Com. v. Grohowski, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KAZIMIR CRAIG GROHOWSKI
Appellant No. 1713 MDA 2014
Appeal from the Judgment of Sentence October 19, 2009
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49—CR-0000706-2004
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED FEBRUARY 12, 2016
Appellant, Kazimir Craig Grohowski, appeals nunc pro tunc from the
judgment of sentence entered after a jury convicted him on three counts of
delivery of contraband to a confined person. After careful review, we affirm.
In 2004, Grohowski, a guard at the Northumberland County Prison,
was charged with multiple crimes flowing from allegations that he, along
with several other guards, had participated in a scheme to distribute
contraband to prisoners, as well as criminally assaulting one prisoner. The
jury found him guilty of three counts of delivering contraband to the
prisoners, but found him not guilty on the charge of aggravated assault of an
inmate.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Prior to sentencing, Grohowski filed a motion for extraordinary relief,
which the trial court granted. The Commonwealth appealed, and this Court
reversed, concluding that Grohowski’s claims were not extraordinary, and
should have been addressed in post-sentence motions.
On remand, the trial court sentenced Grohowski to an aggregate term
of imprisonment of two to four years. The trial court then granted
Grohowski bail pending appeal. Nothing occurred in the case for nearly a
year, and the Commonwealth filed a motion to revoke bail and commence
sentence. Nearly two months after the Commonwealth’s filing, on December
17, 2010, Grohowski filed a nunc pro tunc post-sentence motion. The
Commonwealth objected, but the trial court granted reconsideration of the
judgment of sentence.
Once again the docket lay fallow until June 23, 2011, when the
Commonwealth filed a motion to declare Grohowski’s nunc pro tunc post-
sentence motions denied by operation of law. The trial court denied the
Commonwealth’s motion, and granted Grohowski’s motion for judgment of
acquittal. The Commonwealth again appealed to this Court.
This Court found that Grohowski’s nunc pro tunc post-sentence motion
had been denied by operation of law, and therefore the trial court had lost
jurisdiction to rule on Grohowski’s motion. The panel reversed the order and
reversed for reinstatement of Grohowski’s judgment of sentence. On
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December 3, 2013, the Supreme Court of Pennsylvania denied Grohowski’s
petition for allowance of appeal.
Shortly thereafter, the Commonwealth filed a motion to commence
Grohowski’s sentence. On August 1, 2014, the trial court reinstated
Grohowski’s judgment of sentence and set a date for the commencement of
his sentence. Grohowski did not file an appeal from this order.
Instead, Grohowski filed a petition pursuant to the Post-Conviction
Relief Act (“PCRA”). Of relevance to the current appeal, the PCRA court
found that Grohowski had not been properly informed of the denial of his
post-sentence motion by operation of law, and therefore reinstated his direct
appeal rights nunc pro tunc. He then filed this direct appeal.
On appeal, Grohowski identifies six issues. Preliminarily, we note that
his second issue, concerning trial counsel ineffectiveness, and his third and
fourth issues, raising an argument that his speedy trial rights were violated
by counsel’s filing of continuances without Grohowski’s knowledge or
consent, are not ripe in this direct appeal. Grohowski has made no attempt
to show good cause why his ineffectiveness claims should be reviewed on
direct appeal, and has not expressly waived his right to pursue these claims
via a PCRA petition. We therefore cannot review them in this direct appeal.
See Commonwealth v. Holmes, 79 A.3d 562, 577-578 (Pa. 2013).
In his first issue, Grohowski contends that the prosecutor committed
misconduct by urging the jury, in his closing argument, to “‘send a message
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to the community’ by convicting Grohowski, and by repeatedly introducing
evidence concerning the prison where it is alleged illicit activities, beyond
those allegedly concerning Grohowski, occurred.” Appellant’s Brief, at 7.
The phrase “prosecutorial misconduct” has been so abused as to
lose any particular meaning. The claim either sounds in a specific
constitutional provision that the prosecutor allegedly violated or,
more frequently, like most trial issues, it implicates the narrow
review available under Fourteenth Amendment due process. See
Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d
618 (1987) (“To constitute a due process violation, the
prosecutorial misconduct must be of sufficient significance to
result in the denial of the defendant’s right to a fair trial.”)
(internal quotation marks omitted); Donnelly v.
DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d
431 (1974) (“When specific guarantees of the Bill of Rights are
involved, this Court has taken special care to assure that
prosecutorial conduct in no way impermissibly infringes them.”).
However, “[t]he Due Process Clause is not a code of ethics for
prosecutors; its concern is with the manner in which persons are
deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504,
511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is
the fairness of the trial, not the culpability of the prosecutor.
Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982). If the defendant thinks the prosecutor has done
something objectionable, he may object, the trial court rules,
and the ruling—not the underlying conduct—is what is reviewed
on appeal. Where, as here, no objection was raised, there is no
claim of “prosecutorial misconduct” as such available. There is,
instead, a claim of ineffectiveness for failing to object, so as to
permit the trial court to rule. Cf. id.Com. v. Tedford, 960 A.2d 1, 28-29 (Pa. 2008).
We initially note that this issue actually combines two issues into one.
First, Grohowski alleges that the prosecutor committed misconduct by urging
the jury to “send a message” in his closing argument. However, Grohowski
has failed to identify where in the record he objected to the prosecutor’s
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remark, and our independent review of the record has revealed no objection
was lodged. Indeed, Grohowski, in his arguments regarding ineffectiveness
of counsel, concedes that counsel did not object. This issue was therefore
not preserved, and we find it waived. See Tedford.
Even if it were not waived, we would not find the prosecutor’s
argument, viewed as a whole, to have risen to the level of misconduct.
While the prosecutor used versions of the phrase “send a message,” he
immediately pointed out that the jury’s task was only to determine whether
Grohowski had committed the crimes charged:
But I submit that in terms of your verdict, ladies and gentlemen,
not only – and this is your primary task. Not only – really the
only task, to find Mr. Grohowski guilty beyond a reasonable
doubt. But in terms of that verdict, perhaps if people are
listening, sending that message for change of what’s going on
down there.
But that your first – and I submit to you, your first and primary
task, and only task, really is Kazimir Grohowski. Anything else
that happens is inconsequential to you, ladies and gentlemen.
That’s the task provided to you. That is the task before you.
N.T., Trial, 9/19/06, at 208-209. The prosecutor’s argument, while flirting
with urging the jury to “send a message,” consistently reminded the jury to
focus on the conduct of Grohowski. When viewed as a whole, we conclude
that Grohowski cannot establish that the prosecutor’s argument caused
jurors to decide the case on improper grounds.
The second argument conflated in Grohowski’s issue raising
prosecutorial misconduct involves the elicitation of evidence regarding
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crimes committed by other persons at the prison. Once again, Grohowski
concedes, in his argument raising ineffectiveness of counsel, that trial
counsel failed to object to the introduction of any of this evidence. This
issue is therefore waived. See Tedford.
Even if this issue were properly before us, we would conclude that the
evidence elicited did not rise to prosecutorial misconduct. The prosecutor in
this case was faced with the difficult challenge of having prison inmates as
primary eyewitnesses. Grohowski challenged the credibility of these
witnesses, and in effort to buttress their credibility, the prosecutor elicited
testimony regarding the atmosphere at the prison. This evidence was not
aimed at tarring Grohowski with the misconduct of others, but was
presented in the context of an explanation why other guards were not
testifying on behalf of the prosecution, and further, why the inmates did not
immediately report instances of corruption or abuse. Since Grohowski
challenged the credibility of the inmate eyewitnesses, the Commonwealth
was entitled to address their credibility in this manner.
As Grohowski failed to preserve either of his arguments in his first
blended issue, we conclude that he is due no relief on that issue.
In his fifth issue, Grohowski challenges the sufficiency of the evidence
supporting his convictions. Grohowski’s argument concedes that the
evidence submitted at trial was sufficient to establish that he had handled
packages of marijuana, cocaine, and methamphetamine. See Appellant’s
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Brief, at 25. Grohowski instead focuses on the Commonwealth’s failure to
present evidence establishing that these three compounds were listed in
schedules I through IV of the Controlled Substance, Drug, Device and
Cosmetic Act (“the Act”). However, Grohowski fails to cite to any authority
requiring such evidence, nor has our independent research located any.
Most likely, this is due to the fact that whether a compound is listed under
the Act is a question of law, and not a question of fact. We therefore
conclude that Grohowski’s challenge to the sufficiency of the evidence merits
no relief.
In his final issue, Grohowski argues that the trial court had jurisdiction
to grant his nunc pro tunc motion to file post-sentence motions. We
conclude that the issue is moot. See Commonwealth v. Nava, 966 A.2d
630, 632-633 (Pa. Super. 2009) (“A case is ‘moot’ when a determination is
sought on a matter which, when rendered, cannot have any practical effect
on the existing controversy.”). Even if we were to conclude that Grohowski
is correct, we have already concluded that he has raised no meritorious
issue on appeal. Furthermore, Grohowski does not identify any order
entered by the trial court which allegedly mistakenly relied upon reasoning
that the trial court did not have jurisdiction. Grohowski does not even
identify an issue that he would have raised in post-sentence motions that he
has not currently argued. As such, the issue is moot and merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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