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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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.

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     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.



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      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,


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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




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