The opinion
J-S69002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN KOWAL
Appellant No. 1349 WDA 2016
Appeal from the PCRA Order August 5, 2016
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0000473-2006
BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 16, 2017
John Kowal appeals pro se from the August 5, 2016 order denying him
PCRA relief. We affirm.
On August 3, 2007, Appellant was found guilty of one count of
involuntary deviate sexual intercourse with a victim who was less than
sixteen years old, three counts each of aggravated indecent assault and
indecent assault of a person who was less than sixteen years old, and six
counts of corruption of a minor. The PCRA court briefly summarized the
facts supporting Appellant’s convictions:
From 2004 to 2005, Defendant, then approximately forty-six
(46) years old, engaged in a series of instances of inappropriate
contact with J.O., then a thirteen (13) year old minor child (hereinafter
"Victim"), which began with discussing personal issues with her, then
led to “French kissing” and ultimately, four (4) instances of sexual
assault. The first assault was during a "movie night" orchestrated by
* Former Justice specially assigned to the Superior Court.
J-S69002-17
Defendant, when, in his home, and with Victim's sister and
Defendant's stepsons (all minors) in the room, Defendant digitally
penetrated Victim's vagina for approximately thirty (30) seconds. The
second, approximately two weeks later, occurred when Victim returned
home from school. Defendant followed her into her home and again
digitally penetrated her vagina. The third incident occurred during
another "movie night," when Defendant again, with Victim's sister and
Defendant's stepsons in the room, digitally penetrated Victim's vagina
for approximately one (1) minute. Finally, the fourth incident also
occurred during a “movie night,” when Victim was awoken from her
sleep on Defendant's sofa by what was described as a hard, probably
plastic object entering her anus.
During this time period, it was stated at trial that Defendant had
been treating Victim as his girlfriend - taking Victim shopping, taking
her to lunch, and engaging in intimate conversations with Victim.
Victim also testified that Defendant had also offered Victim alcohol
during one of the "movie nights," and threatened to hurt her family
and take away her friends at school if she told anyone what he had
done to her.
Trial Court Opinion, 2/16/17, at 1-2 (footnotes omitted).
Appellant was sentenced to twenty-one to forty-two years
imprisonment, and, on appeal, we affirmed, concluding that all of Appellant’s
issues were waived since they were not included in his Pa.R.A.P. 1925(b)
statement. Commonwealth v. Kowal, 986 A.2d 1258 (Pa.Super. 2009)
(unpublished memorandum). Appellant filed a timely PCRA petition seeking
restoration of his appellate rights, which was granted. On direct appeal, we
affirmed, addressing and rejecting seven contentions raised by Appellant.
Commonwealth v. Kowal, 96 A.3d 1093 (Pa.Super. 2014) (unpublished
memorandum).
-2-
J-S69002-17
Appellant filed a timely pro se PCRA petition. In his petition, Appellant
asserted that his trial attorney was ineffective and his sentence was illegal.
Appellant’s specific averments were that trial counsel was ineffective for
neglecting to: 1) investigate his case and prepare a defense; 2) object to
improper cross-examination of Appellant; and 3) complain about the trial
court’s improper inclusion in plea negotiations. Appellant additionally
averred that his sentence was illegal, unconstitutional, and excessive.
Finally, he suggested that there were numerous errors, which had a
cumulative effect of undermining the reliability of his guilty verdict. The
court PCRA court appointed Stephen Paul, Esquire, to represent Appellant.
Mr. Paul moved to withdraw pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and; Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc), based on his conclusion that Appellant’s
averments lacked merit.
The PCRA court provided Appellant with Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing, and Appellant responded to
the notice. The court then allowed counsel to withdraw, and denied relief.
This appeal, wherein Appellant raised the following issues, followed:
(1) Was Appellant denied a meaningful review of his first PCRA
Petition and denied a hearing due to the ineffectiveness of his
court-appointed PCRA counsel, as well as the PCRA Courts'
[usurpation] of Pennsylvania rules and statutes of the
Commonwealth of PA, and relevant case law; in violation of
Article I, Section(s) 9 and 14 of the PA Constitution, and the 5th,
6th and 14th amendments to the U.S. Constitution; and was
-3-
J-S69002-17
Appellant prejudiced by PCRA Counsel and the PCRA Court's
wholesale declaration that none of Appellant's PCRA claims had
merit, also denying Appellant the opportunity for cumulative
error review?
(2) Was the PCRA Court in error in failing to conduct an impartial
evidentiary hearing, and in denying Appellant's claim that trial
counsel was ineffective for failing to object to the trial judge's
participation with direct, behind close[d] doors plea negotiations
in his chambers the morning of the first day of trial; and was the
PCRA Court in error in failing to conduct an impartial evidentiary
hearing and to provide requested discovery in the form of
transcripts related to a pretrial ex parte meeting in judge's
chambers six weeks prior to the start of trial, of which could
support Appellant's claims that inappropriate and false
information was relayed by counsel to the trial judge, resulting in
prejudicial and biased conduct by the trial judge at subsequent
hearings, trial, sentencing, and on appeal?
(3) Was the sentencing court in error when mandatory minimum
sentencing considerations were presented at a pretrial hearing
by the trial court, and then later used in fashioning his sentence
following his conviction; and was direct appeal counsel
ineffective for failing to properly preserve, and present the claim
on direct appeal a mandated by recently decided federal
(Alleyne) and PA state (Washington) case law which limited the
time for seeking relief to only those Pennsylvania defendants on
direct appeal?
Appellant’s brief at 2-3.
Initially, we observe, “Our standard of review of a PCRA court's
dismissal of a PCRA petition is limited to examining whether the PCRA
court's determination is supported by the record evidence and free of legal
error.” Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa.Super.
2016). Appellant’s first two issues concern trial counsel’s ineffectiveness,
and his final claim is that he was improperly sentenced to unconstitutional
-4-
J-S69002-17
mandatory minimum sentences. We examine allegations of ineffective
assistance of counsel under the following standards:
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, 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 (1987). Accordingly, to
prove 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.
Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 34, 35, 45
(2012). Furthermore, “in accord with these well-established
criteria for review, an appellant must set forth and individually
discuss substantively each prong of the Pierce test.”
Commonwealth v. Fitzgerald, 979 A.2d 908, 910 (Pa.Super.
2009).
Commonwealth v. Roane, 142 A.3d 79, 88 (Pa.Super. 2016).
After consideration of the facts, briefs, and applicable law, we affirm
the denial of relief with respect to the first two issues on the basis of the
thorough and well-reasoned February 16, 2017 opinion of the PCRA court.
Regarding Appellant’s final issue, we note that the record substantiates that
Appellant’s sentences were imposed pursuant to the sentencing guidelines,
and the sentencing court did not utilize a mandatory minimum sentencing
-5-
J-S69002-17
statute. N.T. Sentencing, 11/27/07; Trial Court Opinion, 7/31/08, at 8-11.
Thus, Appellant’s sentencing challenge is meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
-6-
dJ~·r,
Circulated 10/20/2017 03:18 PM
THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
. CRJMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
)
vs. )
) No. 473,.z.006
)
JOHN KOWAL )
Defendant, )
)
This matter comes before the Court upon Defendant's appeal from the PCRA court's
Order dated August 2, ZO I(?, denying his Post Conviction Relief Act (PCRA) Petition,
. .
On August 30, 2016, Defendant, John Kowal (hereinafter referred to as "Defendant"), pro
se, filed a Notice of Appeal to the Superior Court from the denial of his PCRA petition,
F~ctual.
.. . . ..
; . History
. -~ .
The facts of the case, briefly summarized, are as follows:
From 2004 to 2005, Defendant, then approximately forty-six (46) years old, engaged in a
series of Instances of inappropriate contact with J.O., then a thirteen (13) year old minor child
(hereinafter "Victim"), which began with discussing personal issues with her, then led to "french
kissjing]"' and ultimately, four (4) instances of sexual assault, The first assault was during a
"movie night" orchestrated by Defendant, when, in his home, and with Victim's sister and
Defendant's stepsons (all minors) i11 the room. Defendant digitally penetrated Vi9tim1s~gin.a
=~n
)>,
- .
-.J
for approximately thirty (30) seconds." The second, approximately two weeks lii'~, oeekrecf'r1
z~~ co ~~
when Victim returned home from school. Defendant followed her into her h~g~and')gaiJ=-""
z0C) ·u.
_,.
rn
u .
("")C ~ '~""\!
O:;::o - l;.<=cr-'
--! ••
;i;c.,? (fj
I
See TT 275~300. -.J
i TI 230-236.
digitally penetrated her vagina. '.J The third incident occurred during another "movie night," when
Defendant again, with Victim's sister and Defendant's stepsons in the room, digitally penetrated
Victim's vagina for approximately one (l) minute.4 Finally, the fourth incident also occurred
during a "movie night," when Victim was awoken from her sleep on Defendant's sofa by what
was described as a hard, probably plastic object entering her anus. 5 It was suggested, but never
confirmed, that this object was a television remote control.
During this time period, it was stated at trial. that Defendant had been treating Victim as
his girlfriend - taking Victim shopping, taking her to lunch, and engaging in intimate
conversations with Victim.6 Victim also testified that Defendant had also offered Victim alcohol
during one of the "movie nights," and threatened to hurt her family and take away her friends at
school if she told anyone what he had done to her.7
Procedural
. .. , .
Histon:
·- .,.
The Canonsburg Police Department filed a criminal complaint against Defendant on
December 20, 2005,8 whereby Defendant was arrested and charged with three (3) counts of
Aggravated Indecent Assault of a Person Less than 16 Years of Aw/, three (3) counts of
Indecent Assault of a Person Less than 16 Years of Age, 10 six (6) counts of Corruption of
11
Minors, and one ( 1) count of Involuntary Deviate Sexual Intercourse of a Person Less than 16
12
Years of Age, After Defendant's scheduled preliminary arraignment and preliminary hearing,
the Commonwealth filed the criminal information on April 26, 2006, charging Defendant with
~ TT 237-239.
"See TT240.
5
TT 243~:Z45.
6
See TT 240-24 I.
7
TT 248, 290, 305.
i Docket entry 7.
9
18 Pa.C.S. § 3 l25(a)(8).
10
18 Pa.C.S. § 3 l26M(8).
11
18 Pa.C.S, § 6301(a)(I).
12
18 Pa.C.S. § 31 t3(a)(7).
2
the same charges listed in the ccmplaint.l? After multiple defense continuances, defense counsel,
James Marchewka, Esquire, requested an additional continuance and made a motion to withdraw
as counsel, citing an ethical conflict in continuing to represent Defendant. The court granted the
motion on June 12, 2007,14 and Attorney Marchewka withdrew his appearance on June 15,
2007, 15 Kristen Clingerman, Esquire then made an additional motion for continuance on behalf
17
of defendant, which the court denied on July 19, 2007.16 Attorney Clingerman again made a
motion to continue the case, which the court denied on July 24, 2007.18
Defendant's jury tritll was held from July 30, 2007 to August 3, 2007. On August 3,
20071 the jury rendered its verdict, finding Defendant guilty on a.11 counts." A Pre-Sentence
Investigation was completed, and on November 27, 2007, the court sentenced Defendant as
follows;
On count I. (a) on the charge of Aggravated Indecent Assault, a felony of the
second degree:
Be transferred from the Washington County Correctional Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of no less than 4 years and no more than 8 years. This
sentence is to run consecutively to the sentence the Defendant is currently serving
at #i48 of 2006,
On count I. (a) on the second count of Aggravated Indecent Assault, a felony
of the. second degree:
Be transferred from the Washington County Correctional Facility to the
Dt?partm~nt of Corrections for pJapement in an appropriate state correctional
facility for [a) period of no less than 4 years and no more than 8 years. This
sentence is to run consecutively to the sentence the Defendant is currently serving
at #248 of 2006 and consecutively to count I. (a), the first count of Aggravated
Indecent Assault. ··
·~ Docket ¥ntry 9.
14
Docket ontry i 1.
1~
Doc.ket entry iz.
l<i Docket entry 23.
17
Attorney Clingerman had ba~im to represen: Defettdant at thi~ time, put did not officially enter her appearance on
the record until Augtist 2, 200'7, Doeket entry 26.
18 Docket entry 25.
19
Docket entry 27.
3
On coun] I. (a) on the third count of Aggravated Indecent Assault, a felony of
the second degree: · . . ·
Be transferred from the Washington County Correctional Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for (a] period of no less than 4 years and no more than 8 years. This
sentence is to. run consecutively to the sentence the Defendant is currently serving
at #248 ofJW06 and consecutively to count I. (a), 2 counts of Aggravated Indecent
Assault,
No sentence Is imposed op the charges of Indecent Assault, count I. (b), (;,
counts), as those effenses merge with the three counts of Aggravated Indecent
Assault for purposes of sentencing,
On Count I. (o), on the charge of Corruption of Minors, first count, a
misdemeanor qf the first degree, theCourt sentences the Def endant to:
Be transferred from the Washington County Correctional Facility to the
Department of Corrections for placement in an apprQprifttC;} state correctional
facility for [~] period of no less than t year and no more than 2 vears. This
sentence js to nm consecutively to the sentence the Defendant is currently serving
at #'248 of 2006 and consecutively to count L (a) 3 counts of Aggravated Indecent
Assault.
On the charge of Corruption of Minors, second count, a misdemeanor of the
first degree, the Court sentences the Defendant to:
13e ··tr~sferre.d from the Washington County Correctional facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of po less than l year and no more than 2 years. This
sentence is to run consecutively to the. sentence the Defendant is currently serving
at #24S of 2006 and consecutively to count I, (a) 3 counts of Aggravated Indecent
Assault and to count X. (c) on the first count of Corruption of Minors.
On the charge of Corruption of Minors, third count, a misdemeanor of the first
degree, the Court sentences the Pefend11nt to:
· Be transferred from the Washington County Correctional F~cllity to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of no less than 1 year and no more than '.2 years, This
sentence is to run consecutively to the sentence th~ Defendant ls currently serving
at #248 of 2006 and consecutively to count 1. (a) 3 counts of Aggravated Indecent
Assault and to counts I. (c) and the first 2 counts of the charge pf Corruption of
Minors. ,
On the charge. of Corruption of Minors, fourth count, a misdemeanor of the
first degree, the Court sentences the Defendant to:
Be transferred from the Washington County, Correctional Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of no less than 1 year and no more than 2 years. This
4
sentence is to run consecutively to the sentence the Defendant is currently serving
at #248 of2006 and consecutively to count I. (a) 3 counts of Aggravated lndecent
Assault and to count I. (c) 3 counts of Corruption of Minors.
On the charge of Corruption of Minors, fifth count, a misdemeanor of the first
degree, the Court sentences the Defendant to:
Be transferred from the Washington County Correctional Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [aJ period of no less than 1 year and no morn than 2 years. This
sentence is to nm consecutively to the sentence the Defendant is currently serving
at #248 of 2006 and consecutively to count I. (a) '.? counts of Aggravated Indecent
Assault and to count I. (c) 4 counts of Corruption of Minors.
On the charge of Corruption of Minors, sixth count, a misdemeanor of the first
degree, the Court sentences the Defendant to:
Be transferred from the Washington County Correctional · Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of no less than 1 year and no more than 2 years. This
sentence is to nm consecutively to the sentence the Defendant is currently serving
at #248 of 2006 and consecutively to count I. (a) 3 counts of Aggravated Indecent
Assault and to count I. (c) five counts of Corruption of Minors.
On the charge of Involuntary Deviate Sexual Intercourse, a felony of the first
degree, the Court sentences tbe Defendant to: ,
Be transferred from the Washington County Correctional Facility to the
Department of Corrections for placement in an appropriate state correctional
facility for [a] period of no less than 6 year[s] and no more than 12 years. This
sentence is to run consecutively to the sentence the Defendant is currently serving
at #248 of 2006 and consecutively to count I. (a) 3 counts of Aggravated Indecent
Assault and to count I. (c) 6 counts of Corruption of Minors. ·
Upon successful completion of the Defendant's minimum sentence he shall be
released from further incarceration to be placed on parole to be supervised by the
Pennsylvania State Board of Probation and Parole for the balance of his sentence,
The total of aJJ sentences is 24 years to 48 years,20
Attorney Clingerman withdrew her appearance on December 14, 2007.21 On December
17, 2007, Defendant filed his notice of appeal, represented by the Office of the Public
Defender.n The court amended Defendant's sentence on January 16, :2008 and July 31, 2008 to
20
Docket entry 31,
iiDocket entry 3;2,
n Pocket entry 33.
5
run concurrently to his sentence at #.~48 of 2006 and to acknowledge that three (3) of the counts
of Corruption of Minors would merge with the three (3) counts of Aggravated Indecent Assault,
thus reducing the total sentence to a term of 21 to 42 years of incarceration.f On September 4,
2008, the Superior Court of Pennsylvania affirmed Defendant's conviction, but admonished the
nature of the post-sentence proceedings and Defendant's representation, recommending that
24
Defendant seek Post-Conviction relief to reinstate his appellate fights. Defendant then filed a
motion to remove the Public Defender a~ hi~ representation on July 6, 2010.25 On July 27, 2010,
the Office of the Public Defender made a motion to withdraw ~~ counsel for Defendant, which
the court granted." The court then appointed Jeffrey Watson, Esquire to represent Defendant on
September L 2010.17
On September 30, 2010, Defendant filed his .PCRA petition seeking reinstatement of his
appellate rights?8 The court granted Defendant's petition on September L 2011 and reinstated all
of his appellate rights, including the right to file post-sentence rnotions.f" Defendant filed post-
sentence motions on September 20, 2011,30 which were denied by operation of law." Defendant
then filed his notice of appeal on February 21, 2012.n Defendant filed his concise statement of
matters complained of on appeal on March 13, 2012,3) and an amended concise statement on
March 21,'2012.34 The trial court issued its opinion on January 4, 2013.35
The Superior Court then issued its opinion? dated January 27, 2014 and lodged with the
23
Docket entry J7, 40
24
Docket entry 46.
t} poqket entry 47.
26
Docket entry 48.
271)9cket
entry 49.
23
Docket entry 50.
29
Docket entry ,54.
30
Docket entry 55.
JI 0QCk:4;l! entry 5a, 6?,
n Pocket entry 59.
n Qooket ~ntry 62.
34
Docket entry 64.
3>
Docket entry 67.
6
Clerk of Courts of Washington County on October 21, 4014, affirming Defendant's conviction
and sentence."
Defendant filed a pro se PCRA petition, dated June 28, 2015 and lodged with the Clerk of
Courts on July 14, 2015, claiming his attorneys were all ineffective and that his sentence was
illegal, specifically asserting the following claims: (1) counsel failed to "investigate the case and
prepare an adequate defense for trial," Q) counsel "failed to protect Defendant at trial <;iurin~
cross-examlnation by the Commonwealth, whereby the Commonwealth Investigated the case at
trial, introduced objectionable questioning that had no basis of fact (sic), nor did the
Commonwealth present any witnesses to support their interrcgatories and defense counsel
mounted no defense against it," (3) counsel "failed to object to the trial judge's direct
involvement with plea negotiations just prior to the commencement of trial; and for also failing
to protect Defendant's Constitutional interests to a fair trial following Attorney Marchewk's (sic)
private conversations with the trial judge followinghis termination as counsel by Defendant, '1 ( 4)
"the fashioned sentence in this case is illegal, unconstitutional, and not consistent with the facts
of this case," and (5) "the cumulative nature of the errors in this case so undermined the truth
determining process that no reliable adjudication of guilt or innocence could nave taken plac~.1137
3$
The court ther; appointed Stephen Paul, Esquire to represent Defendant on July 16, 2015.
On April 28, 2016, Attorney Paul filed his motion to withdraw as counsel and an
accompanying Turner/Finley39 letter, asserting that Defendant's claims had no merjt.40 The court
then, on May 20, 2016, provided Defendant with notice pursuant to Pa.RCrirn.P, Rule 907 that
3~
Docket entry 7 I.
37
Docket entry 72.
38
Doyl<et entry 73.
39
Commonwealth v. Turner, 518 Pa, 491, 544 A.2d 927 ( 1988); Commonwealth v. Finley, 379 Pa. Super. $90, $.50
A.2~ 4 l 3 (l 988).
40
Docket entry 76. The record reflects that the court had previously granted counsel's motion to withdraw 011 April
18, 20 l 6, Docket entry 75. The reason for Ole delay of IO days in the tiling of the no merit letter following the
court's initial granting of counsel's motion to withdraw is unclear based on the; record.
7
jiis petition would be denied twenty (20) days from the date of the notice.41 Defendant filed a
response to that notice, dated June 4, 20 J 6 and lodged with the Clerk of Courts on June 20,
Z016.42 The court; subsequently dismissed Defendant's petition as meritless on August 2, 2016.43
Defendant then filed his notice of appeal of the dismissal of his fCRA petition on Augusf- - - -
30, 2016,44 and his statement of matters complained of on appeal, dated September 29, 2016, was
lodged with the Clerk of Courts on October J 41 2016, and raised the following issues, verbatim:
1. WAS THE PCRA COURT IN ERRO~ WHEN IT DISMISSED
APPELLANT'S PCM PETITION, WITHOUT AN EVIDENTIARY
HEARING, ANO D~EMED. AS NOT HAVING MERIT; WHEREBY
APPELLANT LAID OUT IN HIS PCRA PETITION CLAIM-I, A DETAILED
ARGUMENT DEMONSTRATJNG THAT HIS PRE-TRIAL COUNSEL
(MARCHEWK-A.) AND PRE".TRIAL,ffRlAL COUNSEL (KLJNGERMAN) (sic)
PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL IN THEIR
REPRESENTATION AS GUARANTEED THE BY (sic) 5TH, 6TH, AND
14TH AMENDMENTS TO THE U.S. CONSTITUTION; IN FAILING TO
INVESTIGATE THE CASE ANO PREPARE AN ADEQUATE DEFENSE;
PARTICULARLY IN THEIR FAILURE TO PROPERLY RECEIVE AND
OBTAIN DISCOVERY, FAILURE TO INVESTIGATE THE MERITS OF THE
PRJVATI;: INVESTIGATOR'S INVOLVEMENT, INTERVIEW PRIOR TO
TRIAL MULTIPLE NAMED CBILD EYEWITNESSES WITH MOST OF Tl.IE
CHARGES WHERE EVIDENCE HAD ALREADY EXISTED TO SUGGEST
THEY POS~ESSE.D EXCULPATORY INFORMATION OF WHICH WAS
PROBATIVE, AND THE FAILURE TO UTJLIZE AVAILABLE DEFENSe
EVID.ENCE, I.E.; CELL PHONE RECORDS, INFORMATION ON TBE
PRIVATE INVESTIGATOR'S CHARACTER AND TAINT, A PRIVATE
CRIMINAL COMPLAINED (sic) LOOGED l3Y APPELLANT'S EMPLOYER
AGAINST, INTER ALIA, THE PRIVATE INVESTIGATOR, ELECTRONIC
INSTANT MESSAGES FROM APPELLANT'S SON JUST PRIOR ro
CHARGES IN THIS CASE THAT SHOW TAINT BY THE INVESTIGATOR,
EVIDENCE OF ALIBI, AND COMCAST MOVIE RENTALS; ALL OF
WHICH EITHER INDEPENDENTLY
. .- OR AS A WHOLE WOULD HA VE .
BEEN VITAL IN REFUTING THE CHARGES AT TRIAL, AND TO A
DEGREE OF PREJUDICE THAT SO UNPERMINED THE TRUTH
DETERMINING PROCESS THAT NO RELIABLE ADJUDICATION OF
GUILT OR INNOCENCE COULD EVER HAVE OCCURRED WITHOUT
THE BENEFIT FOR THE JURY TO CONSIDER DEFENSE EVIDENCE NOT
-·
41
Docket entry 77,
42
Docket entry ?a,
43
Docket entry 79.
44
Docket entry 80.
8
OTHERWISE PRESENTED AT TRIAL?
2. WAS THE PCRA COURT IN ERROR WHEN IT DISMISSED
APPELLANT'S PETITION WITHOUT AN EVIDENTIARY HEARING, AND
DEEMED AS NOT HAVING MERIT; WBERE$Y APPELLANT LAID OUT
IN HIS PCRA PETITWN CLAIM~ll, INFORMATION AND PROPOSED
TESTIMONY OF DEFENSE \V1TNESSES TO TESTIFY AT THE.
EVIDENTIARY HEAR(NQ, NONE OF WHICH WERE CONTACTEP BY
PCRA COl.JNSEL, At~D NONE OF WHICH WERE INVESTIGATED OR
CONTACTED BY PRE-TRIAL COUNSEL (MARCHEWM) OR PRE.,.
TRIAL/TRIAL COUNSEL (KLJNGERMAN), (sic) OF WHICH TESTIMONY
WOULD HAVE DEMONSTRATED THAT THE COI'4MONWEALTH
ENGAGED IN RECKLESS INTJ:'tODUCTI.ON OF A PARTICULAR LINE OF
QUESTIONING OF APPELLANT AT TRIAL REGARDING INFOfu\1ATlON
THAT WAS CLEARLY NOT SUPPORTIVE (sic) BY FACT$ AND HAD NO
OTHER PURPOSE OTHER THAN TO CONFUSE AND PREJUDICE THE
JURY; DESPITE THE CLAlM HAVING BEEN PREVIOUSLY RAISED ON
DIRECT APPEAL BUT WITHOUT THE INCLUSION OR 8ENEFIT OF THE.
LARGE VOLUME OF NEW JNFORMA TION CONTAINED IN·
APPELLANT'S PETITION REGARDlNG NEW EVJDENCE AND
TESTIMONY NOT PRESENTED AT .TRIAL OR AVAILABLE ON DIRECT
APPELLATE RREVlEW? (sic)
3. WAS THE PCRA COURT IN ERROR.JN FAJUNG TO CONDU.CT AN
EVIDENTJARY HEARING, A.ND IN DENYING APELLANT' S CLAIM THAT
TRIAL COUNSEL WAS INEFFECTIVE _FOR FAILING TO OBJECT TO THE
,JUDGE1S PARTICIPATION WITfI DIRECT, BEHIND CLOSED DOORS
PLEA NEGOTIATIONS, IN JUDGE'S CHAMBERS, JUST PRIOR TO T.f{E
COMME.NCEM1$NT OF TRIAL ON THE MORNING OF JULY 30, 2007; ANO
fOR FAILING TO DISCLOSE THE NATURE 'or THE EX PARTE
COMMUNJCATION WHEN ASKED BY APPELLANT AT PREVIOUS
HEARINGS?
4. WAS THij SENTENCING COURT IN ERROR WHEN MANDATORY
MINIMUM SENTENCING WAS UTILJZED IN FASHIONING HIS
SENTENCE; AND WAS DIRECT APPEAL COUNSEL INEFFECTIVE IN
FAILING TO PROPERLY RAISE THE ISSUE ON DIRECT APPEAL
DURING THE REQUIRED TIME FOR RAISING SUCH CLAIM
CONSISTENT WrTH RECENTLY DECIOED FEDERAL CASE LAW
AFFECTING MINIMUM SENTENCING IN PENNSYLVANIA?
5. WAS PCRA COUNSEL INEFFECTIVE TN FAILlNG TO REQUEST
FORMAL DISCOVERY, AS REQUESTED IN TBE J>CRA PETITION, FOR
NOTES OF TRANSCRIPTS OF AN IN-CAMERA H~ARING CONDUCTED
IN CHAMBERS ON JUNE 12, 2007, ReLATED TO FORMER PRE.,TRIAL
COUNSEL S (MARCI-IEWKA) TERMrNATION OF REPRESENTATION
1
9
AND HIS RECUS.AL JN THIS CASE; DESPITE APPELLANT CITING
EXCEPTIONAL ClRCUMST ANCES IN HIS PETITION?
6. WAS Tl-IE PCRA COURT IN EROR, AND WAS PCRA COUNSEL
INEFFECTIVJ3 FOR F'AILING TO CONSIDER THE CUMULATJVE
EFFECTS OF ALL THE ERRORS IN THIS CA.SE?45 .
~~Gal J\n,a_Iy.sJs
The trial court finds that Defendant's claims have no merit, and thus, that it did not err in
dismissing Defendant's PCRA petition.
The PCRA provides in p~rti,n.e~t pa.rt (hat
(a) General. rule. -- To be eligible for relief under this subchapter, Ole petitioner
mustplead and prove by a preponderance of the evidence all of the following:
·* *
(2) That the conviction or sentence resulted from one or more of the
following:
·(i) ~ violation of the Constitution of this Commonwealth or the
Constltution Qr laws of the United States which, in the circumstances of
the particular case, so undermined the truth .. determining process that no
reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the
parti cular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it
likely that the inducement caused the petitioner to plead guilty and the
petitioner is innocent.
(iv) The improper obstruction ~Y government officials of the petitioner's
right of appeal where a meritorious appealable Issue existed and was
properly preserved in the trial court.
* * *
(vi) The unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of
the trial if it had been introduced.
45
Pocket entry 81 .
10
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction
46
(3) That the allegation of error has not been previously litigated or waived.
Even where an issue has been "previously litigated,"47 a claim of counsel's ineffectiveness has
been held to be a distinct legal claim, separate from the underlying issue, and thus reviewable on
col lateral appeal. 48
The majority of Defendant's issues ere couched in claims of ineffectiveness, so it seems
that these issues may have not been previously litigated, as viewed by our existing laws. 49
However, when a petitioner claims ineffectiveness of counsel, the law presupposes that counsel
was effective.j" To overcome this presumption, a petitioner must satisfy a long-standing three-
pronged test, and show that "(I) the underlying 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 that counsel's deficient
performance.Y' Additionally, our courts have held that counsel cannot under any circumstances
be found to be ineffective for failing to raise ameritless claim."
The court, in an attempt to assign some order to the erratic nature of Defendant's petition,
will address his claims one by one. The first issue in Defendant's petition asserted that counsel
was ineffective at trial, and broke this claim down into seven (7) separate, yet lengthy,
subsections. None of these issues has arguable underlying merit, counsel had fl reasonable basis
~ 42 Pa.C.S. § 9$4).
47
Id. at § 9543(~){3).
43
Commonwealth v, Co/li11l, S85 Pa, 45, ~7-58, ~88 A.,4cJ 564, p7 I (200,5).
49 Id.
5° C~mmonwealth v. Mason, Pa.-....,-,> 130 A.3d 601, 61$ (2015).
51
Commonwealth v. Callins, ;;/pra. at 61, 513 (citing Commonwealth v. Pierce, 515 Pa. I S3, S27 A.2d 973, 976-977
( 1987)) (emphasis added). ·
52
Commonwealth v. Jones, 571 Pa. 112, 131, 811 A.2d 994, 1005 (2002).
ll
for the claimed inaction, and Defendant was not prejudiced by said inaction. Therefore, the
PCRA court properly dismissed the claim. Again,
. however, in the interest of clarity, the court
.
will address each subsection individually.
The first subsection asserted that counsel should have introduced evidence of electronic
messages between Defendant and his stepsons that Defendant alleges would have shown the taint
of certain witnesses against him, However, as correctly pointed out by PCRA counsel in his "no
merit" letter, without presenting some sort of evidence ~u$gesting that additional information
beyond what was already known would have been uncovered, a claim of ineffectiveness 01; those
grounds will fail. 53 Since Defendant offers nothing to support the claims he makes in this regard,
there is no merit to his claim that counsel was ineffective for failing to introduce these purported
communications as evidence.
The second subsection relates to the involvement of Lisa Cherish, a private investigator
who did not testify at trial, and Defendant's claim that counsel was ineffective for failing to
investigate that issue further. Defendant again offers little apart from speculation as to what
would have been uncovered had counsel engaged in the additional investigation he claims should
have been completed prior to his trial. The Superior Court has held that such a baseless claim is
insufficient to support an assertion of counsel ineffectiveness, 54 Indeed, as stated above, without
presenting some sort of support suggesting that additional information beyond what was already
known would have been uncovered from that action} a claim of ineffectiveness on those grounds
will fail. 55
Defendant's offers nothing but bald speculation to support what he avers could have been
uncovered by the completion of a further investigation into the matter by his trial counsel, In
n Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293 (1999).
54
Commonwealth v. Tedford, 598 Pa. 639, 6,~3, 960 A,2d I, 27 (2008).
ss Commonwealth v. Pursell, supra.
12
fact, the Superior Court addressed his assertions as they related to Ms. Cherish, in the context of
Defendant's challenge to the trial court's denial of his application for continuance, The Superior
Court held that there existed "no indication what Cherish would have testified to or whether she
had any information helpful to [Defenda..nt],,,56 Therefore, as Defendant continues to offer no
evidence to support his claim, and the issue has been determined to have no underlying merit, it
also fails.
The third subsection relates to purported cell phone records which Defendant asserts
would have connected Defendant's ex-wife, Victim's mother, and Lisa ·Cherish to an extent
which would support his claim of a conspiracy against him to taint witnesses. Defendant asserts
that these parties withheld the amount of communication between them, and that he is therefore
somehow entitled to relief, However, Defendant once again offers little to support the claim, and
the essence of the claim is belied by the record.
Communication between these parties was disclosed at trial through the testimony of
Victim's mother and Defendant's ex-wife. The testimony showed that these conversations
related to the interviews being conducted by the police and the contact Defendant's ex-wife had
with Lisa Cherish regarding PFA proceedings against Defendant. 57 Therefore, as evidence of
these calls was presented at trial arid the alleged contradictions in these witnesses' testimony did
not exist, Defendant's claim has no arguable underlying merit in that regard. Defendant offers no
legitimate argument as to how counsel's failure to introduce those purported records had no
reasonable basis.
The fourth subsection asserted that trial counsel was ineffective for failing to call a
number of children as witnesses whom were alleged to have been present at the time of the some
5~
Docket entry 71 at 16.
57
See IT 94-95, 356-366.
13
of the offenses. This claim also has no merit. When claiming ineffectiveness for failing to call a
witness, a defendant must establish that '1(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. "58 To
show prejudice in this regard, a defendant must "show how the uncalled witnesses' testimony
would have been beneficial under the circumstances of the case. ,,s9 Indeed, it has been held that
counsel cannot be found ineffective by not calling a witness to testify "unless the petitioner can
show that the witness's testimony would have been helpful to the defense.t''"
Here, Defendant asserts that counsel was ineffective for failing to call minor children
who were present in Defendant's home on some of the occasions when Defendant assaulted
Victim. Defendant claims that these children, had they been called as witnesses, would have
testified that they never saw Defendant assault Victim. However, this testimony would not have
been of any help to the defense because it was never disputed that these other children did not ~
actually see the sexual assaults occur. Indeed, it was established that on two of the occasions,
these other children were focused on the television in the room, rather than Defendant and
Victim, and on the third occasion, none of the children were present." It is clear that counsel was
reasonable in determining that having multiple children testify to something that was already
established would not have been helpful to the defense, and thus, counsel could not be
ineffective for failing to call those witnesses.
58
Commonwealth v. Johnson, 600 Pa. 329, 351, 966 A.2d 523, 536 (2009) (quoting Commonwealth v. Washington,
592 Pa. 698, 927 A.2d 586, 599 (2007)). .
59
Id. at 351-357, 536 (quoting Commonwealth v, Gibson, 591 Pa. 402, 95 l A.2d 1110, 1134 (2008)).
60
Commonwealth v. Sneed, 616 Pa. I, 23, 45 A.3d 1096, 1109 (citing Commonwealth v. Auker, 545 Pit. 521, 681
A.2d 1305, 1319(1996)).
61
See IT 230·245.
14
Defendant also suggests here that counsel was ineffective for failing to investigate these
witnesses further in addition to failing to call them as witnesses. However, Defendant fails to
mention that these witnesses were interviewed by the Child Advocacy Unit at Children's
Hospital, as well as at the Washington County Children's Advocacy Unit, and that counsel
possessed and had reviewed the transcripts of these interviews. Defendant does not posit any
additional facts or information which could have arisen from any further investigation into these
child witnesses, other than the assertion that they would have testified to having pot seen the ~
offenses occur. As addressed above, this is inadequate to show that counsel was ineffective, and
thus Defendant's claim also fails in this regard.
The fifth subsection of Defendant's first issue asserted that counsel was ineffective for
failing to present certain pieces of evidence which he claimed constitute an alibi defense.
Specifically, he claims that certain receipts and cell phone call data would have shown that he
was either in a different location at the time of the events, or using his phone at the time rather
than sexually assaulting Victim.
"To show ineffectiveness for failing to present alibi evidence, [Defendant] must establish
that counsel could have no reasonable basis for his act or omission."62 Defendant's petition
offers no such proof As there was no specific date and time stated at trial for when these assaults
occurred, and Defendant admitted to having been in the room watching movies with Victim and
other children when Victim stated that two of the assaults occurred, entering receipts and phone
records as evidence to "narrowj] the dates and times for which the alleged assaults were
described [sic] and ... place]'] Defendant in other locations where some of the alleged assaults
~
were to have happened [sicr63 would not have established anything that was not already known
~2 Commonwealth v. Rainey, 593 Pa. 67, 98, 928 A.2d 215, 234 (2007),
63
Pocket entry 72 at 54.
15
at trial, and would not have provided a legitimate alibi for Defendant, Therefore, it cannot be
said that counsel had "no reasonable basis''64 for not pursuing this theory, and thus this claim
also has no merit.
TQe sixth subsection of Defendant's first issue asserted that counsel was ineffective for
failing to present Comcast cable invoices allegedly showing that pornographic films were rented
op his ex-wife's account and that this was relevant to discredit her testimony, However, there is
no merit to this claim, counsel could reasonably have determined that this claim had no relevance
to the case even if them were some proof the evidence. existed, and Defendant offers no
argument which shows how he was prejudiced by counsel's foiling to present this evidence,
other than a bald assertion that it could have· somehow discredited his ex-wife's testimony
against him. 65 Therefore, this claim also has no merit.
The seventh and final subsection of Defendant's first claim asserted tlw.t counsel was
ineffective for failing to adequately present his motion to suppress evidence obtained from his
private computer by hJ~ ex ..wife, Although it is couched in an ineffectiveness claim, this claim
also fails as the underlying issue of the suppression has already peen addressed by the Superior
Court on direct appeal, which affirmed that the Information from that computer was both
relevant arid admj~~j\Jle.~<> Therefore, since the. underlying claim has no arguable merit, counsel
could not have been ineffective in that regard, and thus this claim also fails.
In his second issue, Defendant claimed that counsel was ineffective at trial for failing to
"protect" him during cross-examination and object to certain lines of questioning from the
Commonwealth. This claim also has no underlying merit, and Defendant was not prejudiced by
the claimed inaction of counsel. Therefore, the PCRA court properly dismissed the claim,
64
Commonwealth v. Rainey, supra.
6~ Commonwealth v, Collins, supra,
6?
Docket entry 71 at 19-Z~.
16
Again, to establish ineffectiveness of counsel, Defendant must prove that the underlying
claim has arguable merit, counsel had no reasonable basis for her action or inaction, and
Defendant was prejudiced as a result.67 As with the seventh section of Defendant's first claim,
although Defendant couches this claim in terms of ineffectiveness, the underlying issue was
already addressed by the Superior Court, In Its opinion, the Superior Court held that the Jines of
questioning to which Defendant now takes exception were relevant and proper at that time.68
Therefore, it is clear that the underlying claim has no arguable merit, and thus, counsel could not
be ineffective based on Defendant's second claim.
Defendant's third issue asserted that trial counsel was ineffective for failing to object to
the trial court's alleged involvement in plea negotiations, and tha.t counsel failed to protect his
right to a fair trial after attorney Marchewka spoke to the trial judge in relation to bis ethical
conflict and desire to withdraw as counsel. Again, these assertions have no underlying merit, and
Defendant suffered no prejudice as the result of the alleged inaction from counsel, and thus, the
court properly dismissed the claim.
As Defendant did not enter a guilty plea in this case, nothing involving his alleged plea
negotiations could rise to the level of prejudice. Defendant suggests that the circumstances
leading to Attorney Marchewka's withdrawal and the trial court's alleged "involvement with
plea negotiations't'" show that the court was not impartial in his case, and that counsel was
ineffective for failing to challenge the court on this matter. However, Defendant offers no
examples where the court showed any partiality, other than in denying his motion for a
continuance, which was also determined by the Superior Court to have been proper. 70 Therefore,
Q? Commonwealth v. Collins, supra.
68
Docket entrv 71 at I 6, 19.
69
Docket entry 72 at 75,
10
Pocket entry 71 at 16.
17
as the underlying claim. has no merit and Defendant suffered no prejudice, Defendant's third
claim was properly dismissed,
In his fourth issue, Defendant claimed that his sentence was illegal due to the court
issuing a mandatory minimum sentence and due to the sentence being influenced by what
Defendant asserted as being inappropriate and incorrect aggravating factors." Defendant cited to
72
a case captioned Commonwealth v. Hopkins in his petition to support this claim, In reference to
the "mandatory minimum" sentence claimed by Defendant, the court assumes that Defendant
was asserting that he was given a mandatory minimum sentence, and that such a sentence was
· rendered unconstitutional by the United States Supreme Court decision ill. Alleyne v. United
States13 and its progeny, and that this qualifies him for some relief. This argument fails for
several reasons. First, the court did not impose a mandatory sentence on any of the charges, but
rather imposed consecutive sentences within tile aggravated sentencing guideline range, based on
74
the specific circumstances of the instant case, which the Superior Court held to be appropriate.
Second, even if the court had imposed a mandatory sentence in this case, the 2013 decision in
Alleyne was held to not apply retroactively to prior sentences? and thus would not apply to
Defendant's 2007 sentence,
In regard to Defendant's alternative assertion that the court relied on improper
aggravating factors in fashioning its sentence, this claim is also without merit. As PCRA counsel
correctly stated in his "no merit" letter, this is a challenge to the discretionary aspects of
11
Defendant also asserts in bi.s ) 925(b) statement that appellate counsel was ineffective for failing to raise the
sentencing issue on direct appeal. This claim was not included in Defendant's original petition and is therefore
waived, Pa. R.A.P., Rule 302(a).
72
It appears that the case referenced by Defendant is Commonwealth v. Hopkins, 632 Pa. 36, 117 A.3d 247 (2015),
which held that a mandatory minimum sentence for trafficking drugs to minors ran afoul of the Constitutional
protections identified in Alleyne v. U.S.
73_.
u.s._...,.J J33~.ct.2l5J, 1~6L.Ed.314(20l3).
74
See docket entry 71.
75 See Commonwealth v. Washington,_ Pa. __ , 142 A.3d 810 (2016). See also U.S. v. Winkleman, 746 F.3d 134
(3d Cir, 2014). . .
18
Defendant's sentence, and is not cognizable in a PCRA proceeding." Additionally, the Superior
Court already addressed the propriety of Defendant's sentence in its January 27, 2014 opinion,
and found that the sentencing court committed no error in that regard.77 Therefore, neither of
Defendant's bases for claiming he received an illegal sentence has merit. It thus follows that
even as a cognizable ineffectiveness claim, it has no underlying arguable merit, and counsel
could not be ineffective for failing to raise the claim even had the ineffectiveness claim not been
waived."
79
In the fifth claim in his l 925(b) statement, Defendant asserted that trial counsel was
ineffective for failing to request discovery in relation to attorney Marchewka's withdrawal as
counsel. The court finds that this claim was not raised in Defendant's petition, and is therefore
· waived. so Even had it been raised in the petition, once again, this claim has no underlying merit,
and Defendant suffered no prejudice as a result of counsel's inaction in this regard. Therefore,
the court properly dismissed the claim.
Once more, as stated above, to prevail on a claim of ineffectiveness, the Defendant must
prove that the underlying claim has arguable merit, that counsel did not have a reasonable basis
for the action or inaction, and that the action or failure to act resulted in prejudice to the
Defendant.f Here, there is no merit to Defendant's underlying claim, and he suffered no
prejudice, It is unclear what Defendant would claim as the prejudice he suffered other than
perhaps again raising the issue of the denial of his continuance motion or his assertion that
Attorney Clingerman was ineffective for any of the above reasons. However, since counsel was
76Commonwealth v, Wrecks, 934 A.2d 1287, 12~9 (Pa. Super. 2007)(citing Commonwealth v. Friend, 896 A.2d
607, 616 n. 15 (Pa. Super. 2006)).
77
Docket entry 71.
7$
Commonwealth v, Mason, supra.
79
Docket entry 8) ,
80
Pa.R.A.P., Rule 302(a).
81
Commonwealth v. Collins, supra.
19
effective and Defendant suffered no prejudice based 011 Attorney Clingerman's representation, it
follows that this claim would also have no merit even had it been properly raised in his petition.
Finally, Defendant asserted in what was the fifth claim of his petition and the sixth claim
of his 192S(b) statement that he is entitled to a new trial due to the "cumulative nature of the
errors in this case," This assertion, as with Defendant's prior issues, has no merit, and thus, the
court properly dismissed the claim. A$ there is no merit in any of Defendant's individual claims,
it follows that the claims taken cumulatively would also have no merit. Defendant received a fair
trial and a legal sentence, and counsel provided effective representation throughout the process.
Therefore, Defendant's final claim is also meritless,
FQr the masons set forth, the trial court submits that Defendant failed to prove that he is
entitled to relief under the Post Conviction Relief Act. The court therefore submits that the denial
of Defendant's PCRA petition should be affirmed.
Date:
20