Commonwealth v. Holewski

1

COMMONWEALTH OF PENNSYLVANIA v. RICHARD A. HOLEWSKI JR. Appellant

No. 593 WDA 2023

No. J-S46011-23

Superior Court of Pennsylvania

February 21, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the PCRA Order Entered April 28, 2023 In the Court of Common Pleas of Beaver County Criminal Division at No(s) CP-04-CR-0000876-2018

Benjamin D. Kohler, Esq.

BEFORE: DUBOW, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM

DUBOW J.

Appellant, Richard A. Holewski, Jr., appeals from the April 28, 2023 order denying his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as meritless. After careful review, we affirm.

The relevant facts and procedural history are as follows. On February 12, 2019, the trial court convicted Appellant of three counts each of Rape by Forcible Compulsion and Sexual Assault, and one count each of Statutory Sexual Assault, Aggravated Indecent Assault of a Child, Corruption of Minors, and Indecent Assault in connection with the years'-long sexual abuse of his niece. The Commonwealth secured Appellant's conviction with, inter alia, the testimony of the victim's mother and sister.

On February 12, 2019, the trial court sentenced Appellant to an aggregate term of 16½ to 45 years of imprisonment and to pay $2,400 in fines. On May 8, 2020, this Court affirmed Appellant's judgment of sentence.^[1]Commonwealth v. Holewski, 237 A.3d 424 (Pa. Super. 2020) (non-precedential). Appellant did not seek further review of his judgment of sentence.

On June 4, 2021, Appellant filed a counselled PCRA petition asserting that his trial counsel had been ineffective. In the petition, Appellant claimed that counsel was ineffective for: (1) strategically introducing "reverse 404(b)" evidence that another victim had made a prior allegation of sexual abuse against Appellant; (2) introducing character evidence concerning Appellant's honesty and peacefulness rather than evidence of Appellant's reputation for "chastity with children"; and (3) advising Appellant to proceed to a non-jury trial. See PCRA Petition, 6/4/21, at 9-12, 14-23, 24-26.

On September 3, 2021, Appellant filed with leave of court an amended PCRA petition in which he advanced a fourth ineffective assistance of counsel claim, namely that trial counsel was ineffective for not objecting to certain testimony offered by the victim's mother and sister, which Appellant claimed was hearsay and improper lay opinion testimony. See Amended PCRA Petition, 9/3/21, at 3-9. Appellant attached four affidavits in support of his claims-one each from alleged criminal defense lawyer experts Bruce Antkowiak, Esquire, and Charles Porter, Esquire, and one each from character witnesses Georgia Why and Christian Modro.^[2]

On November 12, 2021, the Commonwealth filed a "Motion in Limine to Preclude PCRA Testimony" ("Motion"), in which it sought to preclude the testimony of Appellant's expert witnesses Mr. Antkowiak and Mr. Porter as irrelevant to the court's determination of whether, as a matter of law, Appellant's trial counsel was ineffective. At a November 16, 2021 hearing, the PCRA court directed the parties to brief this issue.

On March 1, 2022, the PCRA court issued a decision in which it granted the Motion and precluded "any defense attorney from testifying as an expert." PCRA Ct. Op., 3/1/22, at 1. The court concluded that the instances of alleged trial counsel ineffectiveness raised by Appellant "are not the prerogative of attorney expert witnesses[; rather, t]hey are substantially legal matters within the purview of this [c]ourt, and it would thus be improper to admit such testimony at a PCRA evidentiary hearing." Id. at 5. In addition, the court found that, even if the proffered testimony was proper, "these are not issues on which the [c]ourt requires 'expert' advice from attorneys[, as [t]rial courts are well[-]versed in run-of-the-mill evidentiary matters and matters of trial strategy."^[3] Id. at 6.

On January 31, 2023, the PCRA court held a hearing on Appellant's PCRA petition, at which Appellant and his trial counsel, Stephen Colafella, Esquire, testified. Following additional briefing by the parties, on April 28, 2023, the PCRA court entered an order dismissing Appellant's petition as meritless.

This appeal followed.^[4]

Appellant raises the following two issues on appeal:

1. Did the PCRA court err when it granted the prosecutor's motion in limine thereby prohibiting a pair of criminal defense lawyers from offering expert evidence in support of the three prongs of the Strickland/Pierce test for ineffective assistance of counsel?

2. Did the PCRA court err by denying relief when evidence of the behaviors of a sex crime victim was admitted-not through an expert-but through her mother and sister?

Appellant's Brief at 5.

A.

In his first issue, Appellant claims that the PCRA court erred in granting the Commonwealth's Motion, thereby preventing Appellant from introducing the testimony of two criminal defense attorney expert witnesses. Id. at 19-43. He argues that the court erroneously "rel[ied] upon and [was] influenced by the thinking of a single justice of our state Supreme Court,^[5] dicta from an old Superior Court case^[6] and a handful of out-of-state decisions" in reaching its decision to exclude this testimony. Id. at 21-22. Relying on Storm v. Golden, 538 A.2d 61 (Pa. Super. 1988),^[7] and analogizing an ineffective assistance of counsel claim brought under the PCRA to a civil legal malpractice claim, Appellant asserts that the PCRA court should have permitted Appellant's criminal defense attorney experts to offer testimony as to how Attorney Colafella's representation fell below the accepted standard of care. Id. at 31-32.

"[A] court's decision to grant or deny a motion in limine is subject to an evidentiary abuse of discretion standard of review." Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (en banc). The admission of expert testimony is likewise a matter left largely to the discretion of the trial court and will not be overturned absent an abuse of that discretion. Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 881 (Pa. Super. 2019). "To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted).

The Honorable Kim Tesla has authored a comprehensive, thorough, and well-reasoned opinion, including a discussion of relevant case law, to explain why the PCRA court, in its discretion, granted the Commonwealth's Motion. See PCRA Ct. Op. at 3-7 (concluding that: (1) the ineffective assistance of counsel claims raised by Appellant were legal questions within the purview of the PCRA court and not the "prerogative of attorney expert witnesses"; and (2) the PCRA court does not require expert witness testimony to understand "run-of-the-mill evidentiary issues and matters of trial strategy," and rejecting: (1) Appellant's reliance on Storm, supra; and (2) Appellant's effort to analogize ineffective assistance of counsel claims brought under the PCRA to civil malpractice cases). After a thorough review of the record, the briefs of the parties, and the PCRA court's opinion, we discern no abuse of discretion. We, thus, affirm on the basis of the PCRA court's March 1, 2022 opinion.

B.

In his second issue, Appellant asserts that the trial court abused its discretion in finding meritless his claim that Attorney Colafella was ineffective for not objecting to certain testimony offered by the victim's mother and sister. Appellant's Brief at 44-55.

We review an order denying a petition for collateral relief to determine whether the PCRA court's decision is supported by the evidence of record and free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

"This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings." Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

To prevail on a petition for PCRA relief, a petitioner must plead and prove, by a preponderance of the evidence, that his conviction or sentence resulted from one or more of the circumstances enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances include ineffective assistance of counsel, which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(ii). The law presumes counsel has rendered effective assistance. Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa. Super. 2010). "[T]he burden of demonstrating ineffectiveness rests on [the] appellant." Id. To satisfy this burden, the appellant must plead and prove by a preponderance of the evidence that: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) there is a reasonable probability that the outcome of the challenged proceeding would have been different absent counsel's error. Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). Failure to satisfy any prong of the test will result in rejection of the appellant's claim. Id.

To establish the prejudice prong, the petitioner must prove a reasonable probability that the outcome of the relevant proceedings would have been different but-for counsel's action or inaction. Commonwealth v. Busanet, 54 A.3d 35, 46 (Pa. 2012).

Importantly, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Fears, 86 A.3d at 804.

Appellant argues that his counsel should have objected to certain testimony "discuss[ing] unique behaviors of a sex crime victim" because that testimony constituted "expert opinion...