Com. v. Kuder, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

WILLIAM KUDER,

Appellant No. 379 EDA 2017

Appeal from the PCRA Order Entered December 27, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006864-2010

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 30, 2017

Appellant, William Kuder, appeals from the post-conviction court’s December 27, 2016 order denying his timely-filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

The PCRA court set forth a detailed summary of the facts and procedural history of Appellant’s case, which we need not reproduce herein. See PCRA Court Opinion (PCO), 3/24/17, at 1-4. We only note that in June of 2002, Appellant sexually assaulted K.P., a 12-year-old male. K.P. did not tell anyone about the abuse until eight years later. During the investigation of K.P.’s allegations, an order was obtained from a Court of Common Pleas judge that permitted K.P. to wear a recording device inside Appellant’s home. During the

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intercepted conversation between Appellant and K.P., Appellant made incriminating statements regarding the assaults.

Prior to Appellant’s trial, he filed a motion to suppress the recording of his conversation with K.P. Following a suppression hearing, the trial court denied that motion and Appellant’s case proceeded to a jury trial in June of 2011. At the close thereof, Appellant was convicted by a jury of attempted involuntary deviate sexual intercourse (complainant less than 16 years of age), 18 Pa.C.S. § 3123(a)(7); two counts of indecent assault (complainant less than 16 years of age), 18 Pa.C.S. § 3126(a)(8); and two counts of indecent exposure, 18 Pa.C.S. § 3127(a). On September 16, 2011, Appellant was sentenced to an aggregate term of 3 to 10 years’ incarceration. He filed a timely notice of appeal, and after this Court affirmed his judgment of sentence in a published opinion, our Supreme Court denied his subsequent petition for allowance of appeal. Commonwealth v. Kuder (“Kuder I”), 62 A.3d 1038 (Pa. Super. 2013), appeal denied, 114 A.3d 416 (Pa. 2015).

On December 18, 2015, Appellant filed a pro se PCRA petition. Counsel subsequently entered her appearance on Appellant’s behalf and filed an amended petition. Appellant’s claims all involved assertions of trial/appellate counsel ineffectiveness. Following an evidentiary hearing, the PCRA issued an order on December 27, 2016, denying Appellant’s petition. Appellant filed a timely appeal, and he also timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court filed a responsive opinion on March 24, 2017.

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Herein, Appellant presents five issues for our review:

I. Did the PCRA court err in finding that trial counsel did not violate Appellant’s Sixth Amendment right under the U.S. Constitution and Article 1 § 9 of the Pennsylvania Constitution to effective assistance of counsel when he failed to present available statements at the pretrial suppression hearing rebutting the [Commonwealth’s] claim that there was probable cause for the Wiretap intercept because a ‘close and ongoing relationship’ between Appellant and the victim still existed?

II. Did the PCRA court err in finding that Appellant’s constitutional rights under the Sixth and Fourteenth Amendments of the U.S. Constitution and Article 1 § 9 of the Pennsylvania Constitution were not violated when appeals counsel ineffectively abandoned the claim that Judge Bateman lacked lawful written authority from the President Judge to issue the one-party consent wiretap intercept Order?

III. Did the PCRA court err in finding trial counsel was not ineffective under the Sixth Amendment of the U.S. Constitution and Article 1 § 9 of the Pennsylvania Constitution for failing to argue that there were additional procedural errors which violated the Wiretap Act and should have resulted in … suppression?

IV. Did the PCRA court err in finding that trial counsel was not ineffective under the Sixth Amendment of the U.S. Constitution and Article 1 § 9 of the Pennsylvania Constitution for opening the door to prejudicial cross-examination by the prosecutor of character witnesses Black and Lockard?

V. Did the PCRA court err in finding that Appellant’s constitutional rights were not violated by the cumulative prejudicial effect that counsel’s ineffective assistance … caused?

Appellant’s Brief at 3.

“This Court’s standard of review from the grant or denial of post-conviction relief is limited to examining whether the lower court’s determination is supported by the evidence of record and whether it is free of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

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(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner claims that he received ineffective assistance of counsel, our Supreme Court has directed that the following standards apply:

[A] PCRA petitioner will be granted relief only when he proves, by a preponderance of the evidence, that his conviction or sentence resulted from the “[i]neffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to rebut that presumption, the PCRA petitioner must demonstrate that counsel’s performance was deficient and that such deficiency prejudiced him.” [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In Pennsylvania, we have refined the Strickland performance and prejudice test into a three-part inquiry. See [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to prove counsel ineffective, the petitioner must show that: (1) his underlying claim is of arguable merit; (2) counsel had no reasonable basis for his action or inaction; and (3) the petitioner suffered actual prejudice as a result. Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to prove any of these prongs, his claim fails.” Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation omitted). Generally, counsel’s assistance is deemed constitutionally effective if he chose a particular course of conduct that had some reasonable basis designed to effectuate his client’s interests. See Ali, supra. Where matters of strategy and tactics are concerned, “[a] finding that a chosen strategy lacked a reasonable basis is not warranted unless it can be concluded that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.” Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks omitted). To demonstrate prejudice, the petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation, quotation marks, and citation omitted). “‘[A] reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the

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proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

In Appellant’s first issue, he argues that his trial counsel acted ineffectively by not presenting, at the suppression hearing, evidence to demonstrate that he and K.P. did not have a ‘close and ongoing relationship’ at the time that K.P. wore a recording device into Appellant’s home and intercepted their conversation. Specifically, Appellant claims that his attorney should have called Appellant’s “wife, K.P., K.P.’s mother, father, and/or brother to testify at the suppression hearing….” Appellant’s Brief at 21. According to Appellant, the testimony of these witnesses would have established “that the last contact between Appellant and K.P. and his family was in 2002 and that it ended on a bad note.” Id. Appellant maintains that such evidence would have demonstrated that the order permitting the wiretap intercept inside Appellant’s home was not supported by probable cause.

We assessed in Kuder I “whether sufficient probable cause was offered to support the interception” inside Appellant’s home. The Kuder I panel began by summarizing the pertinent law regarding the Wiretap Act, 18 Pa.C.S. §§ 5701-5782, as follows:

Generally, the Wiretap Act prohibits the interception, disclosure, or use of any wire, electronic, or oral communication. 18 Pa.C.S. § 5703. The Act places great emphasis on the protection of privacy interests inherent in one’s communications. See generally Commonwealth v. De Marco, 396 Pa. Super. 357, 578 A.2d 942, 949 (1990). Relevant to the instant case, the Act provides as follows:

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§ 5704. Exceptions to prohibition of interception and disclosure of communications.

It shall not be unlawful and no prior court approval shall be required under this chapter for:

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(2) Any investigative or law enforcement officer or any person acting at the direction or request of an investigative or law enforcement officer to intercept a wire, electronic or oral communication involving suspected criminal activities, including, but not limited to, the crimes enumerated in section 5708 (relating to order authorizing interception of wire, electronic or oral communications), where:

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(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be made, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception; however, such interception shall be subject to the recording and record keeping requirements of section 5714(a) (relating to recording of intercepted communications) and that the Attorney General, deputy attorney general, district attorney, or assistant district attorney authorizing the interception shall be the custodian of recorded evidence obtained therefrom;

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(iv) the requirements of this subparagraph are met. If an oral interception otherwise authorized under this paragraph will take place in the home of a nonconsenting party, then, in addition to the requirements of subparagraph (ii), the interception shall not be conducted until an order is first obtained from the president judge, or his designee who also

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shall be a judge, of a court of common pleas, authorizing such in-home interception, based upon an affidavit by an investigative or law enforcement officer that establishes probable cause for the issuance of such an order. No such order or affidavit shall be required where probable cause and exigent circumstances exist. For the purposes of this paragraph, an oral interception shall be deemed to take place in the home of a nonconsenting party only if both the consenting and nonconsenting parties are physically present in the home at the time of the interception.

18 Pa.C.S. § 5704. Kuder I, 62 A.3d at 1044-45.

Specifically regarding the probable cause requirement for a wiretap order, the Kuder I panel stated the following:

Section 5710 of the Act authorizes a judge, upon application, to enter an order permitting the interception of a communication when there is probable cause to believe that six conditions exist. 18 Pa.C.S. § 5710(a)(1–6). One such condition is that probable cause exists to believe that “particular communications concerning [an offense described in section 5708] may be obtained through such interception.” 18 Pa.C.S. § 5710(a)(2). Although Appellant does not specifically cite this section, his argument centers on the alleged lack of probable cause to believe that Appellant would discuss any past criminal activity, if approached by K.P., especially because the conversation would occur eight years after the crimes were alleged to have occurred. Brief for Appellant at 15–16 (“There were simply no facts or circumstances, set out in the Affidavit of Probable Cause herein ... from which it could reasonably be concluded that there was probable cause to believe that sending [K.P], unannounced and 8 years later, to [Appellant’s] house would result in a conversation about ‘suspected criminal activity.’”).

Both Appellant and the Commonwealth cite Commonwealth v. McMillan, 13 A.3d 521 (Pa. Super. 2011). Appellant attempts to distinguish the case, while the Commonwealth argues that it controls the instant matter.

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In McMillan, the appellant challenged the trial court’s refusal to suppress evidence obtained pursuant to the Wiretap Act. The evidence was used to convict the appellant of various sex-related crimes. The appellant was a high school choir director who engaged in an inappropriate sexual relationship with the victim, a fourteen-year-old girl. Id. at 522. The abuse commenced in 2004, and ended in 2006 when rumors began to spread about the illicit relationship. Id. at 523. After being repeatedly pressured by her aunt, the victim eventually admitted to the relationship. In May 2008, after facially complying with all of the Act’s application requirements, law enforcement officers obtained approval to intercept a phone conversation between the appellant and the victim, who consented to the interception. We described the phone conversation as follows:

After [the victim] indicated she was upset about the rumors circulating about their sexual encounters, she asked [the appellant] if he had told anyone about them. [The appellant] repeatedly denied telling anyone, but empathized with [the victim’s] feelings, especially since people were discussing the situation four years later. When asked if he had sex with any other students, [the appellant] answered in the negative. [The appellant] asked [the victim] to keep him updated on the situation. Id.

We rejected the appellant’s argument that law enforcement lacked reasonable grounds4 to establish that he would discuss “suspected criminal activities.” The appellant argued that, because the relationship had ended in 2006, it was unreasonable to believe that he would discuss such remote criminal conduct nearly two years later in a telephone conversation. We rejected that argument based upon detectives’ belief that the appellant would talk about the incident because of his mentor-type relationship with the victim. We found it especially important that there was no evidence suggesting that any negative feelings existed between the appellant and the victim that would prevent the appellant from talking to her. Id. at 525–26. 4 In McMillan, we repeatedly referred to “reasonable grounds”, instead of probable cause. The previous version of 18 Pa.C.S. § 5721.1, which authorizes an aggrieved party to seek suppression of improperly intercepted evidence, did not contain the term “probable cause.” This section was amended in 1998, and incorporated the term “probable cause” to serve as the governing standard for challenging

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an interception under the Act. Our cases arising prior to the amendment held that the standard was “reasonable grounds.” See Commonwealth v. Phillips, 373 Pa. Super. 193, 540 A.2d 933, 937 (2008). For all practical purposes, the terms are interchangeable, as is evidenced by our decision in McMillan, which was published approximately 13 years after the amendments.[1]

Contrary to Appellant’s assertions in the instant case, we assigned no particular significance in McMillan to the time that had elapsed between the end of the sexual relationship and the time when the interception actually occurred. Rather, the controlling factor in McMillan was the nature of the connection between the appellant and the victim, which was akin to a mentor-mentee and teacher- pupil relationship. For this reason, we agree with the Commonwealth that McMillan controls the outcome of the instant case.

There is no doubt that Appellant and K.P. had a mentor-mentee relationship, much like the relationship we found controlling in McMillan. Additionally, the affidavit attached to the Commonwealth’s application for a court order authorizing the interception in this case stated that Appellant was a long-time friend of K.P.’s parents. The affidavit further included a description of how the relationship between Appellant and K.P. stemmed from a mutual interest in computers, which eventually turned the relationship into a teacher-pupil type connection. Unfortunately, it was during the computer sessions that the sexual incidents occurred. Finally, as in McMillan, no evidence existed to suggest that Appellant harbored any negative feelings toward K.P. that would have caused Appellant to wish not to discuss any particular matters with K.P. While it is true that Appellant became extremely angry with K.P. between the incidents, it is clear that the anger was related to K.P.’s refusal to return to Appellant's home after the first sexual assault. Despite his trepidations, K.P. returned to the home a second time and was sexually assaulted a second time. There is no evidence of ____________________________________________

1 Herein, Appellant argues “that the [Kuder I panel] erred and violated Appellant’s Fourth Amendment rights by finding pursuant to McMillan that the term ‘reasonable grounds’ is interchangeable with ‘probable cause[.’]” Appellant’s Brief at 20 n.4. We decline to address Appellant’s argument in support of this claim, as this panel cannot overturn the Kuder I panel’s decision in this regard.

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record that Appellant’s anger persisted once K.P. relented to Appellant's desire for him to return, or that any other negative feelings persisted after the second assault that would lead the issuing authority to believe that Appellant would refuse to speak with K.P.

Viewing this information in a “common-sense, non-technical manner,” see Commonwealth v. Hoppert, 39 A.3d 358, 362 (Pa. Super. 2012) (quotation and citation omitted), and drawing upon our decision in McMillan, we find that probable cause existed to believe that communications relevant to Appellant’s sexual crimes would have been obtained through the interception. See 18 Pa.C.S. § 5710(a)(2). We are not convinced that the time period between the crimes and the interception, even though that gap was much longer here than in McMillan, compels a different conclusion. Absent the close and ongoing relationship between Appellant and K.P. and K.P.'s family, the temporal aspect of Appellant's argument might be more persuasive. Nonetheless, that relationship did exist in this case and compels our probable cause determination. Accordingly, the trial court did not err in denying Appellant's suppression motion.

Kuder I, 62 A.3d at 1046–48 (emphasis added).

Based on the above-emphasized language in Kuder I, Appellant now argues that, had his trial counsel presented evidence that his and K.P.’s relationship had soured prior to the intercept in 2010, probable cause would not have been found to support the wiretap order. For instance, Appellant claims that counsel should have presented evidence that K.P.’s mother and father told police that after K.P. went to Appellant’s home several times, K.P. suddenly did not want to go back and their friendly relationship with Appellant’s family “broke off….” Appellant’s Brief at 22 (citation to the record omitted). Appellant also claims that counsel should have presented evidence that K.P.’s brother told police that “his mother stopped him from going over to [Appellant’s house] after [Appellant] ‘freaked’ out on him when he was

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power washing his dirt bike one day.” Id. (citation to the record omitted). Additionally, Appellant maintains that his trial counsel should have presented evidence that Appellant’s wife, Karen Kuder, told police that Appellant’s and K.P.’s relationship had grown “distant … and continued to drift apart as their respective families grew.” Id. Appellant maintains that these witnesses’ statements to police, and/or similar testimony at the suppression hearing, would have demonstrated that there was no ‘close and ongoing’ relationship between Appellant and K.P. at the time of the wiretap interception in 2010 and, consequently, that there was no probable cause to justify that intercept.

Appellant’s argument fails for several reasons. Initially, Appellant incorrectly asserts that the Wiretap Act requires a ‘close and ongoing’ relationship. Specifically, Appellant argues that “the wording of the statute … requires evidence of both a ‘close’ and an ‘ongoing’ relationship. Not one or the other. Both.” Appellant’s Brief at 24 (emphasis in original). Curiously, Appellant fails to cite to any provision of the Wiretap Act that purportedly contains the probable cause requirement of a ‘close and ongoing’ relationship. Our review of the statute confirms that no such mandate exists. Rather, the ‘close and ongoing’ relationship language was first utilized in McMillan, and later reiterated in Kuder I, as a factor supporting probable cause, not an element required to establish it. Thus, we are unconvinced by Appellant’s argument that, had trial counsel refuted that factor alone, the suppression court would have necessarily found there was no probable cause to support the intercept order.

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Moreover, we are also unpersuaded by Appellant’s argument that the above-discussed evidence would have convinced the Kuder I panel that no ‘close and ongoing’ relationship existed between Appellant and K.P. at the time of the intercept. As the PCRA court points out, Appellant himself testified at trial that he

“had told [K.P.] many years ago that if [K.P.] ever needed to talk to somebody that [K.P.] was always welcome at [Appellant’s] house and [Appellant] would always be a sympathetic ear.” N.T. 6/2/2011 pp. 142-43. [Appellant] continued, “I would not let [K.P.] down if he had come to me for help.” Id. at 144.

PCO at 8 (emphasis added). Appellant offered this testimony to “explain away that he ‘confessed’ to the sexual assault in an attempt to help K.P. work through ‘problems’ K.P. so personally and privately confided in [Appellant] years prior.” Id. The PCRA court concluded that Appellant’s trial testimony was “in direct contrast” to his argument that no “close and ongoing” relationship existed between himself and K.P. when the interception occurred in 2010.

Appellant now argues that “[t]he PCRA [c]ourt’s reliance on what Appellant testified to [at trial] is in error.” Appellant’s Brief at 26 n.7. According to Appellant, it was “inappropriate for the PCRA [c]ourt to use [his] trial testimony to justify a ruling made before that testimony had even been given.” Id. However, Appellant ignores that, at the time of our decision in Kuder I, we were permitted to “consider the evidence presented both at the suppression hearing and at trial” when reviewing a trial court’s ruling on a

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suppression motion.2 Kuder I, 62 A.3d at 1045-46 (emphasis added) (citations omitted). Appellant’s trial testimony demonstrated that, at least in his mind, he and K.P. had a ‘close and ongoing’ relationship, which included an open invitation to K.P. to come to Appellant’s house to talk with him about personal issues. This testimony contradicts the statements by Appellant’s wife, and K.P.’s mother, father, and brother, and was sufficient to establish that Appellant believed there was a ‘close and ongoing’ relationship between him and K.P. in 2010. Thus, Appellant has failed to demonstrate that, had counsel presented evidence to refute his ‘close and ongoing’ relationship with K.P., that our holding in Kuder I would have changed. Accordingly, Appellant’s first ineffectiveness claim is meritless.

In regard to Appellant’s second through fifth issues, we have reviewed the certified record, the briefs of the parties, and the applicable law. We have also reviewed the thorough opinion of the Honorable Brian T. McGuffin of the Court of Common Pleas of Bucks County. We conclude that Judge McGuffin’s well-reasoned decision properly disposes of Appellant’s remaining issues, and ____________________________________________

2 We recognize that this scope of review changed eight months after Kuder I was decided, when our Supreme Court issued In re L.J., 79 A.3d 1073 (Pa. 2013), on October 30, 2013. In that case, the Court held that an appellate court’s scope of review from a suppression ruling is limited to the evidentiary record of the suppression hearing. Id. at 1087. The In re L.J. Court explicitly declared that its holding was prospective only, meaning that the decision applied to the parties in In re L.J. “and all litigation commenced thereafter.” Id. at 1089 n. 19.

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we adopt that portion of his opinion as our own. See PCO at 9-18.3 Therefore, we affirm the order denying Appellant’s petition on that basis, as well as for the reasons set forth herein.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/30/2017 ____________________________________________

3 We recognize, however, that in rejecting Appellant’s second ineffectiveness claim, Judge McGuffin improperly relies, in part, on an unpublished memorandum decision by this Court. See PCO at 10-11. We do not adopt that aspect of Judge McGuffin’s decision, as our Internal Operating Procedures prohibit any court from citing to, or relying on, an unpublished memorandum decision of this Court. See 210 Pa. Code § 65.37 (“An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding….”).

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