Com. v. Dunkowski, C.

• Court: Superior Court of Pennsylvania
• Decided: March 9, 2026
• Docket: 1220 EDA 2025
• Status: Unpublished
• Author: Beck

Opinion

J-S47003-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALBERT DUNKOWSKI : : Appellant : No. 1507 EDA 2025

Appeal from the PCRA Order Entered May 14, 2025 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000225-2020

BEFORE: PANELLA, P.J.E., OLSON, J., and BECK, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED MARCH 9, 2026

Albert Dunkowski appeals pro se from the order of the Court of Common

Pleas of Bucks County dismissing his petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”)1, without a hearing. Dunkowski argues that he

is entitled to relief on his claims of sufficiency of the evidence and ineffective

assistance of counsel. After careful review, we affirm the PCRA court’s order

dismissing his PCRA petition. However, for the first time on appeal, Dunkowski

argues his sentence was illegal because the sentencing court failed to consider

his recidivism risk reduction incentive (“RRRI”)2 eligibility. He is entitled to

relief on this claim. Therefore, we affirm the order dismissing the PCRA petition

and remand for the sentencing court to consider his RRRI eligibility.

____________________________________________

1 42 Pa.C.S.A. §§ 9541–9546.

2 61 Pa.C.S.A. §§ 4501–4512. J-S47003-25

This Court previously summarized the facts related to Dunkowski’s

underlying convictions. See Commonwealth v. Dunkowski, No. 1047 EDA

2022, 2023 WL 5129187 (Pa. Super. filed Aug. 10, 2023) (unpublished

memorandum).

In August 2019, police discovered Dunkowski and his wife inhabiting an automobile that was parked in the lot of the Woodbourn Train Station in Middletown Township. Upon arriving at the scene, officers observed Dunkowski lying face down in the grass. His wife was slumped over in the front passenger seat. Four children occupied the rear seat area of the vehicle. A cat was also living in the car. Officers noted that the vehicle was cluttered with trash, clothing, food, and debris. They also noticed the strong odor of bodily excretions, cigarettes, and rotting food. Due to the visibly poor physical condition of the children, the officers called Emergency Medical Services (“EMS”). EMS took protective custody of the children and transported them to the hospital.

The trial court offered the following review of the condition of the various children that were in the parental care of Dunkowski and his wife:

At [the hospital], treating physicians made the following assessments: N.D., who suffered from cerebral palsy, was thirteen years old and weighed about ninety pounds. She was nonverbal, had a feeding tube, and started to develop bedsores from remaining in the same position for a significant amount of time. J.D. was four years old and weighed about forty pounds. She was still in diapers as she was not yet trained to go to the bathroom on her own and she needed extensive dental work—a root canal, a crown, and three fillings. Female L.D. was five years old and weighed about forty-eight pounds. She was also still in diapers and needed nine root canals, nine crowns, one filling, and four teeth pulled. She had never been to school. Male L.D. was nine years old and weighed about sixty pounds. He had bilateral clubfeet ... as well as undescended testicles .... Both required procedures—several to improve Male L.D.’s clubfeet and one to surgically descend his testicles.

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Male L.D. also had such a severe, significant amount of dried, caked-on fecal matter on his diaper that when the doctor pulled it back, Male L.D.’s skin became raw and red. Dr. Torradas, the physician who treated the children, testified that, over the course of his lengthy career, he had never seen anything like what he saw on August 27, 2019.

That same day, [Dunkowski] and [his wife] spoke with Detective Brian Hyams (hereinafter “Detective Hyams”) and told him that none of the four children found were enrolled in school. Detective Hyams asked if they had any additional children and they provided the names of three more minors in their care. They relayed that one child, R.[D]., was staying with a friend at the time, but neither [Dunkowski] nor [his wife] could provide any contact information to get in touch with her. Authorities eventually found R.[D]. and discovered that she missed almost the entire 2018-2019 school year and had an abscess in her tooth that rendered her unable to chew and required significant dental surgery. Fortunately, R.D did not require immediate, emergency medical treatment.

Shortly thereafter, Detective Hyams discovered that [Dunkowski] and [his wife] had an eighth minor child—S.D.—they did not mention when previously asked. After some investigation, Detective Hyams located S.D. and [Dunkowski] agreed to “turn her over” to authorities in a McDonald’s parking lot. S.D. “appeared to be very thin, small, disheveled. Her hair was very short as if it wasn't growing, or falling out. Her eyes were puffy underneath. She was very, very quiet, almost like she was lethargic.” Doctors later determined she weighed about forty-two pounds. S.D. was unable to walk because her legs were bent in a seated position. She also still needed diapers—at thirteen years old—because [Dunkowski] and [his wife] never taught her how to use the bathroom. Authorities immediately took protective custody of S.D. and transported her to [the hospital] with the other children.

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Id. at **1-2 (quoting Trial Court Opinion, 6/23/22, at 2-4) (alterations in

original).

Dunkowski and his wife Christine were both charged with six counts of

endangering the welfare of children (“EWOC”).3 A consolidated jury trial

commenced on October 4, 2021. On the third day of trial, Dunkowski and his

wife failed to appear. The trial proceeded in abstentia. Dunkowski was

convicted of three counts of EWOC. For each count, he was sentenced to three

to seven years, consecutively, for an aggregate term of incarceration of 9 to

21 years.4 He filed a timely post-sentence motion which was denied.

Dunkowski filed a direct appeal, and this Court affirmed his judgment of

sentence. See Dunkowski, 2023 WL 5129187, at *8.

Thereafter,

On July 29, 2024, [Dunkowski] filed his first PCRA Petition, Th[e PCRA c]ourt appointed Stuart Wilder, Esquire to represent [Dunkowski], but on September 4, 2024, Mr. Wilder filed a Motion to Allow [Dunkowski] to Represent Himself in his Petition for PCRA Relief. The Petition stated that [Dunkowski] wished to represent himself, and after a hearing on the matter where [Dunkowski] advised th[e PCRA c]ourt of the same, th[e c]ourt granted [Dunkowski’s] Motion on December 18, 2024.

3 18 Pa.C.S.A. § 4304.

4 Dunkowski’s wife, Christine Dunkowski, was his co-defendant at trial. She

was convicted of the same charges and was sentenced to 8 to 21 years’ incarceration. Her conviction was affirmed on direct appeal. See Commonwealth v. Dunkowski, No. 1990 EDA 2022, 2023 WL 4397323 (Pa. Super. filed July 7, 2023) (unpublished memorandum). Her pro se appeal of the denial of her first PCRA petition is pending at docket number 1220 EDA 2025.

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On January 13, 2025, [Dunkowski] filed his pro se Amended Petition for Post Conviction Collateral Relief, wherein he challenged the sufficiency of the evidence presented at trial and alleged th[e sentencing c]ourt abused its discretion when imposing sentence and that his trial counsel was ineffective for: (1) not “moving for dismissal of the indictment” during said sentencing; (2) not interviewing his children in preparation for trial; and (3) not filing a successful direct appeal. On February 11, 2025, the Commonwealth filed its response to [Dunkowski’s] Amended PCRA Petition. On February 24, 2025, th[e PCRA c]ourt issued a Notice of Intent to Dismiss Pursuant to Pa. R. Crim. P. 907 and stated that the claims were without merit and did not warrant an evidentiary hearing. On March 11, 2025, [Dunkowski] filed an Objection to Notice of Intent to Dismiss. On May 14, 2025, th[e PCRA c]ourt formally dismissed [Dunkowski’s] pro se Amended PCRA Petition. On June 2, 2025, [Dunkowski] filed [a] Notice of Appeal to the Superior Court.

PCRA Court Opinion, 6/20/25, at 4-5.

Both Dunkowski and the PCRA court complied with Pennsylvania Rule of

Appellate Procedure 1925. See Pa.R.A.P. 1925(a)-(b).

Dunkowski raises the following issues.

1. Did the Trial Court err in not correcting, at sentencing, the jury’s verdict, once the [c]ourt became aware that there was no intent by [Dunkowski] to commit the offenses charged?

2. Was [Dunkowski’s] trial counsel ineffective for not moving for a dismissal of the indictment and conviction due to the judge’s comments at sentencing?

3. Was Trial Counsel ineffective for failing to interview [Dunkowski’s] children at all, and thus was unprepared for trial without their version of events during their homeless period?

4. Was the term of confinement for Endangering the Welfare of Children illegal since the court failed to make a RRRI determination at the time of sentencing?

Appellant’s Brief, at 4 (brackets omitted).

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“The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.” Commonwealth v. Williams, 244 A.3d 1281, 1286 (Pa.

Super. 2021).

The right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court’s discretion to decline to hold a hearing if the petitioner’s claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Id. at 1287 (brackets and citation omitted).

In his first issue Dunkowski purports to raise a sufficiency of the

evidence challenge. Specifically, he argues that the Commonwealth failed to

establish that he intentionally neglected his children. See Appellant’s Brief, at

14-19. However, it is well-settled that a claim challenging the sufficiency of

the evidence is not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543;

Commonwealth v. Mudge, No. 919 WDA 2021, 2022 WL 2813608, at *5

(Pa. Super. filed July 19, 2022) (unpublished memorandum) (“challenge to

sufficiency of evidence . . . is not cognizable under PCRA.”). 5 Moreover, it is

waived. See 42 Pa.C.S.A. § 9544(b) (“an issue is waived if the petitioner could

5 Unpublished decisions filed after May 1, 2019 may be relied upon for their

persuasive value.

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have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state postconviction proceeding.”). Therefore,

Dunkowski’s first issue does not merit relief.

Next, Dunkowski claims that counsel was ineffective for failing to seek

dismissal of his convictions because the evidence was insufficient. In support

of his claim that counsel had reason to seek dismissal, he points to the

sentencing court’s comment at sentencing, “[w]e know that you did not set

out to do this intentionally, at least I don’t think you did[,]” as indicative of

him lacking the requisite mens rea. See Appellant’s Brief, at 21; N.T., 2/7/22,

at 43. Additionally, he states appointed counsel was aware of email

correspondence between the prosecutor and Chief Deputy Public Defender

that Dunkowski claims indicates that they agreed to a mitigated sentence for

him, which proves his lack of culpability. See Appellant’s Brief, at 20-21.

Based on the foregoing, he argues his counsel was ineffective for failing to file

a motion to dismiss because the evidence was insufficient to prove his guilt.

See id. at 19-22.

Although sufficiency of the evidence challenges are not cognizable under

the PCRA, claims alleging ineffective assistance of counsel for failing to raise

a sufficiency challenge are cognizable. See Commonwealth v. Livingston,

No. 430 EDA 2021, 2022 WL 678933, at **5-6 (Pa. Super. filed Mar. 8, 2022)

(unpublished memorandum) (addressing a PCRA claim that counsel was

ineffective for failing to raise a sufficiency of the evidence claim).

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“Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Commonwealth v. Ramirez-Contreras, 320

A.3d 756, 760 (Pa. Super. 2024) (citation omitted). “To plead and prove

ineffective assistance of counsel a petitioner must establish: (1) that the

underlying issue has arguable merit; (2) counsel’s actions lacked an objective

reasonable basis; and (3) actual prejudice resulted from counsel’s act or

failure to act.” Commonwealth v. Stultz, 114 A.3d 865, 880 (Pa. Super.

2015) (citation omitted). “[I]f a claim fails under any required element, we

may dismiss the claim on that basis.” Commonwealth v. Kapellusch, 323

A.3d 837, 847 (Pa. Super. 2024) (citation omitted).

As a preliminary matter, we observe that issues raised for the first time

on appeal are waived. See Pa.R.A.P. 302(a). Additionally, “for purposes of

appellate review, what is not in the certified record does not exist.”

Commonwealth v. Garvin, 50 A.3d 694, 700 (Pa. Super. 2012) (citation

omitted).

Here, Dunkowski concedes that he was provided the emails by his court

appointed counsel on December 17, 2024, and that he filed his amended PCRA

petition on January 13, 2025. See Reply Brief, at 7-8. However, he did not

attach the emails to his PCRA petition, they are not otherwise in the certified

record and are instead attached to his appellate brief. As such, we cannot

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consider the emails.6 Therefore, we limit our review to Dunkowski’s claim that

counsel was ineffective for failing to move for dismissal based on the

sentencing court’s comment at sentencing.

As the Commonwealth points out, the required mens rea for EWOC is

“knowingly” not “intentionally.” See 18 Pa.C.S.A. § 4304(a)(1) (“[a] parent .

. . commits an offense if he knowingly endangers the welfare of the child by

violating a duty of care, protection or support.”). “To be convicted under

[Section 4304], the Commonwealth must prove a knowing violation of a duty

of care.” Commonwealth v. Vela-Garrett, 251 A.3d 811, 815 (Pa. Super.

2021) (internal quotation marks and citation omitted).

The PCRA court aptly summarized why the sentencing court’s statement

did not indicate a lack of sufficient evidence to sustain Dunkowski’s EWOC

convictions.

When read in full context, it is clear th[e sentencing c]ourt was referring to the fact that [Dunkowski] did not have unwavering malicious intent to viciously harm his children. It does not refer to the fact that [Dunkowski] knowingly neglected his children by failing to meet their basic needs for things such as food, water, and hygiene. The evidence at trial proved beyond a reasonable doubt that [Dunkowski] knew his failure to provide such things would result in school aged children who were so weak they could barely function and who were so developmentally delayed they lacked basic skills such as the ability to use a toilet. The testimony and photographs admitted at trial proved beyond a reasonable doubt that [Dunkowski’s] children were so obviously infirm that ____________________________________________

6 We briefly note that our cursory review of the email correspondence indicates

that they occurred before trial and thus, were seemingly part of plea negotiations, not an agreement as to sentencing. Dunkowski did not enter a guilty plea and was convicted at trial.

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even [Dunkowski] felt the need to hide the existence of his eighth child from authorities. Therefore, a review of the record makes clear there is no doubt as to [Dunkowski’s] guilt nor is that guilt negated by [Dunkowski’s] attempt to misconstrue a statement made by th[e sentencing c]ourt at sentencing.

PCRA Court Opinion, 6/20/25, at 7-8.

As explained by the PCRA court, the sentencing court’s comment did not

negate the sufficient evidence to sustain Dunkowski’s EWOC convictions.

Because Dunkowski’s claim lacks merit, counsel cannot be found to be

ineffective. See Commonwealth v. Staton, 632 Pa. 400, 427, 120 A.3d 277,

293 (Pa. 2015) (holding that counsel cannot be deemed ineffective for failing

to pursue a meritless claim). Therefore, Dunkowski is not entitled to relief on

his second claim.

In his third issue, Dunkowski claims his trial counsel was ineffective for

failing to call his eldest daughter and son (who are twins), J.D. and M.D., to

testify on his behalf.7 See Appellant’s Brief, at 22-24. He argues that counsel

was aware of their existence and willingness to testify because they were

seated outside the courtroom during trial and had spoken with defense

counsel. See id. Further, he argues that he was prejudiced because J.D. and

M.D. would have testified to their family’s homelessness and thus their father’s

lack of intent to harm his children. See id. at 24. The Commonwealth argues

that in his PCRA petition Dunkowski cited no authority and merely baldly

7 J.D. and M.D. were seventeen at the time of trial and were the only two children for which Dunkowski and his wife were not facing EWOC charges.

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asserted that he was prejudiced by counsel’s failure to call his two children as

witnesses. See Appellee’s Brief, at 31.

When raising a claim of ineffectiveness for the failure to call a potential witness, a petitioner satisfies the performance and prejudice requirements of the Strickland test by establishing that: (1) the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of, or should have known of, the existence of the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the testimony of the witness was so prejudicial as to have denied the defendant a fair trial. Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 536 (2009); Commonwealth v. Clark, 599 Pa. 204, 961 A.2d 80, 90 (2008). To demonstrate Strickland prejudice, a petitioner “must show how the uncalled witnesses’ testimony would have been beneficial under the circumstances of the case.” Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134 (2008). Thus, counsel will not be found ineffective for failing to call a witness unless the petitioner can show that the witness’s testimony would have been helpful to the defense. Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319 (1996). “A failure to call a witness is not per se ineffective assistance of counsel for such decision usually involves matters of trial strategy.” Id.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).

The PCRA court aptly summarized how Dunkowski failed to establish

prejudice.

[Dunkowski] attached two unsigned, unverified “emails” to his Amended PCRA Petition that are purportedly authored by his two (then minor) children, J.D. and M.D. In sum, the letters state that [Dunkowski] was merely trying to do his best amid serious financial troubles and that they feel the sentence imposed by th[e sentencing c]ourt is too severe. In his Amended PCRA Petition, [Dunkowski] argues that these letters prove Trial Counsel should have called J.D. and M.D. as witnesses. However, [Dunkowski] does [not] address the fact that neither J.D. nor M.D. were in the vehicle when the Victims were found and [Dunkowski] was arrested. He does not address the fact that they have no first- hand knowledge of the situation as they were both staying with

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friends at the time (as they explain in their letters). In fact, [Dunkowski] even states that Trial Counsel decided not to call them as witnesses as they “would be a liability, and the D.A. would take them apart.” Ironically, [Dunkowski] does not even realize that his own argument undermines his claim. It is clear that even if [Dunkowski’s] claim had merit (which th[e PCRA c]ourt believes it does not), Trial Counsel had a reasonable basis to decline to present J.D. and M.D. as witnesses. Even if they were presented, the Commonwealth could have easily challenged and discredited their testimony with the plethora of photographs and statements from individuals who had firsthand knowledge of the incident as they were actually present at the scene of the crime.

....

[Further], it is obvious that, not only would J.D. and M.D.’s testimony have not helped [Dunkowski], it would have most likely actually hurt his defense.

PCRA Court Opinion, 6/20/25, at 15-16.

We agree with the PCRA court’s assessment. Dunkowski has failed to

establish how he was prejudiced by trial counsel’s failure to call J.D. and M.D.

as witnesses where their testimony would not have been helpful to his

defense. Moreover, as observed by the PCRA court, counsel had a reasonable

basis to decline to present them. Therefore, Dunkowski’s ineffective assistance

of counsel claim fails.

Moving away from the PCRA petition, in his final issue, Dunkowski raises

the sentencing court’s failure to determine his RRRI eligibility for the first time.

See Appellant’s Brief, at 5, 25-29.

Under the RRRI Act, “[a]t the time of sentencing, the court shall make

a determination whether the defendant is an eligible offender.” 61 Pa.C.S.A.

§ 4505(a). A sentencing court’s failure to assess a defendant’s RRRI eligibility

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implicates the legality of the sentence and may be raised for the first time in

PCRA review. See Commonwealth v. Finnecy, 249 A.3d 903, 912 (Pa.

2021); see also Commonwealth v. Armolt, 294 A.3d 364, 376 (Pa. 2023)

(“An appellate court may address, and even raise sua sponte, challenges to

the legality of an appellant’s sentence even if the issue [were] not preserved

in the trial court.”) (citation omitted).

The Commonwealth concedes that the sentencing court failed to

consider Dunkowski’s RRRI eligibility, which our review of the sentencing

transcript confirms. See Appellee’s Brief, at 16, 36-38. We commend the

Commonwealth for its candor in this regard. As the Commonwealth correctly

observes in its brief, although Dunkowski did not raise this issue before the

PCRA court and this failure would ordinarily result in waiver under Pa.R.A.P.

302, issues pertaining to legality of sentence can never be waived. It is

unfortunate that the PCRA court was not given the opportunity to address this

issue while the case was still before the PCRA court.

Thus, we agree that a remand is necessary solely for the sentencing

court to make the RRRI determination. Hence, in summary we affirm the PCRA

court’s order dismissing Dunkowski’s PCRA petition and vacate and remand

the judgment of sentence for the court’s limited purpose of making a RRRI

determination at sentencing.

Order affirmed. Judgment of sentence vacated. Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 3/9/2026

- 14 - IN IN THE COURT OF COMMON PLEAS PLEAS OF BUCKS BUCKS COUNTY DIVISION CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA

No. No. CP-XX-XXXXXXX-2020 €P-XX-XXXXXXX-2020 v.

ALBERT DUNKOWSKI DUNKOWSKI

OPINION

Defendant, Defendant, Albert Albert Dunkowski Dunkowski (hereinafter "Appellant"), appeals this Court's denial of his (hereinafter Appellant"),

Petition Petition for Relief pursuant pursuant to the Post Post Conviction Relief Act Act (hereinafter (hereinafter "PCRA") May . 14, PCRA") on May 14,

2025. 2025. This Opinion is is filed filed pursuant pursuant to to Pennsylvania Pennsylvania Rule of Appellate Appellate Procedure 1925(a). 1925(a).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The facts of this case were discussed at length length in in this Court's June 23, Opinion and 23, 2022 0pinion

are set forth forth as follows: follows:

The incident incident underlying underlying Appellant's convictions stem from an investigation stem from investigation that began on on August August 27, 2019. Officer Scott Patrick 27, 2019. Patrick (hereinafter "Officer Patrick") (hereinafter Officer was Patrick") was on patrol patrol when he noticed,a vehicle parked in in the very rear of the parking parking lot of the Woodbourne Train Train Station, Station, located located in in Middletown Township, Bucks Middletown Township, County, Bucks County, Pennsylvania. Pennsylvania. N.T. N.T. 10/4/2021, pp. 32-33. He pp. 32-33. called for additional He called Officers— additional Officers- Officer Samantha Weed Weed (hereinafter (hereinafter "Officer Weed") Weed") and Officer Christopher Viscardi Viscardi (hereinafter (hereinafter"Officer Officer Viscardi")— Viscardi") and as as they they approached, approached, Officer Patrick Patrick noticed Appellant lying noticed Appellant lying face-down in in the grass, about ten grass, about ten to fifteen yards to fifteen away. Id. yards away. Id, at 34. 34. Appellant Appellant told told Officer Patrick Patrick that that he he was was going going toto the bathroom bathroom and and did did not not want want to to be seen. Id. be seen. Officer Patrick Id. Officer Patrick then then came across Christine came across Christine Dunkowski Dunkowski "Co-Defendant"), Appellant's (hereinafter "Co-Defendant"), wife. She Appellant's wife. sat slumped She sat slumped over in the over in the front passenger passenger seat with with three children children laying laying in in the the rear seats seats of the the vehicle, vehicle, which which waswas cluttered with cluttered with trash, trash, personal personal items, clothing, food, items, clothing, food, and debris. Id. and debris. Id. at at pp. 36, 55. pp. 36, 55. As As the Officers opened the Officers opened the door to the door speak with to speak Co-Defendant, they with Co-Defendant, they immediately immediately smelled a strong smelled strong odor odor of urine, urine, soiled soiled diapers, diapers, stale cigarettes, and stale cigarettes, rotting food. Id. and rotting Id. It It was was then then that that they they noticed noticed aa fourth fourth child child on the the floor, floor, completely completely covered in in trash. trash. Id. at p. Id, at 37. Officer p. 37. Officer Weed also discovered Weed also discovered aacat cat in in the back trunk the back trunk ofof the vehicle. [d the vehicle. Id. at p. at p. 55. 55.

I1 Alarmed at at the children's emaciated emaciated state, state, the Officers immediately called called Emergency Medical Services (hereinafter Medical Services (hereinafter "EMS") "EMS) to the scene.scene. Id. Id. They testified testified that that the children, children, later identified identified as N.D., N.D., J.D., L.D. L.D. (hereinafter (hereinafter "Female L.D.") L.D.") and L.D. L.D. (hereinafter (hereinafter "Male L.D."), L.D."), looked gravely gravely ill, were covered in feces, urine, in feces, urine, and bugs, bugs, and appeared malnourished. malnourished. N.T. N.T. 10/4/2021, 10/4/2021, pp.pp. 55-57; 55-57; N.T. N.T. 10/5/21, pp. pp. 7, 17. 17. When EMSEMS arrived, arrived, Co-Defendant Co-Defendant refused refused to let them them take the children children to the hospital hospital for treatment. treatment. N.T. N.T. 10/4/2021, p. p. 39. 39. Officer Patrick Patrick and EMS EMS had no choice choice but but to to take take protective protective custody custody of of the the children, children, and and they they were were immediately immediately transported transported to to St. Mary's Medical Center (hereinafter Medical Center (hereinafter "St. Mary's"). Mary's"). Id. Id.

At At St. Mary's, Mary's, treating treating physicians made made the following assessments: assessments: N.D.,N.D., who suffered suffered from from cerebral cerebral palsy,palsy, was was thirteen thirteen years old old and weighed about about ninety pounds. pounds. N.T. N.T. 10/5/2021, p. 20. She was p. 20. was nonverbal, nonverbal, had afeeding feeding tube, tube, and started started to to develop bedsores from from remaining in in the same position position for asignificant significant amount amount of time. time. Id.Id. at p. p. 36.36. J.D. J.D. was was four years old old and weighed aboutabout forty forty pounds. pounds. Id.Id. at p. p. 23. 23. She was was still in in diapers as she was was not not yet yet trained trained to go to to the bathroom bathroom on her own and she needed extensive dental dental work work -a— aroot root canal, canal, acrown, crown, and three fillings. Id. fillings. Id. at at pp. pp. 91, 95. Female 91, 95. Female L.D. was five L.D. was five years years old old and and weighed weighed aboutabout forty- forty- eight eight pounds. pounds. Id.Id. at at pp. 25-26. She was pp. 25-26. was also also still in in diapers and needed nine root root canals, canals, nine crowns, crowns, one filling,filling, and four teeth teeth pulled. pulled. Id. Id. at p. p. 96. 96. She had never been to to school. school. Id.Id. Male L.D. L.D. was was nine years old old and weighed aboutabout sixty sixty pounds. pounds. Id. Id. atat p. p. 24. 24. HeHe had had bilateral bilateral clubfeet clubfeet (meaning (meaning his his legs legs and and feet feet were were turned turned inwards) inwards) as well well as undescended testicles testicles (which normally descend before age one). one). Both required required procedures—several procedures-several . to improve improve Male L.D.'s. clubfeet clubfeet. and one to to surgically surgically descend his testicles. testicles. Id. Id. at at pp. pp. 96-97, 96-97, 104. 104. Male L.D.L.D. also also had such a severe, severe, significant significant amount amount of dried,dried, caked-on fecal fecal matter on his diaper that that when the doctor doctor pulled pulled it back, back, Male L.D.'s skin skin became raw raw and red. red. Id.Id. at at p. p. 39. Dr. 39. Dr. Torradas, orradas, the physician physician who who treated treated the children, children, testified testified that, that, over over the course of his lengthy career, career, he had never never seen seen anything like whatwhat he saw saw on August August 27,27, 2019. 2019. Id. Id. at p.p. 40. 40.

That That same day,day, Appellant Appellant and Co-Defendant Co-Defendant spokespoke with Detective Brian Hyams Hyams (hereinafter "Detective (hereinafter Hyams") and "Detective Hyams") and told told him him that that none none of of the the four children found four children found were enrolled enrolled inin school. school. N.T. N.T. 10/4/2021, pp. 70-71. Detective Hyams pp. 70-71. Hyams asked if if they had any additional additional children children and they provided the namesnames of three more more minors minors inin their care. care. Id. Id. at p. p. 72. 72. They relayed relayed that that one child, child, R.M., R.M., was was staying with afriend friend at the time, time, but but neither Appellant Appellant nor nor Co-Defendant Co-Defendant could could provide any contact contact information information to getget in in touch with her. her. Id. Id. at p. p. 74. 74. Authorities eventually eventually found R.M. R.M. and discovered discovered that that she missed almost almost the entire 2018-2019 2018-2019 school school year year and had an abscess inin her tooth that that rendered rendered her unable to chew chew and required required significant significant dental dental surgery. surgery. N.T. N.T. 10/5/2021, pp. pp. 98-98. 98-98. Fortunately, Fortunately, R.D. R.D. did did not not require require immediate, immediate, emergency medical medical treatment. treatment.

Shortly Shortly thereafter, Hyams discovered thereafter, Detective Hyams discovered that that Appellant Appellant and Co-Defendant Co-Defendant had had an an eighth eighth minor minor child—S.D. child-S.D.- they they did did not not mention mention when when previously previously asked. asked. N.T. N.T. 10/4/2021, pp. pp. 75-76. 75-76. After some investigation, investigation, Detective Hyams Hyams located S.D. located S.D.

2 and and Appellant Appellant agreed agreed to "turn her to "turn her over" over" to to authorities authorities in in a a McDonald's McDonald's parking parking lot. lot. Id. Id, at p. p. 79. S.D. "appeared 79. S.D. "appeared to to be very very thin, thin, small, small, disheveled. disheveled. HerHer hair was was very very short as if short if it it wasn't wasn't growing, growing, or or falling falling out. out. Her Her eyes eyes were were puffy puffy underneath. underneath. She She was very, quiet, almost very, very quiet, almost like she was was lethargic." N.T. 10/5/2021, p. N,T. 10/5/2021, p. 83. Doctors 83, Doctors later determined she weighed weighed about about forty-two forty-two pounds. Id. at p. pounds. Id. p. 146. 146. S.D. S.D. was was unable to walk because her legs were bent bent and stuck in in a seated position. Id.[d, at p. 84. She p. 84. also also still still needed diapers—at needed diapers at thirteen thirteen years years old—because because Appellant old Appellant and Co- Co- Defendant Defendant never never taught taught her her how how to to use use the bathroom. bathroom. Id. Id, at at p. p. 101. 101. Authorities Authorities immediately took protective custody custody of S.D,S.D. and transported transported her to St.St. Mary's Mary's with the other the children. Id, other children. Id. at at p. 83. 83.

From From St.St. Mary's, Mary's, all five children children were transported transported to St. Christopher's to St. Christopher's Hospital Hospital for Children Children (hereinafter Christopher's'). N.T. (hereinafter "St. Christopher's"). N,T, 10/5/2021, pp. pp. 47, 85. While at 47, 85. St. Christopher's, Bucks St. Christopher's, County Children Bucks County Children andand Youth Caseworker Sarah Santin Youth Caseworker Santin (hereinafter (hereinafter"Ms. Ms. Santin") Santin") met met with with the children children to investigate allegations of abuse investigate allegations and neglect. neglect. Id.Id, at pp. pp. 58-59. 58-59, Ms. Santin noted that Ms. Santin that N.D., similar similar to to S.D., could notnot fully fully extend extend her her legs legs and and had had severely severely chapped chapped lips. lips. Id. Id, at p. 60. 60. She She testified testified that that all of of the the children appeared thin, children appeared thin, had had fine fine and and thinning thinning hair, hair, and and had severe d had severe dry skin. skin. Id. Id, at p. 61. 61. Two Two ofof the the children, children, N.D. N.D. and S.D., S.D., remained remained admitted admitted to to St. St. Christopher's Christopher's for for several several weeks. weeks. Id,Id. at at p. p. 67. S.D. required 67. S.D. required intensive intensive physical physical therapy therapy to to regain regain the the ability ability to to walk. walk. Id. Id, at at pp. pp. 149-50. 149-50. Ultimately, Ultimately, doctors determined determined that that S.D.'s S.D.'s and and N.D's N.D's issues issues were were a a result result of of chronic chronic neglect—i.e. neglect i.e. neglect neglect over over months. months. Id,Id. Therefore, Therefore, Ms. Ms. Santin Santin believed that the children were unsafe with Appellant Co-Defendant and petitioned Appellant and Co-Defendant petitioned a judge judge toto take emergency emergency custody custody of thethe children. children. Id. Id. at at p. p. 65. 65. That That Petition Petition was granted and was granted and the children were the children were placed in placed in foster Id. homes. Id. homes.

On September 10, On September 10, 2019, 2019, Appellant Appellant was was charged charged with with six six counts counts ofof Endangering Endangering thethe Welfare Welfare of Children Children in in connection with with the state of the minor children. On minor children. On January January 9, 2020, Appellant 9,2020, Appellant waived his Preliminary Preliminary Hearing Hearing and agreed agreed to enter aguilty guilty plea plea in in exchange exchange for for the the Commonwealth amendingamending the charges to the charges to only only one one count count of Endangering Endangering thethe Welfare Welfare of of Children. Children. However, However, shortly shortly after, after, Appellant Appellant indicated indicated that that he he wished wished toto proceed proceed with with a a jury jury trial trial and and the the Commonwealth filed filed a Motion Motion to to Amend Amend the the Criminal Criminal Information Information to add back to add back the the five additional Endangering five additional Endangering thethe Welfare Welfare of of Children Children Counts, Counts, which which this this Court Court granted granted on on April April 29, 2021. Therefore, 29,2021 Therefore, at the time of trial, Appellant Appellant was charged with was charged with six six counts of Endangering Endangering the Welfare Welfare of Children--two Children—two gradedgraded as felonies of the second degree degree and four four graded graded as felonies as felonies of of the the third third degree degree's.

Appellant's Appellant's juryjury trial trial began began onon October October 4,4, 2021 2021 and and lasted lasted for for three days. days. At At the the end of the the second day, October second day, October 5, 5, 2021, 2021, Appellant Appellant testified testified on direct examination. on direct examination. This Court Court then recessed the proceedings proceedings for the day day and Ordered: Ordered: ((I)1) the jury jury to appear at appear at 9:30 9:30 A.M.; A.M.; and and (2) (2) Appellant Appellant and and Co-Defendant Co-Defendant to appear at to appear at 9:00 9.00 A.M. A.M the following following day.day. N.T. N.T. 10/5/21, 10/5/21, p. p. 222. 222. However, However, Appellant Appellant and and Co-Defendant Co-Defendant both both failed failed toto appear, and a appear, and a bench bench warrant warrant was was issued issued onon October October 6,6, 2021. 2021. After After

'18 Pa.C.S. §$4304(a)6 18Pa.CS. 4304(a)(1). D)

3 Defense Defense Counsel Counsel andand the the Commonwealth Commonwealth made made numerous, unsuccessful attempts numerous, unsuccessful attempts to to contact contact Appellant Appellant andand Co-Defendant Co-Defendant using using all all available available resources, resources, this this Court Court ruled ruled that that the the trial trial would would continue continue in in absentia. absentia. N.T. N.T. 10/6/21, 10/6/21, p. p. 30. 30. Later Later that that same same day, day, the jury jury found Appellant Appellant guilty guilty of three of the six six counts of Endangering Endangering the Welfare Welfare of of Children—all Children-all felonies felonies of of the the third degree. third degree.

Almost Almost a a month month later, later, Appellant Appellant was was located located out out of of state, state, and, and, on on November November 3, 3, 2021, Judge 2021, Judge Rea Rea B. B. Boylan Boylan rescinded the the bench bench warrant warrant andand Ordered Ordered Appellant Appellant be be held held in in the the Bucks Correctional Facility Bucks County Correctional Facility until until sentencing. sentencing. OnOn February February 7, 2022, this 2022, this Court Court sentenced sentenced Appellant Appellant to to no less than no less than three three (3) (3) years years to to no no more more than than seven seven (7) (7) years in in astate correctional correctional institution institution on each of the three counts, counts, to to run consecutively consecutively toto each each other. other. Therefore, Therefore, this Court imposed this Court imposed an an aggregate aggregate sentence sentence of no of no less less than than nine nine (9) (9) years years to no more to no more than than (21) (21) years years inin a a state state correctional correctional institution. institution. Appellant Appellant was was also also Ordered to have no contact contact with S.D., S.D., L.D., L.D., and N.D.. N.D . This This sentence sentence was was above above the the aggravated aggravated range of of Appellant's Appellant's sentencing sentencing guidelines. guidelines.

Commonwealth v. Commonwealth v. Dunkowski, CP-09-CR-0000225-2020, pp. Dunkowski, CP-09-CR-0000225-2020, 1-5 (Bucks pp. 1-5 (Bucks Cty. Cty. June June 23, 2022). 23, 2022).

On On April April 1, 2022, Appellant 1, 2022, Appellant filed filed a a direct direct appeal appeal to to the the Superior Superior Court Court of Pennsylvania, of Pennsylvania,

which affirmed affirmed this Court's judgment judgment of sentence on August August 10, 10, 2023. 2023. On July July 29, 2024, Appellant 29, 2024, Appellant

filed his first PCRA Petition, filed Petition. This Court Court appointed Stuart Stuart Wilder, Wilder, Esquire to.represent to .represent Appellant, Appellant,

but but on September September 4, 2024, Mr. 4, 2024, Mr. Wilder Wilder filed filed aMotion to to Allow Allow Defendant Defendant to to Represent Represent Himself in in

his Petition Petition for PCRA Relief. Relief. The Petition Petition stated stated that that Appellant Appellant wished to represent represent himself, himself, and

after a after a hearing hearing on on the the matter matter where where Appellant advised this Appellant advised Court of this Court of the the same, same, this Court granted this Court granted

Appellant's Motion on December 18, 2024. December 18, 2024.

On January 13, 2025, 2025, Appellant Appellant filed filed his prose se Amended Petition Petition for Post Post Conviction Conviction

Collateral Relief, Collateral Relief, wherein wherein he he challenged challenged· the the sufficiency sufficiency of of the the evidence evidence presented presented at at trial trial and and

alleged alleged this Court Court abused its discretion discretion when imposing sentence and that that his trial counsel counsel was was

ineffective ineffective for: for: ((1) 1) not not "moving "moving for for dismissal dismissal of of the the indictment" indictment" during during said said sentencing; sentencing; (2) (2) not not

interviewing interviewing his his children children in in preparation preparation for for trial; trial; and and (3) (3) not not filing filing a a successful successful direct direct appeal. appeal. On

February 11, 2025, 2025, the Commonwealth filed filed its response response to Appellant's Appellant's Amended PCRA Petition. Petition.

On February - 24, 2025, 24, 2025, this Court Court issued issued aNotice of Intent Intent to Dismiss Pursuant Pursuant to to Pa. Pa. R. R. Crim. Crim. P. P.

4 4 907 and stated stated that that the claims were without without merit and did did not not warrant evidentiary hearing. warrant an evidentiary hearing. On

March 11, March 11, 2025, 2025, Appellant Appellant filed an Objection filed an to Notice Objection to of Intent Notice of On May to Dismiss. On Intent to May 14, 14, 2025, 2025,

this this Court Court formally dismissed Appellant's formally dismissed Appellant's pro pro se se Amended Amended PCRA PCRA Petition. Petition. On June 2, On June 2, 2025, 2025,

Appellant filed Notice Appellant filed of Appeal Notice of Appeal to to the Superior Court. the Superior Court.

STATEMENT OF MATTERS MATTERS COMPLAINED ON APPEAL

On June June 2, 2, 2025, 2025, at the the time time of filing filing Notice Notice of Appeal, Appeal, Appellant Appellant also also filed filed a Concise

Statement of Statement of Matters Complained of Matters Complained of on on Appeal, Appeal, 2 alleging alleging the following, following, verbatim: verbatim:

a) a) [Did] [Did] the trial court court clearly clearly err in in not correcting, at not correcting, at sentencing, sentencing, the jury's jury's verdict, verdict, once the court court became aware that there was was no intent byby the Petitioner to to commit commit he offenses the offenses charged? charged?

Suggested Response: Response: In In the Affirmative

June 11, 2 On pa June 11, 2025, 2025, Appellant Appellant filed, filed, without without leave leave of of Court, an Amended Court, an Statement which Concise Statement Amended Concise which raised raised one one additional issue issue for for review: review;

[Was] [Was] Judge Judge Wallace H. Bateman, Wallace H. Bateman, Jr.Jr complicit complicit inin the erroneous transmittal the erroneous of the transmittal of the fraudulent fraudulent information information received received by by the Department Department of of Homeland Homeland Security Security in in deceptively deceptively listing listing (4) counts of (4) counts of Cruelty Toward "Cruelty Child", as Toward Child", as the the convictions convictions won won inin this case, which this case, which exist only under exist only under Florida's Crime Florida's Crime Stat. $§ $27.0710), Code Stat. 827.071(3), and is a and is a charge charge that is is indicative indicative of sexual abuse of sexual abuse.

This Count Court notes that this additional additional allegation allegation of error is is procedurally procedurally deficient. First, First, Appellant did not Appellant did not request request leave of court to of court to file an Amended file an Concise Statement. Amended Concise Statement. Second, Second, Appellant Appellant has has not not previously raised this previously raised before the issue before this issue filing the filing of his of his Amended Concise Statement. Amended Concise Statement. "Issues "Issues not not raised raised in the lower in the lower court are waived court are waived and cannot be and cannot be raised raised for for the the first time on appeal." appeal." Pa.R.A.P. 302(a). Pa.R.A.P. 302(a)

"The The absence absence of of aacontemporaneous contemporaneous objection objection below constitutes a below constitutes a waiver" waiver" ofof the claim on the claim on appeal. appeal. Commonwealth Commonwealth v. , Powell, POwell, 956 A.2d 406, 423 (Pa. 406, 423 (Pa. 2008); Tindall v. 2008); Tindall v. Friedman, Friedman, 970 A.2d 1159, 1174 4.2d 1159,1174 (Pa. Super. 2009) (Pa. Super 2009)(On("On appeal, appeal, we we will will not assignments of error not consider assignments error that that were were not brought to not brought the tribunal's attention the tribunal's at aatime attention at at which time at which the error could the error could have been corrected have been or the corrected or prejudice alleged prejudice the alleged could could have have been been mitigated. ") mitigated.")

Commonwealth Commonwealth • v. Smith, Smith, 213 213 A.3d A.34 307, 307, 309 309 (Pa. Super. 2019) (Pa. Super. 2019) (quoting Commonwealth v. (quoting Commonwealth Rodriguez, 174 y. Rodriguez, A.3d 1130, 174 A.3d 1130, 1145 (Pa. Super. 2017). (Pa. Super 2017). Further, Further, notwithstanding notwithstanding these procedural defects, this Court procedural defects, Court is is unable to to address this allegation as it allegation it is is incoherent incoherent and confusing. Rule and confusing. Rule 1925()(ii) 1925(b)(ii) specifieally specifically states states that "[t]he Statement that [the Statement shall concisely concisely identify each identify each error error that the appellant that the appellant intends intends to assert with to assert to identify detail to sufficient detail with sufficient identify the issue to the issue to be raised for be raised for the the judge." judge." Because Appellant Appellant has raised raised an unintelligible unintelligible issue, Court is unable to issue, this Court engage in to engage meaningful analysis in a meaningful analysis and believes that Appellant Appellant "ha[s] deliberately circumvented the meaning "ha[s] deliberately meaning and purpose purpose of Rule 1925(b) 1925(b) and ha[s] ha[s] thereby effectively precluded thereby effectively precluded appellate appellate review review of of the issues issues [he] [he] now raise." Kanter now seek[s] to raise." Kaner• Ea2sin, 866 A.2d v. Epstein, 394, 401 (Pa. 394, (Pa. Super. Super 2004). 2004). Appellant Appellant was convicted convicted of Endangering Endangering the Welfare Children, in Welfare of Children, in violation violation ofof Pennsylvania Pennsylvania statute 18 18 Pa.C.S. Pa.CS. §$ 4304(a)1). 4304(a)(1). Appellant Appellant fails to explain, fails to explain, nor nor can Court discern, can this Count discern, how how a a Florida Florida statute is statute is relevant and at relevant and at issue issue in in the the instant instant matter. matter.

5 position itself court improperly position [Did] the sentencing court b) [Did] b) itself as factfinder during the then hand-down aharsh sentence? sentencing phase and then

In the Affirmative Response: In Suggested Response:

dismissal of the not moving for adismissal counsel ineffective for not trial counsel [Was] Petitioner's trial c) [Was] conviction due to indictment and conviction indictment to the judge's comments sentencing, making the comments at sentencing, is negated? act is guilty act the guilty rea, the mens rea, culpable mens a culpable without a that without point that point negated?

the Affirmative In the Response: In Suggested Response: Suggested Affirmative

at all, children at interview Petitioner's children failing to interview counsel ineffective for failing trial counsel [Was] trial d) [Was] d) [ they occurred] events [as version of events without their version was unprepared for trial without and thus was occurred] homeless period? during their homeless

not addressing the issues contained Counsel ineffective for not Appeal Counsel Direct Appeal [Was] Direct e) [Was] e) causal to aLayered ineffectiveness issue? herein causal

Response: In the Affirmative Suggested Response:

ANALYSIS ANALYSIS

I.1 This Court This not err by not Court did not "correcting, at not "correcting, sentencing, the jury's verdict. at sentencing, verdict.""

at sentencing after, verdict at correct the jury's verdict Court had aduty to correct argues this Court Appellant argues Appellant after,

mens rea for possess the requisite mens not possess Appellant did not that Appellant Appellant, acknowledging that according to Appellant, according

argument fails. This argument convicted. This was convicted. he was which he for which crimes for the crimes fails.

as achallenge to claim, which can be categorized as Appellant's claim, that Appellant's notes that Court notes this Court First, this First,

See 42 Pa.C.S. PCRA. See under the PCRA. not cognizable under trial, is not at trial, presented at sufficiency of the evidence presented the sufficiency the Pa.C.S.

([Appellant] essentially 1998) ("[Appellant] Super. 1998) (Pa. Super. 861 (Pa. 855, 861 A.2d 855, 706 A.2d Bell, 706 v. Bell, Commonwealth v. §9543; Commonwealth §9543;

petition, 42 context of aPCRA petition, the context in the cognizable in not cognizable claims, not evidence claims, the evidence of the raises sufficiency of raises

Super. 2005) (Pa. Super. 995 (Pa. 988, 995 876 A.2d 988, Price, 876 v. Price, Commonwealth v. and Commonwealth 9543."); and Pa.C.S.A. §§ 9543."); Pa.C.S.A. 2005)

without any appeal, and without direct appeal, as if on direct appeal as on appeal us on to us claim to his claim presents his Appellant presents ("Instantly, Appellant ("Instantly,

constitutional violation, a constitutional claim a not claim does not Appellant does Further, Appellant analysis. Further, counsel analysis. of counsel ineffectiveness of ineffectiveness violation,

6 6 an unlawfully unlawfully induced guilty guilty plea, plea, the improper obstruction of the right improper obstruction right to appeal, the to appeal, the existence of

after-discovered exculpatory evidence, after-discovered evidence, the the imposition imposition of a sentence greater the lawful greater than the lawful

maximum, maximum, or a proceeding proceeding in in atribunal without without jurisdiction. jurisdiction. Instead, Instead, Appellant directly challenges Appellant directly challenges

the sufficiency sufficiency of the evidence to to support support his SVP classification classification and seeks removal removal of the collateral collateral

guilty plea conviction consequences of his guilty conviction under under Megan's Law Law II. IL. Therefore, Therefore, Appellant's Appellant's first issue

as presented presented is is not claim under not a cognizable claim under the PCRA.") PCRA.") (citations (citations omitted). Therefore, it is clear omitted). Therefore,

that Appellant Appellant may may not not raise raise this claim claim at this juncture. juncture.

Second, notwithstanding Second, notwithstanding the fact fact that the claim claim is is improperly improperly raised, raised, the underlying underlying claim claim

is is wholly without without merit as well. well. Appellant was convicted Appellant was convicted of three counts of Endangering Endangering the

Welfare of Children Children in violation of 18 in violation Pa.C.S. §$ 4304, 18 Pa.C.S. 4304, which states, states, in in pertinent part: part:

A parent, parent, guardian guardian or other person supervising supervising the welfare welfare of achild child under 18 18 years years of age, age, or aperson that employs or supervises that employs such aperson, supervises such person, commits an offense if if he knowingly endangers the welfare of the child by violating the child violating aduty of care, care, protection protection or support. support

added). The Pennsylvania Legislature has clarified (emphasis added). clarified that: that:

(2)A A person person acts knowingly with respect knowingly with respect to to a material material element element of an offense when: when

(i) if if the element element involves the nature of his conduct conduct or the attendant attendant circumstances, circumstances, he is is aware that that his conduct conduct is is of that nature or that such that such circumstances exist; and

(ii) if the element (ii) if element involves a result of his conduct, conduct, he is is aware that that it is is practically certain that his conduct will cause such aresult. practically certain result.

Id. § 302(b)(2). He Id. $302(b)02). He asserts asserts that that this this Court Court found that this found that this mens mens rea rea was was not met when it stated, not met stated, at

sentencing that sentencing "[w]e know that "[wle know that you did not you did not set out out to to do this intentionally, intentionally, at least Idon't think think

you did." N.T. 2/7/2022, p. N,T. 2/7/2022, p. 43. However, However, Appellant's Appellant's reliance in quote, which is taken in this quote, out of taken out

context, context, is is wholly wholly misguided. misguided. This This Court Court made made the the statement statement when explaining its when explaining its rationale rationale for for

Appellant's sentence and Appellant's sentence and listing listing the the factors it considered factors it considered to to be in in Appellant's Appellant's favor. favor. When When read read in in

7 full context, context, it is clear this Court Court was was referring referring to the fact that that Appellant did not Appellant did not have unwavering

malicious intent intent to to viciously viciously harm harm his children. children. It does not refer to the fact that that Appellant Appellant

knowingly neglected his children children by failing failing to to meet meet their basic needs for things such as food, food, water, water,

and hygiene. hygiene. The The evidence at at trial proved beyond areasonable doubt doubt that Appellant Appellant knew knew his

failure to provide such things would result in in school school aged children children who who were were so weak they could could

barely function function and who who were were so developmentally delayed they lacked basic skills such as the

ability ability to use atoilet. toilet. The The testimony and photographs photographs admitted at at trial trial proved beyond areasonable

doubt doubt that that Appellant's children children were were so obviously infirm infirm that that even Appellant Appellant felt the need to hide

the existence of his eighth child child from from authorities. authorities. Therefore, Therefore, a review review of the record makes makes clear

there is no doubt doubt as to Appellant's guilt nor nor is that that guilt negated by Appellant's attempt attempt to

misconstrue a statement statement made made by this Court Court at at sentencing. sentencing. As As such, such, Appellant's claim claim is meritless. meritless.

H. 11 This This Court Court did not not abuse abuse its discretion when sentencing sentencing Appellant. Appellant.

Next, Next, Appellant Appellant argues argues that that this Court Court abused its discretion discretion when sentencing Appellant. Appellant.

Again, Again, this this claim claim is not not only not not cognizable under under the PCRA, PCRA, but but it is wholly without without merit merit and

had been been previously addressed and disposed of by both this Court Court and the Superior Superior Court Court of

Pennsylvania. Pennsylvania.

First, First, Pennsylvania appellate appellate courts courts have have repeatedly held that that "[r]equests for relief with

respect respect to to the discretionary aspects aspects of sentence sentence are not not cognizable in in PCRA proceedings." proceedings."

Commonwealth Commonwealth v. v. Wrecks, Wrecks, 934 934 A.2d A.2d 1287,1289 1287, 1289 (Pa. (Pa. Super. Super. 2007). 2007). Thus, Thus, as as with Appellant's first first

claim, claim, this this claim claim is is also also improperly improperly raised raised in in his his PCRA PCRA Petition. Petition.

Second, Second, not not withstanding withstanding this this fatal fatal defect, defect, this Court Court also addressed this claim claim on direct direct

appeal appeal and and its its reasoning reasoning was was affirmed affirmed and and upheld upheld by the the Superior Superior Court Court of Pennsylvania. Pennsylvania. This This

8 8 discussed at law and its reasons for Appellant's sentence were discussed relevant case law Court's analysis of relevant

forth as follows: 23, 2022 Opinion and are set forth in this Court's June 23, length in follows:

discretionary aspects of sentence. Appellant's last nine statements challenge the discretionary sentence. For discussion, these nine allegations of error may ease of discussion, consolidated into may be consolidated into one discretion when imposing Court abused its discretion whether this Court issue: whether encompassmg issue: encompassing sentence. sentence.

review of adiscretionary sentencing direct appellate review right to direct There is no absolute right Commonwealth v. also Commionwealth 9781(b); see also Pa.C.S.A. §§ 9781(b); claim. 42 Pa.C.S.A. claim. Greene, 702 A.2d 547, v. Greene, 547, requirements before meet the following two requirements must meet Appellant must 1997). Appellant Super. 1997). (Pa. Super. 551 (Pa. 551 challenges: ((1) review his challenges: will review Court will Superior Court the Superior forth in 1) "set forth in his brief aconcise relied upon for allowance of appeal reasons relied statement of reasons statement respect to appeal with respect to the discretionary aspects of asentence" and (2) show and (2) substantial question show there is asubstantial question that that the sentence imposed is not not appropriate under under the sentencing statute. statute. Commonwealth v. Pennington, 751 A.2d 212, v. Pennington, 215-16 (Pa. 212, 215-16 2000). A Super. 2000). (Pa. Super. advances acolorable argument appellant advances question exists only when the appellant substantial question substantial argument that the sentencing judge's actions .that were either: actions were inconsistent with a specific either: ((1) inconsistent provision of the sentencing code or (2) contrary to the fundamental or (2) fundamental normsnorms which process. Commonwealth v. underlie the sentencing process. Caldwell, 117 v. Caldwell, 763, 768 117 A.3d 763, (Pa. Super. 2015) (quoting (Pa. Super. 2015) (quoting Commonwealth v. Prisk, v. Prisk, 13 A.3d 526, 526, 533 (Pa. Super. (Pa. Super. that abare challenge that well-settled that It is well-settled 2011)). It 2011)). trial court that the trial court erred inin imposing consecutive sentences does not substantial question.. not raise a substantial question. .C Commonwealth v. ommonwealth v. Moury, 992 A.2d 162, Moury, 171-72 (Pa. 162, 171-72 Super. 2010). (Pa. Super. 2010). Only in in extreme circumstances circumstances sentence, such as where substantial sentence, sentences raise asubstantial will imposition of consecutive sentences will where sentence is the aggregate sentence the harsh, considering the nature of the crimes is "unduly harsh, crimes and imprisonment." Id. the length of imprisonment." the Id.

"[s]entencing is a matter Ultimately, "[s]entencing Ultimately, vested in matter vested discretion of the in the sound discretion judge, and asentence will sentencing judge, sentencing not be disturbed on appeal will not absent amanifest appeal absent manifest Commonwealth v. of discretion." Commonwealth abuse of Antidormi, 84 A.3d 736, v. Antidormi, 760 (Pa. 736, 760 (Pa. Super. Super. "by reference to the record, that "by show that must show Appellant must The Appellant 2014). The 2014). that the record, that court ignored or sentencing court or misapplied the law, judgment for reasons law, exercised its judgment reasons will, or or ill will, bias or prejudice, bias partiality, prejudice, of partiality, or arrived at manifestly unreasonable at amanifestly Commonwealth v. decision." Commonwealth decision." Anderson, 830 v. Anderson, A.2d 1013, 830 A.2d 1013, 1018 (Pa. Super. 2003) (Pa. Super. 2003) Commonwealth v. (quoting Commonwealth (quoting Rodda, 723 v. Rodda, A.2d 212, 723 A.2d (Pa. Super. 212, 214 (Pa. 1999). A Super. 1999). sentence of sentence confinement must of confinement must be "consistent with be "consistent the protection with the protection of the public, the the public, gravity of the offense as gravity impact on the as it related to the impact the life of the victim victim and on the community, and community, the rehabilitative and the needs of rehabilitative needs the [Appellant]." of the [Appellant]." 42 Pa. C.S. §§ 9721(b). Pa.C.S. 9721(b). A A sentencing [Appellant's] potential for rehabilitation by court may determine an [Appellant's] court may determine an potential for rehabilitation considering his considering demeanor, apparent his demeanor, remorse, manifestation apparent remorse, social conscience, manifestation of social conscience, Commonwealth v. agents. Commonwealth enforcement agents. law enforcement with law and cooperation with v. Begley, Begley, 780 A.2d Commonwealth v. 2001); Commonwealth (Pa. 2001); 644 (Pa. 605, 644 605, Constantine, 478 v. Constantine, A.2d 39 478 A.2d (Pa. Super. 39 (Pa. Super. Commonwealth v. 1984); Commonwealth 1984); Gallagher, 442 v. Gallagher, A.2d 820 442 A.2d (Pa. Super. 820 (Pa. Super. 1982). 1982).

9 9 When reviewing this Court's sentencing of Appellant, Appellant, the Superior Court Court will will look look at (1) at 1) the nature of circumstances of the offense and the history history and characteristics of the appellant; appellant; (2) the opportunity of the sentencing court to observe the appellant court to appellant including any pre-sentence investigation; investigation; (3) findings upon which the sentence was was based; and (4) based; and (4) the guidelines promulgated by the commission. commission. 42 Pa.C. S. 9781(d). Pa.C.S. § 978l(d). Additionally, Additionally, atat the time of sentencing, sentencing, "the judge shall state on the record the reasons reasons for the sentence imposed." Pa.Pa. R.Crim.P. R.Crim.P. 704. 704.

Here, Here, Appellant's claimclaim that that this Court Court erred erred in sentencing is meritless. meritless. This Court Court found that that the facts of this case were were horrific and noted that that two of the witnesses, witnesses, the emergency room room physician (who (who worked with homeless and drug-addicted drug-addicted persons persons for years) years) and the EMTEMT (who(who was was acombat combat medic in in the Middle East), East), adequately touched on the severity of the conditioncondition of the children children when one said said the neglect neglect was was one of the worst worst cases he had ever seen and the other mentioned he had to find an empty room room so he could break down and cry. cry. N.T. N.T. 2/7/2022, 2/7/2022, pp. pp. 42- 42- 43. Further, 43. Further, this Court Court explained that that the facts of this case were shocking and pointed out out that, that, not not only were were Appellant's children children significantly significantly underweight underweight and malnourished, malnourished, but but also Appellant's daughter daughter could not not walk due to the neglect, neglect, Appellant's son, son, who who was was nine years years old atat the time, time, wore wore adiaper diaper that that was was left on so long that that it could not not be removed without without ripping off his skin, skin, and Appellant's other other daughter daughter with cerebral cerebral palsy required afeeding tube. tube. Id. Id. at at p. p. 44. 44. Essentially, Essentially, Appellant Appellant denied his children the basic necessities that that all all children children deserve: deserve: food, food, health, health, education, education, and shelter. shelter. Id. Id. at at p. p. 45. 45.

Appallingly, Appallingly, Appellant Appellant offered nothing but but meaningless meaningless excuses for his behavior. behavior. He He attempted to blame blame his poor poor decisions decisions on his children by saying things such as one one wanted to remain a baby, baby, so hehe let her her wear wear diapers, diapers, or that that it was was convenient convenient for for L.D. L.D. to to wear wear diapers diapers because because hehe had trouble making it to the bathroom, bathroom, oror that that another was another was so skinny because she does not does not like to eat. Id. Appellant never eat. Id. Appellant never took responsibility responsibility for the condition of his children. children. In fact, fact, the thorough pre-sentence investigation report report stated that that "throughout "throughout the investigation, investigation, it's it's apparent apparent that that [Appellant] [Appellant] lacks lacks empathy oror remorse for for the pain hehe inflicted inflicted on the children." Id. Id. at p. 46. Further, at p. 46. Further, the report stated: report stated:

[Appellant] [Appellant] made made remarks remarks thatthat showed his lack of insightinsight into his children's children's needs. needs. Specifically, Specifically, he he showed a lack of of insight insight into [N.D.]'s [N.D.]'s cerebral cerebral palsy, palsy, stating stating that, that, because because of her her cerebral cerebral palsy, palsy, there's there's nono norm norm for for her her to to reach reach her her milestones. milestones. [Appellant] [Appellant] indicated indicated that that S.D. S.D. likes likes to to act act like like ababy. baby. It's It's been been documented in her her medical medical files files that that she she is is developmentally developmentally delayed and has has several several mental mental illnesses. illnesses. The The doctor doctor documented documented in in his report report his opinion that that [S.D.]'s [S.D.]'s PTSD PTSD is is the the direct direct result result of of the the abuse abuse she suffered as as the the hands hands ofof her her biological biological parents. parents. He He also indicated indicated in in his report report that, that, based based on on [S.D.]'s [S.D.]'s account account that that she she is is aa `'victim victim of torture.' torture.'

10 10 Regarding Regarding [L.D.], [L.D.], [Appellant] [Appellant] advised advised that, instead of following that, instead following the medical doctors, advice of medical doctors, he conducted an online search search to determine whether whether he needed surgery. surgery

It's It's important important to note that that [Appellant] [Appellant] provided provided answers that were not not truthful throughout throughout the interview. interview.

Id. Id, at pp. pp. 46-47. 46-47 It is is clear that that Appellant Appellant has has rationalized rationalized his decisions and does not not believe he should be held held accountable for the horrific children. horrific conditions of his children. Therefore, after taking into Therefore, account the facts of the case, into account case, Appellant's background and need for rehabilitation, rehabilitation, and the Sentencing Guidelines, Guidelines, this Court Court found the Sentencing Guidelines to to be inappropriate and asentence of total confinement confinement waswas warranted. Id. at p. warranted. Id, p. 48. 48. To sentence Appellant Appellant to anything less would have to anything depreciated the seriousness of Appellant's depreciated Appellant's crimes. crimes. This Court Court further clarified clarified that it "[did not] it "[did not] know know that anyone, when drafting that anyone, drafting the guidelines, guidelines, could could have ever ever envisioned a factual scenario envisioned scenario such as this, where children children were so neglected neglected that grown men found it it difficult to maintain maintain their composure when treating them and treating them taking taking care of them It's apparent them....It's apparent that those children children were neglected. And, quite neglected. And, frankly, frankly, whoever whoever found them them probably probably and most most likely likely saved their lives, could lives, or could have saved saved their lives. lives. That's how how bad this this was." Id. Id, at pp. pp. 48-49. 48-49. Accordingly, Accordingly, the reasons for sentencing were clearly outlined on the record, clearly outlined record, despite despite Appellant's unfounded and perplexing perplexing argument argument to to the contrary. An contrary. An aggregate sentence of nine to to twenty-one twenty-one years in in a state state correctional correctional institution institution was was necessary to to rehabilitate Appellant Appellant and this Court did not rely Court did not rely on improper factors, as improper factors, Appellant asserts, but Appellant asserts, but rather only needed to rely rely on the egregious facts of the case, case, sentencing guidelines, sentencing guidelines, and additional and additional circumstances as noted above. Appellant's Appellant's averments that averments that this Court Court abused its discretion in its discretion sentencing are meritless. in sentencing meritless.

v, Dunkowski, Commonwealth v. Dunkowski, CP-09-CR-0000225-2020, CP-09.CR-0000225-2020, pp. pp. 15-16 (Bucks Cty. June 23, (Bucks Cry. 2022). 23, 2022).

Shortly thereafter, Shortly thereafter, the Superior Superior Court Court of Pennsylvania Pennsylvania agreed agreed with with this Court's reasoning reasoning when it it

held held that: that:

Immediately Immediately prior to announcing the to announcing judgment of sentence, the judgment sentence, the trial court trial court meticulously detailed its meticulously detailed its reasoning reasoning for for imposing imposing the sentence, which the sentence, which included included aa thorough discussion of the case and thorough discussion and elicited elicited a complete understanding understanding of the relevant relevant sentencing factors as theythey pertained pertained to Dunkowski. Dunkowski. As stated As the trial court stated in in its its written written opinion, "after taking taking into account the facts of the case, [[ into account Dunkowski's] Dunkowski's] background background and need for rehabilitation, rehabilitation, and the Sentencing Sentencing Guidelines, Guidelines, this this [c]ourt [cJourt found found the Sentencing Guidelines the Sentencing Guidelines to be inappropriate to be inappropriate and and aa sentence of total total confinement confinement waswas warranted." warranted" The courtcourt further noted that that "the reasons for for sentencing sentencing were clearly outlined on the clearly outlined he record, despite [Dunkowski's] record, despite [Dunkowski's] unfounded unfounded and perplexing argument to perplexing argument to the contrary." Upon the contrary." review of the Upon review the record, record, we agree. we agree.

11 II Therefore, Therefore, we we conclude the reasons the trialtrial court court offered for the sentence imposed were more more than sufficient sufficient to conclude that that the court court properly considered all relevant relevant factors in in fashioning Dunkowski's sentence. sentence. Also, Also, because the trial court court had been fu11y fully informed and relied relied upon the presentence report, report, we we conclude the trial court court did did not not abuse its discretion discretion in in creating the instant instant sentence. sentence. Accordingly, Accordingly, Dunkowski's Dunkowski' s claim claim that that the trial trial court court failed failed to consider consider the appropriate factors in in imposing the sentence lacks-merit. merit.

Commonwealth v. v. Dunkowski, Dunkowski, 304 A.3d 740 740 (Pa. (Pa. Super. Super. 2023) 2023) (citations (citations omitted). omitted). Therefore, Therefore, it

is clear that that this issue has has been repeatedly addressed and dismissed. dismissed. Appellant's most most recent recent

allegations in in the instant instant PCRA Petition Petition are of no consequence. consequence. Appellant's dissatisfaction dissatisfaction with

his sentence is not not a meritorious ground for relief, relief, no matter matter how how many many times he attempts attempts to raise

the issue for review. review.

M. 111 Trial Trial Counsel Counsel was was not his representation of not ineffective in his ofAppellant Appellant during during trial trial or on direct direct appeal. appeal.

Lastly, Lastly, Appellant Appellant asserts that that his Trial Trial Counsel, Counsel, Brian McBeth, McBeth, Esquire Esquire (hereinafter (hereinafter "Trial "Trial

Counsel''), Counsel"), was was ineffective for failing to: to: ((1) "move "move for for a a dismissal dismissal of the the indictment indictment and conviction

due due to the judge's comments comments at at sentencing..."; sentencing ... "; (2) (2) interview interview Appellant's Appellant's children; children; and and (3) (3) address address

the issues issues in the instant instant PCRA Petition on direct direct appeal. appeal. For For the reasons reasons discussed below, below,

Appellant's assertions assertions are wholly without without merit. merit.

Under Under the present present facts, facts, to be eligible for for PCRA PCRA relief, relief, Appellant Appellant must must establish by a

preponderance of of the evidence that that his his conviction resulted resulted from from "[]neffective "[i]neffective assistance assistance of

counsel, counsel, which which in in the the circumstances circumstances of of the the particular particular case, case, so so undermined undermined the the truth-determining truth-determining

process process that that no no reliable reliable adjudication adjudication of of guilt guilt or or innocence innocence could could have have taken taken place." place." 42 42 Pa.C.S.A Pa.C.S.A §§

9543(a)(2)(ii). 9543(a)(2)(ii).

In In reviewing reviewing an an ineffective ineffective assistance assistance of of counsel counsel claim, claim, a a court court presumes presumes that that counsel counsel was was

effective. effective. Commonwealth Commonwealth v. v. Fletcher, Fletcher, 986 986 A.2d A.2d 759, 759, 772 772 (Pa. (Pa. 2009). 2009). In In order order to to overcome overcome this this

presumption, presumption, an an appellant appellant has has the the burden burden of of showing showing that that ((1) the the underlying underlying claim is of claim is of arguable arguable

12 12 merit; merit; (2) (2) counsel's counsel's course course of of conduct conduct was was without without a a reasonable reasonable basis basis designed designed to to effectuate his his

client's interest; interest; and (3) (3) he was was prejudiced prejudiced by by counsel's ineffectiveness. Commonwealth v. ineffectiveness. Commonwealth v. Pierce, Pierce,

527 A.2d 527 973, 975 (Pa. A.24 973,975 (Pa. 1987); see Commonwealth 1987); see Commonwealthv. v. Walls, Walls, 993 A.2d 289, 993 A.2d (Pa. Super. 296 (Pa. 289, 296 Super. 2010) 2010)

(quoting (quoting Commonwealth v. v. Wallace, Wallace, 724 A.2d 916, 916, 921 921 (Pa. (Pa. 1999)). 1999)). Appellant Appellant must must individually individually

discuss and prove discuss and each prong prove each prong of the Pierce test of the test to to be entitled entitled to to relief. Commonwealth v. relief. Commonwealth v, Williams, Williams,

980 A.2d 510, 510, 520 (Pa. (Pa. 2009). 2009). Failing Failing to to meet meet any prong of the Pierce test any prong test defeats an

ineffectiveness claim. claim. Id. Id.

Additionally, Additionally, "[c]ounsel cannot be deemed ineffective for failing "[counsel cannot failing to raise a meritless meritless

claim." Commonwealth Commonwealth v. v, Fears, Fears, 86 86 A.3d A.3d 795, 795, 804 804 (Pa. (Pa. 2014). 2014). Moreover, Moreover, counsel's counsel's representation representation

does not not lack lack a reasonable reasonable basis basis if if the the chosen course course of strategy strategy or tactics tactics "had "had some some reasonable reasonable

basis designed designed to to effectuate his client's client's interests. interests. Courts should not not deem deem counsel's strategy strategy or or

tactics tactics unreasonable unreasonable unless unless it can be concluded it can concluded that that an alternative not an alternative chosen offered not chosen offered a a potential potential

for for success substantially substantially greater greater than than the course actually actually pursued." pursued." Commonwealth Commonwealth v. v, Koehler, Koehler, 36 36

A.3d 121, 132 (Pa. 2012). (Pa. 2012)

A A Court Court will will not not find find prejudice prejudice unless unless aa defendant defendant proves proves that that there there is is aa "reasonable "reasonable

probability probability that that but but for for counsel's counsel's unprofessional unprofessional errors, errors, the result result of of the the proceeding proceeding would would have have

been different." Walls, Walls, 993 A.2d A.2d at 296 296 (quoting (quoting Strickland Strickland v. v. Washington, Washington, 466 U.S. U.S. 668, 668, 694

(1984)). Appellant (1984)). Appellant must must show show that "counsel's errors that "counsel's errors were were `'so so serious serious as as to deprive the defendant to deprive defendant

of a fair trial, atrial whose result is is reliable."'Commonwealth Commonwealth v. Simpson, 66 A.3d 253, v, Simpson, 253, 277 277 (Pa. (Pa.

2013) (quoting 2013) Harrington v. (quoting Harrington y, Richter, Richter, 562 U.S. U.S. 86 (2011) (2011) (citations omitted)). A claim (citations omitted)). claim of

ineffectiveness may may be denied denied where an Appellant's Appellant's evidence fails to meet meet any of these prongs. prongs.

Commonwealth v. Commonwealth v. Rainey, Rainey, 928 928 A.2d A.2d 215, 215, 224 224 (Pa. (Pa. 2007). 2007)

13 13 a. Trial a. Trial Counsel Counsel was was not not ineffective ineffective for failing failing to request request this Court Court dismiss dismiss the charges charges against Appellant. Appellant.

Appellant Trial Counsel Appellant avers Trial Counsel should should have moved for the dismissal dismissal of the charges charges at

Appellant's sentencing due to to this Court's comments comments on his mens mens rea rea as outlined above but but fails

to demonstrate his argument to argument meets meets even one of the three prongs prongs of the test in Pierce. First, test outlined in First,

Appellant's claim claim has has no no merit. merit. While While this this Court Court thoroughly thoroughly discussed discussed this this issue issue when when analyzing analyzing

Appellant's sufficiency sufficiency of the evidence claim, claim, the gist gist of the matter is is that that Appellant Appellant is is taking taking this

comments out Court's comments out of context context to to construe them them as something something they they are not. Second, as not. Second, as there there was was

no merit merit to the argument argument that that the charges should should be dismissed based on this Court's remarks remarks at

sentencing, Appellant sentencing, Appellant cannot cannot show show that that Trial Trial Counsel Counsel was was unreasonable unreasonable for for failing failing to to raise raise the the

issue. issue. Third, Third, Appellant Appellant does not not even attempt attempt to to explain explain how how Trial Trial Counsel's Counsel's failure failure to to raise raise a a

meritless argument argument at at trial prejudiced prejudiced Appellant. Appellant. Therefore, Therefore, it is clear that that Appellant's claim is Appellant's claim

illogical, illogical, undeveloped, undeveloped, and and wholly wholly without merit. without merit.

b. Trial Counsel b. Trial Counsel was was not not ineffective ineffective for failing failing to present present two of Appellant's children children as witnesses at trial. trial.

Next, Next, Appellant Appellant argues argues that Trial Counsel that Trial Counsel was was ineffective for failing failing to to interview interview and

present present two of his children children who who were not not victims in in the instant instant matter matter as witnesses witnesses in in his case. case

Again, Again, Appellant's claim fails Appellant's claim fails to to meet meet any any prong prong of of the the Pierce test test and and is is entirely entirely meritless. meritless

Initially, Initially, this Court Court notes that Appellant Appellant entirely entirely fails fails to develop this claim. claim. Undeveloped' Undeveloped

claims are are deemed waived waived and and unreviewable unreviewable on appeal. See Commonwealth on appeal. Commonwealth v. v, Jackson, Jackson, 431 431 A.2d A.2d

944, 945 n. 944,945 n. 11(Pa. (Pa. 1981) 1) (where ineffectiveness claim claim was was listed listed in in statement statement of questions, questions, but but not not

addressed in in argument section of brief, argument section brief, claim claim was was waived; waived; waiver waiver is is warranted because because "Appellant "Appellant

has has failed failed to to guide guide this this Court Court as to to the the facts facts or applicable applicable law"). law"). See See also also Commonwealth Commonwealth v. y

Marrero, Marrero, 748 748 A.2d A.2d 202, 202, 204-05 204-05 (Pa. (Pa. 2000) 2000) (Nigro, (Nigro, J., J, Concurring) Concurring) (same); (same); Commonwealth Commonwealth v. y

14 Williams, Williams, 732 A.2d A.2d 1167, 1167, 1175 1175 (Pa. (Pa. 1999) 1999) (recognizing (recognizing "unavailability "unavailability of relief relief based based upon upon

undeveloped claims for which insufficient arguments are presented presented on appeal"); appeal"); Commonwealth Commonwealth

v. LaCava, 666 y.Lacava, 666 A.2d A.24 221, 229 n. 221,229 n. 99 (Pa. (Pa. 1995) 1995) (claim mentioned in (claim mentioned statement of in statement of questions questions in in direct direct

capital appeal, capital appeal, but but not not mentioned again or mentioned again or developed developed in in argument argument section of brief section of brief is is waived); waived);

Commonwealth Commonwealth v. v, Ragan, Ragan, 645 A.2d A.2d 811, 828 (Pa. (Pa. 1994) 1994) (boilerplate allegation provides (boilerplate allegation provides no no basis basis

for for relief). Therefore, this relief). Therefore, Court believes this Court believes Appellant's Appellant's claim claim is is waived. waived.

However, However, while while this Court believes this Court believes the argument is the argument is waived, waived, it it will will nevertheless address nevertheless address

and dismiss the the claim claim on on the the merits. merits. Essentially, Essentially, Appellant Appellant believes believes that that Trial Trial Counsel's failure failure to to

call his two call his minor children, two minor children, who who were were not not included included as victims in as victims the instant in the instant matter, as witnesses matter, as witnesses in in

Appellant's defense resulted Appellant's defense resulted in in ineffective representation. This ineffective representation. Court does This Court does not not agree. agree.

Appellant attached two Appellant attached two unsigned, unsigned, unverified unverified "emails" emails" to to his his Amended Amended PCRA PCRA Petition Petition that that

are purportedly authored are purportedly authored by by his his two two (then (then minor) minor) children, children, J.D. and M.D.. JD. and In sum, M.D.. In sum, the the letters letters state state

that that Appellant Appellant was was merely trying trying to do his best best amid serious financial financial troubles and that they they feel feel

the sentence the sentence imposed imposed by by this this Court Court is too severe. is too severe. In In his his Amended Amended PCRA PCRA Petition, Petition, Appellant argues Appellant argues

that these letters prove prove Trial Counsel should Trial Counsel should have called called J.D. JD. and M.D. M.D. as witnesses. witnesses. However, However,

Appellant Appellant does address the the fact fact that that neither J.D. nor neither I.D. nor M.D. M.D. were were in in the vehicle vehicle when when the the Victims Victims

were found found and Appellant Appellant was was arrested. arrested. He He does not not address the fact fact that that they they have no no first-hand

knowledge of knowledge of the situation as the situation as they they were were both both staying with friends staying with friends at at the the time time (as (as they explain in they explain in

their their letters). letters). In In fact, fact, Appellant Appellant even states states that Trial Trial Counsel Counsel decided decided not not to call call them them as as witnesses witnesses

as they "would "would be a liability, liability, and the D.A. D.A. would would take take them them apart." apart." Ironically, Ironically, Appellant Appellant does not not

even realize that even realize that his own argument his own argument undermines undermines his claim. It his claim. It is clear that is clear if Appellant's even if that even Appellant's claim claim

had merit merit (which (which this Court Court believes it it does not), not), Trial Trial Counsel Counsel had areasonable basis basis to to decline

to present to J.D. and present I.D, and M.D. as witnesses. M.D. as witnesses. Even Even if they were if they presented, the were presented, Commonwealth could the Commonwealth could have have

15 easily easily challenged and discredited discredited their testimony with the plethora of photographs and statements

from from individuals who who had firsthand firsthand knowledge of the incident incident as they they were actually actually present present at the

scene of the crime. crime.

Lastly, Appellant Lastly, Appellant is unable to demonstrate that that he was prejudiced by Trial Counsel's was prejudiced

conduct. conduct. When When raising afailure to call apotential potential witness claim, claim, the PCRA petitioner satisfies the

performance and prejudice requirements requirements of the Strickland test by establishing that: that:

(1) the witness existed; existed; (2) (2) the witness was was available to testify testify for the defense; defense; (3) (3) counsel counsel knew knew of, of, or should have known of, of, the existence of the witness; witness; (4) (4) the witness was was willing to testify testify for the defense; defense; and and (5) (5) the absence of the testimony of the witness was was so prejudicial prejudicial as to have denied the defendant defendant afair trial. trial.

Commonwealth v. y. Washington, Washington, 927 A.2d 586, 586, 599 (Pa. (Pa. 2007). 2007). To To demonstrate Strickland

prejudice, prejudice, the PCRA petitioner "must "must show show how how the uncalled witnesses' witnesses' testimony would have

been beneficial beneficial under under the circumstances of the case." Commonwealth v. v. Gibson, Gibson, 951 A.2d 1110, 1110,

1134 (Pa. (Pa. 2008); 2008); see also Commonwealth v. v. Chmiel, Chmiel, 889 A.2d 501, 501, 546 (Pa. (Pa. 2005) 2005).("Trial ("Trial

counsel's failure to call call aparticular particular witness witness does does not not constitute ineffective assistance without without some some

showing that that the absent absent witness' witness' testimony testimony would would have have been beneficial beneficial or or helpful helpful in in establishing

the asserted defense. "). Here, defense."). Here, it is obvious obvious that, that, not not only would J.D. J.D. and M.D.'s testimony have have

not not helped Appellant, Appellant, it would have have most most likely actually hurt hurt his defense. defense. Therefore, Therefore, this claim claim

does does not not afford Appellant Appellant any relief. relief.

c. c. Trial Trial Counsel Counsel was was not not ineffective ineffective on direct direct appeal. appeal.

Lastly, Lastly, Appellant Appellant attempts attempts to to raise raise what what he he calls a "layered ineffectiveness issue,"but but what what

is is actually actually just just Appellant Appellant feeling feeling upset upset that that the the Superior Superior Court Court of Pennsylvania dismissed his direct direct

appeal. appeal. Essentially, Essentially, because because the the claims claims Trial Trial Counsel Counsel raised raised on direct direct appeal appeal were were not not found to to be be

meritorious, meritorious, Appellant Appellant believes believes that that had had Trial Trial Counsel Counsel raised any any of the the additional additional claims claims raised raised

in in the the instant instant matter, matter, he he would would have have been been successful. successful. He He provides provides no no further further insight insight or or analysis analysis as as

16 16 to to how how he he came to to such a conclusion and this Court cannot this Court cannot fathom fathom the same. same, "It "[t is well-settled that is well-settled that

counsel may counsel may not not be deemed ineffective be deemed ineffective for for failing failing to to raise raise a a meritless claim." Commonwealth meritless claim." Commonwealth v. v,

Hubbard, 372 Hubbard, 372 A.2d A.2d 687 687 (Pa. (Pa, 1977). 1977). Put simply, it Put simply, it appears appears that that Appellant Appellant is is merely merely unhappy unhappy with with

his his sentence and and is is attempting attempting to conjure up to conjure up ineffective ineffective assistance assistance of counsel claims of counsel claims in in hopes hopes that

either this Court or the Superior this Court Superior Court Court will will side side with with him him and overturn his and overturn conviction. However, his conviction. However,

this Court is this Court is not not fooled. fooled. Appellant Appellant was was convicted of Endangering the Welfare of Children after a

fair fair trial trial with competent Trial Counsel. with competent Counsel. Any argument to Any argument to the contrary contrary is is belied belied by by the record record and

is meritless. meritless.

CONCLUSION CONCLUSION

For For the foregoing foregoing reasons, Court respectfully reasons, this Court respectfully requests requests the Superior Court Court affirm affirm this

Court's February 7, 2022 February 7, Judgment of 2022 Judgment of Sentence

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