Com. v. Lang, H.

J-A20034-21

2022 PA Super 89

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HUGH J. LANG : No. 401 WDA 2020

Appeal from the Order Entered March 9, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001480-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

OPINION BY McCAFFERY, J.: FILED: May 16, 2022

The Commonwealth appeals from the order entered in the Allegheny

County Court of Common Pleas, granting Hugh J. Lang’s (Appellee’s) request

for a new trial, following his non-jury conviction of sexual crimes against a

minor. The crux of this appeal concerns the admission of evidence that

Appellee searched for legal counsel on the internet, before he was arrested or

even implicated as a suspect in the underlying crime, and the Commonwealth

used this evidence to show his consciousness of guilt. On appeal, the

Commonwealth argues the post-trial court1 erred and abused its discretion

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1 The Honorable Mark Tranquilli (trial court) presided over Appellee’s non-jury
trial, but for reasons unrelated to this matter, was removed from the bench
prior to sentencing. The case was reassigned to the Honorable Anthony M.
Mariani (post-trial court), who presided over Appellee’s sentencing hearing
and post-sentence motions, and entered the order on appeal.
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when it granted Appellee a new trial based on its determination that the

admission of this evidence violated Appellee’s constitutional due process

rights. We hold that the post-trial court did not err or abuse its discretion

when it found (1) Appellee’s constitutional due process rights were violated,

(2) the prejudicial value of the evidence outweighed its probative value, and

(3) admission of evidence was not harmless error. Accordingly, we affirm.2

In June of 2001, Appellee allegedly sexually abused R.S. (Victim) at St.

Therese Lisieux Roman Catholic parish located in Munhall, Pennsylvania. N.T.,

Non-Jury Trial, 11/6-8/19, at 100-01, 116-22. Victim did not report the abuse

until August 17, 2018, when he called a child abuse hotline, and reported that

Appellee had abused him 17 years earlier. Id. at 126, 156-57, 162-63.

Subsequently, in March 2019, Appellee was charged with attempted

aggravated indecent assault, indecent assault (three counts), indecent

exposure, corruption of minors, sexual abuse of children (photographing), and

unlawful contact with a minor 3 This case proceeded to trial on November 6,

2019, where the Commonwealth presented the following evidence:

At trial, the alleged victim testified that he had been sexually
abused by [Appellee] while [Appellee] was serving as a priest at
St. Therese Lisieux Roman Catholic parish located in Munhall,
Pennsylvania in 2001. The alleged victim testified that the abuse
____________________________________________

2 As we will discuss supra, the post-trial court also granted Appellee relief on
his claim that one of his convictions was time-barred. The Commonwealth
does not challenge that ruling on appeal.

3 18 Pa.C.S. §§ 901(a), 3126(a)(7), 3127(a), 6301(a)(1), 6312(b),
6318(a)(1).

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occurred when he was eleven years old and attending altar server
training at the church. On one of the days during altar server
training, the alleged victim and another boy had been fooling
around at lunch. According to the alleged victim, [Appellee]
approached him and appeared angry. The alleged victim was
escorted to the side entrance of the church. The alleged victim
testified that [Appellee] then led him down to a room in the
basement of the church where [Appellee] locked the door of the
room behind them. The alleged victim testified that [Appellee]
criticized the alleged victim’s dirty clothing and began tugging at
his shirt. The alleged victim testified that [Appellee] instructed
him to remove his clothes. According to the alleged victim, after
he removed his clothes, [Appellee] took a photograph of him while
he was naked.

The alleged victim testified that [Appellee] informed the
alleged victim that he was a “troublemaker” and if he [did not]
behave, [Appellee] would show the photograph to the other boys.
The alleged victim stated that he and [Appellee] sat on a bench
where [Appellee] touched his shoulder, chest and between his
buttocks. [Appellee] then opened his own pants and directed [the
alleged victim’s] hand onto [his] penis to masturbate him.
[Appellee] ejaculated on the alleged victim’s chest and leg.
[Appellee] provided the alleged victim with a handkerchief and
told the victim to clean himself. The alleged victim then returned
to the other boys who were still eating lunch. The alleged victim
did not tell anyone about this experience when it occurred.

David Hamilton testified that he was a friend of the alleged
victim when they were freshmen in high school. Hamilton testified
about an incident that occurred among a group of boys who were
drinking alcohol in a cemetery. When one of the boys made a
comment about the alleged victim’s Catholic high school and
crudely joked about priests engaging in sex abuse, the alleged
victim got very angry and stormed away from the group. Mr.
Hamilton testified that he followed the alleged victim. When Mr.
Hamilton caught up to the alleged victim, the alleged victim
recounted details similar to those he testified about at trial
concerning what had happened to him while at altar server’s
school.

Post-Trial Ct. Op., 1/7/21, at 3-4 (paragraph break inserted).

Moreover, relevant to this appeal,

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[t]he Commonwealth also admitted evidence that on July 28,
2018, the Pennsylvania Office of Attorney General publicly
released a Report which was prepared by the Fortieth Statewide
Investigating Grand Jury (hereafter, “Report”) disclosing results
of an investigation into clergy abuse in the Commonwealth of
Pennsylvania. The Report specifically named a number of priests
accused of sexual misconduct and it contained entries in which the
names of some priests were redacted. [Appellee’s] name was not
among those specifically identified in the Report. The Report
garnered significant media attention when it was released. Over
[Appellee’s] objection, the Commonwealth also sought to admit
evidence of internet searches recovered from an iPad that was
seized from [Appellee’s] residence pursuant to a search warrant.
The evidence recovered from that iPad allegedly disclosed that
internet searches were conducted for top Pittsburgh criminal
attorneys on July 29, 2018, one day after the release of the
Report. . . .

Id. at 4-5.

Appellee presented two factual witnesses — who contradicted some of

Victim’s account of the incident, such as the location of the altar serving camp,

the adults who were supervising, participants in the camp, and the type of

food provided for lunch — and three character witnesses. N.T., Non-Jury Trial,

at 388-392, 425, 446-47, 451-53, 457-58. He also testified on his own behalf,

and specifically denied ever sexually abusing Victim, and in fact, claimed he

did not know Victim. Id. at 472.

On November 8, 2019, the trial court found Appellee guilty of one count

each of unlawful contact with a minor, indecent exposure, corruption of

minors, and three counts of indecent assault.4 After the trial concluded, the

____________________________________________

4The trial court found Appellee not guilty of attempted aggravated indecent
assault and sexual abuse of children.

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trial court judge was removed, and the post-trial court judge was assigned to

Appellee’s post-trial proceedings. On February 6, 2020, the post-trial court

sentenced Appellee to an aggregate term of 9 months’ to 2 years’

incarceration, followed by 5 years’ probation. Appellee filed a timely post-

sentence motion on February 17, 2020,5 arguing (1) the statute of limitations

had run on his conviction of unlawful contact with a minor and (2) he was

entitled to a new trial based on the erroneous admission of his internet

searches under the theory of consciousness of guilt. See Appellant’s Post-

Sentence Motion, 2/17/20, at 3-7 (unpaginated). The Commonwealth did not

contest the dismissal of the unlawful contact conviction, but maintained the

trial court did not erroneously admit consciousness of guilt evidence. See

Commonwealth’s Response to [Appellant’s] Post-Sentence Motion, 3/2/20, at

2, 4-6 (unpaginated).

On March 9, 2020, the post-trial court held a hearing, and that same

day issued an order (1) dismissing Appellee’s conviction of unlawful contact

with a minor and vacating the corresponding sentence, and (2) vacating the

sentence at Appellee’s remaining counts and granting a new trial based on the

alleged erroneous admission of evidence of his internet searches. Order,

3/9/20. Specifically, the post-trial court found Appellee’s constitutional right

____________________________________________

5 Appellee was required to file post-sentence motions within 10 days of his
sentencing, or by February 16, 2020. However, that day fell on a Sunday,
and, therefore, Appellee had until the next business day, February 17, 2020,
to timely file his post-sentence motions. See 1 Pa.C.S. 1908.

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to due process was violated by the introduction of the internet search evidence

“being presented and being material to the outcome of the case” and that the

prejudicial impact of that evidence “outweighed any probative value.” N.T.,

Post-Sentence Motion H’rg, 3/9/20, at 28, 31. The Commonwealth filed this

timely appeal.6

The Commonwealth raises four issues on appeal:

1. [Whether] the [post-trial court] erred and abused [its]
discretion in entertaining a constitutional due process argument
based either on the 14th Amendment or the 6th Amendment since
trial counsel did not object to admission of evidence on those
grounds at trial. The only argument made by trial counsel was
that the evidence was not relevant because it did not prove
consciousness of guilt and that even if it did, the prejudice
outweighed the probative value. That is the only basis upon which
[the post-trial court] was permitted to make its ruling. The [post-
trial court could not] act as an advocate for [Appellee] by raising
a theory not raised at trial and newly appointed counsel could not
(and did not) raise ineffectiveness for the narrow objection made
by trial counsel.

2. [Whether] the [post-trial court] erred in finding that the [trial
court] committed reversible error in allowing the Commonwealth
to introduce, in a non-jury trial, the fact that [Appellee] conducted
an internet search for criminal defense attorneys at a point where
he was not charged with any type of criminal offense, as evidence
____________________________________________

6 On March 16, 2020, the trial court directed the Commonwealth to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal within
21 days, or by Monday, April 6th. The Commonwealth’s Rule 1925(b)
statement, however, was not filed until April 7th. Nevertheless, we note April
6, 2020, fell within the ongoing COVID-19 judicial emergency. See In re
Gen. Statewide Jud. Emergency, 228 A.3d 1283, 1285 (Pa. 2020)
(suspending all time computations from March 19, 2020, through April 3,
2020); In re Gen. Statewide Jud. Emergency, 230 A.3d 1015 (Pa. 2020)
(extending judicial emergency through June 1, 2020). Accordingly, we
conclude the Commonwealth’s Rule 1925(b) statement was timely filed.

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of consciousness of guilt. The trial court properly considered the
temporal relationship between publication of the Attorney General
Report and the internet search.

3. [Whether the post-trial court] erred in ruling that the probative
value of the evidence was outweighed by prejudice and that [the
trial court] abused [its] discretion in admitting it and in
considering it as consciousness of guilt.

4. [Whether] the [post-trial court] misinterpreted [the trial
court’s] remarks as to how [the court] would “fix” the evidentiary
problem if [it] determined the evidence should not have been
admitted. The [post-trial] court was obligated to conduct a
harmless error analysis before finding admission to be reversible
error.

Commonwealth’s Brief at 4-5 (record citations omitted).

Since all of the Commonwealth’s claims challenge the post-trial court’s

grant of a new trial based on the purported erroneous admission of evidence,

our standard of review is as follows:

With regard to the admission of evidence, we give the trial
court broad discretion, and we will only reverse a trial
court’s decision to admit or deny evidence on a showing that
the trial court clearly abused its discretion. An abuse of
discretion is not merely an error in judgment, but an
overriding misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the
evidence of the record.

Relevance is the threshold for admissibility of evidence.
Evidence is relevant if it has any tendency to make a fact more or
less probable than it would be without the evidence[,] and the fact
is of consequence in determining the action.

The court may exclude relevant evidence if its probative value
is outweighed by a danger of . . . unfair prejudice. . . .

However, [e]vidence will not be prohibited merely because
it is harmful to the defendant. [E]xclusion is limited to
evidence so prejudicial that it would inflame the jury to
make a decision based on something other than the legal

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propositions relevant to the case. . . . This Court has stated
that it is not required to sanitize the trial to eliminate all
unpleasant facts from the jury’s consideration where those
facts are relevant to the issues at hand[.]

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (citations

and quotation marks omitted).

A detailed summary of the post-trial court’s ruling is necessary to

understand the Commonwealth’s arguments on appeal. Appellee requested a

new trial based on the purported improper admission of his pre-arrest internet

searches for criminal defense attorneys. Relying on case law from other

jurisdictions,7 the post-trial court opined: “[A] violation of the Fourteenth

Amendment’s right to a fair trial and due process of law occurs when a

prosecutor is permitted to suggest to a jury that a defendant’s pre-arrest

efforts to retain an attorney are consistent with guilt.” Id. at 8-9, citing

Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990); United States ex. Rel

Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973); State v. Angel T., 973 A.2d

1207, 1220 (Conn. 2009). Thus, the post-trial court concluded that admission

of Appellee’s pre-arrest internet searches for criminal attorneys was improper.

Further, the court found the error was prejudicial, and not harmless, because

the presiding judge stated the internet search evidence was “dispositive” in

determining Appellee’s guilt. Id. at 10, 18.
____________________________________________

7 The post-trial court acknowledged “there is no binding precedent regarding
this issue in Pennsylvania.” Post-Trial Ct. Op. at 8. However, the court did
discuss, and distinguish, a non-precedential opinion published by this Court,
Commonwealth v. Brackett, 1053 EDA 2017, 2018 WL 3358603 (unpub.
memo.) (Pa. Super. July 10, 2018), which we will address infra.

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J-A20034-21

The post-trial court also concluded the internet searches were

inadmissible under the Pennsylvania Rules of Evidence. Post-Trial Ct. Op. at

15. The court found the probative value of the evidence to be “slight,”

considering the fact that Appellee was not named in the report, and was

unaware if he was even under investigation at that time. See id. at 15-16.

Further, the post-trial court concluded any probative value was “substantially

outweighed by the prejudicial impact of the evidence.” Id. at 16. Thus, the

court opined a new trial was warranted. Id. at 19.

In its first claim on appeal, the Commonwealth argues the post-trial

court abused its discretion when it granted Appellee a new trial based on

“constitutional due process arguments [Appellee] did not preserve at trial.”

Commonwealth’s Brief at 17. The Commonwealth avers that, during trial,

Appellee objected to the introduction of his internet searches for criminal

defense attorneys only on the bases of lack of foundation — which Appellee

later withdrew — relevance, unfair prejudice, and that “it does not meet the

standard [for] ‘consciousness of guilt evidence.’” Commonwealth’s Brief at 20

(record citation omitted). It maintains Appellee never objected on any

constitutional grounds, but raised them for the first time in his post-sentence

motions. Id. Furthermore, the Commonwealth insists Appellee’s post-

sentence motion did not specify “what his constitutional theory was,” but

simply cited cases that implicated his 6th Amendment right to counsel,

although it noted one case mentioned the 14th Amendment due process right

to a fair trial in dicta. Id. at 20-21. The Commonwealth emphasizes that an

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objection to the admission of evidence must (1) be made “contemporaneously

with its offering into evidence (at the latest),” and (2) state “the grounds upon

which the objection is based . . . with specificity.” Id. at 18 (citations

omitted). Thus, the Commonwealth argues the post-trial court’s ruling

constituted an abuse of discretion because it granted relief based upon

constitutional grounds that had been waived. Id. at 22-24.

We recognize that Appellee did not contemporaneously object to the

admission of his internet searches for a criminal attorney on the specific

constitutional basis upon which the post-trial court granted relief. The

Commonwealth’s first argument rests on that fact alone. However, a review

of the post-trial court’s comments at the post-sentence hearing, and its

subsequent opinion, reveals the court ultimately determined the admission of

the evidence violated Appellee’s right to due process and a fair trial because

the evidence did not, in fact, warrant an inference of consciousness of guilt —

an argument Appellee did present at trial. See Post-Trial Ct. Op. at 8-10.

At the time of trial, counsel argued, inter alia, “this evidence . . . facially

[does] not meet the standard of introduction on the basis of consciousness of

guilt.” N.T., Non-Jury Trial, at 353. A review of the post-trial court’s

comments during the post-sentence hearing reveals this determination was

the underlying basis for the court’s ruling. Indeed, the court stated that it

“wholly disagree[d]” with the Commonwealth’s assertion that the fact Appellee

conducted an internet search for criminal attorneys before he was arrested

or implicated in a crime implied he was “looking to protect himself.” See N.T.,

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Post-Sentence Motion H’rg, at 23. Rather, relying on cases from other

jurisdictions, the post-trial court found that the fact the trial court relied on

Appellee’s internet searches for an attorney as “dispositive” evidence of his

guilt, “absolutely infringe[d] on [Appellee’s] right to a fair trial” and

constituted a “due process issue[.]” Id. at 26.

Thus, because the post-trial court’s determination that Appellee’s

constitutional rights were violated was rooted in the fact that the evidence at

issue did not meet the consciousness of guilt standard, we conclude the post-

trial court did not grant relief on a waived claim.

Nevertheless, even if we were to conclude trial counsel’s failure to cite

a constitutional objection waived that specific claim, we would still conclude

the court had the authority to redress the error. First, we note that a trial

court has the authority to address a potential ineffectiveness claim on direct

appeal in limited circumstances:8

[T]here may be an extraordinary case where the trial court, in the
exercise of its discretion, determines that a claim (or claims) of
ineffectiveness is both meritorious and apparent from the record
so that immediate consideration and relief is warranted.

Commonwealth v. Holmes, 79 A.3d 562, 577 (Pa. 2013). Trial counsel’s

failure to object to a constitutional error — which the post-trial court found to

____________________________________________

8We acknowledge that here, post-sentence counsel (who did not serve as trial
counsel) did not specifically challenge trial counsel’s effectiveness in the post-
sentence motion, or during the post-sentence hearing.

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be meritorious and apparent from the record — would constitute the type of

“extraordinary case” described in Holmes.

Second, our Supreme Court permits trial courts to grant a new trial —

even sua sponte — in limited circumstances, such as, when the interests of

justice require it. See Commonwealth v. Powell, 590 A.2d 1240, 1243 (Pa.

1991). In Powell, the defendant was represented by the public defender’s

office. Id. at 1241. On the day of trial, his counsel became ill and was

replaced with substitute counsel. Id. Substitute counsel requested a

continuance to review the case properly, but the trial court denied the request.

Id. After the defendant waived a jury trial and proceeded with substitute

counsel, the trial court found him guilty of the charged offenses. Id. at 1241-

42. The defendant obtained new counsel, and filed a motion for a new trial

nunc pro tunc alleging the ineffectiveness of trial counsel. Id. at 1241. The

trial court then granted the defendant a new trial “in the interests of justice.”

Id. The Pennsylvania Supreme Court affirmed, concluding: “A trial court has

an immemorial right to grant a new trial, whenever, in its opinion, the justice

of the particular case so requires.” Id. at 1242 (citations and quotation marks

omitted) (“[T]his Court has expressly approved of a trial court’s granting a

new trial, sua sponte, for the promotion of justice, if sufficient cause exists.”).

The Court opined:

It is the trial judge’s review of the conditions and activity
surrounding the trial which leaves him or her in the best position
to make determinations regarding the fairness of the process and
its outcome. It is apparent, therefore, if a trial court
determines that the process has been unfair or prejudicial,

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even where the prejudice arises from actions of the court,
it may, in the exercise of its discretionary powers, grant a
new trial “in the interest of justice.”

* * *

This concept of “in the interest of justice” is merely a
recognition of the trial court’s discretionary power to
ensure the fairness of the proceedings during the
adjudicatory stage. . . .

Id. at 1243 (emphases added and citations omitted). Accordingly, even if we

conclude Appellee waived his constitutional objection to the admission of the

internet search evidence, the post-trial court had the authority, under Powell,

to grant a new trial sua sponte “in the interest of justice.” See Powell, 590

A.2d at 1243. The post-trial court’s conclusion in the present case — that the

admission of the internet search evidence violated Appellee’s constitutional

right to due process and a fair trial — would amount to such an “interest of

justice” determination under Powell.

Having concluded that the post-trial court did not grant Appellee relief

on a waived claim, we must now consider whether the court properly

determined that the admission of the internet search evidence violated

Appellee’s constitutional rights.

Preliminarily, we note the post-trial court explicitly stated it was not

granting relief to Appellee on 6th Amendment grounds. N.T. Post-Sentence

Motion H’rg, at 18; Post-Trial Ct. Op. at 8 n. 1. We acknowledge that the right

to counsel under the 6th Amendment does not attach until adversarial

proceedings have been initiated, which is not the case here. Commonwealth

v. Arroyo, 723 A.2d 162, 167 (Pa. 1999). However, we highlight that at the

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post-sentence motion hearing, the Commonwealth stated the “distinction”

between the present facts and a violation of the 6th Amendment occurs only

when one “actually consult[s] with an attorney.” See N.T. Post-Sentence

Motion H’rg, at 18, 24-26 (emphasis added). The Commonwealth insisted

that here, Appellee was merely searching for an attorney and, because he did

not “speak to” or “hire” counsel, it was permitted to introduce the evidence as

consciousness of guilt. Id. at 24. We conclude this is a distinction without a

difference, which knocks on the door of Appellee’s 6th Amendment right to

counsel.

Acknowledging that there is no binding precedent in Pennsylvania, the

post-trial court turned to the 14th Amendment and found that “legal authority

in other jurisdictions fully support[ed its] conclusion that [a violation of] the

Fourteenth Amendment’s right to a fair trial and due process of law occurs

when a prosecutor is permitted to suggest to a jury that a defendant’s pre-

arrest efforts to retain an attorney are consistent with guilt.” Post-Trial Ct.

Op. at 8. Our review of the legal authority cited by the post-trial court, as

well as our independent research, leads us to the same conclusion.

We now review the three cases cited by the post-trial court to support

its ruling. In Macon, the defendant sought habeas corpus relief for a

conviction of manslaughter. Macon, 476 F.2d at 614-15. During closing

argument at his jury trial, the prosecutor commented that the defendant had

called his lawyer the day after the murder — before he was charged — and

asked the jury to consider if that was an “act[ ] of innocence[.]” Id. at 614

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(emphasis omitted). The defendant argued the “the prosecutor’s statement

concerning his telephone call to counsel sought, or at least may reasonably

be expected to have tended, to raise in the minds of the jurors an inference

of guilt and, as a result, penalized him for the exercise of his constitutional

right to counsel.” Id. at 615.

The Third Circuit agreed, concluding “the prosecutor’s comment to the

jury was constitutional error.” Macon, 476 F.2d at 616. The Court opined:

“[A] prosecutor’s comment seeking to raise in the jurors’ minds an inference

of guilt from the defendant’s constitutionally protected conduct constitutes a

‘penalty’ on the free exercise of a constitutional right.” Id. at 615 (footnote

omitted). Moreover, because the credibility of the defendant was “a central

issue[,]” and the other evidence was not “‘so overwhelming’ that the

constitutional error did not . . . contribute to the conviction[,]” the Macon

Court concluded the error was not harmless; thus, the defendant was entitled

to a new trial. Id. at 616-17.

The Sixth Circuit Court of Appeals considered a similar claim in

Sizemore. In that case, the defendant, who owned part of a coal processing

plant, was involved in a dispute with local independent truck drivers, who were

protesting the plant’s hiring of out-of-state drivers. Sizemore, 921 F.2d at

668. During a confrontation, shots were fired and two truck drivers were

killed. Id. The defendant remained on the scene and spoke with a deputy

sheriff. Id. He then met with his attorney at the scene, before any charges

were filed. Id. During closing arguments, the prosecutor referred to the

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defendant’s “convenient attorney . . . who had been with him from within five

minutes of the killing to the very end.” Id. at 669 (citation omitted). The

Sixth Circuit concluded “the prosecutor’s comments could have misled the jury

and were prejudicial.” Id. at 671. The Court opined:

A prosecutor may not imply that an accused’s decision to meet
with counsel, even shortly after the incident giving rise to a
criminal indictment, implies guilt. Neither may she suggest to the
jury that a defendant hires an attorney in order to generate an
alibi, “take[ ] care of everything” or “get [his] story straight.” Such
statements strike at the core of the right to counsel, and must not
be permitted.

Id. (citations omitted). As in Macon, the Sizemore Court determined it could

not “say beyond a reasonable doubt that the prosecutor’s misconduct was

harmless error.” Id.

Lastly, the post-trial court relied upon a decision of the Supreme Court

of Connecticut in Angel T. In that case, the prosecutor elicited evidence of,

and commented during closing arguments about, “the fact that the defendant

. . . had obtained representation by an attorney during the police investigation

of the crimes at issue.” Angel T., 973 A.2d at 1210. In determining the

defendant was entitled to a new trial, the Connecticut Supreme Court noted

that the “vast majority of the federal and state courts . . . have concluded that

prosecutors may not suggest that a defendant’s retention of counsel is

inconsistent with his or her innocence.” Id. at 1218 (footnote omitted). The

Court held:

We agree with those jurisdictions that have concluded that
a prosecutor violates the due process clause of the [F]ourteenth

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[A]mendment when he or she elicits, and argues about, evidence
tending to suggest a criminal defendant’s contact with an attorney
prior to his arrest. In our view, this prohibition necessarily is
founded in the [F]ourteenth [A]mendment due process
assurances of a fair trial under which proscriptions on
prosecutorial impropriety are rooted generally. Indeed, the
[S]ixth [A]mendment right to counsel does not attach until the
commencement of adversary judicial proceedings via the filing of
the information at arraignment; and the separate and distinct
[F]ifth [A]mendment right to counsel is limited to custodial
interrogations by government agents, a situation not implicated
in the present case, wherein the defendant had not made any
statement to law enforcement authorities. Thus, because these
particularized rights had not yet attached when the defendant
contacted his attorney, they are not implicated directly by the
prosecutor’s conduct in the present case. Nevertheless, we are
mindful that [m]ost jurors . . . are not schooled in the law; and
that from such evidence and arguments, a juror might easily draw
the inference . . . that it was [the defendant’s] idea to seek counsel
because he had done something for which he needed a lawyer to
defend him. Accordingly, we view [e]vidence of a criminal
defendant’s consultation with an attorney [as] highly prejudicial,
as it is likely to give rise to the improper inference that a defendant
in a criminal case is, or at least believes himself to be, guilty.

Id. at 1220-21 (citations, quotation marks, and footnotes omitted) (emphasis

in original). Moreover, similar to Macon and Sizemore, the Angel T. Court

concluded the constitutional error was not harmless. See id. at 1228.

Our independent research has uncovered additional authority from other

jurisdictions in support of the post-trial court’s position. See Marshall v.

Hendricks, 307 F.3d 36, 70-71, 76 (3rd Cir. 2002) (concluding prosecutor’s

comments pertaining to defendant’s acquisition of counsel before arrest to

imply his guilt were “improper,” but nonetheless constituted harmless error);

Savidge V. Ryan, 2010 WL 2822783, at *5, *10, *16 (E.D. Cal., July 15,

2010) (concluding that prosecutor’s comments implying guilt from defendant’s

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choice to contact legal counsel after being accused of, but before being

arrested for, sexual misconduct were improper and not harmless error);

Commonwealth v. Person, 508 N.E.2d 88, 91-92 (Mass. 1987)

(prosecutor’s closing argument that “sought to have the jury draw an

inference of guilt from the defendant’s decision to consult an attorney

promptly after [a] shooting” constituted prejudicial error justifying the grant

of a new trial).

We recognize that these decisions are not binding precedent on this

Court. See Commonwealth v. Arthur, 62 A.3d 424, 429 n. 9 (Pa. Super.

2013) (decisions of federal courts, as well as those from “sister states,” are

not binding on this court, but may be used as persuasive authority).

Nevertheless, we may consider federal court decisions, and opinions of other

states, as persuasive authority. See id. As noted above, the only

Pennsylvania case to discuss on its merits pre-arrest efforts to obtain counsel

is Brackett, an unpublished memorandum decision of this Court. 9 The

____________________________________________

9 We acknowledge our Supreme Court faced a similar set of facts in
Commonwealth v. Colavita, 993 A.2d 874 (Pa. 2010). However, it
determined the issue was waived.

In Colavita, the defendant contacted an attorney regarding his
involvement in a murder about two days after the incident, but before he was
accused of or arrested for any criminal activity. Colavita, 993 A.2d at 879-
80. Both the Commonwealth and defense counsel addressed his pre-arrest
contact with legal counsel in their arguments and the defendant did not object
to the Commonwealth’s comments on any basis. Id. at 881. In fact, defense
counsel asserted the defendant’s actions did not demonstrate the malice

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Commonwealth asserts, in a footnote, that the facts in Brackett are

“substantially similar” to those before us, and, in that case, the panel ruled

that evidence of the defendant’s internet searches for an attorney prior to his

arrest “was sufficiently relevant and not so unfairly prejudicial such that it was

admissible.” Commonwealth Brief at 33 fn. 9 (citation omitted). We agree

with the post-trial court’s determination that Brackett is not controlling under

the circumstances presented sub judice. See Post-Trial Ct. Op. at 10-12.

In Brackett, the defendant, an employee at a facility with minor

students, was accused of sexual misconduct with one of the students.

Brackett, 2018 WL 3358603 at *1. After another student notified the facility

director of potential sexual misconduct between the defendant and victim, the

facility director confiscated the victim’s phone and notified police of the

situation. Id. The facility director gave the phone to police and indicated that

____________________________________________

required for third degree murder. Id. at 882. On direct appeal, this Court
affirmed the judgment of sentence.

The defendant filed a petition under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546, alleging ineffective assistance for failure to
object to the Commonwealth’s comments under the 6th Amendment.
Colavita, 993 A.2d at 882. The PCRA court denied the defendant’s petition
and he appealed to this Court. Id. at 882-83. This Court concluded the
defendant’s trial counsel was ineffective and granted him relief stating the
Commonwealth’s reference to pre-arrest contact with legal counsel violated
his right to due process under the 14th Amendment. Id. at 884.

However, our Supreme Court ultimately concluded the defendant had
waived this issue for lack of preservation and declined to address the claim on
its merits. Colavita, 993 A.2d at 898. Thus, Colavita is distinguishable from
the present case due to the differing procedural posture.

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the victim and defendant discussed instances of sexual misconduct and

exchanged naked images and sexually explicit text messages. Id. The victim

called the defendant using another phone to notify him the facility director

confiscated her phone with these text messages. Id. The defendant was

placed on administrative suspension. Id. After becoming aware of the

accusations of sexual misconduct against him, the defendant conducted

internet searches for, inter alia, criminal defense attorneys for sex crimes. Id.

At the defendant’s subsequent trial, the court, over his objection, admitted

evidence “of the online searches [the defendant] conducted after he became

aware that he was the subject of a police investigation.” Id. at *3 (footnote

omitted).

On direct appeal, a panel of this Court affirmed the trial court’s decision

to admit evidence of the defendant’s internet searches. The Brackett panel

concluded the evidence “provided insight as to [the defendant’s] state of mind

. . . following his initial notification from [the victim] that [her] cell phone . . .

had been confiscated by [the facility director.]” Brackett, 2018 WL 3358603

at *5. The panel further opined “[t]he jury could reasonably infer from the

content of the cellular evidence that [the defendant] was concerned about

inculpatory evidence being recovered from [the] cell phone[.]” Id. Thus, the

panel discerned no abuse of discretion in the trial court’s ruling admitting the

evidence. Id.

As noted above, the post-trial court in the present case “did not find

Brackett persuasive” authority for several reasons. Post-Trial Ct. Op. at 11.

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First, it noted that Brackett is “a non-precedential decision and not binding”

on the post-trial court. Id. Second, the defendant in Brackett “was fully

aware that he was accused of sexual misconduct” at the time he conducted

the internet searches at issue — unlike Appellee, herein, who searched for

criminal attorneys after the Report was published, but before he was

implicated in any crime. Id. Third, the post-trial court emphasized that the

Brackett panel “never analyzed [the defendant’s] claims under the

Fourteenth Amendment or any other constitutional provision.” Id.

We agree with the post-trial court’s conclusions. Namely, here, unlike

in Brackett, Appellee had not been accused of any crime when he conducted

the internet search for criminal defense attorneys. Indeed, there was no

mention of him in the Report, nor any indication that he would be later

implicated in any criminal offense. Thus, we agree the evidence of his internet

searches would not provide “insight as to [his] state of mind” following an

accusation of criminal behavior, unlike the defendant in Brackett. See

Brackett, 2018 WL 3358603, at *5. Therefore, even if Brackett were a

precedential decision, it would not be controlling as it is clearly distinguishable

from the facts at issue.

Thus, we conclude the post-trial court properly determined the

admission of evidence of Appellee’s internet searches for criminal defense

attorneys, before he was charged or implicated in any offenses, violated his

constitutional right to due process and a fair trial. Furthermore, we agree with

the post-trial court’s determination that the error was not harmless — and in

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fact, was prejudicial — based upon the trial court’s (i.e. fact finder’s)

statement that this evidence was “dispositive” in reaching its guilty verdict.

See Post-Trial Ct. Op. at 10, 12; see also N.T., Non-Jury Trial, at 567-68

(“It’s significant to this Court and, in fact, dispositive to this Court, that

[Appellee] was searching for attorneys the day after the published report was

released . . . and that, in fact, he was concerned that his name was one of the

names that was redacted.”) (emphasis added). The Commonwealth suggests

the court simply meant that the internet search evidence was “the final piece

of evidence that convinced [it] beyond a reasonable doubt[.]”

Commonwealth’s Brief at 39 (quotation marks omitted). We disagree. As the

post-trial court explained, “in common legal parlance[, dispositive] means that

it was the determining factor that resolved the relevant legal issue before

the trial court.” Post-Trial Ct. Op. at 10 (emphasis added); see also

Dispositive, Black’s Law Dictionary (11th ed. 2019) (defining dispositive as

“[b]eing a deciding factor; (of a fact or factor) bringing about a final

determination”).

Accordingly, we conclude the post-trial court did not abuse its discretion

when it found the admission of evidence of Appellee’s internet searches for

criminal attorneys violated his constitutional right to due process and a fair

trial, and that the error was prejudicial so that Appellee is entitled to a new

trial.

In its next two claims, the Commonwealth argues the post-trial court

also abused its discretion when it determined the admission of Appellee’s

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internet search evidence violated the Pennsylvania Rules of Evidence because

it was not relevant and was unfairly prejudicial. Commonwealth’s Brief at 26,

34.

As discussed above, the admission of evidence is within the broad

discretion of the trial court. Talbert, 129 A.3d at 539. After concluding

evidence meets the threshold for relevancy, the trial court must determine

whether it is unfairly prejudicial to the defendant. Id.; Pa.R.Ev. 403 (relevant

evidence may be excluded if it will cause unfair prejudice). While the trial

court need not “sanitize” the record of all negative inferences against a

defendant, it must preclude evidence that would “inflame” the fact finder into

“mak[ing] a decision based on something other than the legal propositions

relevant to the case.” Talbert, 129 A.3d at 539.

Here, the post-trial court concluded “the probative value of the internet

searches was slight and the potential prejudicial impact of the evidence

substantially outweighed whatever probative value existed.” Post-Trial Ct.

Op. at 15. Further, the post-trial court questioned the Commonwealth’s

argument that Appellee’s searches showed consciousness of guilt when

“[Appellee] had no specific reason to believe that he was or would be under

investigation for any type of sex offense.” Id. at 15-16. The post-trial court

concluded that because the alleged victim did not accuse Appellee of any

criminal activity “until long after” the internet searches, there was no

“sufficient nexus” between the events, and, thus the evidence was not

relevant nor did its probative value outweigh its prejudicial impact. Id. at 16.

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We agree with the post-trial court that the prejudicial impact of the

evidence far outweighed its probative value. As discussed supra, the trial

court found the internet searches “dispositive” in its decision. Post-Trial Ct.

Op. at 10, 12; N.T., Non-Jury Trial, at 567-68 (“It’s significant to this Court

and, in fact, dispositive to this Court, that [Appellee] was searching for

attorneys the day after the published report was released[.]”) (emphasis

added). Therefore, it is clear this evidence tipped the trial court’s decision in

favor of the Commonwealth. Further, without a sufficient nexus to prove

consciousness of guilt - the purpose for which the Commonwealth sought to

admit the evidence - it was not relevant to Appellee’s guilt. Accordingly, there

can be no question that this erroneously admitted evidence prejudiced

Appellee at his bench trial.

In its final claim on appeal, the Commonwealth contends the post-trial

court neglected to conduct a harmless error analysis before granting Appellee

a new trial, and violated the coordinate jurisdiction rule. Commonwealth’s

Brief at 43. The Commonwealth avers that, although the post-trial court did

provide a harmless error analysis in its opinion, it was “infected with

[Appellee’s] unpreserved constitutional arguments[.]” Id. Ultimately, the

Commonwealth argues this Court should “disregard [the post-trial court’s]

harmless error analysis” because “no error occurred, so a harmless error

analysis is not needed.” Id. at 45. The Commonwealth further maintains the

post-trial court “violated the coordinate jurisdiction rule” because it had “no

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basis” to “overrule [the trial court’s] finally-decided legal question.” Id. at

47-48.

We agree with the post-trial court’s conclusion that “it is patently clear

that the erroneous admission of the evidence of the internet searches for

attorneys cannot be harmless error” when the trial court ruled the searches

were “dispositive” to its determination of guilt. Post-Trial Ct. Op. at 18. At

the time it rendered its verdict, the trial court explained:

[ ] I cannot say that I find that [Appellee] is a career pedophile
[b]ecause I do not believe that to be the case. But I did watch
him when he was on the stand, and when cross-examination
started about those [i]nternet searches on July 29th, the [c]ourt
detected a marked change in [Appellee’s] demeanor consistent,
not with an innocent individual, but rather, with a guilty individual.

N.T., Non-Jury Trial, at 568. The trial court then continued, stating it was “led

to the inescapable conclusion” that Appellee was guilty. Id. The post-trial

court’s harmless error analysis and consideration of constitutional factors was

proper and did not “infect” the analysis as the Commonwealth suggests.

Further, “an error can be harmless only if the . . . court is convinced beyond

a reasonable doubt that the error is harmless.” Commonwealth v. Story,

383 A.2d 155, 162 (Pa. 1978) (footnote omitted). “[T]he burden of

establishing that the error was harmless beyond a reasonable doubt rests with

the Commonwealth.” Id. at 162 n. 11. Here, the Commonwealth presents

no argument to satisfy its burden. Instead, it rests upon its assertion that no

harmless error review was necessary because no error occurred.

Commonwealth Brief at 45.

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With regard to the Commonwealth’s assertion that the coordinate

jurisdiction rule was violated, we note that “[g]enerally, judges of coordinate

jurisdiction sitting in the same case should not overrule each other’s

decisions.” Commonwealth v. McCulligan, 905 A.2d 983, 987 (Pa. Super.

2006) (citations and quotation marks omitted). However, the rule permits a

post-trial court to correct “a mistake made by the trial judge during the trial

process.” Id. (citation omitted). To disregard a post-trial court’s authority

“to overrule legal errors made during the trial process . . . would render the

post-trial motion rules meaningless.” Id. (citation omitted).

Here, the Commonwealth contends the post-trial court violated the

coordinate jurisdiction rule simply because it insists the post-trial court’s ruling

was incorrect. Indeed, it argues the trial court determined that the internet

search evidence was admissible, and thus, the post-trial court had “no basis .

. . to come swooping in during post-sentence motions and overrule a judge of

coordinate jurisdiction on a finally-decided legal question.” Commonwealth’s

Brief at 48. As explained above, we agree with the post-trial court’s ruling

that the trial court admitted the evidence in error. Accordingly, there is no

violation of the coordinate jurisdiction rule. See McCulligan, 905 A.2d at

987.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2022

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