Opinion
J-S53024-13 No. 26 MDA 2013
12-03-2013
COMMONWEALTH OF PENNSYLVANIA Appellant v. MICHAEL RYAN BUDKA Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.
Former Justice specially assigned to the Superior Court.
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, we affirm.
Following trial, a jury convicted Budka of involuntary deviate sexual intercourse, aggravated indecent assault, statutory sexual assault, and unlawful contact or communications with a minor. The court sentenced Budka to a total term of imprisonment of 14 to 28 years. Budka filed post-sentence motions, which were denied. On direct appeal, this Court affirmed the judgment of sentence. Commonwealth v. Budka, 34 A.3d 239 (Pa. Super. 2011).
18 Pa.C.S.A. § 3123(a)(7).
18 Pa.C.S.A. § 3125(a)(8).
18 Pa.C.S.A. § 3122.1.
18 Pa.C.S.A. § 6318(a)(1).
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 Judge Renn's 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 wife; and (2) for failing to seek a mistrial as a result of prosecutorial misconduct in the closing argument.
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.
The Commonwealth appealed on December 31, 2012, and the trial court ordered a Rule 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 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 probability sufficient to undermine confidence in the outcome).
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).
Additionally, Judge Renn determined counsel was ineffective in failing to object to the prosecutor's closing argument and seek a mistrial. Here, the prosecutor indicated Budka's own attorney did not believe him. 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." 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 Trial 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).
The standard for granting a new trial is a high one. 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).
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 trial 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
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
Commonwealth of Pennsylvania
v.
Michael Ryan Budka
SCI Rockview
Inmate #JQ-6933 Appearances;
For the Commonwealth: For Defendant:
No. CP-67-CR-2219-2009
PCRA Petition
Jennifer L. Russell, Esquire
John M. Hamme, Esquire
OPINION IN SUPPORT OF ORDER GRANTING DEFENDANT RELIEF UNDER
THE POST-CONVICTION RELIEF ACT
This matter is before the Court on a Post-Conviction Relief Act (PCRA) Petition filed by Defendant. We will grant relief and award Defendant a new trial. Factual and Procedural History:
On October 20, 2008, a criminal complaint was filed charging Defendant with Involuntary Deviate Sexual Intercourse, Aggravated Indecent Assault, Statutory Sexual Assault, Indecent Assault, Corruption of Minors, and Unlawful Contact or Communication with a Minor. The charges arose from allegations of a fourteen year old girl, K.R., that Defendant had twice had sexual relations with her. Defendant was 29 years old at the time of the contact.
18 Pa.C.S.A. 3123(a)(7), 3125(a)(8), 3122.1, 3126(a)(8), 6301(a)(1), and 6318(a), respectively.
Defendant was arrested on October 22, 2008 and his preliminary hearing was continued several times to April 3, 2009. Defendant waived arraignment and Korey Leslie, Esquire, was appointed to represent Defendant on June 15, 2009.
A pre-trial conference was held on June 23, 2009 and the case was listed for trial during the August term. A jury trial was held on September 17 and 18, 2009. The jury returned a verdict of Guilty of Involuntary Deviate Sexual Intercourse with a person less than 16 years of age; Guilty of Aggravated Indecent Assault; Guilty of Statutory Sexual Assault; and, Guilty of Unlawful Contact or Communication. The other charges were nol prossed.
Defendant filed a pro se Petition to Terminate Court-Appointed Counsel on January 26, 2010. Attorney Leslie filed a Motion to Withdraw as Counsel on February 2, 2010. On February 5, 2010, Attorney Leslie was permitted to withdraw.
Attorney Charles Hobbs was appointed to represent Defendant on February 9, 2010. A pre-sentence motion for a new trial was filed on April 6, 2010. A hearing was scheduled for May 21, 2010 at which time Attorney Hobbs withdrew the motion.
Defendant was sentenced on June 18, 2010 to an aggregate sentence of 168 to 336 months incarceration.
Defendant filed a Post-Sentence Motion on June 25, 2010 which was denied at a hearing on August 25, 2010. Defendant appealed and the Superior Court affirmed his judgment of sentence in a non-precedential decision filed September 27, 2011 and docketed to 1951 MDA 2010.
Defendant timely filed the present Petition for Post-Conviction Collateral Relief on November 28, 2011. We appointed counsel and scheduled a hearing. Due to a conflict, new counsel was appointed on January 24, 2012 and the hearing was continued to April 24, 2012. Defendant raised the following issues in his PCRA Petition: 1). Ineffective assistance of counsel for failing to notify Defendant of a plea offer of 2 to 4 years; 2). Ineffective assistance of counsel for failing to call witnesses to testify on Defendant's behalf; 3). Ineffective assistance of counsel for not letting Defendant testify when Defendant wanted to testify; 4). Ineffective assistance of counsel for failing to present any evidence; 5). Ineffective assistance of counsel for failing to advise Defendant of the maximum sentence; 6). Ineffective assistance of counsel for failing to object during the prosecutor's closing argument; 7). Ineffective assistance of counsel for failing to object to improper questions from the Court. Discussion:
PCRA Generally;
Defendant filed his Petition for relief pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. 9541, et seq. The relevant portions of section 9543, eligibility for relief, are as follows:
To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
(i)Currently serving a sentence of imprisonment, probation or parole for the crime;
(2) That the conviction or sentence resulted from one or more of the following:
(i) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place,
(3) That the allegation of error has not been previously litigated or waived.
(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.
In order to succeed on an ineffective assistance of counsel claim, a petitioner must prove by a preponderance of the evidence that 1) there is merit to the underlying claim; 2) counsel had no reasonable basis for his or her course of conduct; and 3) there is a reasonable probability that, but for the act or omission challenged, the outcome of the proceeding would have been different. Commonwealth v. Rivers, 786 A.2d 923, 927 (Pa. 2001). "A chosen strategy will not be found to have lacked a reasonable basis unless it is proven 'that an alternative not chosen offered a potential for success substantially greater than the course actually pursued."' Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009) (quoting Commonwealth v. Williams, 899 A.2d 1060,1064 (Pa. 2006)).
Failure to notify Defendant of plea offer:
Defendant claims that his trial counsel failed to inform him of a plea offer and then declined it before Defendant knew of it, Defendant's trial counsel was present and testified at the PCRA hearing. Defendant also testified.
Defendant testified that he only met with Attorney Leslie for ten minutes at the pre-trial conference held on June 23, 2009, and that it was then that Attorney Leslie said there was an offer of 2 to 4 years but that Attorney Leslie told Defendant he had fumed the offer down for him.
Attorney Leslie testified that he did meet Defendant for the first time at the pre-trial conference, but he had only been appointed a week before the pre-trial conference. Counsel had not received any discovery from the Commonwealth at the time of the conference.
Attorney Leslie testified that he met with Defendant in July and September to discuss trial strategy and that Defendant continued to deny that he had sexual relations with the victim. Attorney Leslie further testified that Defendant did not want to entertain any plea offers because he was innocent. He wanted to go to trial the entire time. Attorney Leslie also testified that he discussed the guideline sentence ranges with Defendant and the possibility of consecutive sentences.
We resolve issues of credibility in favor of Attorney Leslie and find that Defendant was informed of plea offers, but chose not to plead guilty because he was asserting his innocence to the charges. Defendant did not testify at his trial.
Failure to call witnesses to testify on Defendant's behalf
Defendant asserts that his trial counsel provided ineffective assistance because he failed to call witnesses to testify on Defendant's behalf. Specifically, Defendant said that his grandmother would have testified that Defendant was not allowed to use her car. Defendant's grandmother, Brenda Kasmir, was present at the PCRA hearing and testified that she was available to testify at the trial and would have testified that Defendant had a gold truck and did not use her van. On cross-examination, Mrs. Kasmir stated that Defendant would borrow the van from time to time.
The victim testified that Defendant picked her up in a dark blue van. N.T. 9/17/09 at 105. Shannon Budka testified at the trial that Defendant's grandmother owned a royal blue van. N.T. 9/17/09 at 173.
Attorney Leslie testified at the PCRA hearing that he did not know the van was an issue until Defendant's wife, Shannon Budka, testified that his grandmother owned a blue van. Prior to her testimony, there was no evidence tying Defendant to a blue van. The victim testified that Defendant was driving a blue van, but Officer.Stabley could not provide any evidence that Defendant owned a blue van. N.T. 9/17/09 at 139-40. Mrs, Budka was the last witness to testify. Following Mrs. Budka's testimony, Defendant's aunt told Attorney Leslie that the grandmother could testify and say that Defendant wouldn't have had access to the van.
Because we had the opportunity at the PCRA hearing to hear the testimony of Brenda Kasmir, we find that this issue has no merit. Despite Mrs. Kasmir's claims that Defendant would not have had access to her blue van, Mrs. Kasmir stated at the PCRA hearing that Defendant would borrow the van from time to time. Based on these inconsistencies, we find that this issue lacks merit, since her testimony would not have helped Defendant at trial.
Failure to allow Defendant to testify at his trial
We find that this issue is waived because it was not pursued at the PCRA hearing. If it is not waived, we find the issue lacks merit because Defendant was advised of his right to testify and waived that right. Defendant was given extra time to discuss this issue with his attorney before waiving the right verbally and by signing a written form. N.T. 9/17/09 at 186-89.
Failure to present any evidence
This issue was not raised at the hearing, other than what was already discussed concerning the proffered testimony of Defendant's grandmother. The issue does appear in Defendant's petition asserting that counsel failed to present evidence that "could have shown the character of the victim and contradict her credibility." Nothing more specific is raised. We assume that Defendant is referring to pictures and instant messaging transcripts from the victim's Yahoo accounts.
According to a discussion that occurred prior to the start of trial, the evidence was received by the Commonwealth the day before the start of the trial and shared with defense counsel. Judge Kelley ruled that the evidence, which was provocative and/or sexual in nature, would be covered by Rape Shield and therefore inadmissible. N.T. 9/17/09 at 52-55. Judge Kelley further stated that the evidence might be admissible if the Commonwealth opened the door by arguing that the victim, due to her age, would have no knowledge of things of a sexual nature.
This ruling was not raised on appeal and we therefore consider it waived. In terms of ineffective assistance of counsel, the issue has no merit because defense counsel could not present evidence that the court had ruled was inadmissible. Defendant did not raise the issue in terms of ineffective assistance of appellate counsel for failing to raise the issue on appeal.
Ineffective assistance of counsel for failure to advise of maximum sentences
Defendant asserts in his PCRA Petition that counsel never told him the "true maximum" he could be facing if convicted. Attorney Leslie testified at the PCRA hearing that he did discuss the guideline sentences with Defendant but that he did not sit down and discuss the statutory maximums.
While this would be of concern if Defendant entered a guilty plea and was sentenced to the statutory maximums for tire offenses, Defendant was sentenced within the standard ranges. Defendant did not enter a plea in this case. He chose to go to trial. As discussed previously, we find that Defendant was informed of the possibility of entering a plea of guilty but that he was asserting his innocence to the charges and did not want to plead guilty.
Therefore, we cannot find that Defendant was prejudiced by not being informed of the statutory maximum penalties when he was sentenced within the guideline ranges and he was informed of the guideline ranges before proceeding to trial.
Failure to object during the prosecutor's closing argument
Defendant next asserts that his attorney provided ineffective assistance of counsel because he failed to object during the prosecutor's closing argument. Defendant refers to two different statements of the prosecutor during her closing argument:
[Attorney Leslie] repeatedly called 15-year old [K.R.], who came in yesterday before you, a liar. But, you know, what one thing that really stood out to me is that one person that Attorney Leslie doesn't seem to believe is his own client, Michael Budka, because on one hand he's saying well, he didn't even know her, you know, he talked to her a couple times on the phone; but, on the other hand, he's arguing but if he did know her and he did have sex with her, he thought she was older. You can't have it both ways. Doesn't seem like his own attorney believes the same things that he provided to the police.N.T. 9/17/09 at 204 and 213.
*********
Attorney Leslie in his closing made the argument that this case is based on a lie. No, we're not here because of a lie because I can assure you that if I thought [K.R.] was lying, we wouldn't be here today.
Defendant did raise this issue on appeal seeking a new trial due to the prejudicial comments of the prosecutor. The Superior Court did not review the actual statements, however, finding the issue had been waived because counsel never requested a mistrial at the time of the remarks. Commonwealth v. Budka, 1591 MDA 2010, pg. 10 (non-precedential decision).
Additionally, the Superior Court found it "doubtful that Appellant's attorney objected to the prosecutor's statements." Id. at 14. It was not until the prosecutor had finished the entire closing argument that Attorney Leslie approached at sidebar and indicated that he was bothered by her remarks. No relief was requested. The Superior Court commented further that even if Attorney Leslie objected and if that objection was sustained, since no relief in the form of a mistrial or curative instruction was requested, the issue was waived for appellate review. See Commonwealth v. Jones, 460 A.2d 739 (Pa. 1983).
Here, Defendant raises the issue in terms of counsel's ineffectiveness for not objecting to the comments and failing to ask for a mistrial. The passages cited from Defendant's trial do show that the prosecutor did assert her personal opinion on the credibility of the victim by personally assuring the jury that the victim was not lying, That, coupled with the prosecutor's remarks about defense counsel's belief in his client when the client did not testify at trial are, at the very least, "vouching" for the Commonwealth's witness and an indirect attack on the Defendant's right to remain silent. A prosecutor cannot "vouch" for a witness. Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025(2007). "Vouching" occurs when a prosecutor expresses personal knowledge, from outside of the record, of a witness's veracity. That was clearly done here.
When Attorney Leslie raised the issue at sidebar following the closing argument, Judge Kelley indicated that the comments concerning the victim's truthfulness were fair argument based on Attorney Leslie's closing argument. N.T. 9/17/09 p. 216. Attorney Leslie did refer in his closing argument several times to the fact that K.R., the victim, had originally told a lie to the police and to her father about the circumstances of her encounter with Defendant. He also made the following comments:
So I leave you with this. I don't think the Commonwealth has even come close to meeting its burden and I don't think [K.R.] has told the truth. I think that lie is still hanging over this case and I think he should be found not guilty on all charges because it never happened,N.T. 9/17/09 p. 202.
It does appear that both attorneys asserted a personal opinion as to the credibility of the witnesses. However, defense counsel's assertion is not at issue here. The prosecution did not object to it. We have reviewed several cases in which new trials were granted due to comments of the prosecutor during closing arguments; and, we have reviewed several in which new trials were not granted.
In Commonwealth v. Cronin, 346 A.2d 59 (Pa. 1975), the prosecuting attorney argued to the jury that "the only way, the only way you cannot find this defendant guilty of murder of the first degree is for Louis Cooper to walk through that door," Id. at 61. The Court reversed the judgment of sentence and remanded for a new trial holding that "a prosecuting attorney may not indulge in personal assertions of guilt of a defendant either by direct statement or indirectly by figure of speech." Id. at 62. The Court relied on its previous decisions in Commonwealth v. Lipscomb, 317 A.2d 205(Pa. 1974) and Commonwealth v. Lark, 333 A.2d 786 (Pa. 1975), which were based on remarks that were similar to the one in Cronin. Additionally, the Court cited to a passage from Berger v. United States, 295 U.S. 78, 88 (1935), finding it equally applicable to attorneys for the Commonwealth:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is a in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.
In Commonwealth v. Chmiel, 889 A.2d 502 (Pa. 2005), the Court did not find prosecutorial misconduct where the Appellant claimed that the prosecutor vouched for the credibility of a Commonwealth witness and called defense witnesses liars. While stating that it is "improper for a prosecutor to express a personal belief as to the credibility of the defendant or other witnesses"; it further stated that the "prosecutor may comment on the credibility of witnesses." Id. at 544. "Bven if [the prosecutor's comments] were an expression of personal opinion, they cannot be characterized as prosecutorial misconduct unless their effect was to 'prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict." Id. at 545.
In our case, it is clear that the prosecutor expressed her personal opinion as to the truthfulness of the victim, the main Commonwealth witness. Further, by referencing defense counsel's supposed disbelief of his own client, she formed in the jurors' minds a "fixed bias and hostility" in favor of the victim and against the defendant.
In a case such as this one, with no physical evidence, the credibility of the witnesses is of such importance that we do find the comments by the prosecutor to be improper and prejudicial. Defendant did not testify in this case, making K.R.'s credibility and believability the only true evidence in the case. We conclude that the prosecutor's assertion to the jury that she believed K.R. was telling the truth, otherwise there would have been no trial, carried an improper amount of weight, which significantly affected the outcome of the trial.
Judge Kelley did instruct the jury properly that the speeches of counsel are not part of the evidence. N.T. 9/17/09 p. 236. Had the prosecutor erroneously suggested that a piece of evidence was presented that wasn't, or improperly argued the law, we would most likely find the instructions to the jury to suffice; however, here, the prosecutor told the jury that she personally believed the allegations of the victim, basically that she would not waste their time with a victim who is lying. Perhaps it is obvious to the jury that someone must have believed the victim, or the case would not be tried, but that does not make the remarks less damaging or prejudicial. The jury is the sole fact-finder and is charged with resolving issues of credibility based on the evidence and testimony presented, not based on an assertion from a prosecuting attorney that she believes the victim. We cannot conclude that instructions to the jury were sufficient under these circumstances, and, accordingly, find that counsel was ineffective for failing to immediately object and request a mistrial or at the very least, an immediate cautionary instruction. We will grant a new trial on that basis.
Failure to object to improper questions from the Court
Defendant argues in his petition that counsel was ineffective for failing to object to improper questions by the Court. This is an issue that Defendant did try to present on direct appeal in terms of judicial error. On appeal, Defendant argued that he was entitled to a new trial due to the trial court's extensive questioning of two Commonwealth witnesses, E.O. and Shannon Budka. The Superior Court held that Defendant had waived the issue as to Shannon Budka because at the time of trial, defense counsel objected, but only requested a curative instruction, not a mistrial. As to E.O., the Superior Court found that issue waived because it was not included in Defendant's 1925(b) Statement. Commonwealth v. Budka, 1591 MDA 2010 at p.7.
Initially we note that the trial Judge did instruct the jury prior to trial that he might ask questions of some of the witnesses:
The only reason I will do that would be because as I'm listening to the evidence unfold for the First time, as you are, I believe while listening to it that you might have some questionsN.T. 9/17/09 at 62. The Judge gave the same instructions at the end of the trial, pages 238-39.
Under those circumstances, as I'm listening to the evidence and I think there might be a question outstanding in your mind, I might ask a couple of questions. You should not infer, if I do ask any questions, that I take a position with regard to the guilt or innocence of the Defendant. Indeed, I am duty bound not to take a position with regard to the guilt or innocence of Defendants. So if I ask questions, don't infer that, because that is not the case. I'm only asking questions because I think that there might be some outstanding question in your minds as jurors.
It is well established that a judge may question the witnesses. Pa.R.E. 614(b) provides that "where the interest of justice so requires, the court may interrogate witnesses, whether called by itself or by a party." In Commonwealth v. Myma, 123 A. 486 (Pa. 1924), the Court stated the following guidelines for questioning from the bench:
It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but, where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination. The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table. To depart from the clear line of duty through
questions, expressions, or conduct, contravenes the orderly administration of justice. It has a tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under system of jurisprudence. Judges should refrain from extended examination of witnesses; they should not, during the trial, indicate an opinion on the merits, a doubt as to the witnesses' credibility, or do anything to indicate a leaning one side or the other, without explaining to the jury that all these matters are for them. (Emphasis added),
Shannon Budka, Defendant's wife, was called by the Commonwealth to testify on direct examination about what kind of vehicle Defendant drove, N.T. 9/17/09 p. 176. The victim had testified that the Defendant was driving a blue or gray van and Shannon Budka testified that Defendant's grandmother owned a "blue car van." N.T. 9/17/09 p. 173. That was the end of the Commonwealth's questions for Mrs. Budka. Defense counsel then asked about where she lived and whether she met with a divorce attorney.
Following defense counsel's cross-examination of Mrs. Budka, the trial Judge asked her questions concerning the layout of the house that she had shared with Defendant and whether a wedding photograph was displayed in the living room. N.T. 9/17/09 at 178-79, Attorney Leslie did not object during the questioning but did approach at sidebar after questioning by the trial Judge and voiced an objection to the questioning. Attorney Leslie was concerned that the questions from the trial Judge tended to bolster the previous testimony of the victim and enhance her credibility. Attorney Leslie did not request a mistrial but the Judge sustained the objection and offered a curative instruction. No special instruction was given but the trial Judge did include a standard instruction, similar to the opening instruction, in his final instructions to the jury.
This testimony From Mrs. Budka followed the victim's testimony, earlier in the trial, about the layout of Defendant's house and seeing the wedding photograph in the living room. N.T. 9/17/09 at 86-88 and 90.
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The trial Judge's questioning of the witness consumed more than a page of trial transcript. N.T. 9/17/09 at 178-79. The cross-examination of the victim had revealed inconsistencies in her story to the police and inconsistencies in her recollection of the events, including the layout of Defendant's house. N.T. 9/17/09 at 102-110. On the record, Judge Kelley explained to defense counsel that he asked the questions because it "was an issue that may have been in the minds of the jury." N.T. 9/17/09 at 180. While it is proper for the judge to examine a witness to clear up ambiguities, draw out a material fact or correct a false impression, here the questions asked only tended to bolster the victim's previous testimony.
The questions were not particularly germane to the witness's testimony on direct or cross, and were questions which should have been, and were previously, asked by the prosecution. In the circumstances of this case, one that relies entirely on the credibility of the victim, we find the questioning was improper and prejudicial by tending to bolster the testimony of the victim.
Because the questions drew out information that tended to make the victim's testimony more credible, we cannot find that the instruction given by the judge was sufficient to cure the harm. Accordingly, we find that counsel was ineffective for failing to request a mistrial. We conclude that Defendant is entitled to a new trial.
The trial judge also extensively questioned the victim about the sexual encounter between her and defendant, N.T. 9/17/09 at 112-15, after she testified she could not exactly remember the chain of events. N.T. 9/17/09 at 81-82. This also tended to bolster the credibility of the victim, since it had the effect of making her prior testimony more certain than it was. We find that this questioning, too, was more extensive than necessary to clear up any ambiguities. As such, it also bolstered her credibility to the prejudice of the defendant.
As to the questioning of E.O. by the trial judge, it is also troublesome because Judge Kelley had not yet ruled on the admissibility of the testimony being elicited. N.T. 9/17/09 at 127-30 and 158. E.O. had never met the Defendant but testified that her friend, K.R., the victim, had used her phone to have conversations with a person named Mike. N.T. 9/17/09 at 117.
The trial judge bolstered the Commonwealth's case by helping the Commonwealth lay the foundation for refreshing the witness's memory. N.T. 9/17/09 at 118-19. The judge again departed from being an impartial magistrate by suggesting a further question to the prosecutor. N.T. 9/17/09 at 121-22.
E.O. testified that the phone number for Mike was saved in her phone, that she did not know the phone number, and that she no longer had that phone. N.T. 9/17/09 at 120-22. E.O. testified that she told Mike that K.R. was only 13 years old and that she was 16. N.T. 9/17/09 at 124-25.
The Commonwealth offered several reasons for the testimony of E.O. The testimony of E.O. that Mike had told her he had sex with K.R. was an admission; however, the Commonwealth needed to sufficiently establish that the Mike on the phone was the Defendant. The testimony of E.O. that she told Mike K.R.'s age was offered to show absence of mistake of age. E.O.'s testimony that Mike had asked E.O. to participate in a threesome with htm and K.R, was offered for intent or motive, assuming the conversation occurred after Mike was apprised of K.R.'s and E.O.'s ages.
The trial Judge questioned E.O. extensively at pages 150-57, again bolstering the testimony previously elicited by the Commonwealth. After the questioning, at sidebar, the Judge gave Attorney Leslie the opportunity to object and he did not. We find that counsel was ineffective for failing to object to the questioning, as the answers given by E.O., along with the taped interrogation of Defendant, established circumstantially that Defendant was the Mike on the phone with E.O. The conversations she attributed to the defendant were clearly prejudicial. Conclusion:
We find that trial counsel was ineffective for failing to request a mistrial following the prosecutor's closing arguments and for failing to request a mistrial following the trial Judge's questioning of the victim, Shannon Budka and E.O. The cumulative effect of the questioning was to throw the weight of the Judge behind the prosecution's case to the prejudice of the Defendant Accordingly, in a separate Order, we will grant Defendant's request for relief under the PCRA and direct that a new trial be conducted. We will schedule a pre-trial conference under separate Order.
Copies of this Opinion shall be provided to counsel for the parties and to Defendant at SCI-Rockview.
BY THE COURT,
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Richard K. Renn, Judge