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[U] Commonwealth v. Budka

Superior Court of Pennsylvania

December 3, 2013

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
MICHAEL RYAN BUDKA Appellee

NON-PRECEDENTIAL DECISION

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

LAZARUS, J.

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, [1] aggravated indecent assault, [2] statutory sexual assault, [3] and unlawful contact or communications with a minor.[4] 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).

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.[5]

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 ...

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