen were having an affair prior 

to Sandt’s murder. Levanduski was convicted of murder in the first degree 

as an accomplice, conspiracy to commit murder in the first degree, hindering 

apprehension, and solicitation to commit murder in the first degree. See 

Commonwealth v. Levanduski, 907 A.2d 3, 7 (Pa. Super. 2006) (en 

banc). This Court affirmed Levanduski’s judgment of sentence. See id. at 

30.
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not to murdering Sandt. Id. at 14-16. Fransen contends that the absence 

of this testimony prejudiced him because Levanduski was the only person 

who could testify as to the meaning of certain words in letters that the 

Commonwealth had used as evidence in his trial. Id. Fransen argues that 

Attorney Riegel’s actions were not reasonable because during the PCRA 

hearing, Levanduski stated that she would have testified on Fransen’s 

behalf, despite the advice from her lawyer. Id. at 13. Fransen also argues 

that Attorney Riegel could have questioned Levanduski before she took the 

stand to see if she would invoke her Fifth Amendment rights. Id. at 13, 19. 

Further, Fransen claims that Attorney Riegel’s testimony that his strategy 

would have been different if he had received a statement from Levanduski 

saying that the word “mission” in the letters had a different meaning was 

unreasonable and irrational. Id. at 18. 

To succeed on an ineffectiveness claim, the appellant 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 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 165, 177 (Pa. 2010). Counsel is 
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presumed to be effective and the burden is on the appellant to prove 

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). 

To establish that counsel was ineffective for failure to call a witness, 

appellant must prove that

(1) the witness existed; (2) the witness was available; (3) that 

counsel was informed of the existence of the witness or should 

have known of the witness’s existence; (4) that the witnesses 

were available and prepared to cooperate and would have 

testified on [a]ppellant’s behalf; and (5) the absence of the 

testimony prejudiced the [a]ppellant.

Commonwealth v. Lawson, 762 A.2d 753, 756 (Pa. Super. 2000). 

Our review of the record discloses that Fransen’s argument lacks merit 

because Attorney Riegel had a reasonable basis for his actions. At the PCRA 

hearing, Attorney Riegel conceded that he knew of Levanduski and that she 

was available. N.T., 9/19/2014, at 12. Attorney Riegel further testified that 

Levanduski’s attorney had told him that he was not going to allow Attorney 

Riegel to speak with Levanduski, and that if Attorney Riegel subpoenaed 

Levanduski, she would invoke her Fifth Amendment rights on the stand. Id.

at 13. Attorney Riegel also testified that he advised Fransen that it was not 

a wise idea to put Levanduski on the stand without having access to her 

beforehand to determine what she would say. Id. at 15; see also id. at 23 

(wherein Attorney Riegel stated that, from his professional experience, he 

had three cases in which he called a witness to the stand that he had not 

previously spoken with, and in two of those three cases, it hurt his client’s 

chances of acquittal). Attorney Riegel determined that based on his 
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judgment, given the evidence introduced at trial, including the love letters 

and statements to the police, calling Levanduski to testify would not serve 

Fransen’s interests. Id. at 23-24.

Our conclusion is consistent with the PCRA court’s determination that 

Attorney Riegel had a reasonable basis for not calling Levanduski as a 

witness. See PCRA Court Opinion, 1/12/15, at 13; see also

Commonwealth v. Lauro, 819 A.2d 100, 106 (Pa. Super. 2003) (stating 

that if a reasonable basis exists for counsel’s actions, then the inquiry ends 

and counsel’s performance is deemed constitutionally effective). The PCRA 

court’s determination is supported by the record and free of legal error, and 

Attorney Riegel cannot be deemed ineffective for failing to pursue a futile 

claim. See Commonwealth v. Collins, 616 A.2d 1012, 1015 (Pa. Super. 

1992) (stating that “the trial court’s refusal to allow a witness for the 

defense to take the stand was proper where the witness had been indicted 

for the same crime, and counsel had informed the trial court that the witness 

had been advised to invoke his Fifth Amendment privilege...”); see also

Pa.R.P.C 4.2 (stating that “a lawyer shall not communicate about the subject 

of the representation with a person the lawyer knows to be represented by 

another lawyer....”); Commonwealth v. Treadwell, 911 A.2d 987, 991-92 

(Pa. Super. 2006) (stating that counsel is not ineffective for failure to pursue
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a futile claim).2

Based upon the forgoing evidence, we conclude that Attorney Riegel 

had a reasonable basis for not calling Levanduski as a witness. Accordingly, 

Fransen has not met his burden and his ineffectiveness claim fails. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/2015

 

2 We note that the Commonwealth produced substantial forensic and 

physical evidence tying Fransen to the murder, testimony of multiple 

witnesses, evidence of the affair between Fransen and Levanduski, and 

evidence of their behavior after the murder.