Com. v. Slutzker, S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN G. SLUTZKER
Appellant No. 1881 WDA 2015
Appeal from the PCRA Order November 4, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006520-1991
BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED JULY 7, 2017
Steven Slutzker appeals from the order, entered in the Court of
Common Pleas of Allegheny County, denying his petition filed under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, (“PCRA”). We affirm.
John Mudd, Sr., was shot and killed on December 28, 1975. Slutzker,
who had been romantically involved with the victim’s wife, Arlene Mudd, was
charged with criminal homicide and two counts of solicitation to commit
murder.1 At the coroner’s inquest, the homicide charge was dismissed.
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*
Former Justice specially assigned to the Superior Court.
1
Solicitation of Michael Pezzano to commit murder (CP-02-CR-000589-
1976), and solicitation of Stephen E. Harston to commit murder (CP-02-CR-
000610-1976). 18 Pa.C.S.A. § 902.
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Slutzker was convicted of one count of solicitation, at CP—02-CR-0000589-
1976) and sentenced to 11½ to 23 months’ imprisonment.2
The homicide case, dormant for years, was reopened in 1991 when the
victim’s son, John Mudd, Jr., a child at the time of the murder, suddenly
recalled the events of that night. Mudd claimed that during an emotional
argument, he was flooded with images from that night, including one of
Slutzker talking with his mother, who was also a suspect in the murder
investigation. Based on Mudd’s statement and a review of the initial
investigation, Slutzker was arrested and again charged with murder.
Following a jury trial in January 1992, Slutzker was convicted of first-
degree murder for the 1975 homicide of John Mudd, Sr. Following
conviction, the court sentenced Slutzker to life imprisonment. On direct
appeal, this Court affirmed, Commonwealth v. Slutzker, 638 A.2d 271
(Pa. Super. 1993) (Table), and the Pennsylvania Supreme Court denied a
subsequent petition for allowance of appeal. Commonwealth v. Slutzker,
537 Pa. 631 (Pa. 1994) (Table).
Slutzker filed a PCRA petition in 1997, which was denied. Denial of
collateral relief was affirmed on appeal, and, thereafter, Slutzker filed a
petition for habeas corpus in federal district court. The federal district court
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2
Slutzker appealed and this Court affirmed his judgment of sentence.
Commonwealth v. Slutzker, 393 A.2d 1281 (Pa. Super. 1978). The
solicitation case is not before us.
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granted habeas corpus relief. The Commonwealth appealed, and the Court
of Appeals for the Third Circuit affirmed. See Slutzker v. Johnson, 393
F.3d 373 (3d Cir. Pa. 2004) (affirming grant of habeas corpus relief on
ground that prosecution’s failure to disclose twenty-one police reports
denied Slutzker due process, and on ground that trial court failed to compel
victim’s wife to testify).
Following a new trial in 2007, Slutzker was again convicted of first-
degree murder, and the court sentenced him to life imprisonment. On
March 16, 2010, this Court affirmed his judgment of sentence,
Commonwealth v. Slutzker, 996 A.2d 556 (Pa. Super. 2010) (Table), and,
on September 28, 2010, the Pennsylvania Supreme court denied Slutzker’s
petition for allowance of appeal. Commonwealth v. Slutzker, 608 Pa. 639
(Pa. 2010) (Table).
Slutzker filed a pro se PCRA petition on January 3, 2011. The court
appointed counsel, Christopher M. Boback, Esquire, and directed counsel to
file an amended petition. Thereafter, Attorney Boback filed an amended
petition on March 15, 2011, and the Commonwealth filed a reply. Slutzker
then filed a pro se motion for withdrawal of counsel. Following two
evidentiary hearings on Slutzker’s PCRA claims, and denial of all relief, the
court ultimately granted counsel leave to withdraw and appointed the Office
of Conflict Counsel to represent Slutzker. Patrick Nightingale, Esquire, was
appointed to represent Slutzker. Slutzker again filed a pro se motion
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seeking to have counsel removed. Attorney Nightingale then filed a motion
to withdraw, which was denied.
Slutzker renewed his request to have counsel removed on May 5,
2014, advising the court that Erika P. Kreisman, Esquire, would agree to the
appointment. The court granted the request; Attorney Nightingale
withdrew, and Attorney Kreisman entered her appearance.
Attorney Kreisman filed an amended PCRA petition. The PCRA court
held a hearing on two of Slutzker’s ineffectiveness claims: trial counsel’s
failure to call several character witnesses, and counsel’s failure to impeach
the testimony of Slutzker’s daughter, Amy Slutzker.3 The court denied
Slutzker’s remaining claims without a hearing.
Following the evidentiary hearing, the PCRA court denied relief.
Slutzker filed a timely appeal, and the court ordered him to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal by February 2,
2016.4 Slutzker raises the following issues for our review:
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3
Amy Slutzker testified that, on the night of the murder, she recalled her
father getting a handgun from a dresser drawer, leaving their home for a
time, and then returning and taking her to the home of Janet and Patrick
O’Dea. She testified that she had always remembered these events, but was
afraid of her father, and so she never revealed what she knew until her
father asked her to testify on his behalf. PCRA Court Opinion, 7/6/16, at 4.
4
The PCRA court’s order stated that “[t]he appellant is notified that that any
issue not properly included in the Statement timely filed and served
pursuant to Pa.R.A.P. 1925(b) shall be deemed waived[.]” PCRA Court
Order, 12/8/15. Thereafter, on February 23, 2016, the court struck the Rule
(Footnote Continued Next Page)
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1. Was trial counsel ineffective for failing to present
impeachment witness Monica McIlvain?
2. Was trial counsel ineffective for failing to present good
character evidence?
3. Was trial counsel ineffective by failing to request a
Kloiber[5] cautionary instruction about Cynthia DeMann’s
identification of [Slutzker]?
4. Did appellate counsel Douglas Sughrue ineffectively fail to
appeal the denial of the motion in limine [precluding
questioning] Janet (O’Dea) Feiling [about criminal charges
of which she was acquitted]?
5. Was [Slutzker] represented ineffectively when counsel did
not read Arlene Mudd’s coroner’s inquest testimony to the
jury because she was unavailable?
6. [Whether . . . trial counsel was ineffective for failing to
object to the prosecutor questioning his alibi witnesses,
the O’Deas,] “Isn’t it possible” [that Slutzker might have
left their house]?
7. Was trial counsel ineffective in not filing a motion in limine
[to preclude testimony about] an alleged visit by [Slutzker]
to John Mudd, Jr.’s job at the pizza parlor, [his place of
employment]?
_______________________
(Footnote Continued)
1925(b) statement, as it has appended to it documents not admitted into
evidence. The court directed defense counsel, within seven days of the date
of the order, to “file an Amended Concise Statement of Matters Complained
of on Appeal with the documents improperly attached to the original one
removed.” PCRA Court Order, 2/23/16. On February 26, 2016, Attorney
Kreisman filed a 22-page “Second Concise Statement of Matters Complained
of on Appeal,” raising fourteen claims of trial and appellate counsel
ineffectiveness, and one claim of trial court error. That same day counsel
filed an “Addendum to Concise Statement of Matters Complained of on
Appeal,” raising additional claims. The PCRA court, “in the interests of
judicial economy,” did not review or consider the improperly attached
documents or the addendum to the Rule 1925(b) statement.
5
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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8. [Whether trial and appellate counsel were ineffective for
failing to argue that John Mudd, Jr. was incompetent to
testify due to hypnosis?
9. [Whether trial and appellate counsel were ineffective for
failing to pursue the issue of missing discovery]?
10. [Whether trial and appellate counsel were ineffective
for failing to challenge the imposition of a life sentence of
incarceration]? [6]
11. Did trial attorney Mark Rubenstein offer ineffective
assistance of counsel when he failed to bring an
investigator to the interview with Commonwealth witness
Kimberly Altman Adkin?
Appellant’s Brief, at 2-3.
Preliminarily, we note that “[o]ur standard of review of the denial of
PCRA relief is clear; we are limited to determining whether the PCRA court’s
findings are supported by the record and without legal error.”
Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170 (Pa. Super. 2008).
We will not disturb the PCRA court's factual findings “unless there is no
support for [those] findings in the certified record.” Commonwealth v.
Melendez–Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015).
When analyzing ineffectiveness claims, “[w]e begin . . . with the
presumption that that counsel [was] effective.” Commonwealth v. Spotz,
18 A.3d 244, 259–60 (Pa. 2011). “[T]he [petitioner] bears the burden of
proving ineffectiveness.” Commonwealth v. Ligons, 971 A.2d 1125, 1137
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6
For clarity, we have replaced some of the language in Slutzker’s issues and
replaced it with the Commonwealth’s wording, in brackets, as stated in the
Commonwealth’s counter-statement of the issues involved.
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(Pa. 2009). To overcome the presumption of effectiveness, a PCRA
petitioner must demonstrate that: “(1) the underlying substantive 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 counsel's deficient performance.”
Id. An ineffectiveness claim will be denied if the petitioner fails to establish
any one of these prongs. Id.
After a review of the parties’ briefs, the relevant case law and the
certified record on appeal, we agree with the PCRA court that Slutzker is not
entitled to collateral relief. The PCRA court’s findings are supported in the
record, and we find no error of law. We, therefore, rely upon the Honorable
Jeffrey A. Manning’s opinion in affirming the order denying PCRA relief. We
instruct the parties to attach a copy of that decision in the event of further
proceedings in the matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
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Circulated 06/16/2017 02:02 PM