J-S09002-19

                                   2019 PA Super 276


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT WILLIAM URWIN, JR.                  :
                                               :
                       Appellant               :   No. 1501 WDA 2017

                Appeal from the PCRA Order September 29, 2017
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0001212-2010


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER, J.*

OPINION BY PANELLA, P.J.:                          FILED SEPTEMBER 10, 2019

        Appellant, Robert William Urwin, Jr., challenges the order entered in the

Washington County Court of Common Pleas, denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        A sixteen year old victim’s nude body was discovered in a field in

Washington County in February 1977. She died from blunt force trauma to the

head. Investigators located her clothing scattered nearby, and sealed it as

evidence. Though witnesses at the time stated they had last seen the victim

with Appellant and David Davoli, charges against Davoli were dismissed at a

preliminary hearing. Appellant was not charged at that time.

        The case remained unsolved for several decades, until the victim’s

clothing was submitted for DNA testing in 2009. Investigators found that a
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*   Retired Senior Judge assigned to the Superior Court.
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DNA mixture on the victim’s underwear contained the profiles of the paternal

bloodlines for both Appellant and Davoli. When questioned by police, Davoli

waived his Miranda rights and confessed his and Appellant’s involvement in

the victim’s death.

      Appellant proceeded to a bench trial. At trial, Davoli testified that he and

Appellant each had sex with the victim, before Appellant dragged her from the

vehicle and beat her with a car tool. The court convicted Appellant of third-

degree murder, and sentenced him to 10-20 years’ incarceration. This Court

affirmed Appellant’s judgment of sentence, and the Pennsylvania Supreme

Court denied allowance of appeal on April 2, 2014.

      Appellant then filed a timely PCRA petition on March 31, 2015. In it, he

raised eleven separate claims, many premised on trial counsel’s alleged

errors. He also asserted that while his case was on appeal, Paul Pozonsky, the

judge who presided over his trial, had been convicted of theft of cocaine from

an evidence locker and disbarred. Appellant claimed the judge had been using

cocaine during the trial, and that such an incompetent tribunal violated

Appellant’s right to due process. The PCRA court, helmed by a different judge,

ordered a hearing at which Appellant’s counsel and other witnesses testified.

Ultimately, the court denied PCRA relief. Appellant filed a timely notice of

appeal, and this case is now properly before us.

      Appellant raises three issues on appeal. He first claims his right to due

process was violated by the court’s alleged cocaine use during trial.




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      “Our standard of review for issues arising from the denial of PCRA relief

is well-settled. We must determine whether the PCRA court’s ruling is

supported by the record and free of legal error.” Commonwealth v. Presley,

193 A.3d 436, 442 (Pa. Super. 2018) (citation omitted). In doing so, we read

the record in the light most favorable to the prevailing party. See

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). If this

review reveals support for the PCRA court’s credibility determinations and

other factual findings, we may not disturb them. See id. We, however, afford

no deference to the PCRA court’s legal conclusions. See id.

      Appellant theorized in his PCRA petition that Judge Pozonsky was under

the influence of drugs at the time of Appellant’s trial. His basis for this

hypothesis was the discovery that Pozonsky engaged in cocaine theft while a

jurist. Pozonsky directed police officers to deposit cocaine, which had been

entered into evidence in cases he presided over, in an evidence locker in his

courtroom. See Office of Disciplinary Counsel v. Pozonsky, 177 A.3d 830,

832 (Pa. 2018). Pozonsky then surreptitiously removed cocaine from the

locker for his personal use. See id. Shortly after his conduct was discovered,

Pozonsky resigned from the bench. See id., at 833. He was arrested and

convicted of crimes relating to his theft. See id., at 834. Pozonsky was also

disbarred by order of the Pennsylvania Supreme Court. See id., at 832.

      As support for his proposition that Pozonsky was under the influence of

cocaine while performing his courtroom duties, including Appellant’s trial – a

premise unsupported by the Supreme Court’s lengthy opinion ordering

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disbarment – Appellant presented testimony at the PCRA hearing regarding

Pozonsky’s demeanor at trial. Specifically, Appellant called his sister, Ruth

Urwin, who testified that Pozonsky appeared to be “acting funny” and not

paying attention to the proceedings. N.T. Hearing, 2/22/17, at 52. Ruth

testified that she voiced her concerns to Appellant’s attorney, Joseph Francis,

after the trial. See id. Ruth conceded she had never interacted with Pozonsky

before the trial. See id., at 55.

      Attorney Francis also testified. He stated that while he recalled Ruth

questioned Pozonsky’s demeanor, he dismissed these “because [Pozonsky]

always appeared that way.” Id., at 18. Francis explained that he had

previously been one of Pozonsky’s law clerks, and that after his clerkship

Francis appeared in Pozonsky’s courtroom “at least five or six times each

month for a period of ten years.” Id., at 16. While Francis agreed Pozonsky

appeared “animated” and interjected several times during Appellant’s trial, he

averred that in his experience, it was Pozonsky’s regular practice to ask

witnesses questions and that Pozonsky always liked to keep the pace of his

courtroom moving quickly. Id., at 16-17. Francis stated Pozonsky had acted

that way in his courtroom from the time Francis first met him. See id., at 16.

      The Commonwealth likewise presented testimony at the evidentiary

hearing about then-Judge Pozonsky’s behavior. Paul Schneider, who was

counsel for the Commonwealth at Appellant’s trial, testified that he appeared

in front of Pozonsky almost every day for three years for various proceedings.

See id., at 62. Schneider stated that Pozonsky’s behavior during Appellant’s

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trial was “consistent” with the other experiences Schneider had with Pozonsky

over the years. Id. Schneider stated nothing about Pozonsky’s demeanor at

Appellant’s trial concerned him or made Schneider believe Pozonsky was

under the influence of any illegal substance at the time. See id., at 66.

      The PCRA court ultimately found Appellant failed to satisfy his burden of

proving the allegation that Pozonsky was under the influence of cocaine at

Appellant’s trial. See PCRA Court Opinion, filed 5/1/18, at 11. We agree that

testimony from the above witnesses at the PCRA hearing does not

substantiate Appellant’s accusation that Pozonsky was under the influence of

cocaine during Appellant’s trial.

      As the PCRA court notes, Appellant’s main source of support for this

allegation is Pozonsky’s guilty plea to theft of cocaine. See id., at 12. Despite

the deplorable nature of Pozonsky’s actions, the circumstances of his guilty

plea and disbarment do not support Appellant’s accusation. In fact, the

Pennsylvania Supreme Court’s opinion ordering Pozonsky’s disbarment

emphasizes that Pozonsky’s theft was not part of an uncontrollable addiction.

See Office of Disciplinary Counsel, 177 A.3d at 846. Rather, the Court

dismissed any characterization of Pozonsky’s criminal acts as driven by

addiction given that he “presented no expert testimony to the Disciplinary

Board establishing that he had an addiction to cocaine, or any other psychiatric

disorder, which caused him to engage in his thefts and personal use of drug

evidence.” Id., at 845 (emphasis in original).




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       Appellant points to no additional information to sustain his theory that

Pozonsky was intoxicated during Appellant’s trial. We observe that Appellant

does not indicate any particular instance in the trial transcripts where

Pozonsky acted erratically or otherwise in accordance with Appellant’s theory

of intoxication. As his first issue is speculative at best, we find Appellant is due

no relief. See Commonwealth v. Roney, 79 A.3d 595, 607 (Pa. 2013)

(holding a claim based on pure speculation must fail).

       Next,1 Appellant argues his waiver of his right to a jury trial was not

knowingly, voluntarily, or intelligently made. This issue is waived, as Appellant

could have raised it before post-conviction review and failed to do so. See 42

Pa.C.S.A. § 9544(b); see also Commonwealth v. Miller, 987 A.2d 638, 661

(Pa. 2009) (holding that where appellant failed to object to jury trial waiver

as unknowingly or unintelligently made on direct appeal, issue was waived for

PCRA review because it could have been raised previously).

       Even if Appellant had not waived this issue, he would nevertheless be

due no relief. Appellant’s bald assertions regarding his jury trial waiver may

be construed as an attempt to invoke 42 Pa.C.S.A. § 9543(a)(2)(i). This

portion of the PCRA permits challenges to convictions resulting from “a

violation of the Constitution of this Commonwealth or the Constitution or laws

of the United States which, in the circumstances of the particular case, so

undermined the truth-determining process that no reliable adjudication of
____________________________________________


1  We have reordered Appellant’s second and third issues for ease of
disposition.

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guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(i).

While Appellant frames the waiver of his jury trial rights as unknowing and

involuntary based on later revelations about Judge Pozonsky’s conduct,

nowhere in his PCRA petition or his appellate brief does he allude to

circumstances that would suggest “no reliable adjudication of guilt or

innocence could have taken place.” Id.

      Indeed, the evidence available in the certified record and transcripts

suggests quite the opposite. As noted in our analysis of his first issue,

Appellant has supplied no evidence to demonstrate that Judge Pozonsky was

under the influence at the time of trial. Further, we direct particular attention

to trial counsel’s remarks at the PCRA hearing about Appellant’s choice to

waive his right to a jury trial. See N.T. Hearing, 2/22/17, at 22-24. Counsel

attested that even if he had been aware of Judge Pozonsky’s conduct at the

time of trial, he would have asked for a new judge to preside over Appellant’s

case but would not necessarily have advised Appellant to seek a jury trial. See

id., at 24.

      Counsel stated Appellant had a fear of female jurors sympathizing with

the young, female victim. See id., at 23. Counsel also testified that when

Appellant asked him to explain how the outcome of his case could differ

between a bench and a jury trial, counsel told Appellant that “a judge was

better equipped with his legal mind to differentiate between Murder 1 and

Murder 3.” Id., at 23. Appellant was, of course, convicted of third-degree

murder following his bench trial.

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      In Appellant’s final argument, he challenges trial counsel’s stewardship.

Trial counsel did not file a pre-arrest delay motion despite the 33 years that

elapsed between the murder and Appellant’s arrest. Appellant concludes the

delay was egregious, and counsel provided ineffective assistance by failing to

challenge it.

      We presume counsel’s effectiveness, and an appellant bears the burden

of proving otherwise. See Commonwealth v. Brown, 161 A.3d 960, 965

(Pa. Super. 2017). To establish ineffectiveness of counsel, a PCRA petitioner

must plead and prove: his underlying legal claim has arguable merit; counsel’s

actions lacked any reasonable basis; and counsel’s actions prejudiced him.

See Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011). Failure to

satisfy any prong of the ineffectiveness test requires dismissal of the claim.

See Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa. Super. 2004).

“Arguable merit exists when the factual statements are accurate and could

establish cause for relief. Whether the facts rise to the level of arguable merit

is a legal determination.” Commonwealth v. Barnett, 121 A.3d 534, 540

(Pa. Super. 2015) (citations and internal quotation marks omitted).

      The threshold question we must address at the appellate level whenever

a defendant raises a due process claim due to pre-arrest delay is whether the

defendant suffered actual prejudice from the delay. See Commonwealth v.

Scher, 803 A.2d 1204, 1222 (Pa. 2002).

      The court must then examine all of the circumstances to
      determine the validity of the Commonwealth's reasons for the
      delay. Only in situations where the evidence shows that the delay

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      was the product of intentional, bad faith, or reckless conduct by
      the prosecution, however, will we find a violation of due process.
      Negligence in the conduct of a criminal investigation, without
      more, will not be sufficient to prevail on a due process claim based
      on pre-arrest delay.

Commonwealth v. Jette, 818 A.2d 533, 536 (Pa. Super. 2003) (citation

omitted).

      Our Supreme Court has found a pre-arrest delay of eleven years

constituted actual prejudice. See Commonwealth v. Snyder, 713 A.2d 596,

605-606 (Pa. 1998). However, the Court recognized that the Commonwealth

may have valid reasons to justify even a lengthy delay, such as “when an

investigation yields new evidence after many years of inactivity,” and

remanded for evaluation of those reasons by the trial court. Id., at 605.

      Here, the murder occurred on February 13, 1977. On June 11, 2009,

investigators working in the cold case unit of the Pennsylvania State Police

Department submitted items of the victim’s clothing and samples taken from

the autopsy for DNA testing. The DNA results concluded that Appellant’s DNA

was on the victim’s underwear. DNA tests conducted on other samples were

inconclusive, as much of the evidence was too degraded to yield test results.

Appellant was then arrested on May 24, 2010.

      Appellant claimed in his PCRA petition that this 33-year delay was

unconscionable given that the type of DNA test used was available in 1999.

He asserted he suffered prejudice due to that lull, as the evidence may have

revealed DNA implicating another suspect if not for the Commonwealth’s delay

in testing. Appellant also averred that because of the gap between the crime


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and his arrest, some key witnesses had died and others were unable to recall

details of relevant events.

      At the PCRA hearing, the Commonwealth presented testimony from a

former detective in the Pennsylvania State Police’s cold case unit. The

investigator testified that the type of DNA test used to analyze the victim’s

clothing was not available in his unit until 2008 or 2009. See N.T. Hearing,

2/22/17, at 87, 91. He acknowledged that he was uncertain about whether

the test was available nationally before that date. See id., at 92.

      As the PCRA court aptly notes,

      [Appellant] has failed to establish any facts which tend to prove
      that the Commonwealth deliberately delayed his arrest in order to
      gain a tactical advantage. … [T]here has been no evidence
      submitted to this court to suggest that this was the result of any
      deliberate plan by the State Police to delay DNA testing evidence
      from a 1977 case in hopes that witness memories would fade just
      enough for them to convict their suspect. On the contrary, the
      evidence presented to the lower court shows that the
      Commonwealth took reasonable steps, at regular intervals
      throughout the length of the investigation, using the tools
      available to it at the time, to determine the identity of [the
      victim’s] killer. The simple fact that the testing procedure which
      ultimately implicated [Appellant] was not in widespread use by the
      Commonwealth until later than [Appellant] thinks it should have
      been does not constitute deliberate delay caused to gain a tactical
      advantage.

PCRA Court Opinion, filed 5/1/18, at 15-16 (citation omitted).

      We agree. Even if we accept Appellant’s position that the Y-STR testing

was available in 1999, he has wholly failed to prove the “intentional, bad faith,

or reckless conduct by the prosecution” required to show invalid pre-arrest




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delay. Jette, 818 A.2d at 536 (citation omitted). As this issue lacks arguable

merit, trial counsel cannot be deemed ineffective for failing to raise it.

      Appellant has failed to demonstrate grounds for relief. Accordingly, we

affirm the PCRA court’s order dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2019




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