Opinion
1412 WDA 2021 1413 WDA 2021 1414 WDA 2021 1415 WDA 2021 1416 WDA 2021 1417 WDA 2021 1418 WDA 2021 1419 WDA 2021 1420 WDA 2021 J-A02022-23
05-08-2023
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL AARON SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL AARON SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL AARON SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL AARON SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL AARON SCHERBANIC Appellant COMMONWEALTH OF PENNSYLVANIA v. MICHAEL SCHERBANIC Appellant
Joseph D. Seletyn, Esq. Michael Streily, Office of the District Attorney
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order Entered November 3, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010893-2016, CP-02-CR-0010894-2016, CP-02-CR-0010895-2016, CP-02-CR-0010899-2016, CP-02-CR-0010900-2016, CP-02-CR-0004787-2017, CP-02-CR-0006462-2017, CP-02-CR-0006463-2017, CP-02-CR-0006464-2017
Joseph D. Seletyn, Esq.
Michael Streily, Office of the District Attorney
BEFORE: BOWES, J., OLSON, J., and MURRAY, J.
MEMORANDUM
OLSON, J.
Appellant, Michael Aaron Scherbanic, appeals from the order entered November 3, 2021, dismissing his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
This PCRA court summarized the relevant facts and procedural history of this case as follows:
Appellant was charged at nine criminal informations relating to the sexual abuse of children who were karate students of his, and Appellant's subsequent attempts to coerce his victims to change their statements. At CP-02-CR-10893-2016, Appellant was charged with involuntary deviate sexual intercourse ("IDSI"), indecent assault, unlawful contact, endangering the welfare of a child [("EWOC")], corruption of minors, and indecent exposure. At CP-02-CR-10894-2016, Appellant was charged with IDSI, indecent assault, unlawful contact, [EWOC], corruption of minors, and indecent exposure. At CP-02-CR-10895-2016, Appellant was charged with IDSI, indecent assault, unlawful contact, [EWOC], corruption of minors, and indecent exposure. At CP-02-CR-10899-2016, Appellant was charged with IDSI, indecent assault, unlawful contact, [EWOC], corruption of minors, and indecent exposure. Appellant was additionally charged at this information with intimidation of witnesses or victims and obstruction in child abuse cases. At CP-02-CR-10900-2016, Appellant was charged with indecent assault, unlawful contact, [EWOC], and corruption of minors.
At CP-02-CR-04787-2017, Appellant was charged with five counts of criminal solicitation-homicide, five counts of criminal solicitation-arson, five counts of criminal solicitation-retaliation, four counts of criminal solicitation-obstruction, three counts of criminal solicitation-perjury, and five counts of criminal solicitation-intimidation. At CP-02-CR-06462-2017, Appellant was charged with indecent assault, unlawful contact, [EWOC], and corruption of minors. At CP-02-CR-06463-2017, Appellant was charged with IDSI, indecent assault ([one] count[] person less than 13 years of age and [one count] person less than 16 years of age), unlawful contact, [EWOC], corruption of minors, and indecent exposure. At CP-02-CR06464-2017, Appellant was charged with criminal solicitation-indecent assault,
unlawful contact, [EWOC], corruption of minors, indecent exposure, and open lewdness.
On September 15, 2016, William Stockey, Esquire [("Attorney Stockey")] entered his appearance. Counsel filed several motions on Appellant's behalf, including a motion for reduction of bail and a motion to sever offenses. On March 10, 2017, [Attorney] Stockey filed a motion to withdraw as counsel. The trial judge, the Honorable Donna Jo McDaniel, granted the motion and appointed Richard Narvin, Esquire [("Attorney Narvin")] to represent Appellant. [Attorney] Narvin shepherded Appellant through the trial and verdict. On April 16, 2018, following a jury trial, Appellant was found guilty of several counts of [IDSI], indecent assault, unlawful contact, [EWOC], corruption of minors, and indecent exposure. He was also convicted of criminal solicitation-homicide, criminal solicitation-arson, [nine] counts of criminal solicitation-retaliation, [three] counts of criminal solicitation-perjury, [five] counts of criminal solicitation-obstruction, and one count each of intimidation of a witness and obstruction in child abuse cases. [On June 28, 2018,] J[udge] McDaniel imposed an aggregate sentence of 78[-]156 years of incarceration. [Attorney] Narvin filed a post-sentence motion and withdrew on July 11, 2018.
Robert Perkins, Esquire replaced [Attorney] Narvin and filed an amended post-sentence motion, which J[udge] McDaniel denied on October 29, 2018. Appellant filed a direct appeal and on April 30, 2020, the Superior Court of Pennsylvania affirmed [Appellant's] judgment of sentence. [See Commonwealth v. Scherbanic, 236 A.3d 1140 (Pa. Super. 2020)].
On June 29, 2020, Appellant filed a pro se PCRA petition. Appointed counsel Diana Stavroulakis filed an amended PCRA petition on March 22, 2021. [The PCRA court] gave notice of intent to dismiss on October 8, 2021 and dismissed without a hearing on November 3, 2021. Appellant filed a [timely] notice of appeal on November 24, 2021, and a [timely] concise statement of errors alleged on appeal on February 11, 2022.PCRA Court Opinion, 3/25/22, 1-4 (footnote and superfluous capitalization omitted) (footnote added).
Appellant raises the following issues on appeal:
1. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where trial counsel was ineffective for failing to object to the trial court's order which limited and interfered with attorney/client contact while preparing for trial.
2. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where trial counsel was ineffective for failing to object to the trial court's order that [Appellant] would be shackled during the jury trial and forced to testify from counsel table.
3. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where trial counsel was ineffective for failing to file a pre-trial motion requesting an exception to the Rape Shield Law so that the defense could present evidence regarding Bonnie Kirsch making similar sex[ual] assault allegations against another individual which involved victim N.K., prior to this case.
4. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where trial counsel was ineffective for failing to review and present medical records to establish that [Appellant] had a scar.
5. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where appellate counsel was ineffective for failing to include argument in the appellate brief on the issue that the trial court erred in denying the defense motion for a continuance.
6. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where appellate counsel was ineffective for failing to raise on appeal that the trial court erred in denying [his] motion for recusal.
7. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where appellate counsel was ineffective for failing to challenge the discretionary aspect[s] of [Appellant's] sentence on appeal.
8. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where appellate counsel was ineffective for failing to include argument in the appellate brief on the issue that the trial court erred in granting the Commonwealth's February 16, 2018 motion to join three additional cases for trial.
9. The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where appellate counsel was ineffective for failing to raise on appeal that the trial court erred in denying the motion for severance of the cases.
10.The PCRA court erred in denying relief because [Appellant] was denied his Sixth Amendment right to effective counsel where appellate counsel was ineffective for failing to raise on direct appeal that the trial court erred by prohibiting the defense from questioning witness Travis Pagano regarding whether he was offered consideration in his own pending criminal matters in exchange for his testimony.
11. The PCRA court erred in denying relief where the Commonwealth committed prosecutorial misconduct by failing to reveal that prosecution witness Travis Pagano was offered consideration in his own pending criminal matters in
exchange for his assistance, constituting a [Brady violation.
We note that Appellant filed multiple notices of appeal, one for each trial court docket number. Each notice of appeal listed all nine trial court docket numbers associated with the November 3, 2021 order. Accordingly, we deem this appeal to be compliant with the decision of our Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), as interpreted by this Court in Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc).
This Court granted Appellant's motion to consolidate appeals on January 4, 2022. Superior Court Order, 1/4/22, at 1.
We have reordered Appellant's issues for ease of discussion and disposition.
Brady v. Maryland, 373 U.S. 83 (1963).
Appellant's Brief at 8-9 (footnote added) (superfluous capitalization omitted). Our standard of review is as follows:
Our review of a PCRA court's decision is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. We view the findings of the PCRA court and the evidence of record in a light most favorable to the prevailing party. With respect to the PCRA court's decision to deny a request for an evidentiary hearing, or to hold a limited evidentiary hearing, such a decision is within the discretion of the PCRA court and will not be overturned absent an abuse of discretion. The PCRA court's credibility determinations, when supported by the record, are binding on this Court; however, we apply a de novo standard of review to the PCRA court's legal conclusions[.]Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence resulted from "one or more" of the seven specifically enumerated circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily enumerated circumstances is the "[i]neffective assistance of counsel 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." 42 Pa.C.S.A. § 9543(a)(2)(ii).
"[C]ounsel is presumed effective, and [the appellant] bears the burden of proving otherwise." Commonwealth v. Fears, 86 A.3d 795, 804 (Pa. 2014), quoting Commonwealth v. Steele, 961 A.2d 786, 796 (Pa. 2008). To prevail on an ineffectiveness claim, an appellant must establish:
(1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) [appellant] suffered prejudice as a result of counsel's error such that there is a reasonable probability that the result of the proceeding would have been different absent such error.Commonwealth v. Lesko, 15 A.3d 345, 373-374 (Pa. 2011), citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
A claim has arguable merit where the factual averments, if accurate, could establish cause for relief. See Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) ("if a petitioner raises allegations, which, even if accepted as true, do not establish the underlying claim ..., he or she will have failed to establish the arguable merit prong related to the claim"). Whether the facts rise to the level of arguable merit is a legal determination.
The test for deciding whether counsel had a reasonable basis for his action or inaction is whether no competent counsel would have chosen that action or inaction, or, the alternative, not chosen, offered a significantly greater potential chance of success. Counsel's decisions will be considered reasonable if they effectuated his client's interests. We do not employ a hindsight analysis in comparing trial counsel's actions with other efforts he may have taken.
Prejudice is established if there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some quotations and citations omitted). "A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim." Id.
In his first issue, Appellant claims trial counsel was ineffective for failing to object to the trial court's orders, entered January 10, 2018 and March 6, 2018, limiting Appellant's access to the telephone, internet, and other forms of communication while he was committed to Torrance State Hospital. Appellant's Brief at 29-32. Specifically, Appellant claims that the trial court's orders violated his "right to counsel" because the orders "limit[ed] [Appellant's] ability to interact with his attorneys as they prepared for trial." Id. at 31. In this same vein, Appellant claims that the trial court's March 6, 2018 order effectively "prevented privileged attorney-client communications during the weeks leading up to [his] trial." Id. Based upon the foregoing, Appellant argues that "trial counsel had no reasonable basis not to object to these orders" as they "prevented and interfered with [his] constitutional right to counsel." Id.
The circumstances giving rise to the trial court's January 10, 2018 and March 6, 2018 orders are relevant to our review and are as follows. Appellant was originally "charged with various sex offenses, some in October 2016 and others in July 2017, relating to [the] sexual assaults of students at his karate school." Commonwealth v. Scherbanic, 2020 WL 2096417, *1 (Pa. Super. 2020). On July 29, 2016, Appellant was deemed competent for trial by the Behavioral Clinic at the Allegheny County Jail. Appellant's Motion for Behavior Clinic and Psychiatric Evaluation, 7/24/17, at *1 (unpaginated). Thereafter, in June 2017, "the Commonwealth filed additional charges [against Appellant] stemming from [his] alleged attempts, while in Allegheny County Jail, to retaliate against the sexual assault victims, including solicitation to commit homicide." Scherbanic, 2020 WL 2096417 at *1
On June 30, 2017, nearly a month after new charges were filed against Appellant, his counsel filed a motion seeking court approval for an independent mental health examination of Appellant because counsel believed he demonstrated "possible emotional, psychiatric, or psychological issues and would benefit from an independent examination." Appellant's Motion for Independent Psychiatric Evaluation, 6/30/17, at *1 (unpaginated). In particular, counsel sought approval to engage Dr. Alice Applegate to conduct an examination, averring her services "would be appropriate for trial strategy and planning, and in the event of sentencing, for mitigation purposes." Id. The trial court granted Appellant's motion on July 6, 2017. Trial Court Order, 7/6/17, at 1. Then, on July 24, 2017, Appellant's counsel filed another motion, raising concerns regarding Appellant's competency to stand trial based upon Dr. Applegate's evaluation. Appellant's Motion for Behavior Clinic and Psychiatric Evaluation, 7/24/17, at *1-*2 (unpaginated). On August 23, 2017, the trial court entered an order in which it determined that Appellant was not competent to stand trial. Trial Court Order, 8/23/17, at 1. In addition, the trial court ordered Appellant to undergo inpatient psychiatric/psychological examination and treatment, committed Appellant to Torrance State Hospital for said treatment, and stayed the matter for further disposition. Trial Court Order, 8/23/17, at 1.
It is not entirely clear from the current record the specific time Appellant was committed to Torrance State Hospital. Moreover, Appellant does not specify the exact dates in his appellate brief. Nonetheless, on his previous appeal, this Court indicated that Appellant "[was] at Torrance [State] Hospital from Jan[uary] 4[, 2018] to March 14, 2018." Scherbanic, 2020 WL 2096417 at *1. In that time, the trial court entered two orders. First, on January 10, 2018, the trial court directed that Appellant "have no access to telephone, internet, or any other form of electronic or written communications with any persons while committed to Torrance State Hospital." Trial Court Order, 1/10/18, at 1. In this same order, however, the trial court specifically stated that Appellant's attorney could visit him. Id. Then, "upon motion" from Appellant's counsel, the trial court amended Appellant's "telephone privileges" to, inter alia, permit his counsel to "contact [him] by telephone, incoming call[s] only . . . once [] a week" but required "a member of Torrance State Hospital [to] be present during the telephone call." Trial Court Order, 3/6/18. Appellant was apparently released from the hospital on March 14, 2018, and subsequently deemed to be competent to stand trial. Appellant's trial commenced on April 9, 2018.
Counsel's motion is not included in the certified record on appeal.
It is not clear from the record before us when Appellant was determined to be competent to stand trial. Nonetheless, as Appellant participated in a jury trial from April 9, 2018 through April 16, 2018, it is apparent that Appellant was deemed to be competent to stand trial. See Trial Court Order, 1/10/18, at 1 and Trial Court Order 3/6/18, at 1. Thus, Appellant was able to communicate with his attorney while being treated at Torrance State Hospital.
Herein, Appellant's claim fails for lack of prejudice. First, Appellant does not engage in any discussion explaining what communications with his counsel were prohibited during his commitment to Torrance State Hospital, how the limitations imposed by the trial court impacted his ability to prepare for trial, or how such communications, if permitted, would have altered the outcome of his trial. See Commonwealth v. Spotz, 870 A.2d 822, 833-834 (Pa. 2005) (explaining an appellant alleging ineffective assistance must show there is a reasonable probability that, but for counsel's error, the outcome of the proceeding would have been different). For this reason alone, Appellant is not entitled to relief. See id. Second, it must be noted that Appellant is essentially challenging the trial court's decision to restrict his communication with his attorney for a period of approximately three months while he was undergoing treatment to determine whether he was competent to stand trial, i.e. at a time when the court and counsel were trying to determine if Appellant were "unable . . . to participate and assist in his defense." 50 P.S. § 7402. The irony of this position is further demonstrated by the fact that Appellant's counsel, himself, requested Appellant's commitment. Hence, it is apparent that the limited restrictions upon Appellant's communication occurred after his attorney concluded that evaluation was necessary to determine whether Appellant could participate in his own defense. We therefore dismiss Appellant's claim.
We also reiterate that the trial court's order of January 10, 2018 provided that Appellant's counsel could visit him at Torrance State Hospital, and the order of March 6, 2018 permitted counsel to call Appellant once a week so long as a staff member of the hospital was present. See Trial Court Order, 1/10/18, at 1 and Trial Court Order, 3/3/18, at 1. Thus, Appellant was able to communicate with his attorney while being treated at Torrance State Hospital. Moreover, Appellant was apparently released from the hospital on March 14, 2018, approximately 3½ weeks before trial commenced on April 9, 2018. Nothing in the record indicates, and Appellant does not argue, that he was unable to communicate with counsel during this time.
Appellant's remaining issues generally set forth additional claims of ineffective assistance of trial and appellate counsel. In particular, Appellant argues that: trial counsel was ineffective for failing to object to the trial court's order that Appellant be shackled during trial and forced to testify from counsel table (see Appellant's Brief at 33-36); trial counsel was ineffective for failing to file a pre-trial motion to request an exception to the Rape Shield Law to enable Appellant to present testimony regarding a similar sexual assault allegation made by a victim (see Appellant's Brief at 44-46); trial counsel was ineffective for failing to introduce Appellant's medical records demonstrating that he had a scar (see Appellant's Brief at 59-60); appellate counsel was ineffective in failing to challenge the trial court's orders denying Appellant's motion for a continuance and motion for recusal (see Appellant's Brief at 37-43); appellate counsel was ineffective in failing to challenge the discretionary aspects of Appellant's sentence on appeal (see Appellant's Brief at 20-28); appellate counsel was ineffective for failing to challenge the trial court's order denying Appellant's motion for severance, as well as the trial court's decision to grant the Commonwealth's February 16, 2018 motion to join three additional cases (see Appellant's Brief at 47-49 and 56-58); and, appellate counsel was ineffective for failing to challenge the trial court's decision to prohibit the questioning of a witness, Travis Pagano, regarding the consideration he was allegedly offered in exchange for his testimony against Appellant (see Appellant's Brief at 53-55). Lastly, Appellant argues that the Commonwealth committed a Brady violation. See Appellant's Brief 50-52.
We have carefully reviewed the certified record, the submissions of the parties, the thorough opinion of the able PCRA court, and the pertinent case law. Based upon our review, we conclude for the reasons expressed by the PCRA court, Appellant is not entitled to relief on any of his remaining claims. Moreover, as we find that the PCRA court has adequately and accurately addressed the issues raised in this appeal, we adopt the PCRA court's opinion as our own with respect to Appellant's remaining issues. Accordingly, the parties are directed to attach a copy of the PCRA court's March 25, 2022 opinion to all future filings relating to our disposition in this appeal.
Order affirmed.
Judgment Entered.
Allegheny County - Department of Court Records Criminal Division - Filings Information
| Document Number | Title/Entry | Filing Date |
| 1 | OPINION | 03/25/2022 |
OPINION
JHLLE RANGOS, J.
Appellant, Michael Scherbanic, appeals the dismissal of a PCRA petition alleging ineffective assistance of counsel. Appellant was charged at nine criminal informations relating to the sexual abuse of children who were karate students of his, and Appellant's subsequent attempts to coerce his victims to change their statements. At CP-02-CR-10893-2016, Appellant was charged with Involuntary Deviate Sexual Intercourse ("IDSI"), Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, Corruption of Minors, and Indecent Exposure. At CP-02-CR-10894-2016, Appellant was charged with IDSI, Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, Corruption of Minors, and Indecent Exposure. At CP-02-CR-10895-2016, Appellant was charged with IDSI, Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, Corruption of Minors, and Indecent Exposure. At CP-02-CR-10899-2016, Appellant was charged with IDSI, Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, Corruption of Minors, and Indecent Exposure. Appellant was additionally charged at this information with Intimidation of Witnesses or Victims and Obstruction in Child Abuse Cases. At CP-02-CR-10900-2016, Appellant was charged with Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, and Corruption of Minors.
At CP-02-CR-04787-2017, Appellant was charged with five counts of Criminal Solicitation-Homicide, five counts of Criminal Solicitation-Arson, five counts of Criminal Solicitation-Retaliation, four counts of Criminal Solicitation-Obstruction, three counts of Criminal Solicitation-Perjury, and five counts of Criminal Solicitation-Intimidation. At CP-02-CR-06462-2017, Appellant was charged with Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, and Corruption of Minors. At CP-02-CR-06463-2017, Appellant was charged with IDSI, Indecent Assault (two counts-Person Less than 13 Years of Age and Person Less than 16 Years of Age), Unlawful Contact, Endangering the Welfare of a Child, Corruption of Minors, and Indecent Exposure. At CP-02-CR-06464-2017, Appellant was charged with Criminal Solicitation-Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, Corruption of Minors, Indecent Exposure, and Open Lewdness.
On September 15, 2016, William Stockey, Esquire entered his appearance. Counsel filed several motions on Appellant's behalf, including a Motion for Reduction of Bail and a Motion to Sever Offenses. On March 10, 2017, Stockey filed a Motion to Withdraw as Counsel. The trial judge, the Honorable Donna Jo McDaniel, granted the motion and appointed Richard Narvin, Esquire to represent Appellant. Narvin shepherded Appellant through the trial and verdict. On April 16, 2018, following a jury trial, Appellant was found guilty of several counts of Involuntary Deviate Sexual Intercourse ("IDSI"), Indecent Assault, Unlawful Contact, Endangering the Welfare of a Child, Corruption of Minors, and Indecent Exposure. He was also convicted of Criminal Solicitation-Homicide, Criminal Solicitation-Arson, 9 counts of Criminal Solicitation-Retaliation, 3 counts of Criminal Solicitation-Perjury, 5 counts of Criminal Solicitation-Obstruction, and one count each of Intimidation of a Witness and Obstruction in Child Abuse Cases. J. McDaniel imposed an aggregate sentence of 78 to 156 years of incarceration. Narvin filed a Post-Sentence Motion and withdrew on July 11, 2018.
Robert Perkins, Esquire replaced Narvin and filed an Amended Post-Sentence Motion, which J. McDaniel denied on October 29, 2018. Appellant filed a direct appeal and on April 30, 2020, the Superior Court of Pennsylvania affirmed the judgment of sentence.
On June 29, 2020, Appellant filed a pro se PCRA Petition. Appointed counsel Diana Stavroulakis filed an Amended PCRA Petition on March 22, 2021. This Court gave Notice of Intent to Dismiss on October 8, 2021 and dismissed without a hearing on November 3, 2021. Appellant filed a Notice of Appeal on November 24,2021, and a Concise Statement of Errors Alleged on Appeal on February 11,2022.
This Court was assigned Appellant's case following the retirement of the Honorable Donna Jo McDaniel.
MATTERS COMPLAINED OF ON APPEAL
Appellant alleges eleven errors on appeal, which this Court shall summarize as follows: Appellant alleges trial counsel and direct appeal counsel rendered ineffective assistance by failing to raise meritorious issues; Appellant alleges this Court erred in denying ineffective assistance of trial counsel claims that counsel failed to review medical records and failed to object to an order which "limited and interfered with attorney/client contact while preparing for trial;" Appellant alleges that this Court erred in failing to find that that the Commonwealth had committed a Brady violation. (Concise Statement of Errors Complained of on Appeal at 2-5).
DISCUSSION
Appellant asserts his trial and direct appeal counsel provided ineffective assistance of counsel. Counsel is presumed to be effective and "the burden of demonstrating ineffectiveness rests on [A]ppellant." Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). To meet this burden, Appellant must, by a preponderance of evidence, plead and prove that:
(1) His underlying claim is of arguable merit; (2) the particular course of conduct pursued by counsel did not have some reasonable basis designed to effectuate his interests; and (3) but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the challenged proceedings would have been different.Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003).
Appellant first asserts that appellate counsel was ineffective for failing to raise on appeal that the trial court erred in denying a recusal motion. Judges are presumed impartial, and a denial of a recusal motion is subject to an abuse of discretion standard. Commonwealth v. Abn-Jamal, 720 A.2d 79, 89 (Pa. 1998). On April 4,2018, J. McDaniel denied a recusal motion based in part on allegations that Appellant had threatened the judge. J. McDaniel's response to the motion was as follows:
Well, first of all, I am not affected in the least by the alleged threats to me. This has happened over and over again. If everybody that threatened me I would recuse myself on, I would have to retire. So the motion to recuse is denied.(Motion hearing transcript, Apr. 4, 2018, at 3). The recusal motion was further based on Appellant's complaint to the Judicial Conduct Board, as well as J. McDaniel's rulings in pretrial matters. Knowledge of a complaint to the Judicial Conduct Board is not a basis for recusal, and the record does not reflect that the trial court showed any bias against Appellant in any pretrial ruling. Rather, the record reflects an experienced jurist dismissing the empty threats of an unsatisfied customer and addressing issues based on the facts and legal argument. Since the underlying claim is without merit, counsel was not ineffective for failing to raise it on appeal. Next, Appellant alleges that appellate counsel was ineffective for failing to challenge the discretionary aspects of his sentence. Appellant alleges that the imposition of consecutive sentences resulted in a life sentence, which would be contrary to the Sentencing Code. Before addressing the reasonableness of the Court's sentence, this Court notes that Appellant must raise a substantial question that his sentence is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super. 1995). A bald claim of excessiveness does not raise a substantial question. Commonwealth v. Wright, 832 A.2d 1104,1107 (Pa. Super. 2003). Appellant essentially alleges that the sentence was excessive because this Court sentenced him consecutively not concurrendy. As such, Appellant is not entitled to appellate review on that issue. However, Appellant alleges that the trial court violated the Sentencing Code in a manner that produced an unduly harsh sentence for the criminal conduct. This issue requires further consideration.
The standard of review with respect to sentencing is whether the sentencing court abused its discretion. Commonwealth v. Smith, (612 A.2d 893, 895 (Pa. 1996). A court will not have abused its discretion unless "the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. It is not an abuse of discretion if the appellate court may have reached a different conclusion. Grady v. Frito-Lay, Inc., 613 A.2d 1038,1046 (Pa. 2003). The sentencing court is given such broad discretion because it alone can observe the defendant's conduct and behavior. "Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review." Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).
This Court starts with the legal maxim that Appellant is not entitled to a volume discount at sentencing. Commonwealth v Prisk, 13 A.3d 526, 533 (Pa. Super. 2011). Each sentence imposed was within the standard range of the Sentencing Guidelines. When a sentence falls within the standard range of the Sentencing Guidelines, it is presumed appropriate. Commonwealth v. Moury, 20 A.2d 162, 171 (Pa. Super. 2010). Therefore, an appellate court should only vacate the sentences if the imposition of the guidelines was clearly unreasonable. 42 PA.C.S. § 9781 (c)(2). In addition, this Court notes that a 100-to-200-year sentence on a 45-count conviction of a stepfather who had repeatedly sexually assaulted his stepdaughter was affirmed. Commonwealth v Treadway, 104 A.3d 597, 598 (Pa. Super. 2014). Likewise, an aggregate sentence of 633 to 1500 years was upheld when the underlying conduct of 314 charges related to sexual abuse of children warranted the punishment. Commonwealth v. Prisk, 13 A.3d at 533. In the case sub judice, given that Appellant sexually abused 8 students over several years, solicited his cell mate to commit murder and otherwise retaliate and obstruct justice (creating a total of 10 victims), his sentence of 78 to 156 years was not excessive, and counsel was not ineffective for failing to raise this meritless issue on appeal.
Appellant next alleges that appellate counsel was ineffective for failing to argue on appeal that trial court erred in denying a continuance motion. Again, the standard is abuse of discretion and judges are given considerable latitude. Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016). A continuance motion requires more than counsel's bald assertion that additional time is required to prepare. Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012). Prejudice, in the form of how trial counsel would have prepared differendy or how counsel was unable to prepare a defense, must be established. Id.
Despite the case taking a couple of years to proceed to a trial, and having been postponed several times, Appellant, on the eve of trial, provided defense counsel with 12-15 single spaced double-sided documents for review which Appellant believed to be exculpatory. (Motions Hearing Transcript, Apr. 4,2018, at 5-7). Trial counsel had over a year to prepare for trial and Appellant failed to indicate the reason these materials were provided last minute to counsel. Trial counsel indicated he had not reviewed the materials and "would have great difficulty explaining to [the court] why it specifically is exculpatory." Id. As Appellant has not alleged how the documents may have been "exculpatory" or otherwise would have assisted him in the preparation of a defense, he has failed to establish prejudice, and his claim for relief on this matter must fail.
Appellant's next claim of ineffective assistance of appellate counsel asserts that counsel was ineffective for failing to argue that the trial court erred in granting a motion to join three additional cases for trial. Similarly, Appellant asserts that counsel was ineffective for failing to argue on appeal that the trial court erred in denying severance motions filed by trial counsel. Appellant was initially charged with various sex offenses relating to sexual assaults occurring in October 2016 and in July 2017. The Commonwealth added additional charges in June 2017 alleging that Appellant, while he was detained at the Allegheny County Jail, attempted to retaliate against his victims, including an allegation that Appellant attempted to solicit an individual to commit homicide.
Joinder is governed by Rule 582 of the Pennsylvania Rules of Criminal Procedure. It states, in relevant part: "Offenses charged in separate indictments or informations may be tried together if: the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion. Pa. R. Crim. P. 582(a). Severance is governed by Rule 583 of the Pennsylvania Rules of Criminal Procedure, which states, "The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together." Pa. R. Crim. P. 583. The nine cases joined for trial all involved sexual abuse by Appellant of his karate students occurring within a similar time period. Because the trial court determined correctly that all cases stemmed from the same course of conduct and were related, a challenge to this ruling would be meridess. Likewise, because Appellant could not establish prejudice to the cases being heard in a single trial, the trial court correctly denied the severance motions. As counsel cannot be found ineffective for failing to raise a meridess claim, Appellant's claims or error are without merit.
Next, Appellant asserts that his trial counsel was ineffective for failing to review and present medical records regarding a scar Appellant claims to have. Appellant failed to attach any medical documentation to the PCRA petition in support of this claim. Appellant further fails to establish how this purported evidence would result in a different outcome. Appellant testified at trial regarding this scar (Trial, Apr. 9-16, 2018, hereinafter "IT" at 573-574), but this testimony and Appellant's purported medical records in support thereof in no way change the compelling testimony of numerous witnesses as they detailed their sexual abuse by their trusted karate teacher. Since the evidence was presented through Appellant's own testimony and Appellant has not established that the purported medical evidence is significant, the claim is meritless.
Appellant, in his Concise Statement, next alleges that trial counsel was ineffective for failing to object to a trial court order limiting or interfering with attorney/client contact while preparing for trial. In August 2017, the trial court found Appellant to be incompetent and committed him to Torrance State Hospital. The court ordered "no visitors other than his Attorney" and "no electronic or written communications with any persons" while Appellant was at Torrence. (Order, Jan. 10,2018). A subsequent order permitted counsel to call Appellant weekly, with Torrence staff present, and prohibited Appellant from making any outgoing calls. (Order, Mar. 6, 2018). Given Appellant's conduct at the jail, the Criminal Solicitation and Intimidation of a Witness charges that resulted, and the trial court's need to prevent Appellant from further misconduct, the trial court's orders were reasonable and appropriate. Moreover, at no point did trial counsel indicate that counsel needed additional contact with Appellant to adequately prepare. Counsel is presumed effective, and that presumption extends to pretrial preparation. Since counsel did not seek additional communication, under the circumstances of the case, no further communication was necessary. As a result, trial counsel was not ineffective for failing to raise this frivolous issue.
Appellant's next allegation of error is that trial counsel was ineffective for failing to object to Appellant being shackled during the trial and required to testify from counsel table. A defendant should only be shackled under exceptional circumstances where the restraints are "reasonably necessary to maintain order." Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa. 1992). Examples of exceptional circumstances include a defendant disrupting the proceedings, danger of a defendant escaping, and concern that the defendant may attack others in the courtroom. Id. Moreover, "no prejudice occurs even when the restraints are visible to the jury." Id.
J. McDaniel ordered that only Appellant's legs be shackled. The shackles were hidden by a draped cloth and not visible to the jury. (Order, Mar. 28, 2018).
Appellant was a karate instructor. Testimony adduced at trial included Appellant's written and verbal plans to have his cell mate harass and attack Appellant's victims, including detailed plans to kill the victims. (TT at 289-290). J. McDaniel observed at sentencing, prior to assuming the record, Appellant "began screaming and yelling at the boys, that he had papers with the boy's name[s] on it, that he has told members of the sheriffs' staff as well as his attorney that he does not want to listen to anything that the boys have to say and that he intends on disrupting this proceeding." (Sentencing transcript, June 28, 2018, hereinafter "ST" at 2-3). Appellant's conduct established that he intended to disrupt the proceedings and presented a risk that he may attack others in the courtroom. As such, the trial court did not err, and counsel was not ineffective for failing to raise a meritless claim.
In yet another allegation of error, Appellant alleges trial counsel was ineffective for failing to file a pretrial motion to permit testimony that one of the victims, "N.K.," and the victim's grandmother, had made a previous allegation of sexual abuse. This issue is addressed by the Rape Shield Law, which states in relevant part:
§ 3104. Evidence of victim's sexual conduct
(a) General rule.-Evidence of specific instances of the alleged victim's past sexual conduct, past sexual victimization, allegations of past sexual victimization, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions of any offense listed in subsection (c) except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.-A defendant who proposes to offer evidence of the alleged victim's past sexual conduct, past sexual victimization, allegations of past sexual
victimization, opinion evidence of the alleged victim's past sexual conduct and reputation evidence of the alleged victim's past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in-camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).18Pa.C.S. §3104.
Appellant asserts that N.K.'s allegations against him were fabricated because N.K. and his grandmother previously alleged that another individual had sexually assaulted N.K. Appellant did not meet his evidentiary burden under § 3104 (b) to even reach an in-camera hearing on this purported evidence. This prior allegation of sexual misconduct is nothing but conjecture and speculation by Appellant and was not supported by competent evidence. Even if this allegation of abuse could have been substantiated, it would not establish a bias or hostility toward Appellant. Furthermore, N.K.'s testimony against Appellant was corroborated by a sea of evidence which included similar testimony from six other victims of Appellant, letters and audio recordings. Again, this claim has no merit.
A seventh victim did not testimony.
Next, in what seems to be an endless stream of frivolous claims, Appellant asserts that the Commonwealth committed prosecutorial misconduct by failing to disclose that witness Travis Pagano, Appellant's former cellmate, was offered consideration for his testimony, which would constitute a Brady violation. The trial transcript directly refutes that Pagano received any consideration for his testimony. Pagano testified that neither the prosecuting attorney nor anyone from the District Attorney's office offered him anything in exchange for his testimony. (TT 389). Pagano stated that he chose to testify "because I can't just let people walk around planning to kill kids." (TT 391). As Appellant's claim of a Brady violation is directly refuted by the record, appellate counsel was not ineffective for failing to raise this claim.
Brady v. Maryland, 373 U.S. 83 (1963).
Lastly, Appellant alleges that appellate counsel was ineffective for failing to raise on appeal that the trial court prohibited trial counsel from questioning Pagano regarding the consideration he received in exchange for his testimony. This claim is baseless. Pagano was thoroughly examined as to whether he received any consideration for his testimony, and Appellant fails to point out where counsel was prohibited from asking Pagano about his motivation for testifying. This claim, like every other claim raised by Appellant, is without merit.
CONCLUSION
For all above reasons, the findings and rulings of this Court should be AFFIRMED.