December 3, 2013
COMMONWEALTH OF PENNSYLVANIA Appellant
MICHAEL RYAN BUDKA Appellee
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. [*]
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).
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.
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).
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.