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March 9, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Dunkowski, A.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1507 EDA 2025
• Precedential Status: Non-Precedential

• Judges: Panella

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (20.9K)

• PDF

Combined Opinion

                        by [Jack A. Panella](https://www.courtlistener.com/person/8243/jack-a-panella/)

J-S47003-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERT DUNKOWSKI :
:
Appellant : No. 1507 EDA 2025

Appeal from the PCRA Order Entered May 14, 2025
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0000225-2020

BEFORE: PANELLA, P.J.E., OLSON, J., and BECK, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED MARCH 9, 2026

Albert Dunkowski appeals pro se from the order of the Court of Common

Pleas of Bucks County dismissing his petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”)1, without a hearing. Dunkowski argues that he

is entitled to relief on his claims of sufficiency of the evidence and ineffective

assistance of counsel. After careful review, we affirm the PCRA court’s order

dismissing his PCRA petition. However, for the first time on appeal, Dunkowski

argues his sentence was illegal because the sentencing court failed to consider

his recidivism risk reduction incentive (“RRRI”)2 eligibility. He is entitled to

relief on this claim. Therefore, we affirm the order dismissing the PCRA petition

and remand for the sentencing court to consider his RRRI eligibility.

---

1 42 Pa.C.S.A. §§ 9541–9546.

2 61 Pa.C.S.A. §§ 4501–4512.
J-S47003-25

This Court previously summarized the facts related to Dunkowski’s

underlying convictions. See Commonwealth v. Dunkowski, No. 1047 EDA

2022, 2023 WL 5129187 (Pa. Super. filed Aug. 10, 2023) (unpublished

memorandum).

In August 2019, police discovered Dunkowski and his wife
inhabiting an automobile that was parked in the lot of the
Woodbourn Train Station in Middletown Township. Upon arriving
at the scene, officers observed Dunkowski lying face down in the
grass. His wife was slumped over in the front passenger seat. Four
children occupied the rear seat area of the vehicle. A cat was also
living in the car. Officers noted that the vehicle was cluttered with
trash, clothing, food, and debris. They also noticed the strong odor
of bodily excretions, cigarettes, and rotting food. Due to the visibly
poor physical condition of the children, the officers called
Emergency Medical Services (“EMS”). EMS took protective
custody of the children and transported them to the hospital.

The trial court offered the following review of the condition of the
various children that were in the parental care of Dunkowski and
his wife:

At [the hospital], treating physicians made the
following assessments: N.D., who suffered from
cerebral palsy, was thirteen years old and weighed
about ninety pounds. She was nonverbal, had a
feeding tube, and started to develop bedsores from
remaining in the same position for a significant
amount of time. J.D. was four years old and weighed
about forty pounds. She was still in diapers as she was
not yet trained to go to the bathroom on her own and
she needed extensive dental work—a root canal, a
crown, and three fillings. Female L.D. was five years
old and weighed about forty-eight pounds. She was
also still in diapers and needed nine root canals, nine
crowns, one filling, and four teeth pulled. She had
never been to school. Male L.D. was nine years old
and weighed about sixty pounds. He had bilateral
clubfeet ... as well as undescended testicles .... Both
required procedures—several to improve Male L.D.’s
clubfeet and one to surgically descend his testicles.

-2-
J-S47003-25

Male L.D. also had such a severe, significant amount
of dried, caked-on fecal matter on his diaper that
when the doctor pulled it back, Male L.D.’s skin
became raw and red. Dr. Torradas, the physician who
treated the children, testified that, over the course of
his lengthy career, he had never seen anything like
what he saw on August 27, 2019.

That same day, [Dunkowski] and [his wife] spoke with
Detective Brian Hyams (hereinafter “Detective
Hyams”) and told him that none of the four children
found were enrolled in school. Detective Hyams asked
if they had any additional children and they provided
the names of three more minors in their care. They
relayed that one child, R.[D]., was staying with a
friend at the time, but neither [Dunkowski] nor [his
wife] could provide any contact information to get in
touch with her. Authorities eventually found R.[D].
and discovered that she missed almost the entire
2018-2019 school year and had an abscess in her
tooth that rendered her unable to chew and required
significant dental surgery. Fortunately, R.D did not
require immediate, emergency medical treatment.

Shortly thereafter, Detective Hyams discovered that
[Dunkowski] and [his wife] had an eighth minor
child—S.D.—they did not mention when previously
asked. After some investigation, Detective Hyams
located S.D. and [Dunkowski] agreed to “turn her
over” to authorities in a McDonald’s parking lot. S.D.
“appeared to be very thin, small, disheveled. Her hair
was very short as if it wasn't growing, or falling out.
Her eyes were puffy underneath. She was very, very
quiet, almost like she was lethargic.” Doctors later
determined she weighed about forty-two pounds. S.D.
was unable to walk because her legs were bent in a
seated position. She also still needed diapers—at
thirteen years old—because [Dunkowski] and [his
wife] never taught her how to use the bathroom.
Authorities immediately took protective custody of
S.D. and transported her to [the hospital] with the
other children.

-3-
J-S47003-25

Id. at **1-2 (quoting Trial Court Opinion, 6/23/22, at 2-4) (alterations in

original).

Dunkowski and his wife Christine were both charged with six counts of

endangering the welfare of children (“EWOC”).3 A consolidated jury trial

commenced on October 4, 2021. On the third day of trial, Dunkowski and his

wife failed to appear. The trial proceeded in abstentia. Dunkowski was

convicted of three counts of EWOC. For each count, he was sentenced to three

to seven years, consecutively, for an aggregate term of incarceration of 9 to

21 years.4 He filed a timely post-sentence motion which was denied.

Dunkowski filed a direct appeal, and this Court affirmed his judgment of

sentence. See Dunkowski, 2023 WL 5129187, at *8.

Thereafter,

On July 29, 2024, [Dunkowski] filed his first PCRA Petition, Th[e
PCRA c]ourt appointed Stuart Wilder, Esquire to represent
[Dunkowski], but on September 4, 2024, Mr. Wilder filed a Motion
to Allow [Dunkowski] to Represent Himself in his Petition for PCRA
Relief. The Petition stated that [Dunkowski] wished to represent
himself, and after a hearing on the matter where [Dunkowski]
advised th[e PCRA c]ourt of the same, th[e c]ourt granted
[Dunkowski’s] Motion on December 18, 2024.

---

3 18 Pa.C.S.A. § 4304.

4 Dunkowski’s wife, Christine Dunkowski, was his co-defendant at trial. She

was convicted of the same charges and was sentenced to 8 to 21 years’
incarceration. Her conviction was affirmed on direct appeal. See
Commonwealth v. Dunkowski, No. 1990 EDA 2022, 2023 WL 4397323 (Pa.
Super. filed July 7, 2023) (unpublished memorandum). Her pro se appeal of
the denial of her first PCRA petition is pending at docket number 1220 EDA
2025.

-4-
J-S47003-25

On January 13, 2025, [Dunkowski] filed his pro se Amended
Petition for Post Conviction Collateral Relief, wherein he
challenged the sufficiency of the evidence presented at trial and
alleged th[e sentencing c]ourt abused its discretion when
imposing sentence and that his trial counsel was ineffective for:
(1) not “moving for dismissal of the indictment” during said
sentencing; (2) not interviewing his children in preparation for
trial; and (3) not filing a successful direct appeal. On February 11,
2025, the Commonwealth filed its response to [Dunkowski’s]
Amended PCRA Petition. On February 24, 2025, th[e PCRA c]ourt
issued a Notice of Intent to Dismiss Pursuant to Pa. R. Crim. P.
907 and stated that the claims were without merit and did not
warrant an evidentiary hearing. On March 11, 2025, [Dunkowski]
filed an Objection to Notice of Intent to Dismiss. On May 14, 2025,
th[e PCRA c]ourt formally dismissed [Dunkowski’s] pro se
Amended PCRA Petition. On June 2, 2025, [Dunkowski] filed [a]
Notice of Appeal to the Superior Court.

PCRA Court Opinion, 6/20/25, at 4-5.

Both Dunkowski and the PCRA court complied with Pennsylvania Rule of

Appellate Procedure 1925. See Pa.R.A.P. 1925(a)-(b).

Dunkowski raises the following issues.

1. Did the Trial Court err in not correcting, at sentencing, the jury’s
   verdict, once the [c]ourt became aware that there was no intent
   by [Dunkowski] to commit the offenses charged?

2. Was [Dunkowski’s] trial counsel ineffective for not moving for
   a dismissal of the indictment and conviction due to the judge’s
   comments at sentencing?

3. Was Trial Counsel ineffective for failing to interview
   [Dunkowski’s] children at all, and thus was unprepared for trial
   without their version of events during their homeless period?

4. Was the term of confinement for Endangering the Welfare of
   Children illegal since the court failed to make a RRRI
   determination at the time of sentencing?

Appellant’s Brief, at 4 (brackets omitted).

-5-
J-S47003-25

“The standard of review of an order dismissing a PCRA petition is

whether that determination is supported by the evidence of record and is free

of legal error.” Commonwealth v. Williams, 244 A.3d 1281, 1286 (Pa.

Super. 2021).

The right to an evidentiary hearing on a post-conviction petition
is not absolute. It is within the PCRA court’s discretion to decline
to hold a hearing if the petitioner’s claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.

Id. at 1287 (brackets and citation omitted).

In his first issue Dunkowski purports to raise a sufficiency of the

evidence challenge. Specifically, he argues that the Commonwealth failed to

establish that he intentionally neglected his children. See Appellant’s Brief, at

14-19. However, it is well-settled that a claim challenging the sufficiency of

the evidence is not cognizable under the PCRA. See 42 Pa.C.S.A. § 9543;

Commonwealth v. Mudge, No. 919 WDA 2021, 2022 WL 2813608, at *5

(Pa. Super. filed July 19, 2022) (unpublished memorandum) (“challenge to

sufficiency of evidence . . . is not cognizable under PCRA.”). 5 Moreover, it is

waived. See 42 Pa.C.S.A. § 9544(b) (“an issue is waived if the petitioner could

---

5 Unpublished decisions filed after May 1, 2019 may be relied upon for their

persuasive value.

-6-
J-S47003-25

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state postconviction proceeding.”). Therefore,

Dunkowski’s first issue does not merit relief.

Next, Dunkowski claims that counsel was ineffective for failing to seek

dismissal of his convictions because the evidence was insufficient. In support

of his claim that counsel had reason to seek dismissal, he points to the

sentencing court’s comment at sentencing, “[w]e know that you did not set

out to do this intentionally, at least I don’t think you did[,]” as indicative of

him lacking the requisite mens rea. See Appellant’s Brief, at 21; N.T., 2/7/22,

at 43. Additionally, he states appointed counsel was aware of email

correspondence between the prosecutor and Chief Deputy Public Defender

that Dunkowski claims indicates that they agreed to a mitigated sentence for

him, which proves his lack of culpability. See Appellant’s Brief, at 20-21.

Based on the foregoing, he argues his counsel was ineffective for failing to file

a motion to dismiss because the evidence was insufficient to prove his guilt.

See id. at 19-22.

Although sufficiency of the evidence challenges are not cognizable under

the PCRA, claims alleging ineffective assistance of counsel for failing to raise

a sufficiency challenge are cognizable. See Commonwealth v. Livingston,

No. 430 EDA 2021, 2022 WL 678933, at **5-6 (Pa. Super. filed Mar. 8, 2022)

(unpublished memorandum) (addressing a PCRA claim that counsel was

ineffective for failing to raise a sufficiency of the evidence claim).

-7-
J-S47003-25

“Generally, counsel’s performance is presumed to be constitutionally

adequate, and counsel will only be deemed ineffective upon a sufficient

showing by the petitioner.” Commonwealth v. Ramirez-Contreras, 320

A.3d 756, 760 (Pa. Super. 2024) (citation omitted). “To plead and prove

ineffective assistance of counsel a petitioner must establish: (1) that the

underlying issue has arguable merit; (2) counsel’s actions lacked an objective

reasonable basis; and (3) actual prejudice resulted from counsel’s act or

failure to act.” Commonwealth v. Stultz, 114 A.3d 865, 880 (Pa. Super.

2015) (citation omitted). “[I]f a claim fails under any required element, we

may dismiss the claim on that basis.” Commonwealth v. Kapellusch, 323

A.3d 837, 847 (Pa. Super. 2024) (citation omitted).

As a preliminary matter, we observe that issues raised for the first time

on appeal are waived. See Pa.R.A.P. 302(a). Additionally, “for purposes of

appellate review, what is not in the certified record does not exist.”

Commonwealth v. Garvin, 50 A.3d 694, 700 (Pa. Super. 2012) (citation

omitted).

Here, Dunkowski concedes that he was provided the emails by his court

appointed counsel on December 17, 2024, and that he filed his amended PCRA

petition on January 13, 2025. See Reply Brief, at 7-8. However, he did not

attach the emails to his PCRA petition, they are not otherwise in the certified

record and are instead attached to his appellate brief. As such, we cannot

-8-
J-S47003-25

consider the emails.6 Therefore, we limit our review to Dunkowski’s claim that

counsel was ineffective for failing to move for dismissal based on the

sentencing court’s comment at sentencing.

As the Commonwealth points out, the required mens rea for EWOC is

“knowingly” not “intentionally.” See 18 Pa.C.S.A. § 4304(a)(1) (“[a] parent .

. . commits an offense if he knowingly endangers the welfare of the child by

violating a duty of care, protection or support.”). “To be convicted under

[Section 4304], the Commonwealth must prove a knowing violation of a duty

of care.” Commonwealth v. Vela-Garrett, 251 A.3d 811, 815 (Pa. Super.

2021) (internal quotation marks and citation omitted).

The PCRA court aptly summarized why the sentencing court’s statement

did not indicate a lack of sufficient evidence to sustain Dunkowski’s EWOC

convictions.

When read in full context, it is clear th[e sentencing c]ourt was
referring to the fact that [Dunkowski] did not have unwavering
malicious intent to viciously harm his children. It does not refer to
the fact that [Dunkowski] knowingly neglected his children by
failing to meet their basic needs for things such as food, water,
and hygiene. The evidence at trial proved beyond a reasonable
doubt that [Dunkowski] knew his failure to provide such things
would result in school aged children who were so weak they could
barely function and who were so developmentally delayed they
lacked basic skills such as the ability to use a toilet. The testimony
and photographs admitted at trial proved beyond a reasonable
doubt that [Dunkowski’s] children were so obviously infirm that

---

6 We briefly note that our cursory review of the email correspondence indicates

that they occurred before trial and thus, were seemingly part of plea
negotiations, not an agreement as to sentencing. Dunkowski did not enter a
guilty plea and was convicted at trial.

-9-
J-S47003-25

even [Dunkowski] felt the need to hide the existence of his eighth
child from authorities. Therefore, a review of the record makes
clear there is no doubt as to [Dunkowski’s] guilt nor is that guilt
negated by [Dunkowski’s] attempt to misconstrue a statement
made by th[e sentencing c]ourt at sentencing.

PCRA Court Opinion, 6/20/25, at 7-8.

As explained by the PCRA court, the sentencing court’s comment did not

negate the sufficient evidence to sustain Dunkowski’s EWOC convictions.

Because Dunkowski’s claim lacks merit, counsel cannot be found to be

ineffective. See Commonwealth v. Staton, 632 Pa. 400, 427, 120 A.3d 277,

293 (Pa. 2015) (holding that counsel cannot be deemed ineffective for failing

to pursue a meritless claim). Therefore, Dunkowski is not entitled to relief on

his second claim.

In his third issue, Dunkowski claims his trial counsel was ineffective for

failing to call his eldest daughter and son (who are twins), J.D. and M.D., to

testify on his behalf.7 See Appellant’s Brief, at 22-24. He argues that counsel

was aware of their existence and willingness to testify because they were

seated outside the courtroom during trial and had spoken with defense

counsel. See id. Further, he argues that he was prejudiced because J.D. and

M.D. would have testified to their family’s homelessness and thus their father’s

lack of intent to harm his children. See id. at 24. The Commonwealth argues

that in his PCRA petition Dunkowski cited no authority and merely baldly

---

7 J.D. and M.D. were seventeen at the time of trial and were the only two
children for which Dunkowski and his wife were not facing EWOC charges.

• 10 - J-S47003-25

asserted that he was prejudiced by counsel’s failure to call his two children as

witnesses. See Appellee’s Brief, at 31.

When raising a claim of ineffectiveness for the failure to call a
potential witness, a petitioner satisfies the performance and
prejudice requirements of the Strickland test by establishing
that: (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, 600 Pa. 329, 966 A.2d
523, 536 (2009); Commonwealth v. Clark, 599 Pa. 204, 961
A.2d 80, 90 (2008). To demonstrate Strickland prejudice, a
petitioner “must show how the uncalled witnesses’ testimony
would have been beneficial under the circumstances of the case.”
Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1134
(2008). Thus, counsel will not be found ineffective for failing to
call a witness unless the petitioner can show that the witness’s
testimony would have been helpful to the defense.
Commonwealth v. Auker, 545 Pa. 521, 681 A.2d 1305, 1319
(1996). “A failure to call a witness is not per se ineffective
assistance of counsel for such decision usually involves matters of
trial strategy.” Id.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012).

The PCRA court aptly summarized how Dunkowski failed to establish

prejudice.

[Dunkowski] attached two unsigned, unverified “emails” to his
Amended PCRA Petition that are purportedly authored by his two
(then minor) children, J.D. and M.D. In sum, the letters state that
[Dunkowski] was merely trying to do his best amid serious
financial troubles and that they feel the sentence imposed by th[e
sentencing c]ourt is too severe. In his Amended PCRA Petition,
[Dunkowski] argues that these letters prove Trial Counsel should
have called J.D. and M.D. as witnesses. However, [Dunkowski]
does [not] address the fact that neither J.D. nor M.D. were in the
vehicle when the Victims were found and [Dunkowski] was
arrested. He does not address the fact that they have no first-
hand knowledge of the situation as they were both staying with

• 11 - J-S47003-25

friends at the time (as they explain in their letters). In fact,
[Dunkowski] even states that Trial Counsel decided not to call
them as witnesses as they “would be a liability, and the D.A. would
take them apart.” Ironically, [Dunkowski] does not even realize
that his own argument undermines his claim. It is clear that even
if [Dunkowski’s] claim had merit (which th[e PCRA c]ourt believes
it does not), Trial Counsel had a reasonable basis to decline to
present J.D. and M.D. as witnesses. Even if they were presented,
the Commonwealth could have easily challenged and discredited
their testimony with the plethora of photographs and statements
from individuals who had firsthand knowledge of the incident as
they were actually present at the scene of the crime.

....

[Further], it is obvious that, not only would J.D. and M.D.’s
testimony have not helped [Dunkowski], it would have most likely
actually hurt his defense.

PCRA Court Opinion, 6/20/25, at 15-16.

We agree with the PCRA court’s assessment. Dunkowski has failed to

establish how he was prejudiced by trial counsel’s failure to call J.D. and M.D.

as witnesses where their testimony would not have been helpful to his

defense. Moreover, as observed by the PCRA court, counsel had a reasonable

basis to decline to present them. Therefore, Dunkowski’s ineffective assistance

of counsel claim fails.

Moving away from the PCRA petition, in his final issue, Dunkowski raises

the sentencing court’s failure to determine his RRRI eligibility for the first time.

See Appellant’s Brief, at 5, 25-29.

Under the RRRI Act, “[a]t the time of sentencing, the court shall make

a determination whether the defendant is an eligible offender.” 61 Pa.C.S.A.

§ 4505(a). A sentencing court’s failure to assess a defendant’s RRRI eligibility

• 12 - J-S47003-25

implicates the legality of the sentence and may be raised for the first time in

PCRA review. See Commonwealth v. Finnecy, 249 A.3d 903, 912 (Pa.

2021); see also Commonwealth v. Armolt, 294 A.3d 364, 376 (Pa. 2023)

(“An appellate court may address, and even raise sua sponte, challenges to

the legality of an appellant’s sentence even if the issue [were] not preserved

in the trial court.”) (citation omitted).

The Commonwealth concedes that the sentencing court failed to

consider Dunkowski’s RRRI eligibility, which our review of the sentencing

transcript confirms. See Appellee’s Brief, at 16, 36-38. We commend the

Commonwealth for its candor in this regard. As the Commonwealth correctly

observes in its brief, although Dunkowski did not raise this issue before the

PCRA court and this failure would ordinarily result in waiver under Pa.R.A.P.

302, issues pertaining to legality of sentence can never be waived. It is

unfortunate that the PCRA court was not given the opportunity to address this

issue while the case was still before the PCRA court.

Thus, we agree that a remand is necessary solely for the sentencing

court to make the RRRI determination. Hence, in summary we affirm the PCRA

court’s order dismissing Dunkowski’s PCRA petition and vacate and remand

the judgment of sentence for the court’s limited purpose of making a RRRI

determination at sentencing.

Order affirmed. Judgment of sentence vacated. Case remanded for

proceedings consistent with this memorandum. Jurisdiction relinquished.

• 13 - J-S47003-25

Date: 3/9/2026

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