Com. v. Lape, K.
1559 WDA 2016
| Pa. Super. Ct. | Dec 5, 2017Background
- Kevin Earl Lape was convicted by a jury (March 25, 2015) of multiple sexual-offense counts involving his daughter and sentenced to an aggregate 10–20 years imprisonment; he did not file a direct appeal.
- Lape filed a pro se PCRA petition (Mar. 28, 2016) claiming (a) government obstruction prevented a timely appeal and (b) trial counsel was ineffective; counsel was appointed and an amended PCRA petition was filed.
- At the PCRA evidentiary hearing both Lape and his trial counsel, Sara Huston, testified; the court reviewed the trial record and prior trial rulings (including limits on a therapist’s testimony).
- Lape claimed jail staff delayed access to a pen and the Public Defender application, preventing a timely appeal (requesting reinstatement of appellate rights nunc pro tunc).
- Lape raised multiple ineffective assistance of counsel (IAC) claims: failure to file post-sentence motions/appeal, failure to call/clarify expert testimony or to qualify a therapist as an expert, inadequate emphasis on limited opportunity to offend, and deficient cross-examination of the victim.
- The PCRA court found no government obstruction, credited counsel’s strategic explanations, rejected the IAC claims, and denied relief; the Superior Court affirmed and adopted the PCRA court’s opinion.
Issues
| Issue | Plaintiff's Argument (Lape) | Defendant's Argument (Commonwealth / Trial Counsel) | Held |
|---|---|---|---|
| Reinstatement of appellate rights nunc pro tunc (§9543(a)(2)(iv)) | Jail staff delayed providing pen/form, causing missed 30‑day appeal window; counsel withdrew so no appeal filed | Lape knew 30‑day deadline, received form/pen within days, did not follow up or file notice; no government obstruction shown | Denied — no improper obstruction; no entitlement to nunc pro tunc reinstatement |
| IAC — failure to file post‑sentence motions or appeal | Counsel withdrew and did not file appeal; per Lantzy, failure to file when requested is per se ineffective | Counsel testified Lape never asked her to file an appeal; she sought to withdraw after Lape chose to seek Public Defender; no request was made | Denied — no evidence Lape asked counsel to file appeal; not per se ineffective here |
| IAC — failure to call/clarify expert or call an expert to rebut Dr. George | Counsel should have called an expert to challenge medical testimony or clarify that lack of findings supported Lape | Dr. George testified no physical findings but explained that absence of physical findings is common; counsel used that testimony in closing to impeach victim; no need for additional expert | Denied — no arguable merit; counsel reasonably used the testimony tactically |
| IAC — other trial strategy (calling therapist as lay witness, emphasizing opportunity, cross‑examination choices, prompt‑complaint instruction) | Counsel failed to call therapist as expert, underused limited‑opportunity defense, avoided aggressive cross, and did not request prompt complaint jury instruction | Court previously limited therapist testimony under Mental Health Act; counsel pursued a coherent defense theory (motive to fabricate, victim’s opportunity to report) and made strategic cross‑examination choices; record not developed on instruction | Denied — tactical choices had reasonable basis; no prejudice shown; cumulative prejudice not established |
Key Cases Cited
- Pierce v. Pennsylvania, 527 A.2d 973 (Pa. 1987) (tripartite Strickland‑style test for IAC articulated in Pennsylvania)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part deficient performance and prejudice test for IAC)
- Lantzy v. Commonwealth, 736 A.2d 564 (Pa. 1999) (unjustified failure to file a requested direct appeal can create per se prejudice)
- Qualls v. Commonwealth, 785 A.2d 1007 (Pa. Super. 2001) (trial counsel’s failure to file appeal when client requested supports relief)
- Weiss v. Commonwealth, 81 A.3d 767 (Pa. 2013) (Pennsylvania’s articulation of IAC elements and analysis order)
- Spotz v. Commonwealth, 18 A.3d 244 (Pa. 2011) (cumulative prejudice principles for IAC claims)
- Charlton v. Commonwealth, 902 A.2d 554 (Pa. Super. 2006) (uncorroborated sexual‑assault victim testimony, if believed, can support conviction)