Opinion
J-S69002-17 No. 1349 WDA 2016
11-16-2017
COMMONWEALTH OF PENNSYLVANIA v. JOHN KOWAL Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Former Justice specially assigned to the Superior Court.
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
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.Trial Court Opinion, 2/16/17, at 1-2 (footnotes omitted).
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.
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).
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
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?Appellant's brief at 2-3.
(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?
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 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. Roane , 142 A.3d 79, 88 (Pa.Super. 2016).
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).
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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/16/2017
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