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Panel upholds conviction in drug case

A three-judge panel of the Pennsylvania Superior Court has upheld the conviction of an Altoona man who is serving a lengthy state prison sentence for drug offenses that included charges of conspiracy with his wife to deliver methadone, normally a drug used in the treatment of heroin addicts, as well as cocaine and marijuana.

Brian M. Lingafelt, 35, contended his trial attorney was ineffective for not demanding a hearing in open court to oppose prosecution attempts to use his wife, Jessica Roe, as a witness in its case against him.

In Pennsylvania, a witness cannot be forced to testify against a spouse, but that privilege can be waived, and in the Lingafelt case, Blair County Assistant District Attorney Pete Weeks came to an agreement with Roe that led to her testifying during her husband’s 2011 trial.

Her testimony was limited.

Under her agreement with the prosecution, she related her name, that she was married to Lingafelt and that she had entered a guilty plea to conspiracy with Lingafelt to possess with the intent to deliver the illegal drugs.

She was sentenced to 3.5 to seven years.

But by the time of her husband’s trial, she was facing new charges of bringing “anxiety pills” into the prison, an offense that could have added another two to four years to her sentence.

Her defense attorney, Weeks and an agent for the Pennsylvania Attorney General’s Office met in private to come to a deal for her testimony.

The agent suggested that Roe’s time behind bars could be amended to reduce her existing prison sentence.

Weeks rejected that idea because so much time had elapsed between her sentence and her husband’s trial.

Instead, Weeks said he would “take her cooperation into consideration on the new charges of bringing contraband into the prison.”

She spoke to her attorney about the deal before taking the stand.

Lingafelt, in his post-conviction appeal to the Superior Court, objected to the closed-door discussion, charging that his attorney was ineffective “for failing to fully raise and argue

the issue of spousal privilege.”

The argument for a new trial went before a Superior Court panel that included Judges Jack A. Panella, Alice B. Dubow and President Judge Emeritus Kate Ford Elliott, and late last week the panel rejected Lingafelt’s argument.

The defendant, represented by Altoona attorney Steven P. Passarello, contended that allowing his wife to testify “clearly prejudiced” the jury against him.

The opinion by the panel stated, “(Lingafelt) has failed to meet his burden of establishing prejudice.”

The judges stated the defense argument “wholly fails to establish how counsel’s request for an on-the-record colloquy of Roe would have prevented her from testifying.”

It stated Roe knew of her right to spousal privilege and she “knowingly and voluntarily” waived that right in return for consideration the charges pending against her.

She even confirmed during her testimony that she took the stand in hopes of receiving consideration.

Passarello said Tuesday he received the Lingafelt decision on Monday and will have 30 days to decide whether to request a Supreme Court review of the decision.

Lingafelt’s appeal was not a total loss for the defense, Passarello said.

The defendant was initially sentenced to prison for 19-38 years. He is being housed at the State Correctional Institution of Huntingdon.

The sentencing judge, the late Thomas G. Peoples, found Lingafelt was in the drug business for profit, not as a user attempting to finance his habit.

His sentences were enhanced because a shotgun with a pistol grip was found during a police search and because of the weight of the methadone found in his possession.

Since that sentence, the U.S. Supreme Court in a 2013 opinion ruled mandatory enhancements, as imposed in Pennsylvania, were unconstitutional.

The Superior Court ruled last year that Lingafelt was entitled to a resentencing hearing.

That hearing had been delayed pending the Superior Court’s decision last week.

Passarello said he is hoping for a greatly reduced sentence.

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