Com. v. Urwin, R.

J-S09002-19
2019 PA Super 276COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WILLIAM URWIN, JR. :
:
Appellant : No. 1501 WDA 2017
Appeal from the PCRA Order September 29, 2017
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001212-2010
BEFORE: PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.*
OPINION BY PANELLA, P.J.: FILED SEPTEMBER 10, 2019
Appellant, Robert William Urwin, Jr., challenges the order entered in the
Washington County Court of Common Pleas, denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
A sixteen year old victim’s nude body was discovered in a field in
Washington County in February 1977. She died from blunt force trauma to the
head. Investigators located her clothing scattered nearby, and sealed it as
evidence. Though witnesses at the time stated they had last seen the victim
with Appellant and David Davoli, charges against Davoli were dismissed at a
preliminary hearing. Appellant was not charged at that time.
The case remained unsolved for several decades, until the victim’s
clothing was submitted for DNA testing in 2009. Investigators found that a
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* Retired Senior Judge assigned to the Superior Court.
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DNA mixture on the victim’s underwear contained the profiles of the paternal
bloodlines for both Appellant and Davoli. When questioned by police, Davoli
waived his Miranda rights and confessed his and Appellant’s involvement in
the victim’s death.
Appellant proceeded to a bench trial. At trial, Davoli testified that he and
Appellant each had sex with the victim, before Appellant dragged her from the
vehicle and beat her with a car tool. The court convicted Appellant of third-
degree murder, and sentenced him to 10-20 years’ incarceration. This Court
affirmed Appellant’s judgment of sentence, and the Pennsylvania Supreme
Court denied allowance of appeal on April 2, 2014.
Appellant then filed a timely PCRA petition on March 31, 2015. In it, he
raised eleven separate claims, many premised on trial counsel’s alleged
errors. He also asserted that while his case was on appeal, Paul Pozonsky, the
judge who presided over his trial, had been convicted of theft of cocaine from
an evidence locker and disbarred. Appellant claimed the judge had been using
cocaine during the trial, and that such an incompetent tribunal violated
Appellant’s right to due process. The PCRA court, helmed by a different judge,
ordered a hearing at which Appellant’s counsel and other witnesses testified.
Ultimately, the court denied PCRA relief. Appellant filed a timely notice of
appeal, and this case is now properly before us.
Appellant raises three issues on appeal. He first claims his right to due
process was violated by the court’s alleged cocaine use during trial.
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“Our standard of review for issues arising from the denial of PCRA relief
is well-settled. We must determine whether the PCRA court’s ruling is
supported by the record and free of legal error.” Commonwealth v. Presley,
193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In doing so, we read
the record in the light most favorable to the prevailing party. See
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). If this
review reveals support for the PCRA court’s credibility determinations and
other factual findings, we may not disturb them. See id. We, however, afford
no deference to the PCRA court’s legal conclusions. See id.Appellant theorized in his PCRA petition that Judge Pozonsky was under
the influence of drugs at the time of Appellant’s trial. His basis for this
hypothesis was the discovery that Pozonsky engaged in cocaine theft while a
jurist. Pozonsky directed police officers to deposit cocaine, which had been
entered into evidence in cases he presided over, in an evidence locker in his
courtroom. See Office of Disciplinary Counsel v. Pozonsky, 177 A.3d 830,
832 (Pa. 2018). Pozonsky then surreptitiously removed cocaine from the
locker for his personal use. See id. Shortly after his conduct was discovered,
Pozonsky resigned from the bench. See id., at 833. He was arrested and
convicted of crimes relating to his theft. See id., at 834. Pozonsky was also
disbarred by order of the Pennsylvania Supreme Court. See id., at 832.
As support for his proposition that Pozonsky was under the influence of
cocaine while performing his courtroom duties, including Appellant’s trial – a
premise unsupported by the Supreme Court’s lengthy opinion ordering
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disbarment – Appellant presented testimony at the PCRA hearing regarding
Pozonsky’s demeanor at trial. Specifically, Appellant called his sister, Ruth
Urwin, who testified that Pozonsky appeared to be “acting funny” and not
paying attention to the proceedings. N.T. Hearing, 2/22/17, at 52. Ruth
testified that she voiced her concerns to Appellant’s attorney, Joseph Francis,
after the trial. See id. Ruth conceded she had never interacted with Pozonsky
before the trial. See id., at 55.
Attorney Francis also testified. He stated that while he recalled Ruth
questioned Pozonsky’s demeanor, he dismissed these “because [Pozonsky]
always appeared that way.” Id., at 18. Francis explained that he had
previously been one of Pozonsky’s law clerks, and that after his clerkship
Francis appeared in Pozonsky’s courtroom “at least five or six times each
month for a period of ten years.” Id., at 16. While Francis agreed Pozonsky
appeared “animated” and interjected several times during Appellant’s trial, he
averred that in his experience, it was Pozonsky’s regular practice to ask
witnesses questions and that Pozonsky always liked to keep the pace of his
courtroom moving quickly. Id., at 16-17. Francis stated Pozonsky had acted
that way in his courtroom from the time Francis first met him. See id., at 16.
The Commonwealth likewise presented testimony at the evidentiary
hearing about then-Judge Pozonsky’s behavior. Paul Schneider, who was
counsel for the Commonwealth at Appellant’s trial, testified that he appeared
in front of Pozonsky almost every day for three years for various proceedings.
See id., at 62. Schneider stated that Pozonsky’s behavior during Appellant’s
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trial was “consistent” with the other experiences Schneider had with Pozonsky
over the years. Id. Schneider stated nothing about Pozonsky’s demeanor at
Appellant’s trial concerned him or made Schneider believe Pozonsky was
under the influence of any illegal substance at the time. See id., at 66.
The PCRA court ultimately found Appellant failed to satisfy his burden of
proving the allegation that Pozonsky was under the influence of cocaine at
Appellant’s trial. See PCRA Court Opinion, filed 5/1/18, at 11. We agree that
testimony from the above witnesses at the PCRA hearing does not
substantiate Appellant’s accusation that Pozonsky was under the influence of
cocaine during Appellant’s trial.
As the PCRA court notes, Appellant’s main source of support for this
allegation is Pozonsky’s guilty plea to theft of cocaine. See id., at 12. Despite
the deplorable nature of Pozonsky’s actions, the circumstances of his guilty
plea and disbarment do not support Appellant’s accusation. In fact, the
Pennsylvania Supreme Court’s opinion ordering Pozonsky’s disbarment
emphasizes that Pozonsky’s theft was not part of an uncontrollable addiction.
See Office of Disciplinary Counsel, 177 A.3d at 846. Rather, the Court
dismissed any characterization of Pozonsky’s criminal acts as driven by
addiction given that he “presented no expert testimony to the Disciplinary
Board establishing that he had an addiction to cocaine, or any other psychiatric
disorder, which caused him to engage in his thefts and personal use of drug
evidence.” Id., at 845 (emphasis in original).
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Appellant points to no additional information to sustain his theory that
Pozonsky was intoxicated during Appellant’s trial. We observe that Appellant
does not indicate any particular instance in the trial transcripts where
Pozonsky acted erratically or otherwise in accordance with Appellant’s theory
of intoxication. As his first issue is speculative at best, we find Appellant is due
no relief. See Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013)
(holding a claim based on pure speculation must fail).
Next,1 Appellant argues his waiver of his right to a jury trial was not
knowingly, voluntarily, or intelligently made. This issue is waived, as Appellant
could have raised it before post-conviction review and failed to do so. See 42
Pa.C.S.A. § 9544(b); see also Commonwealth v. Miller, 987 A.2d 638, 661
(Pa. 2009) (holding that where appellant failed to object to jury trial waiver
as unknowingly or unintelligently made on direct appeal, issue was waived for
PCRA review because it could have been raised previously).
Even if Appellant had not waived this issue, he would nevertheless be
due no relief. Appellant’s bald assertions regarding his jury trial waiver may
be construed as an attempt to invoke 42 Pa.C.S.A. § 9543(a)(2)(i). This
portion of the PCRA permits challenges to convictions resulting from “a
violation of the Constitution of this Commonwealth or the Constitution or laws
of the United States which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable adjudication of
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1 We have reordered Appellant’s second and third issues for ease of
disposition.
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guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i).
While Appellant frames the waiver of his jury trial rights as unknowing and
involuntary based on later revelations about Judge Pozonsky’s conduct,
nowhere in his PCRA petition or his appellate brief does he allude to
circumstances that would suggest “no reliable adjudication of guilt or
innocence could have taken place.” Id.
Indeed, the evidence available in the certified record and transcripts
suggests quite the opposite. As noted in our analysis of his first issue,
Appellant has supplied no evidence to demonstrate that Judge Pozonsky was
under the influence at the time of trial. Further, we direct particular attention
to trial counsel’s remarks at the PCRA hearing about Appellant’s choice to
waive his right to a jury trial. See N.T. Hearing, 2/22/17, at 22-24. Counsel
attested that even if he had been aware of Judge Pozonsky’s conduct at the
time of trial, he would have asked for a new judge to preside over Appellant’s
case but would not necessarily have advised Appellant to seek a jury trial. See
id., at 24.
Counsel stated Appellant had a fear of female jurors sympathizing with
the young, female victim. See id., at 23. Counsel also testified that when
Appellant asked him to explain how the outcome of his case could differ
between a bench and a jury trial, counsel told Appellant that “a judge was
better equipped with his legal mind to differentiate between Murder 1 and
Murder 3.” Id., at 23. Appellant was, of course, convicted of third-degree
murder following his bench trial.
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In Appellant’s final argument, he challenges trial counsel’s stewardship.
Trial counsel did not file a pre-arrest delay motion despite the 33 years that
elapsed between the murder and Appellant’s arrest. Appellant concludes the
delay was egregious, and counsel provided ineffective assistance by failing to
challenge it.
We presume counsel’s effectiveness, and an appellant bears the burden
of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965
(Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA petitioner
must plead and prove: his underlying legal claim has arguable merit; counsel’s
actions lacked any reasonable basis; and counsel’s actions prejudiced him.
See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to
satisfy any prong of the ineffectiveness test requires dismissal of the claim.
See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).
“Arguable merit exists when the factual statements are accurate and could
establish cause for relief. Whether the facts rise to the level of arguable merit
is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 540
(Pa. Super. 2015) (citations and internal quotation marks omitted).
The threshold question we must address at the appellate level whenever
a defendant raises a due process claim due to pre-arrest delay is whether the
defendant suffered actual prejudice from the delay. See Commonwealth v.
Scher, 803 A.2d 1204, 1222 (Pa. 2002).
The court must then examine all of the circumstances to
determine the validity of the Commonwealth's reasons for the
delay. Only in situations where the evidence shows that the delay
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was the product of intentional, bad faith, or reckless conduct by
the prosecution, however, will we find a violation of due process.
Negligence in the conduct of a criminal investigation, without
more, will not be sufficient to prevail on a due process claim based
on pre-arrest delay.
Commonwealth v. Jette, 818 A.2d 533, 536 (Pa. Super. 2003) (citation
omitted).
Our Supreme Court has found a pre-arrest delay of eleven years
constituted actual prejudice. See Commonwealth v. Snyder, 713 A.2d 596,
605-606 (Pa. 1998). However, the Court recognized that the Commonwealth
may have valid reasons to justify even a lengthy delay, such as “when an
investigation yields new evidence after many years of inactivity,” and
remanded for evaluation of those reasons by the trial court. Id., at 605.
Here, the murder occurred on February 13, 1977. On June 11, 2009,
investigators working in the cold case unit of the Pennsylvania State Police
Department submitted items of the victim’s clothing and samples taken from
the autopsy for DNA testing. The DNA results concluded that Appellant’s DNA
was on the victim’s underwear. DNA tests conducted on other samples were
inconclusive, as much of the evidence was too degraded to yield test results.
Appellant was then arrested on May 24, 2010.
Appellant claimed in his PCRA petition that this 33-year delay was
unconscionable given that the type of DNA test used was available in 1999.
He asserted he suffered prejudice due to that lull, as the evidence may have
revealed DNA implicating another suspect if not for the Commonwealth’s delay
in testing. Appellant also averred that because of the gap between the crime
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and his arrest, some key witnesses had died and others were unable to recall
details of relevant events.
At the PCRA hearing, the Commonwealth presented testimony from a
former detective in the Pennsylvania State Police’s cold case unit. The
investigator testified that the type of DNA test used to analyze the victim’s
clothing was not available in his unit until 2008 or 2009. See N.T. Hearing,
2/22/17, at 87, 91. He acknowledged that he was uncertain about whether
the test was available nationally before that date. See id., at 92.
As the PCRA court aptly notes,
[Appellant] has failed to establish any facts which tend to prove
that the Commonwealth deliberately delayed his arrest in order to
gain a tactical advantage. … [T]here has been no evidence
submitted to this court to suggest that this was the result of any
deliberate plan by the State Police to delay DNA testing evidence
from a 1977 case in hopes that witness memories would fade just
enough for them to convict their suspect. On the contrary, the
evidence presented to the lower court shows that the
Commonwealth took reasonable steps, at regular intervals
throughout the length of the investigation, using the tools
available to it at the time, to determine the identity of [the
victim’s] killer. The simple fact that the testing procedure which
ultimately implicated [Appellant] was not in widespread use by the
Commonwealth until later than [Appellant] thinks it should have
been does not constitute deliberate delay caused to gain a tactical
advantage.
PCRA Court Opinion, filed 5/1/18, at 15-16 (citation omitted).
We agree. Even if we accept Appellant’s position that the Y-STR testing
was available in 1999, he has wholly failed to prove the “intentional, bad faith,
or reckless conduct by the prosecution” required to show invalid pre-arrest
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delay. Jette, 818 A.2d at 536 (citation omitted). As this issue lacks arguable
merit, trial counsel cannot be deemed ineffective for failing to raise it.
Appellant has failed to demonstrate grounds for relief. Accordingly, we
affirm the PCRA court’s order dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2019
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