Com. v. Slutzker, S.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

STEVEN G. SLUTZKER Appellant No. 1881 WDA 2015

Appeal from the PCRA Order November 4, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006520-1991

BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.* MEMORANDUM BY LAZARUS, J.: FILED JULY 7, 2017 Steven Slutzker appeals from the order, entered in the Court of Common Pleas of Allegheny County, denying his petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, (“PCRA”). We affirm.

John Mudd, Sr., was shot and killed on December 28, 1975. Slutzker, who had been romantically involved with the victim’s wife, Arlene Mudd, was charged with criminal homicide and two counts of solicitation to commit murder.1 At the coroner’s inquest, the homicide charge was dismissed.

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*

Former Justice specially assigned to the Superior Court.

1 Solicitation of Michael Pezzano to commit murder (CP-02-CR-000589- 1976), and solicitation of Stephen E. Harston to commit murder (CP-02-CR- 000610-1976). 18 Pa.C.S.A. § 902.

Slutzker was convicted of one count of solicitation, at CP—02-CR-0000589- 1976) and sentenced to 11½ to 23 months’ imprisonment.2 The homicide case, dormant for years, was reopened in 1991 when the victim’s son, John Mudd, Jr., a child at the time of the murder, suddenly recalled the events of that night. Mudd claimed that during an emotional argument, he was flooded with images from that night, including one of Slutzker talking with his mother, who was also a suspect in the murder investigation. Based on Mudd’s statement and a review of the initial investigation, Slutzker was arrested and again charged with murder.

Following a jury trial in January 1992, Slutzker was convicted of first-

degree murder for the 1975 homicide of John Mudd, Sr. Following conviction, the court sentenced Slutzker to life imprisonment. On direct appeal, this Court affirmed, Commonwealth v. Slutzker, 638 A.2d 271 (Pa. Super. 1993) (Table), and the Pennsylvania Supreme Court denied a subsequent petition for allowance of appeal. Commonwealth v. Slutzker, 537 Pa. 631 (Pa. 1994) (Table).

Slutzker filed a PCRA petition in 1997, which was denied. Denial of collateral relief was affirmed on appeal, and, thereafter, Slutzker filed a petition for habeas corpus in federal district court. The federal district court

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2 Slutzker appealed and this Court affirmed his judgment of sentence. Commonwealth v. Slutzker, 393 A.2d 1281 (Pa. Super. 1978). The solicitation case is not before us.

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granted habeas corpus relief. The Commonwealth appealed, and the Court of Appeals for the Third Circuit affirmed. See Slutzker v. Johnson, 393 F.3d 373 (3d Cir. Pa. 2004) (affirming grant of habeas corpus relief on ground that prosecution’s failure to disclose twenty-one police reports denied Slutzker due process, and on ground that trial court failed to compel victim’s wife to testify).

Following a new trial in 2007, Slutzker was again convicted of first-

degree murder, and the court sentenced him to life imprisonment. On March 16, 2010, this Court affirmed his judgment of sentence, Commonwealth v. Slutzker, 996 A.2d 556 (Pa. Super. 2010) (Table), and, on September 28, 2010, the Pennsylvania Supreme court denied Slutzker’s petition for allowance of appeal. Commonwealth v. Slutzker, 608 Pa. 639 (Pa. 2010) (Table).

Slutzker filed a pro se PCRA petition on January 3, 2011. The court appointed counsel, Christopher M. Boback, Esquire, and directed counsel to file an amended petition. Thereafter, Attorney Boback filed an amended petition on March 15, 2011, and the Commonwealth filed a reply. Slutzker then filed a pro se motion for withdrawal of counsel. Following two evidentiary hearings on Slutzker’s PCRA claims, and denial of all relief, the court ultimately granted counsel leave to withdraw and appointed the Office of Conflict Counsel to represent Slutzker. Patrick Nightingale, Esquire, was appointed to represent Slutzker. Slutzker again filed a pro se motion

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seeking to have counsel removed. Attorney Nightingale then filed a motion to withdraw, which was denied.

Slutzker renewed his request to have counsel removed on May 5, 2014, advising the court that Erika P. Kreisman, Esquire, would agree to the appointment. The court granted the request; Attorney Nightingale withdrew, and Attorney Kreisman entered her appearance.

Attorney Kreisman filed an amended PCRA petition. The PCRA court held a hearing on two of Slutzker’s ineffectiveness claims: trial counsel’s failure to call several character witnesses, and counsel’s failure to impeach the testimony of Slutzker’s daughter, Amy Slutzker.3 The court denied Slutzker’s remaining claims without a hearing.

Following the evidentiary hearing, the PCRA court denied relief.

Slutzker filed a timely appeal, and the court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal by February 2, 2016.4 Slutzker raises the following issues for our review:

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3 Amy Slutzker testified that, on the night of the murder, she recalled her father getting a handgun from a dresser drawer, leaving their home for a time, and then returning and taking her to the home of Janet and Patrick O’Dea. She testified that she had always remembered these events, but was afraid of her father, and so she never revealed what she knew until her father asked her to testify on his behalf. PCRA Court Opinion, 7/6/16, at 4. 4 The PCRA court’s order stated that “[t]he appellant is notified that that any issue not properly included in the Statement timely filed and served pursuant to Pa.R.A.P. 1925(b) shall be deemed waived[.]” PCRA Court Order, 12/8/15. Thereafter, on February 23, 2016, the court struck the Rule (Footnote Continued Next Page)

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1. Was trial counsel ineffective for failing to present impeachment witness Monica McIlvain?

2. Was trial counsel ineffective for failing to present good character evidence?

3. Was trial counsel ineffective by failing to request a Kloiber[5] cautionary instruction about Cynthia DeMann’s identification of [Slutzker]?

4. Did appellate counsel Douglas Sughrue ineffectively fail to appeal the denial of the motion in limine [precluding questioning] Janet (O’Dea) Feiling [about criminal charges of which she was acquitted]?

5. Was [Slutzker] represented ineffectively when counsel did not read Arlene Mudd’s coroner’s inquest testimony to the jury because she was unavailable?

6. [Whether . . . trial counsel was ineffective for failing to object to the prosecutor questioning his alibi witnesses, the O’Deas,] “Isn’t it possible” [that Slutzker might have left their house]?

7. Was trial counsel ineffective in not filing a motion in limine [to preclude testimony about] an alleged visit by [Slutzker]

to John Mudd, Jr.’s job at the pizza parlor, [his place of employment]?

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(Footnote Continued)

1925(b) statement, as it has appended to it documents not admitted into evidence. The court directed defense counsel, within seven days of the date of the order, to “file an Amended Concise Statement of Matters Complained of on Appeal with the documents improperly attached to the original one removed.” PCRA Court Order, 2/23/16. On February 26, 2016, Attorney Kreisman filed a 22-page “Second Concise Statement of Matters Complained of on Appeal,” raising fourteen claims of trial and appellate counsel ineffectiveness, and one claim of trial court error. That same day counsel filed an “Addendum to Concise Statement of Matters Complained of on Appeal,” raising additional claims. The PCRA court, “in the interests of judicial economy,” did not review or consider the improperly attached documents or the addendum to the Rule 1925(b) statement. 5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).

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8. [Whether trial and appellate counsel were ineffective for failing to argue that John Mudd, Jr. was incompetent to testify due to hypnosis?

9. [Whether trial and appellate counsel were ineffective for failing to pursue the issue of missing discovery]?

10. [Whether trial and appellate counsel were ineffective for failing to challenge the imposition of a life sentence of incarceration]? [6]

11. Did trial attorney Mark Rubenstein offer ineffective assistance of counsel when he failed to bring an investigator to the interview with Commonwealth witness Kimberly Altman Adkin?

Appellant’s Brief, at 2-3.

Preliminarily, we note that “[o]ur standard of review of the denial of PCRA relief is clear; we are limited to determining whether the PCRA court’s findings are supported by the record and without legal error.” Commonwealth v. Wojtaszek, 951 A.2d 1169, 1170 (Pa. Super. 2008). We will not disturb the PCRA court's factual findings “unless there is no support for [those] findings in the certified record.” Commonwealth v. Melendez–Negron, 123 A.3d 1087, 1090 (Pa. Super. 2015).

When analyzing ineffectiveness claims, “[w]e begin . . . with the presumption that that counsel [was] effective.” Commonwealth v. Spotz, 18 A.3d 244, 259–60 (Pa. 2011). “[T]he [petitioner] bears the burden of

proving ineffectiveness.” Commonwealth v. Ligons, 971 A.2d 1125, 1137

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6 For clarity, we have replaced some of the language in Slutzker’s issues and replaced it with the Commonwealth’s wording, in brackets, as stated in the Commonwealth’s counter-statement of the issues involved.

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(Pa. 2009). To overcome the presumption of effectiveness, a PCRA petitioner must demonstrate that: “(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of counsel's deficient performance.” Id. An ineffectiveness claim will be denied if the petitioner fails to establish any one of these prongs. Id.

After a review of the parties’ briefs, the relevant case law and the certified record on appeal, we agree with the PCRA court that Slutzker is not entitled to collateral relief. The PCRA court’s findings are supported in the record, and we find no error of law. We, therefore, rely upon the Honorable Jeffrey A. Manning’s opinion in affirming the order denying PCRA relief. We instruct the parties to attach a copy of that decision in the event of further proceedings in the matter.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/7/2017

Circulated 06/16/2017 02:02 PM