Commonwealth v. Krock
Decision Date | 07 September 2022 |
Docket Number | 2044 EDA 2021 |
Parties | COMMONWEALTH of Pennsylvania v. Sheldon KROCK, Appellant |
Court | Pennsylvania Superior Court |
Alfred Stirba IV, Allentown, for appellant.
James B. Martin, District Attorney, Allentown, for Commonwealth, appellee.
Sheldon Krock appeals from the order, entered in the Court of Common Pleas of Lehigh County, dismissing his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 - 9546. After careful review, we affirm.
The trial court summarized the facts of this tragic case as follows:
Trial Court Opinion, 8/28/18, at 4-9 ( ).1
Krock was convicted,2 by a jury, of eleven counts of recklessly endangering another person (REAP),3 three counts of endangering the welfare of a child (EWOC),4 and driving under the influence.5 Krock was sentenced to an aggregate sentence of 16-32 years’ incarceration. Krock filed post-sentence motions that were denied. He filed a timely direct appeal, raising, among other things, an issue regarding the sufficiency of the evidence as it related to his EWOC charge. Specifically, Krock challenged whether the Commonwealth presented sufficient evidence to support the finding that he "would [ha]ve been aware that the children were in circumstances that could threaten their physical well[ ]being." Appellant's Direct Appeal Brief, at 27, 30. On appeal, this Court found that Krock's claim amounted to a challenge regarding the mens rea element of EWOC—whether he "knowingly" endangered the welfare of a child. 18 Pa.C.S. § 4304(a)(1). However, in his Pa.R.A.P.1925(b) concise statement of errors complained of on appeal, Krock challenged a different element of the EWOC statute—whether "he was the guardian of, had control over the welfare of the children, or was supervising them so as to sustain a cha[r]ge of [EWOC]." Rule 1925(b) Statement, 10/1/18, at 2 ¶ 5. Thus, our Court found that Krock failed to preserve his sufficiency claim with regard to the mens rea element of the offense. Commonwealth v. Krock , 2668 EDA 2018, at 17 (Pa. Super. filed Aug. 6, 2019) (unpublished memorandum decision).
On August 10, 2020, Krock filed a timely pro se PCRA petition. Counsel was appointed and filed an amended petition raising the single issue of whether appellate counsel, Michael E. Brunnabend, Esquire, was ineffective for failing to preserve and litigate the proper sufficiency of the evidence claim with regard to Krock's EWOC conviction. On April 23, 2021, the trial court held a PCRA hearing at which Attorney Brunnabend testified. On June 16, 2021, the court denied Krock's petition, concluding that even if Krock's appellate counsel had pursued the issue on appeal, it would not have been meritorious and would not have resulted in him obtaining relief on appeal. Trial Court Opinion, 6/16/21, at 13.
Krock filed this timely appeal, presenting the following issue for our consideration:
"Our standard of review from the grant or denial of post-conviction relief is limited to examining whether the PCRA court's determination is supported by the evidence of record and whether it is free of legal error." Commonwealth v. Ousley , 21 A.3d 1238, 1242...
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