Com. v. Kuder, W.

J-S53014-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

***

(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:

***

(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;

***

(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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