Com. v. Arndt, S. ( 2016 )

J. S14004/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHAWN ANTHONY ARNDT, : No. 369 MDA 2015
:
Appellant :
Appeal from the PCRA Order, January 26, 2015,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0004896-2009
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J. AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 21, 2016
Shawn Anthony Arndt appeals from the order of January 26, 2015,
dismissing his PCRA1 petition. We affirm.
The facts of this case were set forth in this court’s memorandum
opinion of July 18, 2012, affirming the judgment of sentence.
In 1999, Appellant married A.A., who had a
son, X.E., with another man, and, afterwards,
Appellant and A.A. had a daughter together while
living in York County. At trial, X.E. testified that in
2007, when the victim was fourteen years old,
Appellant initiated a sexual relationship with him that
spanned approximately one and one-half years.
Specifically, on occasions “too many to count,” they
engaged in mutual masturbation where Appellant
would masturbate the boy and vice versa, until they
both ejaculated. N.T. Trial, 8/18-20/10, at 125. At
* Retired Justice specially assigned to the Superior Court.
1
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S14004/16
some point during this period, Appellant asked X.E. if
he could perform fellatio on the boy. X.E. related, “I
was reluctant at first, but then he offered me $20,
and then I said yeah.” Id. at 128. Appellant
performed oral sex on his stepson numerous times
while X.E. performed fellatio on Appellant on three or
four occasions. When Appellant asked the boy to
engage in anal sex, the victim refused. Appellant
displayed pornography during some of the
encounters, which occurred both in the computer
room and bedroom of their home and in a garage
where they worked on a car together. X.E. revealed
the sexual abuse after his mother asked him about
emails from Appellant to X.E. that she had
discovered.
The events surrounding Mrs. A.’s discovery of
Appellant’s disturbing activity with her son began in
June 2009, when Appellant and Mrs. A. were
separated due to the fact that she discovered that
Appellant had passed bad checks in an attempt to
save his ailing business. At that time, members of
Mrs. A.’s family showed her sexually explicit emails
that Appellant had sent to Mrs. A.’s nephew. After
confronting Appellant and obtaining his admission to
sending the messages, Mrs. A. went to the home
that she had shared with Appellant and took the
tower of his personal computer, which he reported to
police as stolen. Mrs. A. took the equipment to
computer experts who recovered pornographic
images as well as emails from Appellant to X.E.
The matter was immediately reported to West
Manchester Police, and Detective David Bixler
assumed the investigation into Appellant’s conduct.
On June 24, 2009, Appellant contacted West
Manchester Police Officer Matthew Emig to discuss
the previously-reported theft of his computer. Police
Officer Emig was aware of the ongoing investigation
into Appellant’s abuse and invited Appellant as well
as Detective Bixler to the police station. When
Appellant first arrived, he met with Officer Emig.
Officer Emig interviewed Appellant about the
computer matter in a holding room, and the men
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proceeded to a conference room, where they were
located when Detective Bixler reached the station.
Upon his arrival, Detective Bixler immediately
“advised [Appellant] that there was something that
we needed to discuss, and [Appellant] was given his
[constitutional] rights in front of Officer Emig,” which
is an event that Officer Emig confirmed. Id. at 147,
166-67. Appellant was asked if “he had been
involved in some sexual relations with his son,” an
allegation that he denied at first. Id. at 151.
Appellant eventually admitted to all the sexual abuse
reported by X.E., including the commission of oral
sex. Appellant also “acknowledged that he had
asked his son for anal sex. He acknowledged the
mutual masturbation. He acknowledged that he had
sent sexually explicit text messages to him[.]” Id.
at 152. Finally, Appellant admitted that he displayed
pornography to X.E. Consistent with the testimony
proffered by the victim, Appellant told police that the
abuse would occur in a garage on Andrews Street
where he and the boy worked on a car as well as in
the computer room and the boy’s bedroom in the
family home. Appellant handwrote and executed his
confession.
Commonwealth v. Arndt, No. 1480 MDA 2011, unpublished memorandum
at *1-3 (Pa.Super. filed July 18, 2012), appeal denied, 62 A.3d 377 (Pa.
2013).
On August 20, 2010, a jury convicted Appellant
of involuntary deviate sexual intercourse (“IDSI”)—
threat of forcible compulsion, IDSI—person less than
sixteen years of age, indecent assault of a person
less than sixteen years of age, promoting
prostitution, dissemination of explicit sexual
materials to a minor, and unlawful contact with a
minor. The matter proceeded to sentencing on
April 1, 2011, when Appellant received an aggregate
sentence of seven to fourteen years imprisonment.
Arndt, at *4.
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Following Sentencing, [appellant] filed a
Post-Sentence Motion on April 11, 2011. [The trial
court] Denied [appellant’s] Post-Sentence Motion on
August 8, 2011 and filed an Opinion in support of the
Order. [Appellant] then filed a Notice of Appeal on
August 22, 2011. [Appellant] was granted leave to
file an appeal in forma pauperis and was ordered
to file a Statement of Matters Complained of on
Appeal. The Court was notified on September 27,
2011, that Frank Arcuri, Esquire, had taken over the
case and it ordered Attorney Arcuri to file a new
Statement of Matters Complained of on Appeal;
[appellant’s] Statement was filed on October 26,
2011. Pursuant to the Pennsylvania Rules of
Appellate Procedure, Rule 1925(a), this Court
entered an Opinion in support of our actions on
November 9, 2011. On July 18, 2012, the Superior
Court denied Appellant’s appeal and on January 30,
2013, the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of
appeal.[Footnote 1]
[Footnote 1] We note that numerous
pro se letters were filed during the
period in which the Appellant’s case was
on appeal.
The Appellant filed a pro se [PCRA] petition on
February 19, 2013.
Central to the recitation of the procedural
history of this case are the vigorous pro se efforts of
the Appellant referenced in our earlier note. If there
is any verity to the aphorism that the wheels of
justice turn slowly then there is equal merit to the
notion that the Appellant’s ceaseless efforts to short
circuit the system and obtain speedier relief than
other petitioners has amounted to confusion and
subsequent delay to his detriment. In response to
his letter-writing and petition-filing campaign, the
Appellant received a letter from our Supreme Court,
docketed September 16, 2013, informing him that
his Motion to Dismiss All Charges in the Supreme
Court was unfiled as being an “impermissible
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post-submission communication” and improper
pleading. In that same letter, the Appellant was
informed that his Petition for Writ of Mandamus
and/or Extraordinary Relief was denied along with his
Application for an Immediate Hearing on the Pending
Petition for Writ of Mandamus in an Order dated
September 5, 2013. The Appellant was informed
that he might make an Application for
Reconsideration and he did so on October 1, 2013.
Illustrative of the Appellant’s serial filings, a
September 30, 2013 letter informs the Supreme
Court that Appellant prays that his petition does not
confuse any of the parties involved. Confusion
prevailed over this Court as we were inundated with
contact from the Appellant.
In a filing docketed on March 3, 2014, the
Attorney General’s office filed Commonwealth’s
Motion to Appoint [PCRA] Counsel for Petitioner
Arndt. On August 18, 2014, Attorney [Heather A.]
Reiner was appointed to handle Appellant’s PCRA
petition and was given until September 18, 2014 to
file an amended petition or to seek withdraw[al]. By
September 2, 2014, the Appellant had already
caused a letter to be docketed complaining about
Attorney Reiner’s representation. On September 15,
2014, Lawyer Reiner requested an extension to file
an amended petition. A 45 day extension was
granted, on September 16, 2014. On October 31,
2014, counsel for the Appellant filed an amended
Motion for Post-Conviction Collateral Relief.
A Hearing on Appellant’s petition was set for
December 30, 2014. While Appellant and his counsel
were present for the Hearing, the matter was
continued generally as the Attorney General’s office
informed us that they were unaware of the Hearing.
On January 23, 2015, a Hearing was held on the
Appellant’s PCRA petition. At the conclusion of that
Hearing, having considered all evidence, testimony,
and relevant law, this Court denied the Appellant’s
petition. On February 26, 2015, a Notice of Appeal
and request for in forma pauperis status were
docketed. We granted the in forma pauperis
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status and on March 3, 2015, in accordance with
Rule 1925(b) of the Rules of Appellate Procedure,
the Appellant was Ordered to file a concise
statement of matters complained of. On March 24,
2015, we received the Appellant’s concise statement
of matters complained of.
PCRA court opinion, 7/7/15, at 3-5 (emphasis in original).
On July 7, 2015, the PCRA court filed an opinion explaining its reasons
for dismissing appellant’s petition. Attorney Reiner has filed a petition to
withdraw and “no-merit” letter in accordance with Turner/Finley practice.2
Initially, we note our standard of review:
Our standard of review of a PCRA court’s dismissal of
a PCRA petition is limited to examining whether the
PCRA court’s determination is supported by the
evidence of record and free of legal error.
Commonwealth v. Ceo, 812 A.2d 1263, 1265
(Pa.Super. 2002) (citation omitted). Great
deference is granted to the findings of the PCRA
court, and these findings will not be disturbed unless
they have no support in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166
(Pa.Super. 2001) (citation omitted).
Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa.Super. 2003)
(en banc), appeal denied, 839 A.2d 352 (Pa. 2003).
We must first determine whether Attorney Reiner has complied with
the procedural dictates for PCRA counsel seeking to withdraw under
Turner/Finley and their progeny.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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[T]he conditions precedent to an order of court which
terminates the representation of PCRA counsel shall
be as follows:
1) As part of an application to withdraw as
counsel, PCRA counsel must attach to
the application a ‘no-merit’ letter,
2) PCRA counsel must, in the ‘no-merit’
letter, list each claim the petitioner
wishes to have reviewed, and detail the
nature and extent of counsel’s review of
the merits of each of those claims,
3) PCRA counsel must set forth in the
‘no-merit’ letter an explanation of why
the petitioner’s issues are meritless,
4) PCRA counsel must contemporaneously
forward to the petitioner a copy of the
application to withdraw, which must
include (i) a copy of both the ‘no-merit’
letter, and (ii) a statement advising the
PCRA petitioner that, in the event the []
court grants the application of counsel to
withdraw, the petitioner has the right to
proceed pro se,[Footnote 12] or with the
assistance of privately retained counsel;
5) the court must conduct its own
independent review of the record in the
light of the PCRA petition and the issues
set forth therein, as well as of the
contents of the petition of PCRA counsel
to withdraw; and
6) the court must agree with counsel that
the petition is meritless.
[Footnote 12] Since the petitioner will essentially be
without counsel once original PCRA counsel seeks to
withdraw, the Court will, of course, consider any
pro se argument thereafter submitted by the
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petitioner. See generally: Commonwealth v.
Baney, 860 A.2d 127 (Pa.Super. 2004), appeal
denied, 583 Pa. 678, 877 A.2d 459 (2005).
Commonwealth v. Friend, 896 A.2d 607, 615 (Pa.Super. 2006)
(Footnote 11 omitted), abrogated in part by Commonwealth v. Pitts, 981
A.2d 875 (Pa. 2009).3
Here, Attorney Reiner has filed an application to withdraw, asserting
that she has thoroughly reviewed the trial court record and has concluded
that there are no meritorious issues present and that the appeal is wholly
frivolous; she has attached a “no-merit” letter, setting forth each issue
appellant wishes to have reviewed, and why each is meritless; and she has
forwarded to appellant both a copy of the application to withdraw and
“no-merit” letter and has advised appellant that he has the right to proceed
pro se, retain new counsel, or raise any additional points he deems worthy
of this court’s consideration. Therefore, we determine that Attorney Reiner
has complied with the requirements of Turner/Finley and Friend, supra;
and we will proceed to an independent review of the record to decide
whether the PCRA petition is, in fact, meritless.
Appellant alleges that trial counsel was ineffective (1) for failing to
investigate or hire an expert witness to investigate appellant’s computers
3
In a concurring opinion, then-Chief Justice Castille noted in Pitts, supra,
that this court is not permitted to craft procedural rules. The supreme court,
however, did not overturn this aspect of Friend, supra, as the prerequisites
did not apply to the petition in Pitts. Commonwealth v. Freeland, 106
A.3d 768, 774-775 (Pa.Super. 2014) (citation omitted).
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that were analyzed and their contents presented as evidence at trial; 4 (2) for
failing to object to the admission into evidence of any computer, email, or
electronic communications made by appellant for improper chain of custody
foundation;5 (3) for failing to discuss and obtain appellant’s consent to a
stipulation entered regarding the forensic analysis of the computer and chain
of custody;6 and (4) for failing to object to evidence of prior bad acts,
namely, appellant’s wife’s testimony that appellant disseminated sexually
explicit photographs to his wife’s nephew.7
All of these claims patently lack merit for the reasons discussed in the
PCRA court’s thorough and comprehensive opinion, filed July 7, 2015. We
affirm on the basis of that opinion. The trial court carefully addresses each
prong of the ineffectiveness claims and concludes, most importantly, that
appellant cannot meet the prejudice prong based on the evidence of his own
confession and the victim’s testimony. The PCRA court did not err in
dismissing appellant’s petition. Furthermore, after our independent review
4
See PCRA court opinion, 7/7/15 at 7-13 for the PCRA court’s thorough and
comprehensive analysis on this issue.
5
See id. at 13-18 for the PCRA court’s thorough and comprehensive
analysis on this issue.
6
See id. at 18-23 for the PCRA court’s thorough and comprehensive
analysis on this issue.
7
See id. at 23-25 for the PCRA court’s thorough and comprehensive
analysis on this issue.
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of the record, we determine that the petition is meritless, and we will grant
Attorney Reiner’s request to withdraw as counsel.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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Circulated 03/30/2016 03:20 PM
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ZDl5 JUL -7 PH 2; 23
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PEN~S'{t'~'5A~IA
CRJMINAL DIVISION
COMMONWEAL TH
v. NO. CP-67-CR-0004896-2009
SHAlVN ARNDT,
Defendant/Appdlan t
COUNSEL OF RLCORD·
Christopher J. Schmidt. Esquire Heather A. Remer, Esquire
Counsel for the Appellee Counsel for the Appellant
OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 1925(a) OF THE
RULES OF APPELLATE PROCEDURE
The Court received a Notice of Appeal. docketed on February 26, 2015, that Shawn
Arndt, by and through his counsel, Heather A. Reiner, Esquire. appeals to the Superior Court
of Pennsylvania the January 23, 2015 Order, entered by this Court, denying Appellant's
Petition for Post-Convicuon Relic:' Ha, ing considered nil evidence. testimony, and relevant
case law. the Court 110,1. issues chis Opinion in support of our January 23, 2015 Order.
I. Procedural History
A1 the conclusion of his jury trial on August 20. 20 I 0, Mr. Arndt was found guilty of
Count 1 Involuntary Deviate Sexual Intercourse by Threat of Forcible Compulsion, IR Pa
Cons. Stat. Ann. § J J 23(a)(2), Count 3, Involuntary Deviate Sexual Intercourse with Person
Less than 16. 18 Pa. Cons Slat. Arm.~ J 123(a)(7). Count 8. Indecent Assault 18 Pa Cons.
Stat Ann § 3 I 26(a)(8). Count 9~ Promoting Prostitution, I~ Pa. Cons. Stat Ann.§
5902(b)(3); Count I 0, Obscenity, 18 Po. Cons. Stal. Ann. § 5903(c)( I), Count l t. Unlawful
Contact with a Minor, IS Pa Cons Stat Ann.§ 631 S{a)(I ): Count 12. Contact with a Minor
for Prostitution l ~ Pa. Cons Stat Ann. § 63 l 8(a)<3 ); Count l J, Contact with a Minor for
Purpose of En~aging rn Prolubited Acuvuy. 18 Pa Cons. Stal. Ann. § 631 ~{a)(4): rind Count
14, Contact w ith J Minor Resulting in Sexual Abuse. 18 Pa. Cons Slat Ann.§ 63 I 81,a)(5).
Pursuant 10 ~2 Pa Cons. Slat. Ann. § 9795.4. the Court ordered Defendant tu undergo a
Sexually Violent Predator assessment.
Sentencing was initially scheduled for November 15, 20 I CJ; the Commonwealth filed
a Praecipe for a Hearing upon receiving the report from the Sexual Offenders Assessment
Board and the Court rescheduled Sentencing to coincide with the hearing on January 28.
201 I. Defendant filed numerous pro se motions prior to Sentencing and made a complaint to
the Disciplmary Board regarding his trial counsel. Vincent f\ Ionfredo. Esquire. While the
Court generally belie H'S u 10 ht: in a defendant· s best interests tc, re lam his trial counsel
through Sentencing. the circumstances of chis case, the obvious deterioration of the attorney-
chent relationship, and the concurrence of Defendant led the Court to Grant Attorney
Monfredos Motion to Withdraw. On January ~5. 201 I. Joshua Neiderhiser, Esquire, WJS
appointed by separate order of this Court At Sentencing on January 28 2011. Defendant
requested. and was i;ranted. a continuance in order to retain his ow n ex pcrr« uness, This
Court thoroughly questioned Defendant on his desrre t11 (urll1t:r continue Sentencing, and
Deteudant l'XJ)l'f'SSI) slated that 11 was his wlsh that Scnti:ncing be continued The earliest
II
available date chat the Court could reschedule the Sentencing Hearing was for Apnl l , 2011
On April I. 20 I I. the Court held a Sentencing Hearing and determined Defendant to
be a Sexually \I iolent Predator Defendant was sentenced on (\1u11t 2 to 5-10 years: un
Count .3 to 5-1 U years. concurrent with Count 2; 1111 Cot:111 8 to 3-6 months, consecutive to
Count 2: on Count 9 to 1-'2 years. consccuuve 11.1 (1J1111t 8, 1)11 Count 10 tu 9-18 months,
consecutive to Count 9. and Counts 11-J 4 merged Tur sentencing purposes. Defendant's
aggregate sentence is therefore 7-14) ears in a state correctional institution.
Following Sentencing, Defendant filed a Post-Sentence Motion on April 11, 2011.
This Court Denied Defendants Post-Sentence Motion on August 8, 2011 and filed an
Opinion in support of the Order. Defendant then filed a Notice of Appeal on August 22,
1011. Defendant \\US gunted leave to file an appeal in tonna pauperis and "as ordered to
lilt a Statement \1i~lalle1:, Compluincd ol 11n Appeal The Court was noufied on September
271.2011. that Frank Arcun. Esquire, had iuken over the case and it ordered Aue: ney Arcun
to file a new Statement of Muuers Complained uf on Appeal. Defendant's Statement was
tiled on October 26! 20 l I. Pursuant to the Penns)' lvania Rules ...1f Appellate Procedure, Rule
I 925ta). this Court entered an Opinion in support of our actions on November 9, 2011. On
luly IX, 201~. the Superior Cn111t denied Appellnnt'.., appeal and 011 .J::11111:,ry 10, 2lllJ, the!
I
Pennsylvaui J Supreme (' ourt denied Appellant 's petition for allowance 1Jf appeal
The Appellant filed s pro se Post-Conviction Relief Act (PC.RA) petition on February
I \\'c note thnt 11,111l!r11111 L"<' rL teuers wer e filed d1.mn!,;. r11~, rrr,11,1111 ,1 l11i.:J1 the Appeltanr's cuse was ,)11
J
I
19 . .?013.
Central to the recitation of the procedural hts!l'H)' of this cuse ure the vigorous p, o se
efforts of the Appellant referenced rn ,1111 ear lier note It there is ,my veruy to the apho. ism
that the ,,. heels 1..•f justice turn slow I~· then there is equal merit lo the nouon that the
Appellanis ceaseless efforts IIJ short circuit the system and obtain speedier relief than other
petitioner, has amounted to confusion and subsequent delay to his detriment. In response t()
his leuer-wruing and petition-filing campaign. tile Appellant received a letter from our
Supreme Court, docketed September 16. 2013. intorrning him that hrs Motion to Dismiss \II
Charges in the Supreme Court \\as untiled as being an "impermissible post-subrrussrou
cornmunicanon" ..md 1111prop1.:r plc.1d1ng f n :li:.it same letter the , vppcliaut \\-J.S informed that
his Periuon for \\'rit or Mandamus and 'or Extr JOrJi1M1",. Re lief was denied alone'-' \\ ith his
Applicanon fbr an lmmediare Heanng en the Pending Petitron (or Writ of Mandamus in ::111
Order dated September .5. 2013. The Appellant was informed that he might make an
Application for Reconsideration and he did s11 on October L ::'013. Illustrative of the
Appellant's scria! filings. a September 30. 20 I J letter informs the Supreme Court that
Appellant prc1y, that his petition does not contuse any of the parries involved Confusion
prevailed over this Court as \\'C were urundared with contact I r,1111 the Appe l l.1111
Commonwealth 's ], lotion to Appo1111 Post-Ci ,n, 1ct1L•t1 Rd1t"I ..\~t ( F'CfZ.o\) Counsel for
Petitioner .\rndt. On August 1 S. 20 J 4, Attorney Reiner was appouued tu handle Appellant's
PCRA. petition and was grven until September 18.2014 tn tile an amended petition (Ir' to seek
wuhdraw B) September 2. 20 l -+. the 6..ppel laru had already caused [I leuer to be docketed
complaining about Auorney Rtrner·s representation On September 15. 21) 14. Lawyer Reiner
requested an extension to file an amended petition A 45 dtty extension was granted. on
September 16. 20 J--! On October 31. 2014, counsel for the Appellant filed an amended
Motion for Post-Conviction Collateral Relief
A Hearing on Appellant's petition was set for December 30, 1014. While Appellant
and his counsel \\'ere present for the I Tearing, the matter was continued generally as the
Attorney General's office informed us that thev were unaware of the Hearing. On January 23.
2015. a Hearing was held on the Appellants PCRA pcutiou. A[ the conclusion of that
Hearing. hav rng considered c111 evidence lest, 1m)n) ~ and relcv.: nt lave. this Court denied d1~
Appellant's peuuon. On f ebruary 26. 2015, a No lice or' Appeal and request for informo
pauper is status were docketed. We, granted the in forma pauperrs status and on March 1.
2015, m accordance with Rule 1925( b) of the Rules of Appellate Procedure, the Appellant
W3S Ordered to file a concise statement of matters complained of Un March ".24, 201 \ we
received the Appellant's concise statement of matters complained uC
The Appel Inn, ·'f'l)eals fc,r the: follo« ing reasons Fir~,. the Appellant believes that we
erred in refusin]; to find 1rird counsel mcrrecuve tor 1:1iling to invcsugatc or hire an expert ro
investigate the Appellant's computers. whose content was presented as evidence ill trial.
Second, the Appcllan: thinks 11 error that we did not find trial counsel ineffective for failing
5
to object to the chain of'cuxtody tor all corurnurucauons presented against Appellant that
were derived f1,)m computer e-marl, or electroiuc transnusstons. Third Appellant believes
\\C erred 111 not finding trial counsel ineffective for foiling to gamer Appellant's consent fur a
stipulation entered regarding the forensic analysis of the computer and the cham of custody
for that evidence. Fourth. and finally. Appellant finds error in our. declining to find [rial
counsel ineffective for failing to object to the admission of evidence of prior bad acts
fl. Matters CompJained of on Appeal
A Ineffective Assistance of Counsel
Aprdlanl°!i rnaucrs compl.uned of at! relate to 011r refusal 10 find inal counsel
ineffective at the 1::muar) ~2>. 10 J 5 Heanng on Appellant's PCRA petition. c\s s ich we begrn
with a recitation of the relevant l;:m for evaluating (he effectiveness of counsel before delv ing
into the distinct matters complained of.
ft is stated in Strickland v Washington that. "the benchmark for judging any claim i•f
ineffectiveness must be whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be rehed on as having produced a just result."
466 ! 1 S 668. 686 ( I G84 l Pennsylvnnia codified tlus principle in the Post-Conviction Relief
Acr which provides post-convictlon 1t!1e(for··r1lnd!i:cll\'``1ssistU1ll'e ofcounsel which. in
the circumstances of the particular case. so undermined the truth-determining process that no
reliable adjudicauon or guilt or innocence could have taken place." -12 Pa.CS.A ~
Q54'3(::1)(~)(1iJ Pennsylvania's Supreme Court has interpreted this to mean rhar to show
ineffective assistance! of counsel. a petitioner must show that:
(I) the claim underlying the ineffectiveness claim has arguable merit: (l)
counsel 's actions lacked an) reasonable basis; and ( 3) counsel's actions
resulted in prejudice to pcriuoner
Clmw101111·eu/1h v Cox. Q83 A.2d 666. 67R (Pa. 2009) (cuing Cmn11101111·c:lllth ,, Collins. 957
A.2d 23.7, 2-l~ tPa. 2008)). See also. Commonwealth 1•. Rollins, 738 :\ 2J 435, 44 I (Pu. 19\'19)
(citations omiued) "A chosen strategv \\ill not be found to have lacked a reasonable basis
unless H 15 pro\ e11 ·1h31 an alternauve nm chose» offered u potenual for success substantially
greater 1h:111 the course :.11:tually pursued ... 983 A.2d (,66. 678 (Pa. 2009) (qtmting
Com11101111·eal1h ,,. Williams. 899 A.2d J n60 I 064 ( Pa ~OOb,l (quot mg Commonw ealth v
0
HoH ard, 719 r\.2d ~33. ?37 (Pa 1998))). In Co11111101111 ealth v, Pierce, the Pennsylvaniu
Supreme Court wrote that. · r r [rejudice in the context of i neffectix e assistance of counsel
means demonstrating that there is a reasonable probability that, but for counsel's error, the
outcome of ihe proceeding would have been difrer cnt .. "'Sti A ::c1 203, 213 ,P:t. 2001) 1c1tif1g
Cc,11,,11011,,·cu/!/1, Klnibail. ,~. i A 2d 3~6. 3J1 (Pa. 1990) 1 \cc- also, Co111111om1't?t11!'11·
Fletcher. 080 \ _J 759. 772 1 P:1 2009) (citations omitted I. Lastly ... the law presumes that
counsel was effecuve and the burden of proving that this presumption rs false rests wuh the
pctitioner " 41\3 A 2d 066: n7S (Pa. 2009) 744 A.2d
717. 72S (Pa. :'.WOO)).
I Failure to Investigate Computers
We deal first with the r\ppellanc'~ contention 1h.1t rnal counsel was inettective r..,r
.,
I
II
failing to investigate or cause ,m expert to analyze the Appellant's computers whose contents
were used against the Appellant ar trial We begin our analysis of this claim with a statement
of the relevant tacts.
Ar the PCRA Heanng, the Appellant testified that tna] counsel. Vincent Monfredo.
Esquire. never su,gg-:~ied to 1lie Appellant thru 11It> computers should have been mdepeudentl,
tested prior to trrnl 1Nri1c:s Oi PCRA Heariru, T 1:<;t1miln) (hcrcmatier: N P 1-1.T.). t(~J/15. at
24) AnJ Appellant admitted that he had no evidence tu present at the PCRi\ Hearing that
anyone had tampered wrth the computers in question !J. ar JS. And, Appellant adrniued at
the Hearing on his PC Iv\ petition that neither Counts 2 nor J for Im oluntary Deviate Sevual
Inrercoursc, nor Count 8 for Indecent Assault. nor Count 9 for Promoting Prostitution had
anything lo Jo with electronic communications (though he tell he was prejudiced in those
counts by the admitted electronic communications). Id, at 37. Counts 11, 12. and 13 for
Unlawful Contact with a ~f11ior diJ relate to electronic cornmunicuuons however. Appellant
admitted .11 mal that he sen: pornographic c-rn.uls 1c1 lus stepson (though. tu this duy,
Appellant does nor belie- e these e-mails were, ulpr) l N P l I.'f .. l/?.3115. at 30. 37. and
Notes of Trial Testimony (N.T.T. ), 811Q/10, at 24-8-249.)
Lawyer Montredo testified to his belief that must. 1f1101 all. of the charges dealt wuh
physical touching and 1101 electronic communications. (NP II T .. 1/:!3!15, at 61 l And
further. in Attorney Moutredo · s estimation. the electronic commuuicntions evidence had
lmlc if any value when s.acked auainst testimony from the victun (X f.). tesumony f:om
Officers Emi_g and Rixie, about their interactions witl: the Appe llant, and the Appellant's
own testimony. Id .. at 61-6~. Attorney Monfrcdo opined H> this Court that an analysis- of the
computers was not rh::it relevam in 11:hl of th•: frtc1 that moi;f ct tht: evidence at trrnl related re)
physical rouchrr-g between tile, 1ct1111 and Appctlan: :ind no) :.1L--.Put electronic
commumcaticns Id .• at ,--;9, Ir.nl counsel reiterated co this Court that he viewed the victim's
tesurnony and the Appellant's confession as the crux of the case, Id .. at 70. and so Attorney
Monrredo could not see how mvesngating the computers would have been relevant lO
disputing. 1clo. there was arauable
...._: -·
merit to the claun underlvmu .; - the ineffectiveness
claim and trial counsel ·" Hcrio11s lacked a reasonnble bn·;i:,; the A1~11el lam also needed to
show chis ( oun tlirii trial counsel's actions resulted in prejudice to the Appel lam We ..11t!
reminded that to discern prejudice in this context we are ru evaluate whether there was .1
reasonable probability ofa different outcome if not for counsel's supposed error.
In our own review of the sufficiency of evidence for the direc t appeal in this case, we
note that we did not have to rely upon the computer evidence 10 rind 1hat suflicren: evidence
was presented agains: the Appellant 10 convict bun or the crimes the Jury found hun guilty
c,t As such, ,, hrle we 3C'J..n0,•. lcdue -
... thit! evaluannn the ~111t;cit:m'\ . of evidence 1::: not the
of the Appellant by independent computer analysis. which would l1a\ i.: only added to the
Appellant's restimony and vide. 1 evidence regarding tampering (if it were even to prove that
I l
tumpenng had occurred. ,,. hich Appellant did 1101 substantiute for this l'CRA).
Appellant could argue that his testimony was only capable of suggesting tampering
and an investigation might have revealed actual tampering. l'his is true. however,
Commonwealth · s investigation of the corn puters revealed no tampering beyond auempts tu
change passwords tN.P.H T .. 1123115, at 14 J And. the iury sa« the strongest evidence 1:1
terms of a video showing another person accessing the computers It is impossible to know
how the Jury weighed this evidence: however, in our, iew, computer analysis by a defense
expert. even 11 tumpertu]; had been revealed, would have been only .1 bit better than
cumulau ve ,, ifh the video evidence presented.
It is this Court's view that the outcome of the tria] would not have been an: different
had trial counsel been able to present any evidence of computer tampering 10 the jury. The
testimony of .>:.E- and the Appcllanrs own confession v .. ould nor be effectively undermined
by such an admission. Moreover. u must not be forgotten that. ultimately. tilt: Appellunt did
not present evidence at his PCR.A Heuring that the computers in question hud been tampered
with flus is all acadeuuc .11 best As \\ith the firs: rwo pn-in!;;-'i, ilw Appellaru clearly fads 10
sutisfr tl1e third prong of our unnl1 sis us well.
Remembering that the l11w presumes c11unsd wos t>t'lf'C't\,;, we believe the Appcllan;
foils at all three prongs of the test for ineffective assistance of counsel. Yd, we have analyzed
all three independently in the possible event that the Superior Court feds one. or more. or
those prongs has been met. Ha, ing completed our evalumion and srnistied ourselves thnt the
12
Appellant could not have succeeded 011 any ofthe individual prongs, le: alone tQgethe1 as he
must to succeed, we humbly request alfirmance J"i Lo this matter complamcd of.
2. Chain of Custody
The Appellant next complains that we should have ruund trial counsel ineffective for
no! objecting to the admission of evidence related 10 computers, e-mruls. and electromc
communications from the Appellant clue Lo an allegedly deficient chain (1f custody We. begin
w1(h the tacts
During the PCR ...:.. Hearing, Appellant testified that he only recctved full discovery
after the tr:al and he had made a complaint about Anornev Monfredo to the Disciplinary
Board. (NP H.T .. 1123115. at 14.i Tellingly, Lawyer ~lonfredo testified later in the PCRA
Hearing that he did not believe anything was missing from discovery prior to trial and that
the Appellant never appeared surprised Qr confused regarding any evidence admitted al rnal
id .al 65-66 Nonetheless. Appellant told this Court Iha! while he was .tblc 10 understand that
his cell phone was seized .C. Experts wh« extracted evidence in the form of photos and e-mails 1N.P H.T., 1/23'l.5
at IS and N.T. T.. 8/19/ILJ. at I 78-l7Q.) The stipulation goes on to state that Mr, Buchanan
did not alter the contents of the computer and that upon the completion or Mr, Buchanan's
review. Ms Arndt retrieved the computer and delivered 11 to the police (N P.II.T. l/13/15.
at 18.) Appcllnnr opmcd that Attorney Mtmrr:-do should have called !\tr Buchannn to 14u~ry
him about his relauonshrp as a r.irmlial fnend of' Ms l\rndl 's family and because :v11
Buchanan earned out his forensic work al lus home rather than r11 P.C. Experts" place of
business. id .. at 1:-23. Later in the Hearing. Auorney Monfredo stated that the Appellant had
pro, ided the defense w irh a list c.1f" irnesses he wished to be called at his trial, but that he did
not recall t\ Ir. Buchanan being on that list Id. at 60.
Fhc Appellant also told 1!11s Court that Ms Arndrs girlfnend was video-recorded on
one of the computers ;JI the Appellant's home at a time when Appellant claims no one was to
be in the home s.:i,e Appellan: I.I. JI 19. Appcllnnt conceded rh:u he testified as much to the
jury and 1ha1 1111~ of iwcntv IJ\'D surveillance tapes w113 played tor the jury in support vi that
testimony. Id., at I ~-:20. f."inally1 Appellant admitted ar the PCI~ /\ Hem ing that he h:id nn
ev idence that .111y0ne had tampered with the computers Id .. :.i1 J~
As with the first matter complained nt: we hegin by examining whether the claim
u11d1:tlying the ineffectiveness claun has arguable merit. Despite the Appellant's
l I
remembering of the timeline or this case. we are unpersuaded that th« Appellant d1J not have
access to full discovery for the simple tacts that Attorney Montredo believed the defense had
full discovery prior to trial und Lawyer Monfredo has no memory of the Appellant being
surprised .,tt u ial. While 1t is possible that a defendant might 1101 see every scrap of discovery
or recogruze the importance ,if a parucula: piece ,JI. disc: .vcrv prior ,~) tnal. 11 strains creduliiv
to believe that v..-hcn the all-unportam Ja~ of tnal arnves th;:it o man so diligenr in his
vigilance regarding his case should not he surprised at Commonwealrhs introduction of
computer ev idence supposedly theretofore unknown LO the defense. We find that there was
no reason why the defense. and therefore the Appellant, would not have been aware of the
Commonwealth· s possession of the three computers not idenu Iied 1 n the inventory slip. It
also strikes this Court as odd that an individual would not notice the absence of'cornputer-. in
adduion 1,:, the one he admits !1•.: knew was seized. from his home We believe the Appellant
knew those addrt« ..,n.1l computer s were possessed b~· invcvugators.
M-; Arndt had ever) right to enter the tarmha) home: ,Hid remo , e computers and 10
tum them over ro the authorities Yes, the Appellant menuoned that property was removed
from rhe home at the behest of Ms Arndt when n1..1 line wa-, t,> he m the home save the
Appellant; however, the Appellant presented no evidence to this Court beyond a bald
assertion that a woman who he hud lived with in the home was not then allowed 111 that
home The iur) heard rh.1t 1\fa \r11J1 did nor take? oue of the computers drrectly lO the
auihoruies: but. mther, ,\b Arndt made ,! detour \1.1 \11. H11,:lrn1ui11 r1.1 have him exairnnc the
1,
computer. Perhaps Attorney Monfredo should have pushed upon this detail rn order to make
clear to the jury th? potential for evidence tampering but we view tl11S us, at most. harmless
error, The Appellant told the _1ur~· rh::it Ms. Arnd\'.s gtrltrtend had access 10 at least one (If the
computers u11dthe defense sht1\\d.l the jury one: orrwcnr, L1VD copies of surveIlance
footage which c leurly depicted 1\.15 Arndr's g1rtfrienJ unhzrug one of the computers. The
jury was plainly aware of'the possibility that the computers had been tampered with.
As for Mr, Buchanan not being called and queried about his familiarity with Ms.
Arndt and lus examining Appellant's computers in his home rather dun his place of business,
the Appellant had notice of at least the personal relationship pril)r io trial. Perhaps evidence
of whe) e Mr. Buchanan '5 analysis occurred would have come up at trial had he been called.
howev er. the Appellant has no one to blame but himself 1Jr not requesting that Mr. Buchanan
be called Au,_,111e'.I \!1,n!redu l1ai nv rncmory or th~ r\rpt'llnnt rcq,1est111~ that Mr Buchanan
be calleo as 3 wuness. Rather. Attomey Monfredo recalls the Appellant wishing Anornev
Monfredo to cal I mostly character witnesses (N P f I.T .. J /23/15. at 110.J
In toll). we sec absolutely no basis for finding that the claim underlying the
ineffectiveness claim has .:tny merit whatsoever. lhe very' nature of challenging the: chain of
custody of an 1!":."111 is to 1mpl:-, 10 a lacrfinder rhrn there Wi!S the poteruinl forneftiriCJu~ haun
against the defcndant v 1.i tampering That was effect!\ tly established by the Appellsn:
lt:sti(ving and ,ltu11·111g rhe Jury that 3,)me,:·1111.: else had access to the computers in question,
The Appclluui does :11'.'11 meet t11e first prong or ine 1-?Sl
A:- to the second prong, did trial counsel's acuons t.ick iln)' reasonable h:1sir., We:
remember that a chosen c;t,,111.:gy does not lack a reasonable basis unless the PCRA petitioner
proves that an alter natl\ i: not chose» offered ~1:,,1bsrw1lwll.1 grc.:.'!te1 chance ot success. \Ve
see no reason 10 be more repetitious that we have already been in this Op1111on. Ihe alternate
suategy the Appellant wishes Attorney Monfrcdo had pursued would have been tu challenge
the: chain of custody related tu the computers. e-mails. and electronic cornmunicanons. The
Appellant's own testimony and video evidence regarding rvl5 Arndis girlfriend cstabnshed
the potential for tampermg I h1wl:vc:r. even 11 Auomey Monfredo hud chal lcnged the ~ha111 ol
custody as Appe llan: ,,,ic:hes \rrdL111t admitted al the PCR.A Hc:arin~ that. to Lhis day, ht
still has no proof 01 tamperuu; bevond wh ..u be c.iu ..illege u-; po: :;1bk ref,uJing Ms. Arndt's
girlfriend The Appellant docs J:Ol 111ec1 the second prong
for the th11J prong. the: Appellant needed 10 convince ilus Court that trial counsel "
actions resulted in prejudice to the Appellant. Prejudice, 1t1 this context. means that there was
a reasonable probability of a different outcome if not for counsel's supposed error, l lll:
supposed error was Anomey Monfredo not clrnlk11~in'.:{ the chain of custody A':> we IHL\c'
repeated ad 11,11fse11111, the jury \\'Tl~ alrend; '.:l\\'are th,H the ddC'nsi..: c1lkg~d 1:.1111~,i:.·nn~ and [ill')
were not swayed hv this asscuion Duplicative ..assertions 111 the lu111: Lll u chaiu ut custody
challenge would not. lrl our np1:11011. have 111,1n:d the Jlln to find th u the ev idence from the
computers was folsilic:d and tl1.11. therefore. the- Appellant was not gu1lly of using electronic
means to reach out to tile victim and that Commonwealth 's "hole case. based niostlv 011 the
17
victim s tcsurnony and Appcllants confession as rnenuoned supra. was a t"aht rcarlon. As we
do not believe there \.a,.as any probability of a different outcome saris counsel's supposed
error, we find that the Appellant was not prejudiced and so he fails the third prong ot the test
as well.
Aga111, the JO.\\ presumes counsel was eflecuve. A~ co Appellant's second matter
complained of. wc belie. e the Appellant fails at all three rr011gs of the test for ineffective
assistance of counsel We therefore prav for affirmance as LO this 111.Uti;r complained of
3 -Jppt'l/anr .1 C onsent to S1111:,iatl(•11
For his next matter complained of. rhe Appellant avers that we should have found
trial counsel ineffective for failing to keep Appellant abreast of the: potential stipulation
regarding forensic analysis or to garner Appellant's consent prior to when that stipulation
was entered. The relevant facts bear reciting.
The t\ppellanc told this Court that there was no preparation with Attorney Monfrerio
other than a day or two before trial for, perhaps ten minutes (N PH T .. 1/.23/J 5, at S )
Attorney Monrredo ,t':(rc:~d with sotne «t the Appclinms test11~lill1; on prunt 1111hal they may
have onl~ met three or four times 1n person: however. l »wyer \1,.,nrredn behevcs th1:) 111<.: 1
for longer than lc!l minutes before tnal IJ. at h~ Thi! reason there were so lew tace-ro-fuce
meetings was because the Appellant was out cit the area for much of the time prior to trial
and so communication was effectuated through phone culls and e-mails. Id., ul 63
The Appellant stated at his PCRA Hearing that no one ever asked him to enter .1
IS
stipulation regarding the computers. Id.. at 17. As recited earlier. the stipulation \\,1S that Ms.
Arndt took a computer 10 Mr, Buchanan for examination prior to turning it over to the
authorities and that M1 Buchanan did not alter the contents of that computer, Id. at 18.
Appellant testified 10 the jury rhat Ms. Arndts girlfriend \\'a::- seen usin~ one of the
computers and the jury saw camera fo11tage 10 that eneet as well, Id. at 19-~0. Yet. Appellant
admits that he has lli.• actual pn."lc,f ot tampenng ar thrs r1111e I.I .:11 ,8
Untonunarelv. Lawyer l\lonrn:tlo testifietl thul ht: ("nn1101 recall \\ hy hi.' stipulated to
{\ Ir Bue hanan • s hand Ii n;; of 1 he one computer and the chat n of custody tor al I or the
computers. Id.. at 60-ti I Attorney Monfredo stared that the charges mostly related !O
physical touching and 1101 electronic communications IJ., at 61. In Lawyer Monfredos
opmion, the electronic communications evidence Wi.JS of little value when stacked against the
victim 's testimony, Officers Emig and Bixlers testimony. and the Appellants testimony, Id.
t,r 61-62. Though he downplayed the importance of the computer-derived evidence to the
case ::ig.:=iin'il !It,.: Appellant, Attorney Monfredo seemed to offer 11\) resrstance on cross
examination 10 the 111..,tit:m tha: the computer evidence bolstered Commouwculth's case Id .. ar
7x. Attorney t--Jc:,nfrecJo also agreed with PCR.A counsel tha: 1he supulation in question was
tantumount to ngre,·inl;! not 1n gc?l into the fact that non-officers had access to the computers.
ld ; at ~u. Moreover, Attorney Monfredo could nm recall talking to the Appellant about the
computers stipulation. Id.
As before, \\L' begin by testing whether the claun u111.lt1 lying the inettccnvencss claim
IC>
has arguable merit. The Appellant's unavailability ro meet with counsel prior 10 tnal may
have effected auorney-client communication: however, there would be little excuse f<11
defense counsel not appnsrng 1.1 defendant of a stipulation that wi II be e11t1:r~J One might
argue that defendams make suniegrc decisions, defense counselors make tacucal calls. and
I h,11 a snpulution is more tactical 111 nature than strategic, In a system that seeks to carefully
guard the rights of defendants .111d colloquies them on important tactical decisions (e.g. the
right tu testify}, we cannot but find that there is arguable merit to the undei lymg claim that
the Appellant should have been involved with deciding whether or not to supulate lo the
handling and examination of the computers Perhaps such a discussion did occur and the
Appellant and trial counsel simply Jo not remember tl. More hkely. however. is that the'
Appellant was deprived of input regarding tlus particula: snpulation. TINu~h this Court does
not believe. as A.:)pdlam dot:., 11111 the case hin~eci so 'itrongl~ e,,,11 the computer-based
evidence. ii must be conceded 1b~1 there is arguable meru to the clam, that Appellant's mput
rc~a,ding the siipulanon was necessary. The Appellant has met the first prong of the
ineffectiveness test 3S to this matter complained or.
for the second prong, we ask whether trial counsel s actions lacked any reasonable
basis. \Ve remember ihar 11 choseu srratcgv docs not lack J reasonable basis unless the PCR.A
petitioner proves that on alrcrnauve not chosen offered a substantiallv greater chance al
success Here ,s where we believe the Appell Jill stumbles and foils to prove tri::il counsel
ineffectiv e \\"?' agree wnh trial counsel tha: the ov em liel111ing and dumning evidence in this
20
11
case came from the victim and the Appellant's CL111li.:~-;i(H1. t\ L'hallenge ti,; 1hc forcn~1c _
analysis of the computers end.or the chuin of custod; would nut hJ\'1! offered -a s11b1untwl~,,
greater chance at success because the vicrim's testimony and the Appellant's contcssion
prnvjdeJ n bulk oft\ idence so sub.sianti::il us 10 owrsli:.idn"' the o;1gni lic •.mce of thl: cnmputcr-
derived evidence. Moreover. the defense eifectivelv. diu challenue
-· ._
the forensic analysis and - --
chain of custod) of the cumputers introducin!! evilience that someone else. perhaps Ms.
in
-- - -- - ----
Arndts girlfriend. nll';ht have tampered with the computers prior to their being analyzed and
------------~----------- -- -- - . ~
turned over 10 the ourhonucs.
Even ifthere were J differeu! appraisal of the hkclihood of success had the computer
I-Jc:;111:1g was the urne and plat>: lb1 the Appellant to rrcs.i!nt evidence that 1ampcring h ..rd
occurred and that. so far as this particular complaint goes, had the desired challenges been
made. the evidence pulled from the computers would have been neutered. The Appellant
conceded he had no such proor. He would no doubt argue that. per his first matter
complained or, 11 was counse!'s ineffectiveness 111 nut lldVJng the: computers analyzed that
resulted in clus lack of e\ iricnce. This Coun would respond \\'1th a profound: And'? Wha: was
the offenses were charged? Ihe combinenon ,,i ,-\pJ>cl!.rnt".; lad; of c, rdcnce of t.1mpenng
and the: fact thM we do not view the evidence regarding the computers. even if uunpered
with •• LS consequential enough to offer 3 substanuallv grcate. chance of success leaves us cc,
21
It our aunlysis is wrong and counsel s failure to consult wuh the Appellant is
evidence that triul counsel lacked any reasonable basis for the stipulation entered vis-a-vis
the computers then we would proceed to the third prong in assessing ineffectiveness of
counsel. At the f>CRA hearing. the Appellant needed io demonstrate that trial counsel's
actions resulted 111 prejudice to the Appellant, 1 o discern prejudice in 1111.., context, we Me to
evaluate whethe: then.• was a reasonable probubihtv ,_,( a d111'c:n:1ll outcome 11 not j~,r
counsel s supposed c1 rur
Again. the: JUr} heard e\ ideuce (1f potential tarnperuig when the Appellant rcsritled
that Ms Arndr's girlfriend was seen on video using line of the computers Such evidence
implied that all of the computers were accessible lo others and the stipulauon would have
, only furthered that nouun. The jur) did not have to take the: Appellants word that someone
else mighr have accessed the computers. they saw x ideo of ir. And even if there had been i10
stipulation (.supposing tile .Appdla11t would 11:l\ e refused to enter one utlcr lii:ing duly
informed of the po~sibiltt) fo1 one b~ counsel 1, the JUI) had 111·:- ,1,: 1111·~
1 resnrnony and rile
Appellant's .::01ife5s1,:i11 corrobcw.i:111g i111e another \Ve do not behcve there was a reasonnhle
probability, under these circumstances. tor .1 different outcome if not for counsel's supposed
error. As such, there was no prejudice and Appellant has tailed the third prong of the test us
to this matter complained of
.21
I'he law presumes counsel was effective and we do not believe that the Appellant ha~
overcome this presumption, To our mind. Appellant has- failed ro prove two of the three:
prongs necessary for a reviewing court to find trial counsel ineffective W'- respectfully
request affirmance us co this matter cornplamed of.
4 Prior Sad Acts
For his final mottcrcnmplJined c,( the xppellnn; complains thar tnal counsel was
ineffective fr.11 foiling 10 object ro the udmission ,_,fa prior bud act Spccuicully. the Appell.m;
believes that Auorney Monfredo should have: obiccred 101\1,. \rndt·s testimony rhat the
Appellant transmitted sexually explicit rh1 ,~r:iphs tc, their "nephew "2 The relevanr facts
follow with those facts already well-covered m this opinion ornuted.
At the PCiv\ Heuring. Appellant opined that mal counsel should have objected when
Ms, Arndt testified that Appellant sent nude photos «t'hirnsclf in an aroused state to their
nephew, (NP.I I L, l/~3/J 5, at JS.I i\uornc:y .\!1)nfr~,_ki then t,,ld this Court that be could see
where he maybe should 11=1\C objected til the aonussion 01"th,11 tcstunonv and is unsure wh~
he did not. Id.. Ul 6ll Lawver ~lantn:tlv went on tu impl) that rt m.1~, have been 1..trmssiblc us
u prior bad acts exception for the natural chain nl events leading up !1) l\fs ;\rnd1's discovery
of the abuse ofchr;.· victim in chis case, Id. Moreover, Auomey Monlredo Jid not believe 1hat
the admission of this evidence affected the case 31 nil because the victim's testimony and the
2 The Appellant clanfied at 1he PCR.A 111:a;ing lhlt the pcr,0n 111 qucsuon Ir, whom rlte Ap;,cll m sen: rne
objecnonable photos «es 1101 nc1uall}' hi!,, r•r h1~ wt !c'r,, 11epl1e11. (I.J P ! I r , I C.J, I; :11 i8J. fi,1\1 ever 1c,r tl1r;
sake of cl tnl), we continue •11 refor Iv ilus persou .. s the A::,p1:II Jnt 's nephc· ... ra1he1 rlrm seek t« -:lanry III n
manner rh:11 mrght cause more conruslou
It
Appellant's confession were overwhelming, id.. at 70
First, does th,: claim underlying the ineffectiveness l'!Ji,n have ar~uabll' mer il'l
Attorney Monfredo conceded that he perhaps should have objected t" Ms. Arndr's revelation
about the Appellant hav ng sent lc\,u ph•Jlll~ IL• their nc1•he\• 1-1,)\'.e, er , even if mal counsel
had made this objection, "oui courts will allo« e, idence ot pnot bad ,1ct<; where the distinct
crime or bad act was part of a chain or sequence of events which formed the history «f the
case and was part of its natural dev eloprnent." Commonwealth "· Po» t'/1. 9 56 A.2d 406. +20
(Pa. 200S) {quoting Couunonwculih l' Walker. f;)b A.~d 90, % (Pa. I 1J95) (citations
ornittedj). While this C,)U11 is generally wary of what we view as the overuse ot prior bad
acts. we would have adrruued the pnor bad act in quesnon in order to :.1,·1,1J confusing the
jun as to the natural hist,)r) arid progression or' this case There would. therefore. be no
arguable merit I(• the 1rndc:-l::111~. clann and the Appe llant fails uus tirst p;,'Jnl.! ot the
meffectivencss (•f counsel test.
For the second pwng, \\ e inquire whether trial counsel 's act inns lacked any
reasons ble basis while remembering that a chosen strategy does not luck n reasonable basis
unless the PCRA petitioner proves that an alternntive nut chosen offered a r11bst.11uwi!y
greater chance :H success. ·r he chosen str:utg, w;1.., tor trial counsel t,, not 1>hicct and the
Appt'llnnt's proffered alternative stratet> was for trial counsel !1-111bjecL to the priN bad act
df e-mailing 1111.ie ph010~ o: Appellam in ft SI!' uall:, aroused state to his l'i111!ly llll'IJOl'H} -aae
nephew. As we hnvc .ilrcud) mdicared that we \\OUIJ h,n e overruled such an 1)IJ1edio1,. there
is no chance, let alone ..i substanna! chance. that this aliernauve s1ratcb) would have yielded
greater success. Appellant. thcrvfore, fails the second prong of the resr as well.
Fmall: \p1cllnm also needed to sno«: this Court that trial counsel's actions resulted
in prejudice to the Appellant We are ienunded tint prejudice, in this ..:0111ext. rs found where
chert: was a reasonable probability of a different outcome if not for counsel's supposed error.
In the interest of avoiding jury confusion and allowing Commonwealth kl tell the story of
' this case Irom beginning to end. there \\ as no reasonable probability ot .i different outcome
but for counsel" s supposed mistake, Moreover. we agree with trial counsel 's assessment th,11.
even if this were error. against the mountain cit mcnrmnaun ; evidence against the Appellant
supplied b~ his 1Jw11 words rn his confession and b) the tcsumon, of the v iciim. there was 11,.:i
reasonable prc,bubilit:, 01 .-, different outcome Fo1 tlie.1,c- reasons, ihe Appellan: ilS•• fails lhe
thii d prong of the test
Remembering that the law presumes counsel was effective and the Appellant having
failed all three prongs of the test, we dc..1 not believe Appel lant came dose to proving
ineffective assistance of counsel for this particular matter complained of. And so, we
deferenually ask for affirmance on chis matter
25
I((. Condu5iun
Based upon the reasons stated above. this Court respectfully urues affirmance of our
January 23. ~O I"' denial of Appellant's PCRA petition.
B\' THE COL Rf,
/-:27~c~
DA rro ful~ }_ r. j _; /0ti:rcH<\EL E. BORTNER, .)LOGE