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Commonwealth v. Timchak

Superior Court of Pennsylvania

June 28, 2013


Appeal from the PCRA Order August 10, 2012 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000444-2009




This is an appeal from the order entered in the Court of Common Pleas of Pike County denying Appellant Robert M. Timchak's first petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant presents three claims in which he alleges guilty plea counsel provided ineffective assistance of counsel. After a careful review, we affirm.

The relevant facts and procedural history are as follows:

The instant case arose when the Pike County District Attorney's Office received correspondence on December 17, 2008, from the Catholic Diocese of Scranton, Pennsylvania, which referenced an anonymous letter it had received regarding the online activities of Father Robert M. Timchak ("Appellant"), [who was an ordained Roman Catholic priest at St. Vincent DePaul's parish]. Enclosed with the anonymous letter were explicit photographs of young males who were suspected to be children under the age of 18. The photographs were alleged to have been recovered from social media sites that were linked to the e-mail account of [Appellant]. The anonymous letter and photographs were subsequently provided to the Pennsylvania State Police (PSP).
Pennsylvania State Troopers visited [Appellant] at his residence in St. Vincent's Rectory on April 4, 2009, for an interview with him. [Appellant] admitted that the e-mail address that was referenced in the anonymous letter and linked to the explicit photographs belonged to him. He also stated that the computers at his residence, a desktop and laptop, belonged to him and were in his exclusive possession. [Appellant] consented to a search of both computers by the PSP.
Prior to the examination of his computers by the PSP, [Appellant] advised the Troopers that he had attempted to delete some of the alleged explicit images from one of the computers. Upon examination of the computers by the PSP, explicit images of young males who appeared to be under the age of 18 were retrieved. Dr. Andi Taroli examined the images upon the request of the PSP, and found them to be photographic depictions of males under the age of 18. The photographs were also forwarded to the National Center for Missing and Exploited Children (NCMEC), who identified the underage males as being child abuse victims previously identified by law enforcement.

Lower Court Opinion filed 10/17/12 at 1-2.

Appellant was charged with seventeen counts of sexual abuse of children, 18 Pa.C.S.A. § 6312, which constituted one charge for each picture found on Appellant's computers, one count of criminal use of a communication facility, 18 Pa.C.S.A. § 7512, and one count of tampering or fabricating physical evidence, 18 Pa.C.S.A. § 4910. On August 26, 2010, Appellant, who was represented by John Petorak, Esquire, proceeded to a guilty plea hearing, at which Appellant entered a plea of guilty to all of the charges. In exchange, the Commonwealth recommended the sentence for counts eight through nineteen would run concurrently to the sentence imposed by the trial court for counts one through seven. N.T. 8/26/10, guilty plea hearing, at 3-4. In all other respects, Appellant's guilty plea remained open, with the sentence to be determined by the trial court. N.T. 8/26/10, guilty plea hearing, at 3-4.

On November 17, 2010, Appellant, who was still represented by Attorney Petorak, proceeded to a sentencing hearing, at the conclusion of which the trial court imposed an aggregate sentence of six months to seventy-two months in prison. Appellant did not file a timely direct appeal.

On October 24, 2011, Appellant, with the assistance of new counsel, John P. Rutkowski, Esquire, filed a counseled PCRA petition. Additionally, on that same date, Appellant filed a counseled "Motion for Recusal of Trial Judge, " seeking the recusal of the Honorable Joseph F. Kameen, who sat for Appellant's guilty plea and sentencing hearings, from presiding over the PCRA proceedings. By order entered on November 29, 2011, Judge Kameen granted Appellant's request for his recusal, and Appellant's case was reassigned to the Honorable Gregory H. Chelak.

On January 19, 2012, Appellant filed a counseled, amended PCRA petition, and on May 17, 2012, the matter proceeded to an evidentiary PCRA hearing before Judge Chelak. At the conclusion of the hearing, by order entered on August 10, 2012, the PCRA court denied Appellant's PCRA petition, and this timely, counseled appeal followed. The PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement, Appellant timely complied, and the PCRA court filed a responsive Pa.R.A.P. 1925(a) opinion.

As indicated supra, on appeal, Appellant presents three issues alleging the ineffective assistance of guilty plea counsel. In reviewing such issues, we are guided by the following general legal precepts:

Our standard of review of the denial of a PCRA petition is limited to examining whether the court's determination is supported by the evidence of record and free of legal error. This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Further, the PCRA court's credibility determinations are binding on this Court, where there is record support for those determinations.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa.Super. 2010) (citations omitted).

To prevail on a claim alleging counsel's ineffectiveness under the PCRA, Appellant must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceedings would have been different.
It is clear that a criminal defendant's right to effective counsel extends to the plea process, as well as during trial. However, [a]llegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Where the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citations, quotation, and quotation marks omitted). "[T]he law does not require that [the defendant] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily, and intelligently made." Anderson, 995 A.2d at 1192 (citations, quotation, and quotation marks omitted). Moreover, with regard to the prejudice prong, where an appellant has entered a guilty plea, the appellant must demonstrate "it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty and would have gone to trial." Commonwealth v. Rathfon, 899 A.2d 365, 370 (Pa.Super. 2006) (quotation and quotation marks omitted).

Appellant first contends his guilty plea counsel, Attorney Petorak, was ineffective in failing to discuss with Appellant any possible defenses, failing to participate in discovery, and failing to conduct any investigation. Specifically, Appellant contends that, despite the fact he told Attorney Petorak he wished to plead guilty, Attorney Petorak "still had a duty to effectively defend [Appellant] through participation in discovery and investigation so that he could intelligently discuss how the Commonwealth would attempt to prove their case [at trial] and how [Appellant] could challenge that evidence through the use of various defense expert witnesses." Appellant's Brief at 10.

It is well-settled that:

Counsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary. Where counsel has made a strategic decision after a thorough investigation of law and facts, it is virtually unchallengeable; strategic choices made following a less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. As noted, an evaluation of counsel's performance is highly deferential, and the reasonableness of counsel's decisions cannot be based upon the distorting effects of hindsight. Furthermore, reasonableness in this context depends, in critical part, upon the information supplied by the defendant. Thus, assuming a reasonable investigation, where there is no notice to counsel of particular mitigating evidence, he cannot be held ineffective for failing to pursue it.

Commnwealth v. Basemore, 560 Pa. 258, 289-290, 744 A.2d 717, 735 (2000) (citations omitted). See Commonwealth v. Hughes, 581 Pa. 274, 865 A.2d 761 (2004) (holding the reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation).

During his extensive oral guilty plea colloquy, after being informed of the elements of the charges filed against him, and the facts as alleged by the Commonwealth to support the charges, Appellant affirmatively indicated that he was guilty of the charges. N.T. 8/26/10, guilty plea hearing, at 1-6, 11, 13, 16. Appellant denied he was forced to plead guilty, and he confirmed he was satisfied with Attorney Petorak's representation. N.T. 8/26/10, guilty plea hearing, at 8, 13. Additionally, Appellant completed a written guilty plea colloquy in which he affirmatively acknowledged, inter alia, he was waiving his right to present any possible trial defenses and he had adequate time to consult with his attorney.

During the PCRA evidentiary hearing, Appellant testified he told Attorney Petorak about the police's investigation, including the fact the police had received an anonymous letter, the police had interviewed him, and the police had seized his computers. N.T. 5/17/12, PCRA hearing, at 4-11. Prior to entering his guilty plea, Appellant met with Attorney Petorak approximately three times, spoke with him on the telephone four or five times, and engaged in three email correspondences. N.T. 5/17/12, PCRA hearing, at 11. With regard to the hiring of defense expert witnesses in the event Appellant proceeded to trial, Appellant admitted Attorney Petorak told him "this would be something that you would do." N.T. 5/17/12, PCRA hearing, at 12. However, Appellant subsequently testified Attorney Petorak did not discuss with him any defenses at all. N.T. 5/17/12, PCRA hearing, at 19-20. Appellant testified Attorney Petorak told him that, if he went to trial, he believed the jury would convict him "in three minutes" based on the Commonwealth's evidence, including the photographs seized from Appellant's personal computers. N.T. 5/17/12, PCRA hearing, at 22. Appellant admitted he pled guilty because he believed the Commonwealth had a strong case and it was in his best interest to plead guilty. N.T. 5/17/12, PCRA hearing, at 21-22. Appellant admitted that, with the assistance of Attorney Petorak, he reviewed the written guilty plea colloquy prior to pleading guilty, and Attorney Petorak answered all of his questions. N.T. 5/17/12, PCRA hearing, at 42-43.

Attorney Petorak confirmed he met with Appellant. N.T. 5/17/12, PCRA hearing, at 60. He testified it was his understanding from the beginning that Appellant wanted to negotiate a plea in the matter. N.T. 5/17/12, PCRA hearing, at 60. He explained that he did not seek suppression or engage in lengthy discovery because he was seeking the Commonwealth's cooperation in negotiating a favorable plea for Appellant and did not want to "start fighting with the District Attorney." N.T. 5/17/12, PCRA hearing, at 60. The following relevant exchange occurred between Attorney Petorak and Appellant's PCRA counsel in this regard:

Q: And you didn't ask for [the photographs] because you believed [Appellant] wanted to plea?
A: I went to the State Police barracks with an associate of ours…and [the police] showed me the photographs. Viewing the photographs and from the Affidavit of Probable Cause, the assessment was ...

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