J-S63007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL KOZAK,
Appellant No. 1357 MDA 2013
Appeal from the PCRA Order June 5, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002559-2006, CP-40-CR-0003063- 2006, CP-40-CR-0003064-2006
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 15, 2014
Michael Kozak appeals from the June 5, 2013 order denying his
petition for PCRA relief. We affirm.
This appeal concerns three consolidated criminal actions instituted
against Appellant in connection with drug trafficking activities. Specifically,
on two separate occasions, Appellant sold crack cocaine to Daniel Pinkowsky,
who was working as an informant for the Plains Township Police Department.
The third criminal complaint arose from an aborted drug sale that transpired
after the completed ones. Prior to the pertinent events, Pinkowsky was
engaged in criminal activities, and he discovered that he had emphysema.
After his disease progressed, Pinkowsky, of his own volition, decided to start ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S63007-14
helping police. The activities that resulted in the three sets of charges were
conducted under the supervision of Chief of Police James O’Malley.
On May 18, 2006, and May 25, 2006, Pinkowsky successfully
purchased crack cocaine from Appellant. On May 26, 2006, Pinkowsky
arranged to buy another quantity of crack cocaine from Appellant at a Dairy
Queen parking lot. Chief O’Malley contacted agents from the Attorney
General’s office to meet him at the designated location. When Appellant
arrived in his vehicle, he observed Pinkowsky speaking with the law
enforcement officers, and Appellant sped away. In the process, Appellant
ran over an embankment and nearly struck another vehicle. Appellant was
pursued and eventually stopped by police. Crack cocaine was discovered on
the floor of Appellant’s vehicle.
Based upon these three incidents, Appellant was charged with two
counts each of possession of a controlled substance, possession of a
controlled substance with intent to deliver (“PWID”), and delivery of a
controlled substance, and one count of fleeing or attempting to elude police.
On May 7, 2007, a jury convicted Appellant of two counts of PWID, but
deadlocked on the remaining charges. Appellant sought dismissal of the
pending five charges on double jeopardy grounds. The court denied his
request for relief, and we affirmed that denial. Commonwealth v. Kozak,
959 A.2d 967 (Pa.Super. 2008) (unpublished memorandum). On
October 15, 2008, a second jury convicted Appellant of the five remaining
crimes. At both trials, Appellant claimed that he was entrapped and that his
-2- J-S63007-14
decision to sell crack cocaine was solely the result of Pinkowsky’s
inducement and pleas that he needed that substance to alleviate his health
problems. Both juries rejected that defense.
On December, 11, 2008, Appellant was sentenced to three to seven
years imprisonment. On appeal, we affirmed. Commonwealth v. Kozak,
987 A.2d 817 (Pa.Super. 2009), appeal denied, 5 A.3d 819 (Pa. 2010)
(unpublished memorandum). Appellant maintained that the charges should
be dismissed since his criminal activities were solely induced by outrageous
conduct by a governmental agent, Pinkowsky. Based upon Pinkowsky’s
testimony, which established that Pinkowsky merely asked to purchase crack
cocaine and that Appellant readily acceded to that request, we rejected
Appellant’s position.
Appellant filed a timely PCRA petition, counsel was appointed, and a
hearing was conducted. This appeal followed the denial of relief. Appellant
raises one contention: “Whether the PCRA Court erred in denying
Defendant’s ineffective assistance of counsel claim for trial counsel’s failure
to investigate a witness and subsequently call some at trial, whose
purported testimony bolstered Defendant’s claim of entrapment?”
Appellant’s brief at 4.
Initially, we set forth our standard and scope of review in the PCRA
context.
On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error.
-3- J-S63007-14
Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level. The PCRA court's credibility determinations, when supported by the record, are binding on this Court. However, this Court applies a de novo standard of review to the PCRA court's legal conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.Super. 2014)
(citations and quotation marks omitted).
Herein, Appellant faults counsel with failing to uncover the identity of a
witness and presenting that witness at trial. The witness’s testimony
purportedly related to the May 26, 2006 incidents. At the PCRA hearing,
Appellant claimed that he told his lawyer to try to locate an African-American
male. Appellant said that he had purchased cocaine from this male before
the date of his arrest, that this individual accompanied him when he went to
the Dairy Queen parking lot on May 26th, that the unnamed man was in
possession of the crack cocaine discovered in Appellant’s vehicle, that
Appellant refused to take the drugs from him, and that the male then threw
the drugs in Appellant’s car and left before police arrived. Appellant
maintained to the PCRA court that this mystery man was working with
police, that he saw him in the company of police after his arrest, and that
presentation of this witness would have supported his entrapment defense.
Despite the fact that Appellant had purportedly purchased drugs from this
man prior to May 2006 and that Appellant supposedly was with him on May
26, 2006, Appellant was unable and remains unable to supply the name of
this person or any information other than his race and gender.
-4- J-S63007-14
The test for establishing that trial counsel was ineffective in
Pennsylvania is based upon Strickland v. Washington, 466 U.S. 668
(1984) and Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
Commonwealth v. Spotz, 84 A.3d 294, 303 n.3 (Pa. 2014). Specifically:
“To establish trial counsel's ineffectiveness, a petitioner must demonstrate:
(1) the underlying claim has arguable merit; (2) counsel had no reasonable
basis for the course of action or inaction chosen; and (3) counsel's action or
inaction prejudiced the petitioner.” Id. Additionally, where a defendant
raises an ineffectiveness claim based upon counsel’s failure to investigate
and call a potential witness, the defendant satisfies the performance and
Free access — add to your briefcase to read the full text and ask questions with AI
J-S63007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL KOZAK,
Appellant No. 1357 MDA 2013
Appeal from the PCRA Order June 5, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002559-2006, CP-40-CR-0003063- 2006, CP-40-CR-0003064-2006
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 15, 2014
Michael Kozak appeals from the June 5, 2013 order denying his
petition for PCRA relief. We affirm.
This appeal concerns three consolidated criminal actions instituted
against Appellant in connection with drug trafficking activities. Specifically,
on two separate occasions, Appellant sold crack cocaine to Daniel Pinkowsky,
who was working as an informant for the Plains Township Police Department.
The third criminal complaint arose from an aborted drug sale that transpired
after the completed ones. Prior to the pertinent events, Pinkowsky was
engaged in criminal activities, and he discovered that he had emphysema.
After his disease progressed, Pinkowsky, of his own volition, decided to start ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S63007-14
helping police. The activities that resulted in the three sets of charges were
conducted under the supervision of Chief of Police James O’Malley.
On May 18, 2006, and May 25, 2006, Pinkowsky successfully
purchased crack cocaine from Appellant. On May 26, 2006, Pinkowsky
arranged to buy another quantity of crack cocaine from Appellant at a Dairy
Queen parking lot. Chief O’Malley contacted agents from the Attorney
General’s office to meet him at the designated location. When Appellant
arrived in his vehicle, he observed Pinkowsky speaking with the law
enforcement officers, and Appellant sped away. In the process, Appellant
ran over an embankment and nearly struck another vehicle. Appellant was
pursued and eventually stopped by police. Crack cocaine was discovered on
the floor of Appellant’s vehicle.
Based upon these three incidents, Appellant was charged with two
counts each of possession of a controlled substance, possession of a
controlled substance with intent to deliver (“PWID”), and delivery of a
controlled substance, and one count of fleeing or attempting to elude police.
On May 7, 2007, a jury convicted Appellant of two counts of PWID, but
deadlocked on the remaining charges. Appellant sought dismissal of the
pending five charges on double jeopardy grounds. The court denied his
request for relief, and we affirmed that denial. Commonwealth v. Kozak,
959 A.2d 967 (Pa.Super. 2008) (unpublished memorandum). On
October 15, 2008, a second jury convicted Appellant of the five remaining
crimes. At both trials, Appellant claimed that he was entrapped and that his
-2- J-S63007-14
decision to sell crack cocaine was solely the result of Pinkowsky’s
inducement and pleas that he needed that substance to alleviate his health
problems. Both juries rejected that defense.
On December, 11, 2008, Appellant was sentenced to three to seven
years imprisonment. On appeal, we affirmed. Commonwealth v. Kozak,
987 A.2d 817 (Pa.Super. 2009), appeal denied, 5 A.3d 819 (Pa. 2010)
(unpublished memorandum). Appellant maintained that the charges should
be dismissed since his criminal activities were solely induced by outrageous
conduct by a governmental agent, Pinkowsky. Based upon Pinkowsky’s
testimony, which established that Pinkowsky merely asked to purchase crack
cocaine and that Appellant readily acceded to that request, we rejected
Appellant’s position.
Appellant filed a timely PCRA petition, counsel was appointed, and a
hearing was conducted. This appeal followed the denial of relief. Appellant
raises one contention: “Whether the PCRA Court erred in denying
Defendant’s ineffective assistance of counsel claim for trial counsel’s failure
to investigate a witness and subsequently call some at trial, whose
purported testimony bolstered Defendant’s claim of entrapment?”
Appellant’s brief at 4.
Initially, we set forth our standard and scope of review in the PCRA
context.
On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error.
-3- J-S63007-14
Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level. The PCRA court's credibility determinations, when supported by the record, are binding on this Court. However, this Court applies a de novo standard of review to the PCRA court's legal conclusions.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa.Super. 2014)
(citations and quotation marks omitted).
Herein, Appellant faults counsel with failing to uncover the identity of a
witness and presenting that witness at trial. The witness’s testimony
purportedly related to the May 26, 2006 incidents. At the PCRA hearing,
Appellant claimed that he told his lawyer to try to locate an African-American
male. Appellant said that he had purchased cocaine from this male before
the date of his arrest, that this individual accompanied him when he went to
the Dairy Queen parking lot on May 26th, that the unnamed man was in
possession of the crack cocaine discovered in Appellant’s vehicle, that
Appellant refused to take the drugs from him, and that the male then threw
the drugs in Appellant’s car and left before police arrived. Appellant
maintained to the PCRA court that this mystery man was working with
police, that he saw him in the company of police after his arrest, and that
presentation of this witness would have supported his entrapment defense.
Despite the fact that Appellant had purportedly purchased drugs from this
man prior to May 2006 and that Appellant supposedly was with him on May
26, 2006, Appellant was unable and remains unable to supply the name of
this person or any information other than his race and gender.
-4- J-S63007-14
The test for establishing that trial counsel was ineffective in
Pennsylvania is based upon Strickland v. Washington, 466 U.S. 668
(1984) and Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
Commonwealth v. Spotz, 84 A.3d 294, 303 n.3 (Pa. 2014). Specifically:
“To establish trial counsel's ineffectiveness, a petitioner must demonstrate:
(1) the underlying claim has arguable merit; (2) counsel had no reasonable
basis for the course of action or inaction chosen; and (3) counsel's action or
inaction prejudiced the petitioner.” Id. Additionally, where a defendant
raises an ineffectiveness claim based upon counsel’s failure to investigate
and call a potential witness, the defendant satisfies the performance and
prejudice aspects of the Strickland test when he establishes:
(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, 966 A.2d 523, 536 (Pa. 2009).
In the present case, Appellant does not even provide a name for this
witness and, concomitantly, fails to prove that the witness existed and was
willing to testify for him. Additionally, Appellant provided counsel with no
viable means to ascertain the witness’s identity. While Appellant vaguely
mentions the availability of surveillance tapes of the Dairy Queen parking
lot, we note that, according to Appellant, the following occurred. He was in
his vehicle with this man when he arrived at Dairy Queen. However,
-5- J-S63007-14
Appellant abruptly left the parking lot immediately upon his arrival, and no
one exited Appellant’s vehicle at the Dairy Queen parking lot. Thus, it is
highly unlikely that the face of this person, who was located inside a vehicle,
would have been captured by a surveillance tape. Counsel cannot be faulted
for failing to find an unnamed African-American male. It is also unlikely that
this man would have admitted that he possessed the cocaine found on
May 26, 2006. Hence, the PCRA court committed no abuse of discretion
herein when it concluded that Appellant failed to prove his allegation of
ineffectiveness.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/15/2014
-6-