J-S67027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KAZIMIR CRAIG GROHOWSKI

                            Appellant                No. 1713 MDA 2014


           Appeal from the Judgment of Sentence October 19, 2009
           In the Court of Common Pleas of Northumberland County
             Criminal Division at No(s): CP-49—CR-0000706-2004


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 12, 2016

        Appellant, Kazimir Craig Grohowski, appeals nunc pro tunc from the

judgment of sentence entered after a jury convicted him on three counts of

delivery of contraband to a confined person. After careful review, we affirm.

        In 2004, Grohowski, a guard at the Northumberland County Prison,

was charged with multiple crimes flowing from allegations that he, along

with several other guards, had participated in a scheme to distribute

contraband to prisoners, as well as criminally assaulting one prisoner. The

jury found him guilty of three counts of delivering contraband to the

prisoners, but found him not guilty on the charge of aggravated assault of an

inmate.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Prior to sentencing, Grohowski filed a motion for extraordinary relief,

which the trial court granted. The Commonwealth appealed, and this Court

reversed, concluding that Grohowski’s claims were not extraordinary, and

should have been addressed in post-sentence motions.

     On remand, the trial court sentenced Grohowski to an aggregate term

of imprisonment of two to four years.        The trial court then granted

Grohowski bail pending appeal.   Nothing occurred in the case for nearly a

year, and the Commonwealth filed a motion to revoke bail and commence

sentence. Nearly two months after the Commonwealth’s filing, on December

17, 2010, Grohowski filed a nunc pro tunc post-sentence motion.         The

Commonwealth objected, but the trial court granted reconsideration of the

judgment of sentence.

     Once again the docket lay fallow until June 23, 2011, when the

Commonwealth filed a motion to declare Grohowski’s nunc pro tunc post-

sentence motions denied by operation of law.     The trial court denied the

Commonwealth’s motion, and granted Grohowski’s motion for judgment of

acquittal. The Commonwealth again appealed to this Court.

     This Court found that Grohowski’s nunc pro tunc post-sentence motion

had been denied by operation of law, and therefore the trial court had lost

jurisdiction to rule on Grohowski’s motion. The panel reversed the order and

reversed for reinstatement of Grohowski’s judgment of sentence.          On




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December 3, 2013, the Supreme Court of Pennsylvania denied Grohowski’s

petition for allowance of appeal.

      Shortly thereafter, the Commonwealth filed a motion to commence

Grohowski’s sentence.      On August 1, 2014, the trial court reinstated

Grohowski’s judgment of sentence and set a date for the commencement of

his sentence. Grohowski did not file an appeal from this order.

      Instead, Grohowski filed a petition pursuant to the Post-Conviction

Relief Act (“PCRA”).   Of relevance to the current appeal, the PCRA court

found that Grohowski had not been properly informed of the denial of his

post-sentence motion by operation of law, and therefore reinstated his direct

appeal rights nunc pro tunc. He then filed this direct appeal.

      On appeal, Grohowski identifies six issues. Preliminarily, we note that

his second issue, concerning trial counsel ineffectiveness, and his third and

fourth issues, raising an argument that his speedy trial rights were violated

by counsel’s filing of continuances without Grohowski’s knowledge or

consent, are not ripe in this direct appeal. Grohowski has made no attempt

to show good cause why his ineffectiveness claims should be reviewed on

direct appeal, and has not expressly waived his right to pursue these claims

via a PCRA petition. We therefore cannot review them in this direct appeal.

See Commonwealth v. Holmes, 79 A.3d 562, 577-578 (Pa. 2013).

      In his first issue, Grohowski contends that the prosecutor committed

misconduct by urging the jury, in his closing argument, to “‘send a message


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to the community’ by convicting Grohowski, and by repeatedly introducing

evidence concerning the prison where it is alleged illicit activities, beyond

those allegedly concerning Grohowski, occurred.” Appellant’s Brief, at 7.

     The phrase “prosecutorial misconduct” has been so abused as to
     lose any particular meaning. The claim either sounds in a specific
     constitutional provision that the prosecutor allegedly violated or,
     more frequently, like most trial issues, it implicates the narrow
     review available under Fourteenth Amendment due process. See
     Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d
     618 (1987) (“To constitute a due process violation, the
     prosecutorial misconduct must be of sufficient significance to
     result in the denial of the defendant’s right to a fair trial.”)
     (internal    quotation      marks       omitted);  Donnelly      v.
     DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d
     431 (1974) (“When specific guarantees of the Bill of Rights are
     involved, this Court has taken special care to assure that
     prosecutorial conduct in no way impermissibly infringes them.”).
     However, “[t]he Due Process Clause is not a code of ethics for
     prosecutors; its concern is with the manner in which persons are
     deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504,
     511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is
     the fairness of the trial, not the culpability of the prosecutor.
     Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d
     78 (1982). If the defendant thinks the prosecutor has done
     something objectionable, he may object, the trial court rules,
     and the ruling—not the underlying conduct—is what is reviewed
     on appeal. Where, as here, no objection was raised, there is no
     claim of “prosecutorial misconduct” as such available. There is,
     instead, a claim of ineffectiveness for failing to object, so as to
     permit the trial court to rule. Cf. id.

Com. v. Tedford, 960 A.2d 1, 28-29 (Pa. 2008).

     We initially note that this issue actually combines two issues into one.

First, Grohowski alleges that the prosecutor committed misconduct by urging

the jury to “send a message” in his closing argument. However, Grohowski

has failed to identify where in the record he objected to the prosecutor’s


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remark, and our independent review of the record has revealed no objection

was lodged. Indeed, Grohowski, in his arguments regarding ineffectiveness

of counsel, concedes that counsel did not object. This issue was therefore

not preserved, and we find it waived. See Tedford.

     Even if it were not waived, we would not find the prosecutor’s

argument, viewed as a whole, to have risen to the level of misconduct.

While the prosecutor used versions of the phrase “send a message,” he

immediately pointed out that the jury’s task was only to determine whether

Grohowski had committed the crimes charged:

     But I submit that in terms of your verdict, ladies and gentlemen,
     not only – and this is your primary task. Not only – really the
     only task, to find Mr. Grohowski guilty beyond a reasonable
     doubt. But in terms of that verdict, perhaps if people are
     listening, sending that message for change of what’s going on
     down there.

     But that your first – and I submit to you, your first and primary
     task, and only task, really is Kazimir Grohowski. Anything else
     that happens is inconsequential to you, ladies and gentlemen.
     That’s the task provided to you. That is the task before you.

N.T., Trial, 9/19/06, at 208-209. The prosecutor’s argument, while flirting

with urging the jury to “send a message,” consistently reminded the jury to

focus on the conduct of Grohowski. When viewed as a whole, we conclude

that Grohowski cannot establish that the prosecutor’s argument caused

jurors to decide the case on improper grounds.

     The   second   argument    conflated   in   Grohowski’s   issue   raising

prosecutorial misconduct involves the elicitation of evidence regarding


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crimes committed by other persons at the prison.       Once again, Grohowski

concedes, in his argument raising ineffectiveness of counsel, that trial

counsel failed to object to the introduction of any of this evidence.     This

issue is therefore waived. See Tedford.

      Even if this issue were properly before us, we would conclude that the

evidence elicited did not rise to prosecutorial misconduct. The prosecutor in

this case was faced with the difficult challenge of having prison inmates as

primary eyewitnesses.       Grohowski challenged the credibility of these

witnesses, and in effort to buttress their credibility, the prosecutor elicited

testimony regarding the atmosphere at the prison. This evidence was not

aimed at tarring Grohowski with the misconduct of others, but was

presented in the context of an explanation why other guards were not

testifying on behalf of the prosecution, and further, why the inmates did not

immediately report instances of corruption or abuse.         Since Grohowski

challenged the credibility of the inmate eyewitnesses, the Commonwealth

was entitled to address their credibility in this manner.

      As Grohowski failed to preserve either of his arguments in his first

blended issue, we conclude that he is due no relief on that issue.

      In his fifth issue, Grohowski challenges the sufficiency of the evidence

supporting his convictions.      Grohowski’s argument concedes that the

evidence submitted at trial was sufficient to establish that he had handled

packages of marijuana, cocaine, and methamphetamine.          See Appellant’s


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Brief, at 25. Grohowski instead focuses on the Commonwealth’s failure to

present evidence establishing that these three compounds were listed in

schedules I through IV of the Controlled Substance, Drug, Device and

Cosmetic Act (“the Act”). However, Grohowski fails to cite to any authority

requiring such evidence, nor has our independent research located any.

Most likely, this is due to the fact that whether a compound is listed under

the Act is a question of law, and not a question of fact.         We therefore

conclude that Grohowski’s challenge to the sufficiency of the evidence merits

no relief.

      In his final issue, Grohowski argues that the trial court had jurisdiction

to grant his nunc pro tunc motion to file post-sentence motions.             We

conclude that the issue is moot. See Commonwealth v. Nava, 966 A.2d

630, 632-633 (Pa. Super. 2009) (“A case is ‘moot’ when a determination is

sought on a matter which, when rendered, cannot have any practical effect

on the existing controversy.”). Even if we were to conclude that Grohowski

is correct, we have already concluded that he has raised no meritorious

issue on appeal.     Furthermore, Grohowski does not identify any order

entered by the trial court which allegedly mistakenly relied upon reasoning

that the trial court did not have jurisdiction.     Grohowski does not even

identify an issue that he would have raised in post-sentence motions that he

has not currently argued. As such, the issue is moot and merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2016




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