Com. v. Pukowsky, M.

J-A19015-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MYRON PUKOWSKY :
:
Appellant : No. 3057 EDA 2018
Appeal from the PCRA Order Entered September 14, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003452-2013
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 06, 2019
Myron Pukowsky appeals from the portion of the Order of the Court of
Common Pleas of Montgomery County denying his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A §§ 9541-9546. We affirm.
L.P. is the daughter of Appellant and Appellant’s estranged wife, A.B. In
November of 2007, when L.P. was five years old, she told her adult neighbor
that Appellant had touched her inappropriately. The neighbor relayed this
information to A.B., who then arranged for L.P. to meet with a
psychotherapist, Laura Weissflog. Weissflog conducted a videotaped interview
of L.P. and forwarded a report to the Montgomery County Office of Children
and Youth and to the Royersford Police Department.
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* Former Justice specially assigned to the Superior Court.
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Appellant, who had been residing in a drug and alcohol rehabilitation
center, returned to the area where L.P. and A.B. lived but did not stay at the
marital home. He also began attending therapy sessions with a psychologist,
Dr. John Gentry. No charges were filed against Appellant on the basis of L.P.’s
allegations and Appellant eventually fell out of contact with L.P. and A.B.
Several years later, in March of 2013, an envelope was found among a
pile of paperwork that Appellant had left behind in a bedroom in the marital
home. The envelope contained handwritten drafts of a letter to L.P. that
Appellant had written at the suggestion of Dr. Gentry while he was in therapy.
In the letters, Appellant apologized to L.P. and explained that at the time he
touched her he had been dealing with drug and alcohol issues.1
Following the discovery of the letters, Appellant was charged with
various offenses in connection with L.P.’s allegations of abuse. Appellant filed
a pre-trial motion to suppress his letters to L.P. on the basis that they were
privileged communications with his psychologist. He also filed a pre-trial
motion for a competency hearing, alleging L.P. was not competent to testify
because her recollections had been tainted by the adults she had initially
disclosed the abuse to, including A.B. and Weissflog. Following a hearing, the
trial court denied the motion to suppress, found that L.P.’s testimony was not
tainted, and that she was competent to testify.
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1 There is no evidence that Appellant ever gave any form of the letter to L.P.
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A jury subsequently found Appellant guilty of two counts of aggravated
indecent assault, two counts of indecent assault of a person less than thirteen
years of age and corruption of minors. Appellant retained new counsel for his
sentencing and his appeal, James Lyons, Esquire. Following his sentencing
hearing, where Appellant was represented by Lyons’ associate, Nicholas
Reifsnyder, Esquire, Appellant was designated a Sexually Violent Predator
(“SVP”) and sentenced to an aggregate term of imprisonment of seventeen
and one-half to thirty-five years.2 This Court affirmed Appellant’s judgment
of sentence, Commonwealth v. Pukowsky, 147 A.3d 1229 (Pa. Super.
2016), and Appellant did not seek review from our Supreme Court.
Appellant filed a timely PCRA petition on September 8, 2017. He then
filed a supplemental PCRA petition, seeking to have his SVP designation
vacated in light of this Court’s decision in Commonwealth v. Butler, 173
A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d 501 (Pa. 2018).
Following a hearing, the PCRA court granted Appellant’s PCRA petition only to
the extent that it vacated Appellant’s SVP designation but denied the
remainder of the petition. Appellant now appeals that part of the PCRA court’s
order denying his petition. “On appeal from the denial of PCRA relief, [this
Court’s] standard and scope of review is limited to determining whether the
PCRA court’s findings are supported by the record and without legal error.”
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2Appellant did not file post-sentence motions. His first appeal to this Court
was quashed as untimely, but this Court ultimately reinstated Appellant’s
appellate rights nunc pro tunc.
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Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation
omitted).
Appellant raises several claims relating to the ineffective assistance of
both trial counsel and sentencing/appellate counsel. The law presumes that
counsel was effective. See Commonwealth v. Brooks, 839 A.2d 245, 248
(Pa. 2003). In order to overcome that presumption and prevail on a claim of
ineffectiveness, Appellant must establish that: (1) the underlying claim has
arguable merit; (2) counsel had no reasonable basis for his course of conduct;
and (3) he was prejudiced by counsel’s ineffectiveness, i.e. there is a
reasonable probability that but for the act or omission in question, the
outcome of the proceeding would have been different. See id.Appellant first claims trial counsel was ineffective for failing to call an
expert witness to testify on the subject of tainting. Specifically, Appellant
alleges counsel should have called an expert to testify on “how a minor child
can be tainted by repetitive, unprofessional interviews and multiple
conversations about the allegations made several years prior to charges being
filed.” Appellant’s Brief at 6. This claim fails.
When an ineffectiveness claim is based upon trial counsel’s failure to call
an expert witness, the appellant must prove that such an expert witness
existed, the witness was available and willing to testify for the defense,
counsel knew or should have known of the witness, and he was prejudiced by
the absence of the testimony. See Commonwealth v. Steward, 775 A.2d
819, 831 (Pa. Super. 2001). To establish prejudice in this context, the
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appellant must demonstrate how the uncalled witness would have been helpful
to the defense under the circumstances of his case. See Commonwealth v.
Williams, 141 A.3d 440, 460 (Pa. 2016) (citations omitted).
Here, the PCRA court found that Appellant had completely failed to meet
this burden. The court noted that Appellant had not identified any expert
witness or provided any other evidence that any expert was available to testify
on his behalf, much less what the specific testimony from such an expert
witness would have been.
Appellant takes issue with the PCRA court’s conclusion, arguing that the
“question was not pled as to a specific witness who should have been called”
but rather to a “type of witness who would have described to the jury what
practices should be used when interviewing a child witness.” Appellant’s Brief
at 19. This argument in no way changes what the above burden of proof
requires of Appellant.
Our Supreme Court has been clear that when an appellant “claims that
some sort of expert testimony should have been introduced at trial, the
[appellant] must articulate what evidence was available and identify the
witness who was willing to offer such evidence. Commonwealth v. Williams,
640 A.2d 1251, 1265 (Pa. 1994)(emphasis added). Appellant has simply not
done this here and his general and unsubstantiated proffer that a certain but
unnamed “type” of witness would have testified in his defense cannot serve
as a replacement for his failure to do so. See Commonwealth v. Steward,
775 A.2d at 832 (counsel not ineffective for failing to present expert testimony
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when appellant did not identify particular witness or offer proof as to the
precise type of testimony he alleged should have been presented).
Appellant also argues that counsel impermissibly relied on cost as the
basis for not hiring an expert. During his testimony at the PCRA hearing, trial
counsel, who was from the Montgomery County Public Defender’s Office,
indicated that although he could not recall specifically, budgetary
considerations may have factored into any decision on his part not to call an
expert. Trial counsel later recalled, however, that he did consider using Dr.
Gentry as both an expert and a fact witness but chose not to hire him as an
expert for reasons unrelated to cost. Nevertheless, even if finances played a
role here, it is of no moment as Appellant failed to identify the expert and
testimony he alleges counsel should have presented.
Moreover, as the Commonwealth points out, any expert called by
Appellant to testify about the potential tainting of L.P.’s testimony would have
had to somehow account for Appellant’s letters that actually corroborated the
truthfulness of L.P.’s testimony. As such, Appellant has also not shown that
he was prejudiced by counsel’s failure to present expert testimony. Appellant’s
first claim therefore offers him no basis for relief.
In his next claim, Appellant challenges trial counsel’s decision to call Dr.
Gentry as a fact witness even though counsel believed Dr. Gentry sounded
“drunk” during pre-trial conversations. Appellant’s Brief at 27-28. This claim
lacks merit.
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In general, where matters of trial strategy are concerned, the courts “do
not question whether there were other more logical courses of action which
counsel could have pursued; rather [the courts] must examine whether
counsel’s decisions had any reasonable basis.” Commonwealth v.
Washington, 927 A.2d 586, 594 (Pa. 2007). Counsel’s assistance is deemed
constitutionally effective if his course of conduct had some reasonable basis
designed to effectuate his client’s interests. See Commonwealth v. Koehler,
36 A.3d 121, 132 (Pa. 2012) (citations omitted).
Here, trial counsel testified at the PCRA hearing that he made a strategic
decision to call Dr. Gentry to the stand as a fact witness because he wanted
him to put Appellant’s letters in context. While on the stand, Dr. Gentry
testified that he had been the one to suggest to Appellant that he write the
letters to L.P. as a therapeutic exercise and as a way to apologize to L.P. Dr.
Gentry further testified that he did not believe Appellant had touched L.P.
inappropriately. He also testified that, although Appellant wrote the drafts of
the letter outside of his presence, Dr. Gentry read and wrote comments on at
least one of those drafts.
The PCRA court found that counsel’s strategy in this regard had a
reasonable basis, and we see no error in this determination. In fact, as the
Commonwealth asserts in its brief, counsel’s strategy may not have been only
reasonable but “arguably necessary, because it was the only potential means
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of persuading the jury to disregard [Appellant’s] confession.”
Commonwealth’s Brief at 27.3
In his last claim regarding trial counsel’s ineffectiveness, Appellant
argues counsel was ineffective for failing to call the original investigating
officer to testify as to why he did not bring charges against Appellant when
L.P. initially made the allegations in 2007. This claim also fails.
At the PCRA hearing, trial counsel explained his reasons for not calling
the officer:
…it was obvious to the jury that [the original
investigating officer] had failed to file charges in 2007.
And second of all, he is a police officer. You are
treading dangerously when you start calling officers to
the stand to help a defendant.… He is going to skewer
you. And it was quite obvious that the reason why
charges were filed is because new evidence came to
light.
N.T. PCRA Hearing, 2/28/18, at 69.
That new evidence, of course, were the letters Appellant had drafted to
L.P. Clearly, as the Commonwealth observes, counsel had a reasonable basis
for not wanting to highlight the damaging effect of the discovery of these
incriminating letters. We cannot conclude the PCRA court erred in concluding
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3 Appellant repeatedly focuses on the fact that trial counsel testified that Dr.
Gentry revealed during pre-trial conversations that he did not know the
meaning of taint. Accordingly, Appellant contends, counsel should not have
used Dr. Gentry as a witness. This argument is completely misplaced given
that Dr. Gentry was called as a fact witness.
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that trial counsel had a reasonable strategic basis for deciding not to call the
original investigating officer to testify.
Appellant also raises several claims that sentencing/appellate counsel,
collectively Attorney Lyons and Attorney Reifsnyder, were ineffective. 4 He first
argues they were ineffective for failing to file post-sentence motions. This
claim warrants no relief.
According to Appellant’s statement of questions involved, the post-
sentence motions that counsel should have filed included a challenge to the
discretionary aspects of his sentence, a motion for judgment of acquittal and
a motion challenging the credibility of witnesses. However, in the body of his
argument section, Appellant does not develop his claim as it relates to either
a motion for judgment of acquittal or one challenging the credibility of
witnesses. Consequently, those claims are waived. See Harkins v. Calument
Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992) (issues raised in a brief’s
statement of questions involved but not developed in the argument section of
the brief are waived). Appellant’s remaining claim, that counsel should have
filed a post-sentence motion challenging the discretionary aspects of his
sentence is developed in his brief but lacks merit.
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4 Appellant’s argument section under his set of claims regarding
sentencing/appellate counsels’ ineffectiveness is peppered with various
cursory claims of counsels’ ineffectiveness that were not presented in his
statement of questions involved. Those claims are waived. See Pa.R.A.P.
2116(a).
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Appellant maintains sentencing/appellate counsel were ineffective for
failing to file a post-sentence motion challenging his sentence, which deviated
from the sentencing guidelines, as excessive. He claims counsel did not file
such a motion despite the fact that it should have been clear to them that
Appellant wanted to appeal the length of his sentence. However, as the PCRA
court noted below, Attorney Reifsnyder specifically testified that he thought
any challenge to Appellant’s sentence would not have been successful.
Instead, he testified, as did Attorney Lyons, that the approach on appeal was
to pursue those issues that were thought to have the best chance of success.
This Court has previously deemed such an approach to be a reasonable one.
See Commonwealth v. Pou, 201 A.3d 735, 740-41 (Pa. Super. 2018)
(appellate counsel makes reasonable strategic decision when he winnows out
weaker claims in favor of pursuing claims on appeal believed to offer a better
chance for relief).
Moreover, the PCRA court also determined that Appellant could not show
he was prejudiced by counsels’ failure to file a post-sentence motion
challenging the discretionary aspects of his sentence because Appellant’s
sentence was lawful and appropriate. According to the PCRA court, which also
presided over Appellant’s trial and sentencing, the court was aware of the
sentencing guidelines and placed ample reasons on the record for imposing a
sentence outside of those guidelines. This is supported by the record. See
N.T. Sentencing Hearing, 12/5/14, at 46-47 (stating standard and aggravated
ranges of relevant sentencing guidelines), 87 (noting consideration of pre-
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sentence investigation and sentencing guidelines), 87-91 (listing reasons for
length of sentence).
Appellant acknowledges that the trial court recited its reasons for the
length of Appellant’s sentence on the record, but he complains this was
inadequate because the court never stated “I am sentencing you in excess of
the aggravated range of the sentencing guidelines and here are the reasons
why.” Appellant’s Brief at 42. Appellant cites to no authority to support his
claim that a sentencing court is required to use this or similarly specific
language when reciting its reasons for imposing a sentence that lies outside
the sentencing guidelines. See Commonwealth v. Antidormi, 84 A.3d 736,
760 (Pa. Super. 2014) (when imposing sentence deviating from the
guidelines, court must state adequate reasons for doing so on the record and
in the presence of defendant).
In his final claim, Appellant contends sentencing/appellate counsel were
ineffective for failing to present one of the claims in his 1925(b)5 statement
with sufficient specificity.
In his 1925(b) statement on direct appeal, Appellant alleged that “the
court erred in limiting the testimony of Appellant’s treating physician [Dr.
Gentry], as both a fact witness and an expert witness.” Pukowsky, 147 A.3d
at 1236. The claim did not point to or otherwise explain what portion of Dr.
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5 Pa.R.A.P. 1925(b).
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Gentry’s testimony that Appellant believed was improperly limited and the trial
court therefore found it waived. This Court agreed. See id., at 1237.
We agree with Appellant that counsels’ articulation of the issue in
Appellant’s 1925(b) statement was obviously deficient. Nonetheless, we also
agree with the PCRA court that Appellant has failed to demonstrate the
prejudice necessary to establish an ineffectiveness claim.
At the PCRA hearing, Attorney Reifsnyder testified that to the best of his
recollection the issue that he and Attorney Lyons were trying to articulate was
that they wanted the court to allow Dr. Gentry to “make larger statements
about the [mindset] of [Appellant] when he was … writing the letters and that
the court did not permit this.” N.T. PCRA Hearing, 2/28/18, at 22-23. In his
brief to this Court, Appellant takes issue with the generality of this explanation
but yet, he still does not identify which specific ruling or rulings he believes
improperly limited Dr. Gentry’s testimony.
The record reflects, however, that the trial court sustained several
objections by the Commonwealth over the course of Dr. Gentry’s testimony
when defense counsel tried to elicit expert testimony from Dr. Gentry. In
explaining the propriety of these rulings, the PCRA court stated:
Trial counsel testified credibly at the PCRA hearing
that he made the strategic decision to present Dr.
Gentry only as a fact witness. As such, this court did
not abuse its discretion in preventing Dr. Gentry from
offering expert testimony. This court also did not
abuse its discretion in limiting Dr. Gentry’s testimony
to his role at trial as a fact witness. As such,
[Appellant] did not carry his burden of proving
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[prejudice and therefore] sentencing/appellate
counsel ineffectiveness.
PCRA Court Opinion at 12.
Appellant does not challenge this conclusion by the PCRA court. Rather,
Appellant attempts to completely reframe the issue in his brief to this Court,
as he did in his post-hearing memorandum of law. He asserts that the
argument counsel actually should have made on direct appeal was that the
trial court erred by allowing the Commonwealth to question Dr. Gentry as if
he were an expert witness when it would not allow Appellant to do the same.
As the PCRA court noted, this is not the issue that Appellant presented to the
PCRA court during the PCRA hearing. See Commonwealth v. Mitchell, 383
A.2d 930, 933 (Pa. 1978) (claim raised in post-hearing brief after post-
conviction hearing takes place is waived). In any event, Appellant completely
fails to develop his newfound claim and it is waived for that reason as well.
See Commonwealth v. Treiber, 121 A.3d 435, 465 (Pa. 2015) (claims not
developed in meaningful fashion are waived).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/6/2019
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