Com. v. Kowal, J.
1349 WDA 2016
| Pa. Super. Ct. | Nov 16, 2017Background
- John Kowal was convicted in 2007 of multiple sex offenses against a 13-year-old (involuntary deviate sexual intercourse; aggravated indecent assault; indecent assault; corruption of a minor) and sentenced to an aggregate 21–42 years' imprisonment.
- On direct appeal the Superior Court affirmed; Kowal later obtained reinstatement of appellate rights via PCRA and raised additional claims on appeal, which were again rejected.
- Kowal filed a timely pro se PCRA petition (2015) alleging trial counsel ineffectiveness, an illegal/mandatory sentence, failure to investigate and call witnesses, failure to obtain discovery (in‑camera chamber transcript), and cumulative error.
- PCRA counsel filed a Turner/Finley no‑merit letter; the PCRA court issued Pa.R.Crim.P. 907 notice, Kowal responded, counsel withdrew, and the petition was dismissed without an evidentiary hearing (Aug. 2, 2016).
- Kowal appealed pro se to the Superior Court, which affirmed: the PCRA court’s thorough opinion found the underlying claims lacked arguable merit, counsel had reasonable strategic bases, and Kowal suffered no prejudice.
Issues
| Issue | Plaintiff's Argument (Kowal) | Defendant's Argument (Commonwealth / PCRA court) | Held |
|---|---|---|---|
| 1. Trial counsel ineffective for failing to investigate and present evidence (investigator Cherish, cell records, Comcast rentals, child witnesses, receipts/phone alibi) | Counsel failed to investigate or present exculpatory records/witnesses that would have undermined prosecution and shown bias/taint | Claims are speculative or lack factual support; counsel had reasonable strategic bases; evidence would not have changed outcome | Denied — no arguable merit, no prejudice; counsel not ineffective |
| 2. Trial counsel ineffective for failing to object to Commonwealth’s cross‑examination and protect Kowal at trial | Counsel failed to object to improper, prejudicial questioning | Superior Court previously found lines of questioning relevant and proper; underlying claim lacks merit | Denied — no arguable merit; no ineffective assistance |
| 3. Judicial partiality / ex parte plea negotiations and failure to obtain in‑camera transcript (counsel ineffective for not objecting) | Judge engaged in ex parte/presidential plea discussions and had private communications with prior counsel; counsel should have objected and sought transcript/discovery | No demonstrated partiality or prejudice; continuance denial previously upheld; transcript/discovery claims waived or unsupported | Denied — no prejudice, no arguable basis for relief |
| 4. Sentence illegal/mandatory minimum; appellate counsel ineffective for not raising Alleyne/Washington claims | Sentence used mandatory minimums and is constitutionally infirm under Alleyne and related PA authority; appellate counsel was ineffective | Sentence was imposed within sentencing guideline ranges and not under a mandatory minimum statute; Alleyne not retroactive to 2007 sentence; sentencing claim is discretionary and/or waived | Denied — sentencing challenge meritless; no relief |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance standard of deficient performance and prejudice)
- Commonwealth v. Pierce, 515 Pa. 153 (Pa. 1987) (articulates three‑prong test for counsel ineffectiveness review)
- Commonwealth v. Busanet, 618 Pa. 1 (Pa. 2012) (discusses application of ineffective assistance standards)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (held facts that increase mandatory minimums must be found by jury beyond reasonable doubt)
- Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016) (PA case addressing Alleyne implications for state sentencing)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedures for appointed counsel withdrawal/no‑merit letters)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (procedural guidance on counsels' no‑merit submissions)