Commonwealth v. Selenski

228 A.3d 8

COMMONWEALTH of Pennsylvania

v.Hugo SELENSKI, Appellant

No. 1062 EDA 2019

Superior Court of Pennsylvania.

Submitted November 4, 2019

Filed February 04, 2020

Robert A. Sauman, Stroudsburg, for appellant.

Elmer D. Christine, Jr., Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: BOWES, J., OLSON, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Hugo Selenski, appeals from the March 13, 2019, order entered in the Court of Common Pleas of Monroe County, which denied his first petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 - 9546, following an evidentiary hearing. After a careful review, we affirm.

This Court has previously set forth, in part, the relevant facts and procedural history as follows:

On July 10, 2009, a jury convicted Appellant of multiple offenses, including kidnapping, robbery, attempted burglary, criminal conspiracy, theft by unlawful taking, simple assault, false imprisonment, and terroristic threats—all with respect to a home invasion and attack on a jeweler named Samuel Goosay. The trial court recounted the facts adduced at trial as follows:

On January 27, 2003, two men broke into Mr. Goosay's residence just after dinner wearing ski masks and brandishing a gun. The men handcuffed Mr. Goosay and placed duct tape over his eyes while threatening him and questioning him about the alarm code to his jewelry store and $20,000 in cash. Mr. Goosay gave the men a partial code and one of them went, in Mr. Goosay's car, to the jewelry store where he attempted and failed to break in and disarm the alarm. During this time, the other man stayed with Mr. Goosay. At some point during the altercation, the metal handcuffs initially used to bind Mr. Goosay's hands were switched to plastic flex cuffs.

Mr. Goosay was seated on the bed while the man who had stayed behind ransacked the master bedroom. At this time, Mr. Goosay was able to push the duct tape over one eye and see that his assailant had left the gun on top of a nearby dresser. Mr. Goosay grabbed the gun and a fight ensued where the assailant overtook Mr. Goosay, obtained the gun, and sat Mr. Goosay back on the bed to put a flex cuff around his ankles. While the assailant was putting the flex cuff on his ankles, Mr. Goosay saw the assailant's face without the ski mask.^[1] The assailant commented that it did not matter that Mr. Goosay saw his face because the assailant was not "from around here" and that Mr. Goosay would "never recognize [him]" and will "never know who [he] is."

Shortly thereafter, the alarm company at Mr. Goosay's jewelry store called his home phone and indicated that police were being dispatched to the store because the alarm had been triggered. Upon receiving this information, the assailant hit Mr. Goosay in the head and quickly left. Mr. Goosay removed some of his restraints and telephoned the police. The police collected the flex cuffs and duct tape from inside Mr. Goosay's house as well as pictures of footprints in the snow outside of Mr. Goosay's home. Among the footprints was one from a New Balance sneaker.

During the time this case was being investigated, police located human remains on [Appellant's] property in Luzerne County. Two bodies, those of Michael Kerkowski, Jr., and Tammy Fasset, were found buried behind [Appellant's] residence. Police determined that Kerkowski was a small business owner and Fasset was his girlfriend. Both victims were bound with flex cuffs: Fasset was bound around her hands, ankles, and neck and Kerkowski was bound around his hands. Additionally, Kerkowski had duct tape over his eyes. Upon searching [Appellant's] garage, home, and the vehicle he used, police located flex cuffs, duct tape, ski masks, metal handcuffs, a black BB pistol, and New Balance sneakers.

The flex cuffs on [Appellant's] property and those used to bind Mr. Goosay were found to be from a common source. The New Balance sneakers that were found in [Appellant's] garage were identified by [Appellant's] ex-girlfriend, [Christina] Strom, as belonging to [Appellant]. Moreover, an expert in the field of footwear impressions concluded that the prints left outside Mr. Goosay's home could have been left by [Appellant's] sneakers because "the physical size, the general state of wear, and the lack of accidental characteristics" on [Appellant's] sneakers matched the same on the impression in the snow.

During the trial, both the Commonwealth and [Appellant] presented evidence regarding Mr. Goosay's pretrial identifications of [Appellant]. Six months after the incident, Corporal Shawn Noonan showed Mr. Goosay a photo array that contained a picture of [Appellant] from 2001. Mr. Goosay failed to identify [Appellant] in this first array. Approximately two years later, Agent Scott Endy showed Mr. Goosay another photo array containing a picture of [Appellant] from May of 2003. Mr. Goosay was able to identify [Appellant]. Mr. Goosay was also able to identify [Appellant] at trial.

Trial Court Opinion, 3/4/16, at 2–4 (citations to notes of testimony and footnotes omitted).

Prior to trial, Appellant sought to contest Mr. Goosay's identification of him as the perpetrator by presenting an expert witness on eyewitness identification and on factors that can lead to inaccurate identification. Because Pennsylvania law at that time precluded such testimony, the trial court declined to permit this evidence. After three days of trial, a jury convicted Appellant of the aforestated charges, and on September 21, 2009, the trial court sentenced Appellant to an aggregate 32½ to 65 years' incarceration.

Appellant filed a direct appeal in which he challenged the trial court's exclusion of the expert testimony on eyewitness identification, and this Court affirmed his judgment of sentence. Commonwealth v. Selenski , 18 A.3d 1229 (Pa.Super. 2011). Appellant then petitioned for allowance of an appeal to the Supreme Court. During the pendency of his petition, on May 28, 2014, the Supreme Court rendered its decision in [Commonwealth v. ] Walker , [625 Pa. 450, 92 A.3d 766 (2014) ], which reversed the longstanding ban on expert eyewitness identification testimony. The Supreme Court subsequently granted Appellant's petition and remanded his case to this Court. Commonwealth v. Selenski , 627 Pa. 352, 100 A.3d 206 (2014). The Supreme Court's per curiam order stated:

AND NOW, this 29th day of August, 2014, the Petition for Allowance of Appeal is GRANTED, LIMITED TO Petitioner's first issue, as stated by Petitioner:

Does the constitutional right to present a defense include the right to offer proven science bearing on the understanding of human memory and perception, and police practices in the identification process, where those advances are unknown to laypersons?

Further, the Superior Court's order affirming the judgment of sentence is VACATED, and the matter is REMANDED to the Superior Court for further consideration in light of Commonwealth v. Walker , 625 Pa. 450, 92 A.3d 766 (2014). In all other respects, the Petition for Allowance of Appeal is DENIED.

Selenski , 100 A.3d at 206.

Commonwealth v. Selenski , 158 A.3d 102, 103-05 (Pa.Super. 2017) (footnote omitted) (footnote added).

Upon receipt of the Supreme Court's order, this Court remanded the case to the trial court "so that it [could] perform its traditional gatekeeping function with regard to the proposed expert testimony." Commonwealth v. Selenski , 117 A.3d 1283, 1285 (Pa.Super. 2015). That is, we determined the trial court should determine the applicability of Walker in the first instance.

Upon remand, Appellant moved to present the expert testimony of Dr. Jennifer Dysart, who proposed to detail "13 factors that can be relevant to eyewitness identifications" and to opine, "after reviewing partial records from this case and [Appellant's] case in Luz[e]rne County, [that] 9 of these 13 factors apply in [Appellant's] case." Selenski , 158 A.3d at 105. The trial court concluded Appellant's motion was a request for a new trial based on the admission of expert testimony, which was not allowed at his first trial. Id.

Following an evidentiary hearing, the trial court ruled the expert testimony of Dr. Dysart was inadmissible under Walker . Accordingly, the trial court denied Appellant's request for a new trial at which he could introduce the expert evidence. Appellant filed a timely appeal contending the trial court erred in denying Appellant's request for a new trial so that he could present the testimony of Dr. Dysart.

After a careful review, on March 16, 2017, we found no error, and consequently, we affirmed Appellant's judgment of sentence. See Selenski , 158 A.3d at 117. Appellant filed a petition for allowance of appeal, which our Supreme Court denied on September 19, 2017. Appellant did not file a petition for a writ of certiorari with the United States Supreme Court.

On March 5, 2018, Appellant filed a timely first PCRA petition, and the next day, counsel was appointed to assist Appellant. On July 23, 2018, counsel filed an amended PCRA petition, and on October 19, 2018, the PCRA court held an evidentiary hearing at which the sole testifying witness was Appellant's trial counsel. Thereafter, at the direction of the PCRA court, Appellant and the Commonwealth filed briefs, and by order and opinion filed on March 13, 2019, the PCRA court denied Appellant's PCRA petition. This timely appeal followed. All Pa.R.A.P. 1925 requirements have been met.

On appeal, Appellant sets forth the following issues in his "Statement of the Questions Presented":

A. Whether the PCRA court erred and abused its discretion by not finding that [Appellant's] trial counsel was ineffective for failing to appropriately cross-examine witnesses, failing to call all necessary witnesses, failing to file necessary and appropriate pretrial motions, fail[ing] to make necessary objections during trial, and failing to present necessary evidence, including DNA related-evidence?

B. Whether the PCRA

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