Commonwealth v. Pouliczek

• Decision Date: 27 September 2022
• Docket Number: 652 EDA 2021,653 EDA 2021,655 EDA 2021,660 EDA 2021,J-A11029-22
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant
• Court: Superior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. MAIKEL POULICZEK Appellant

Nos. 652 EDA 2021, 653 EDA 2021, 655 EDA 2021, 660 EDA 2021

No. J-A11029-22

Superior Court of Pennsylvania

September 27, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered March 30, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at Nos CP-51-CR-0009772-2009, CP-51-CR-0009774-2009 CP-51-CR-0006021-2011, CP-51-CR-0013166-2010

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM

STABILE, J.

Appellant, Maikel Pouliczek, appeals pro se from the March 30, 2021 orders denying his petitions for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-45. We affirm.

These consolidated cases arise from a series of offenses, beginning with Appellant's assault of his former wife, Barbara Zangerl. Next, while incarcerated for an unrelated matter, Appellant asked a fellow inmate, Luis Gonzalez, to arrange Zangerl's murder. Finally, Appellant sought to arrange Gonzalez' murder after he learned that Gonzalez divulged to authorities Appellant's solicitation of Zangerl's murder.

The parties proceeded to a jury trial on all charges. Prior to trial, the trial court granted the Commonwealth's consolidation motion without opposition from Appellant. Also, the trial court denied Appellant's motion for discharge pursuant to Pa.R.Crim.P. 600. Finally, the trial court rejected Appellant's guilty plea. Just before jury was set to begin, Appellant expressed his wish to plead guilty and requested time to consult with the Austrian Embassy about the prospect of immediate deportation. The trial court rejected Appellant's plea and his request for time to consult with Austrian authorities, noting that Zangerl, at that time a resident of Australia, had traveled a great distance to be present to testify at trial.^[1]

On January 23, 2014, at docket numbers 9772 of 2009 and 9774 of 2009,arising out Appellant's alleged assaults of Zangerl in their home and in their car, the jury found Appellant guilty of two counts each of terroristic threats and simple assault of Zangerl, but not guilty of recklessly endangering another person and intimidation of a witness.^[2] At docket number 13166 of 2010,the jury found Appellant guilty of the solicitation of Zangerl's murder, retaliation against a witness, and obstruction of the administration of law, but not guilty of terroristic threats and intimidation of a witness.^[3] At docket number 6021 of 2011, the jury found Appellant guilty of solicitation of Gonzalez' murder, two counts of intimidation of a witness, and one count of retaliation against a witness.^[4]

On March 21, 2014, the trial court imposed an aggregate thirty-seven to eighty-one years of incarceration. Appellant filed a timely notice of appeal. On December 24, 2015, this Court vacated the judgment of sentence finding sua sponte that consecutive five and one half to fifteen-year sentences for two counts of intimidation of a witness (Gonzalez)-one each under § 4952(a)(2) and § 4952(a)(3)-violated Double Jeopardy.^[5] This Court found no error in the trial court's denial of Appellant's Rule 600 motion, no error in the trial court's rejection of Appellant's guilty plea, and affirmed all other convictions. Appellant did not seek allowance of appeal in the Pennsylvania Supreme Court.

On May 9, 2016, the trial court resentenced Appellant, eliminating the unlawful duplicative sentence for witness intimidation. Appellant filed this timely first PCRA petition on November 30, 2016, alleging a host of trial court errors and several claims of ineffective assistance of counsel. Counsel was appointed, then removed after the PCRA court granted Appellant's motion to proceed pro se, then appointed again at Appellant's request.

The PCRA court granted partial relief. In particular, the trial court accepted Appellant's argument that trial counsel was ineffective for failing to object to a jury instruction regarding retaliation against a witness. The trial court charged the jury that it could find Appellant guilty if Appellant harmed or attempted to harm the victim. The statute^[6] does not criminalize attempted harm, the Commonwealth did not charge Appellant with attempted retaliation against a witness, and the Commonwealth conceded before the PCRA court that there was no evidence that Appellant actually harmed Gonzalez. The PCRA court therefore found that Appellant's conviction for the completed offense of retaliation against witness Gonzalez^[7] should be vacated. The PCRA court denied all other requested relief without conducting a hearing and resentenced Appellant to an aggregate 29½ to 63 years of incarceration.

This timely appeal followed. Appellant raises eleven assertions of error:

1. Whether the PCRA court erred as a matter of law in limiting relief to re-sentencing where Appellant proved by a preponderance of the evidence that he was prejudiced by ineffective assistance of counsel at trial as a result of counsel's failure to object to misleading, erroneous instructions to the jury?

2. Whether Appellant proved by a preponderance of the evidence that the erroneous instructions to the jury so infected the trial with unfairness that the verdict cannot be relied upon as having produced a just result and, as such, he is entitled to a new trial?

3. Whether the PCRA court erred in dismissing Appellant's claim of violation of his right to a speedy trial?

4. Whether the PCRA court erred in failing to correct Appellant's illegal sentence where Appellant was sentenced for two counts of intimidation of a witness though only convicted of one count?

5. Whether the PCRA court erred in denying Appellant relief whereby Appellant proved by a preponderance of the evidence that he was prejudiced by Judge Gwendolyn Bright hearing Appellant's admission of guilt prior to trial?

6. Whether the PCRA court erred in denying Appellant relief whereby Appellant provide by a preponderance of the evidence that consolidation of all the offenses was legally insufficient as no consolidation request was made by either party nor was consolidation ordered by the court prior to trial?

7. Whether the PCRA court erred in denying Appellant relief whereby Appellant proved by a preponderance of the evidence that the Commonwealth committed a Brady^[8] violation by withholding impeachment evidence?

8. Whether the PCRA court erred in denying Appellant relief whereby Appellant proved by a preponderance of the evidence that he was entitled to renunciation defense instructions at trial and he was prejudiced by the absence of such instructions?

9. Whether the PCRA court erred in denying Appellant relief whereby Appellant proved by a preponderance of the evidence that he was entitled to crimen falsi instructions at trial and he was prejudiced by the absence of such instructions?

10. Whether the PCRA court erred in denying Appellant relief whereby Appellant proved by a preponderance of the evidence that counsel was ineffective for failing to apprise Appellant of the deportation consequences of a guilty plea?

11. Whether the PCRA court erred in denying Appellant relief whereby Appellant proved by a preponderance of the evidence that evidence obtained pursuant to an illegal search and seizure was admitted into his trial?

Appellant's Pro Se Brief at 3-4.

We begin with our standard of review:

In reviewing the propriety of a PCRA court's order dismissing a PCRA petition, we are limited to determining whether the PCRA court's findings are supported by the record and whether the order in question is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Moreover, there is no absolute right to an evidentiary hearing on a PCRA petition, and if the PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary. Pa.R.Crim.P. 907(2). A reviewing court must examine the issues raised in the PCRA petition in light of the record in order to determine whether the PCRA court erred in concluding that there were no genuine issues of material fact and in denying relief without an evidentiary hearing.

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008) (citations and internal quotation marks omitted).

With his first two assertions of error, Appellant claims that the PCRA court granted insufficient relief for his counsel's failure to object to the trial court's jury charge on retaliation against a witness. As explained above, the PCRA court vacated the conviction for retaliating against Gonzalez. Appellant argues the PCRA court should have granted a new trial because the erroneous instruction tainted all of his convictions. In substance, Appellant argues that he would have been better off not having been charged with retaliation against a witness: "The elements of retaliation against a witness suggest to a jury that a criminal defendant not only committed an offense but also sought to cover up his misdeeds by committing another criminal act." Appellant's Pro Se Brief at 9. Whatever the merit of this contention, it is not relevant to the issue before us. Appellant's argument fails to address the distinction between an attempted offense and a completed one, and he fails to explain why, in this case, the trial court's erroneous inclusion of attempt in its instruction on retaliation against a witness tainted the entire trial.

We observe that, while the record contains no evidence that Appellant...