J-S53024-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. MICHAEL RYAN BUDKA Appellee No. 26 MDA 2013 Appeal from the Order Entered December 14, 2012 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002219-2009 BEFORE: BENDER, P.J., LAZARUS, J., and FITZGERALD, J. * MEMORANDUM BY LAZARUS, J. FILED APRIL 03, 2014 This is a Commonwealth appeal from the order entered in the Court of Common Pleas of York County granting Michael Ryan Budka s petition for relief under the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A. 9541-9546. After our review, on reconsideration, we affirm. Following trial, a jury convicted Budka of involuntary deviate sexual intercourse, 1 aggravated indecent assault, 2 statutory sexual assault, 3 and * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. 3123(a)(7). 2 18 Pa.C.S.A. 3125(a)(8). 3 18 Pa.C.S.A. 3122.1.
J-S53024-13 unlawful contact or communications with a minor. 4 The court sentenced Budka to a total term of imprisonment of 14 to 28 years. Budka filed postsentence motions, which were denied. On direct appeal, this Court affirmed the judgment of sentence. Commonwealth v. Budka, 34 A.3d 239 (Pa. Super. 2011). On November 28, 2011, Budka filed a timely PCRA petition, raising seven claims of trial counsel s ineffectiveness. The court appointed counsel for Budka and scheduled a hearing for April 24, 2012. Following the hearing, the Honorable Richard K. Renn granted Budka relief in the form of a new trial. Judge Renn concluded trial counsel was ineffective on two grounds: (1) for failing to request a mistrial following the trial judge s (the Honorable Thomas H. Kelley, VI) extensive questioning of K.R. (the victim), and two other Commonwealth witnesses, E.O., a friend of the victim, and Shannon Budka, the defendant s ex-wife; and (2) for failing to seek a mistrial as a result of prosecutorial misconduct in the closing argument. 5 4 18 Pa.C.S.A. 6318(a)(1). 5 On direct appeal, this Court found these two claims waived. See Commonwealth v. Budka, supra. Although counsel had objected to the trial judge s questioning of E.O., this claim was not raised in Budka s Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Counsel had objected to the court s questioning of Shannon Budka and K.R., but did not request a mistrial; instead, counsel sought curative instructions, which the court granted. See Commonwealth v. Strunk, 953 A.2d 577 (Pa. Super. 2008). Further, with respect to the claim of prosecutorial misconduct, Budka did not object or request a mistrial at the time of closing arguments, and, therefore, we found that claim waived as well. - 2 -
J-S53024-13 The Commonwealth appealed on December 31, 2012, and the trial court ordered a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The Commonwealth filed its Rule 1925(b) statement on January 17, 2013. The trial court filed a Rule 1925(a) opinion on March 7, 2013, relying in part on its opinion in support of its grant of PCRA relief filed on December 17, 2012. The Commonwealth raises the following claims for our review: 1. Did the PCRA court err in granting Defendant s petition for a new trial under the PCRA where trial counsel had a reasonable basis for not objecting to the questioning by the trial court? 2. Did the PCRA court err by applying an incorrect standard of review in regard to questioning of a witness by a trial court? 3. Did the PCRA court err in finding that the trial court s questioning was prejudicial to Defendant? 4. Did the PCRA court err in granting Defendant s petition for a new trial on the basis that trial counsel did not make an objection to the prosecutor s closing statement? 5. Did the PCRA court err in finding that the prosecutor s closing argument was improper as prosecutors are allowed to respond to arguments of defense counsel? 6. Did the trial court err in failing to apply the coordinate jurisdiction rule in regard to prior legal decisions by the trial court, set forth in the trial court s August 25, 2010 and November 10, 2010 [orders], as relevant to the merit of underlying claims for ineffective assistance of counsel? When reviewing an order granting or denying a PCRA petition, we must decide whether the determination of the PCRA court is supported by the evidence of record and is free of legal error; the PCRA court s findings - 3 -
J-S53024-13 will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. 2012); Commonwealth v. Matias, 63 A.3d 807 (Pa. Super. 2013). To be eligible for relief under the PCRA, the appellant bears the burden of proving ineffectiveness of counsel by a preponderance of the evidence. Commonwealth v. Williams, 899 A.2d 1060, 1064 (Pa. 2006). The appellant must prove that his conviction resulted from ineffective assistance of counsel that so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Dukeman, 565 A.2d 1204 (Pa. 1989). It is well established that counsel is presumed effective, and the defendant bears the burden of proving ineffectiveness. Commonwealth v. Cooper, 941 A.2d 655, 664 (Pa. 2007). To overcome this presumption, the appellant must prove that: (1) the 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 proceeding would have been different. Commonwealth v. Busanet, 817 A.2d 1060 (Pa. 2002). See also Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006) ( reasonable probability that counsel's deficient performance resulted in prejudice to defendant, for purposes of claim of ineffective assistance of counsel, is sufficient to undermine confidence in the outcome). - 4 -
J-S53024-13 Here, Judge Renn concluded that counsel was ineffective for failing to seek a mistrial and rendering Budka s claims with respect to the trial court s questioning of the witnesses waived on direct appeal. The court s questioning of the victim bolstered her credibility, even to the point of explaining her contradictory preliminary hearing testimony. See N.T. Trial, 9/17/2009, at 109-10. The court also questioned the victim s friend, E.O., see id., at 150-57, and Budka s ex-wife, see id., at 178-79. The net result of this questioning confirmed the victim s version of the events. (See Trial Court Opinion, 12/17/2012, at 15-20 (questions from judge tended to bolster victim s credibility). On reconsideration, the Commonwealth asks this panel to focus on the reasonable basis prong of the ineffectiveness test. The Commonwealth argues that counsel s failure to seek a mistrial and render the matter waived on direct appeal was reasonable. At the PCRA hearing, trial counsel explained why he did not seek a mistrial as a remedy: The reason I did not ask for a mistrial is that if it was granted, I believed that we would have been meaning [Defendant s] case would have been actually hampered in a second trial because there were some weaknesses in the testimony. There was [sic] facts that were not corroborated during the trial, issues that were left open that I thought were advantageous to the defense. If we had another trial, then the benefit would have been to the Commonwealth and not the defense, and I didn t think that was then in [Defendant s] best interest. One of the witnesses that Judge Kelley questioned was [Defendant s] wife. She was It was clear that she was a scorned spouse when she testified. She met with the divorce attorney the day before she testified. If we had another trial, that would have been a month or more down the road, and the impact of her being angry towards - 5 -
J-S53024-13 [Defendant] would be lessened. With the other witness, which I believe was the victim, that the judge had questioned, giving her another opportunity to testify, to get more comfortable, I didn t think would be in Defendant s best interest, so I didn t ask for the mistrial. And truthfully, I doubt if Judge Kelley ever would have granted it since I was objecting to something that he did. PCRA Hearing, 4/24/2012, at 36-37. In determining whether this particular course of action was reasonable, we look at what was lost. The possibility that the victim might be more comfortable and that Budka s wife would be less angry in another month is speculative. The court s questioning was prejudicial to Budka in this trial, and counsel s statement that the court would not likely have granted the mistrial because it was based on the court s own actions, is a blatant assumption. Counsel s statement presumes too much and clarifies too little. There is no question that Budka would be in a better position had he either been granted a mistrial by the trial court, or preserved the issue for direct appeal to this Court. Counsel s actions are all the more questionable in light of the fact that he acknolwedged that he was aware that seeking a mistrial would have preserved the issue for appeal. Id. at 45. Counsel testified: Q. And are you aware that requesting a mistrial would have preserved that issue for appeal? A. Yes. I know it would have preserved it. Q. And by not asking for the mistrial, the issue was not preserved? A. Correct. It would not have been preserved. - 6 -
J-S53024-13 Q. So your testimony is that Michael was really prejudiced by these statements, but you decided not to ask for a mistrial regardless of that prejudice? A. Correct. I didn t think it would be granted and I didn t put it on the record. Id. Under these circumstances, where counsel knows that his client has been prejudiced and waives an arguably meritorious claim on direct appeal because he presumes the trial judge will not correct himself, counsel s actions cannot be deemed reasonable. Busanet, supra. Additionally, Judge Renn determined counsel was ineffective in failing to object to the prosecutor s closing argument and seek a mistrial. 6 the prosecutor indicated Budka s own attorney did not believe him. Here, The prosecutor also stated that the victim s testimony was credible because I can assure you that if I thought [K.R.] was lying, we wouldn t be here today. Improper bolstering of or vouching for a government witness occurs where the prosecutor assures the jury that the witness is credible. 6 The standard for granting a new trial is a difficult one to meet. Generally, a prosecutor's arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true verdict. This standard permits us to grant a new trial based on the comments of a prosecutor only if the unavoidable effect of the comments prevented the jury from considering the evidence. See Commonwealth v. Ogrod, 839 A.2d 294, 333-334 (Pa. 2003) (citation omitted). - 7 -
J-S53024-13 Commonwealth v. Cousar, 928 A.2d 1025, 1041 (Pa. 2007). [S]uch assurance is based on either the prosecutor's personal knowledge or other information not contained in the record. Id. This places the prestige of the government behind the witness through personal assurances that the witness is believable, and it indicates that information unknown to the jury supports the witness's testimony. Commonwealth v. King, 57 A.3d 607, 625 (Pa. 2012). Here, the prosecutor s statement, essentially a personal assurance that the government was prosecuting the case because the victim was telling the truth, clearly amounts to improper bolstering or vouching. (See PCRA Court Opinion, 12/17/2012, at 10-15 (prosecutor vouched for victim s credibility, and that, coupled with prosecutor s comments about defense counsel doesn t seem to believe his own client, where defendant did not testify, amounts to prosecutorial misconduct). Counsel s failure to object and seek a mistrial had no reasonable basis. The prosecutor s statements amounted to reversible error. Cf. Commonwealth v. Smith, 416 A.2d 986 (Pa. 1980) (prosecutor's assertion of personal belief in defendant's guilt is reversible error). Counsel s explanation that he did not seek a mistrial out of concern that the prosecution would present a better case on retrial is not reasonable. Counsel explained the prosecution would have been able to clean up any shortcomings of [it s] case[.] PCRA Hearing, supra at 390. As explained above, this is speculation, as well as slippery slope reasoning; it cannot be used as justification here, where counsel s failure to seek a mistrial resulted - 8 -
J-S53024-13 in a loss of direct appellate review on an arguably reversible error. Busanet, supra. With respect to the Commonwealth s claim that the court erred in failing to apply the coordinate jurisdiction rule, we point out, as did the PCRA court, that the Commonwealth failed to raise this at the PCRA hearing or in any prior filings. That claim, therefore, is waived. See Pa.R.A.P. 302(a). After our review of the parties briefs, the record, and the relevant law, we conclude that Judge Renn properly determined that Budka was entitled to relief under the PCRA and that the facts of record support Judge Renn s determination. Johnston, supra. There is no abuse of discretion. We, therefore, affirm the order based on Judge Renn s opinion. We direct the parties to attach a copy of that opinion in the event of further proceedings. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/3/2014-9 -