J-S74030-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RALTO LINDSAY

Appellant No. 2541 EDA 2015

Appeal from the PCRA Order July 23, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0011932-2008

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.: FILED FEBRUARY 15, 2017

Ralto Lindsay appeals from the order entered in the Philadelphia 

County Court of Common Pleas, dated July 23, 2015, dismissing his first 

petition filed under the Post-Conviction Relief Act (“PCRA”).1 Lindsay seeks 

relief from the judgment of sentence imposed on July 1, 2009, following his 

convictions of attempted murder, aggravated assault, possession of an 

instrument of crime (“PIC”), simple assault, and recklessly endangering 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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another person (“REAP”).2 On appeal, Lindsay raises an ineffective 

assistance of counsel claim. Based on the following, we affirm.

The PCRA court set forth the facts as follows:

On July 7, 2008 and July 20, 2008 the Defendant, Ralto 

Lindsay, engaged in two separate attacks on Linda Jeune. On 

July 7, 2008, [Lindsay] and Ms. Jeune had an argument which 

culminated in [Lindsay] slamming Ms. Jeune against a brick wall 

and choking her while threatening her life. Ms. Jeune sought 

medical treatment for her injuries and filed a Protection From 

Abuse order (“PFA”) to be served against [Lindsay]. Ms. Jeune 

ultimately decided not to follow through with the necessary court 

procedures to finalize the PFA. She later told [Lindsay] that she 

“needed some space.”

On July 20, 2008, [Lindsay] called Ms. Jeune and 

attempted to reconcile with her. Following this phone 

conversation, [Lindsay] entered the home and sliced Ms. Jeune’s 

hand with a knife from the kitchen, severing the index finger of 

her left hand. Ms. Jeune convinced [Lindsay] to let her go by 

telling him that they could fix their problems and “make it work.” 

Ms. Jeune’s reassurances ultimately calmed [Lindsay], who then 

left the room and proceeded downstairs with Ms. Jeune following 

closely. As [Lindsay] headed toward the kitchen, Ms. Jeune ran 

out the door. [Lindsay] chased Ms. Jeune down the street, 

calling her a liar, and slamming her into a parked van. As Ms. 

Jeune lay on the ground, [Lindsay] stabbed her approximately 

eight to nine times. [Lindsay] then proceeded to walk back 

towards the house while Ms. Jeune screamed for help and 

ultimately collapsed on a neighbor’s property.

PCRA Court Opinion, 11/16/2015, at 1-2.

Lindsay was arrested and charged with attempted murder, aggravated 

assault, PIC, simple assault, and REAP. On March 30, 2009, a nonconsecutive four-day bench trial began. On April 20, 2009, the court 

____________________________________________

2 18 Pa.C.S. §§ 2502(a), 2702(a), 907(a), 2701(a), and 2705, respectively.
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convicted Lindsay of all counts. On July 1, 2009, the court imposed the 

following sentence: (1) a term of 20 to 40 years’ incarceration for the 

attempted murder charge; (2) a term of ten to 20 years’ incarceration for 

the aggravated assault charge; and (3) a term of two and one half to five 

years’ incarceration for the PIC count. All sentences were to be served 

consecutively.3 

On July 31, 2009, Lindsay filed a notice of appeal. However, the 

appeal was dismissed on September 29, 2009 for failure to comply with 

Pa.R.A.P. 3517 (failure to file a docketing statement). Subsequently, on 

February 22, 2010, Lindsay filed a timely pro se PCRA petition, alleging 

ineffective assistance of counsel. On July 5, 2011, the PCRA court ordered 

that Lindsay’s direct appeal rights be reinstated nunc pro tunc. Two days 

later, Lindsay filed a direct appeal, alleging his convictions for attempted 

murder and aggravated assault should have merged for sentencing 

purposes, and the trial court’s deviation from the sentencing guidelines 

constituted an abuse of discretion. A panel of this Court affirmed the 

judgment of sentence on April 17, 2012. Commonwealth v. Lindsay, 48 

A.3d 479 [1801 EDA 2011] (Pa. Super. 2012) (unpublished memorandum). 

____________________________________________

3

 The counts of simple assault and REAP merged by operation of law and no 

further penalty was given for the charges.
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Lindsay did not file a petition for allowance of appeal with the Pennsylvania 

Supreme Court.

On August 15, 2012, Lindsay filed the present, pro se PCRA petition.4 

Counsel was retained, who filed an amended PCRA petition on April 9, 2014. 

After reviewing the matter, the PCRA court issued a Pa.R.Crim.P. 907 notice 

of its intent to dismiss the petition without first conducting an evidentiary 

hearing on June 26, 2015. Specifically, the court found the issues raised in 

the petition lacked merit. Lindsay did not file a response.5 On July 23, 

2015, the PCRA court dismissed Lindsay’s petition. This appeal followed.6

In his sole argument on appeal, Lindsay contends the PCRA court 

erred in finding trial counsel was not ineffective for failing to properly 

investigate and inform Lindsay, prior to waiving his right to a jury trial, that 

____________________________________________

4

 He also filed a pro se attachment to his petition on November 26, 2012.

5

 Lindsay did file a pro se response on July 15, 2015. However, because he 

had counsel, his response is a legal nullity. See Commonwealth v. Ali, 10 

A.3d 282, 293 (Pa. 2010) (explaining that a pro se filing presented by an 

appellant represented by counsel is a “legal nullity”).

6

 On August 27, 2015, the PCRA court ordered Lindsay to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Lindsay filed a concise statement on September 17, 2015. The trial court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 16, 2015.
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he could receive an aggregate sentence that was effectively a term of life in 

prison. See Lindsay’s Brief at 6.7 

Our review of an order dismissing a PCRA petition is well-established: 

we must determine whether the PCRA court’s findings of fact are supported 

by the record, and whether its legal conclusions are free from error. 

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “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) (citation 

omitted), appeal denied, 72 A.3d 600 (Pa. 2013). It is well-settled that 

“there is no absolute right to a hearing pursuant to the PCRA. A petition for 

post-conviction relief may be denied without a hearing when the court 

determines that there are no genuine issues concerning any material fact, 

and that the petitioner is not entitled to relief.” Commonwealth v. Camps, 

772 A.2d 70, 75 (Pa. Super. 2001) (citations omitted); see Pa.R.Crim.P. 

907.

____________________________________________

7

 In his argument, Lindsay also argues that trial counsel was ineffective for 

failing to preserve a weight of the evidence claim. See Lindsay’s Brief at 20. 

A review of the record reveals that he did not raise this issue in his PCRA 

petition. Accordingly, his weight claim is waived for failure to properly 

preserve it for appellate review. See Commonwealth v. Santiago, 855 

A.2d 682, 691 (Pa. 2004) (“We have stressed that a claim not raised in a 

PCRA petition cannot be raised for the first time on appeal.”); see also

Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.”).
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With respect to a claim of ineffective assistance of counsel, we are 

guided by the following:

It is well-settled that counsel is presumed effective, and to rebut 

that presumption, the PCRA petitioner must demonstrate that 

counsel’s performance was deficient and that such deficiency 

prejudiced him. Strickland v. Washington, 466 U.S. 668, 

687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court 

has described the Strickland standard as tripartite by dividing 

the performance element into two distinct components. 

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 

(Pa. 1987). Accordingly, to prove trial counsel ineffective, the 

petitioner must demonstrate that: (1) the underlying legal issue 

has arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) the petitioner was prejudiced by 

counsel’s act or omission. Id. A claim of ineffectiveness will be 

denied if the petitioner’s evidence fails to satisfy any one of 

these prongs.

Regarding the reasonable basis prong of the ineffectiveness test, 

we will conclude that counsel’s chosen strategy lacked a 

reasonable basis only if the petitioner proves that the alternative 

strategy not selected offered a potential for success substantially 

greater than the course actually pursued. Commonwealth v. 

Koehler, 614 Pa. 159, 36 A.3d 121, 132 (Pa. 2012). To 

establish the prejudice prong, the petitioner must demonstrate 

that there is a reasonable probability that the outcome of the 

proceedings would have been different but for counsel’s 

ineffectiveness. Id.

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013), cert. denied, 135 

S.Ct. 50 (U.S. 2014).

Turning to the present matter, Lindsay claims that at the time of his 

trial and sentencing, counsel was “apparently unaware of the 

Commonwealth’s position that the actions discussed herein constituted two 

(2) distinct events[, referring to the attempted murder and aggravated 

assault convictions]. This exposed [Lindsay] to an additional twenty (20) 
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years of incarceration that was not addressed at trial.” Lindsay’s Brief at 20. 

With respect to the arguable merit prong, Lindsay notes a bill of particulars 

provides notice to the accused of the offenses charged in the indictment, but 

a bill of particulars was not filed in this case because it is not routine practice 

in Philadelphia County. Id. at 20-21. He states: 

However, ... the Information that was filed in this matter simply 

indicated the one (1) count of aggravated assault and provided 

the complainant’s name. A seasoned attorney, such as trial 

counsel in this matter, should be well aware by the time of trial 

that case law allows consecutive sentences “when a criminal act 

has been committed, broken off, and then resumed, at least two 

crimes have occurred and sentences may be imposed on each.” 

Commonwealth v. Belsar, 676 A.2d 632 ([Pa.] 1996).

...

The failure to investigate whether [Lindsay] was facing an 

additional twenty (20) years of state incarceration is no trivial 

matter. Trial counsel knew or should have known that this was a 

possibility and acted accordingly.

Id. at 21-22.

With regard to the reasonable trial strategy prong, Lindsay alleges: “It 

appears from the record, that trial counsel had not spent much time, if any, 

contemplating this issue. As is the case with virtually all cases of failures to 

investigate, there can be no strategic basis for this course of inaction.” Id.

at 22.

Lastly, with respect to the prejudice prong, Lindsay claims counsel’s 

failure to inform him about the potential time he was facing affected his 

ability to knowingly and intelligently reject a plea offer and waive the right to 
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a jury trial. Id. Moreover, he argues counsel’s actions permitted “the 

Commonwealth to present testimony that added an additional twenty (20) 

years to the sentence, without those particular statements being tested 

through cross-examination. Namely, a determination of whether this was 

two (2) acts or one (1), which was not determined until approximately ten 

(10) weeks after the trial concluded.” Id. at 23.

Here, the PCRA court found the following:

[Lindsay] has failed to show that his underlying claim has 

arguable merit. [Lindsay] offers no evidence that his trial 

attorney was unaware of the possibility that the charges of 

Aggravated Assault and Attempted Murder would not merge, or 

that the absence of this information impacted [Lindsay]’s 

decision to waive his right to a jury trial. The three required 

pieces of information that must be shared when informing a 

defendant of his right to waive a jury are “1) that the jury (is) 

chosen from members of the community, 2) that the accused 

(is) allowed to participate in the selection of the jury panel, and 

3) that the verdict (must) be unanimous.” As [Lindsay] is not 

claiming that he did not understand the difference between a 

waiver trial and a jury trial, or the rights enumerated above, he 

has failed to demonstrate that his decision to proceed to a 

waiver trial was uninformed, or that counsel was ineffective in 

advising him. [Lindsay] also offers no evidence that plea 

bargains were offered, let alone turned down because of an 

erroneously perceived lower sentencing exposure. Furthermore, 

by [Lindsay]’s own admission, his criminal information included 

all three of the offenses of which he was ultimately convicted. 

Because [Lindsay] has not supported his allegations with 

necessary offers of proof, his claim must fail.

Even if [Lindsay]’s claims were meritorious, he cannot 

show that the actions of trial counsel were so unreasonable that 

no competent lawyer would have chosen them. [Lindsay] 

asserts that counsel was ineffective for failing “to test this 

accusation during the trial stage of this matter, as he was 

unaware of this allegation.” In essence, [Lindsay] is asserting 

that, in order to be effective, trial counsel must anticipate every 
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aspect of the Commonwealth’s strategy, as well as the outcome 

of the trial. Were this the case, precious few attorneys would 

pass muster. During trial, counsel took the position –

presumably in light of [Lindsay]’s decision to plead not guilty –

that the second assault never occurred. Nothing about that 

strategy is unreasonable. Furthermore, by [Lindsay]’s own 

admission, the Commonwealth did not raise the argument that 

[Lindsay]’s conduct constituted separate, distinct acts until 

sentencing, at which time trial counsel was prepared to argue 

that the charges should merge, and, in fact, did so even before 

the District Attorney argued that they should not. While trial 

counsel’s only argument was a legal assertion that Aggravated 

Assault is a lesser-included offense of Attempted Murder, there 

were no factual arguments to be made because the facts have 

already been determined at trial, in favor of the 

Commonwealth’s narrative.

Even assuming that [Lindsay]’s claims have arguable merit 

and that the actions of trial counsel were unreasonable, 

[Lindsay] cannot show that he was prejudiced by trial counsel’s 

actions. A showing of prejudice requires some evidence to 

support [Lindsay]’s claim that he would have accepted a plea 

offer if he had known about the potentially more severe 

punishment. Not only does [Lindsay] offer no facts to support 

this claim, [he] fails to offer any evidence that plea offers were 

made or what they were, rendering it totally impossible to 

speculate whether there was a reasonable chance of a different 

outcome. Because the burden rests with [Lindsay] to allege 

prejudice, the lack of any supporting facts other than bald 

allegations will automatically cause [Lindsay]’s argument to fail.

PCRA Court Opinion, 11/16/2015, at 6-8 (citations omitted).

We agree with the PCRA court’s well-reasoned opinion. While 

Lindsay’s arguments have failings with respect to all prongs of the ineffective 

assistance of counsel test, as analyzed by the PCRA court above, we 

emphasize the following. First, Lindsay fails to explain what any of his 

complaints have to do his ability to knowingly and intelligently waive the 

right to a jury trial. We find his assertion regarding the question of whether 
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attempted murder and aggravated assault crimes merged for sentencing 

purposes does not go to the elements required to properly inform a 

defendant of his right to waive a jury. See Commonwealth v. Houck, 948 

A.2d 780, 787 (Pa. 2008) (“stating the three requirements are as follows: 

“1) that the jury be chosen from members of the community (i.e., a jury of 

one’s peers), 2) that the accused be allowed to participate in the selection of 

the jury panel, and 3) that the verdict be unanimous.”), cert. denied, 555 

U.S. 1056 (2008). Indeed, in his argument, Lindsay does not complain that 

the court did not make him aware of the essential components that are 

inherent to a jury trial.

Furthermore, we note that contrary to Lindsay’s assertion regarding 

the bill of information, his criminal complaint included both the attempted 

murder and aggravated assault charges. See Criminal Complaint, 

7/21/2008, at 1. Likewise, his written jury trial waiver colloquy also 

indicated the same. See Jury Trial Waiver Colloquy, 3/30/2009, at ¶ 38. 

During his jury waiver colloquy, he stated that no one threatened or forced 

him to give up his right to a jury trial and he understood his right to have a 

jury trial. N.T., 3/30/2009, at 4-5. The court also informed Lindsay that 

that the jury was to be chosen from citizens of the community, he and his 

counsel were allowed to participate in the selection of the jury panel, and 

the verdict had to be unanimous. Id. at 5. Lindsay also provided testimony 

regarding both incidents that occurred on July 20, 2008. N.T., 4/20/2009, 
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at 10-18 (describing his version of events for what happened in the house 

and outside the house). As such, we can reasonably infer that Lindsay was 

well aware of the separate crimes he was facing. 

Third, and most importantly, we find Lindsay offers no evidence of the 

existence of a plea offer or even describes the terms of that alleged offer. 

As such, his argument that he suffered prejudice because counsel’s failure to 

inform him about the potential time he was facing affected his ability to 

knowingly and intelligently reject a plea offer fails. Further, Lindsay has not 

demonstrated that there is a reasonable probability that the outcome of the 

proceedings would have been different but for counsel’s ineffectiveness. 

See Elliott, 80 A.3d at 427. Therefore, because the PCRA court’s decision is 

supported by the record and is free from legal error, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/15/2017