Com. v. Kuhlman, C. ( 2023 )

J-S14028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLINTON REED KUHLMAN :
:
Appellant : No. 1063 WDA 2022
Appeal from the Judgment of Sentence Entered August 22, 2022
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000160-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 27, 2023
Appellant, Clinton Reed Kuhlman, appeals pro se from the aggregate,
mandatory judgment of sentence of 25 to 50 years’ incarceration, imposed
after he was convicted, following a non-jury trial, of 58 counts of possession
of child pornography, 18 Pa.C.S. § 6312(d), and one count of criminal use of
a communication facility, 18 Pa.C.S. § 7512(a). After careful review, we
affirm.
The facts and procedural history of this case stem from another case in
which Appellant was convicted, in 2015, of five counts of sexual abuse of
children (dissemination of photographs, videotapes, computer depictions and
films), 18 Pa.C.S. § 6312(c), ten counts of sexual abuse of children (child
pornography), 18 Pa.C.S. § 6312(d), and one count of criminal use of a
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* Retired Senior Judge assigned to the Superior Court.
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communication facility. For these convictions, Appellant was sentenced to an
aggregate term of incarceration of one year less one day to two years less one
day, followed by ten years’ probation.
In 2016, Appellant was released and began serving his term of
probation. Shortly after his release, Probation Officer Chris Sturgeon (“P.O.
Sturgeon”) met with Appellant to review the written rules of his supervision,
which included the following:
1. You must successfully enroll in and complete a [c]ourt[-
]approved sexual offender treatment/counseling program. During
the course of your therapy, you must complete any and all
assessments or evaluations required by your treatment provider
which may include a polygraph examination. You will comply with
all conditions and recommendations of your treatment provider.
You will pay all fees associated with the treatment program.
6. You will not own, possess, or view any photographs, magazines,
movies, websites, e-mails, D.V.D.[]s or videotapes depicting nude
or partially nude men, women, or children. You will not access
any sexually explicit telephone services. I understand that Beaver
County Adult Probation Department has the authority to search
and seize any materials that exist on my person, place, residence
and/or vehicle without warrant if there is reasonable suspicion
that these types of materials exist.
8. Access to the Internet is limited to legitimate and business
purposes only. You will submit to a search of your computer or
any computer that you have access to for any violations
throughout your supervision. Your computer may be seized for
the purpose of this search and if any information on your computer
violates the Laws of the Commonwealth of Pennsylvania, the
search may cease, and the proper law enforcement agencies will
be notified.
9. You may be subjected to and agree to Remote Internet
Monitoring. You will pay all fees associated with this program.
Commonwealth’s Brief at 8-9.
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In 2020, a sexual-offender evaluation of Appellant was completed by
Julia Lindemuth, who is an approved therapist for sexual offenders by the
Sexual Offender Assessment Board.1
On February 13, 2020, … Lindemuth emailed P.O. Sturgeon
expressing concern that [Appellant] had unmonitored access to
the internet and could potentially be viewing child pornography.
In her email, Lindemuth advised P.O. Sturgeon that [Appellant]
was cooperative, but minimized his responsibility and continued
to claim that he did not know viewing child pornography was
illegal. She further advised the probation officer that unmonitored
internet access was potentially problematic for an online offender.
[] Lindemuth told P.O. Sturgeon that Lindemuth is also employed
as an evaluator by the Sexual Offender Board, a position that
requires her to use her expertise to determine whether a
defendant meets the criteria of a violent sexual offender.
[Appellant] had told her he could not access the internet due to
his illness. He also reported that he did not use the internet but
would assist his mother on the computer. Furthermore, the
therapist recommended [that] the probation officer … do a home
visit and take a look at the computer history of [Appellant].
After receiving this information, P.O. Sturgeon obtained
permission from the head of Beaver County Adult Probation, Don
Neill, to do a field visit of [Appellant’s] residence in order to follow
up on the concerns of the therapist. On February 18, 2020, P.O.
Sturgeon went to [Appellant’s] residence at 813 Coleman Drive at
10:30 a.m. where he lived with his elderly mother. Present was
fellow probation officer Ian Thomas and the Chief of Police of
Rochester Township. After several minutes[,] [Appellant]
answered the door. P.O. Sturgeon explained that she was there
to look at [Appellant’s] computers to see if he was currently
viewing any form of pornography. [Appellant] was cooperative,
consented to the field visit, and provided P.O. Sturgeon access to
his Android phone and the locations of the two computers inside
his residence.
____________________________________________
1 Appellant’s evaluation was delayed due to the fact that he had extensive
brain surgery to remove a tumor. See Commonwealth’s Brief at 9.
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[Appellant’s] residence had a main floor, containing a kitchen,
living room, and a couple of sitting areas, as well as a partially
finished basement. The first computer was located on the main
floor of the residence and, after review, [P.O.] Sturgeon testified
that there was nothing inappropriate on that computer.
When [P.O.] Sturgeon asked [Appellant] where his bedroom was,
[Appellant] led her downstairs to a partially finished basement.
The basement was partitioned, with the left-hand[]side containing
[Appellant’s] bedroom and the right-hand[]side containing a
utilities area. The second computer was located in an area of
[Appellant’s] bedroom. When the probation officers examined the
computer, they immediately began to see “pornography and child
sex abuse images” on the computer. Upon viewing the images,
P.O. Sturgeon testified that the probation officers immediately
stopped the search and contacted their supervisor to advise them
of the potential violation of [Appellant’s] rules of supervision.
[Appellant] was detained for violation of his supervision rules.
Subsequently, the Pennsylvania State Police obtained a search
warrant to search [Appellant’s] computer. The forensic
examination of that computer revealed 58 photographs of child
pornography on [Appellant’s] computer.
Id. at 10-12 (citations to the reproduced record omitted).
Appellant was subsequently charged with 58 counts of possession of
child pornography and one count of criminal use of a communication facility.
On August 12, 2021, he filed a pretrial motion to suppress, arguing that the
evidence supporting his charges was the product of an illegal search and
seizure because P.O. Sturgeon lacked reasonable suspicion that his computer
contained contraband. On April 5, 2022, the trial court conducted a
suppression hearing. On April 26, 2022, the court issued an order and opinion
denying Appellant’s suppression motion. The case proceeded to a non-jury
trial, at the close of which Appellant was convicted of all charges. He was
sentenced on August 22, 2022, to the aggregate term set forth supra.
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On September 14, 2022, Appellant, who at the time was represented by
counsel, filed the instant, pro se appeal challenging his judgment of sentence.
On September 21, 2022, counsel for Appellant filed a second appeal, docketed
at 1109 WDA 2022, challenging the same judgment of sentence at the same
trial court docket.2 As the appeals appeared duplicative, this Court, on
November 1, 2022, entered a Rule to Show Cause Order at the instant appeal
directing pro se Appellant to show cause why this appeal should not be
dismissed as duplicative to the appeal at 1109 WDA 2022.
On November 10, 2022, Appellant filed an application requesting that
the appeal at 1109 WDA 2022 be dismissed. Appellant explained he had
requested counsel withdraw immediately after sentencing, but that counsel
had failed to do so and instead filed the appeal at 1109 WDA 2022. Because
of this, Appellant requested the unwanted appeal at 1109 WDA 2022 be
dismissed as duplicative. Therefore, on November 18, 2022, this Court
entered an order dismissing the appeal at 1109 WDA 2022 as duplicative to
the instant appeal.
After Appellant filed his notice of appeal, the trial court directed him to
file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
and he timely complied. The trial court filed a Rule 1925(a) opinion, indicating
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2We note that counsel was permitted to withdraw by this Court, at 1109 WDA
2022, on November 10, 2022, following an October 25, 2022 trial court order
which permitted counsel to withdraw following a hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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that it was relying on its April 26, 2022 suppression opinion to address
Appellant’s claims.
Herein, Appellant states three issues for our review:
1. Whether the trial court err[ed in denying the suppression
motion (evidence seized from [Appellant’s] computer) as [P.O.] …
Sturgeon did not have a reasonable suspicion that the computer
contained contraband or that [Appellant] violated the conditions
of his supervision in violation of 42 Pa.C.S.[] §[]9912(d)(2),
Pennsylvania Const. Art. 1[]§[]8 and/or U.S. Const. Amend. 4?
2. Whether the Commonwealth committed [p]rosecutorial
[m]isconduct during the suppressi[on] hearing and violate[d
Appellant’s] 14th [A]mendment rights to due process[ w]hen [it]
presented, used or should have known the testimony from [P.O.]
… Sturgeon, pursuant to Julia Lindemuth, was false[?]
3. Whether the trial court err[ed] by relying on [P.O.] …
Sturgeon[’s] perjuried [sic] and false testimony to deny the
suppression motion[,n]amely, the testimony surrounding Julia
Lindemuth[?]
Appellant’s Brief at 2.
In Appellant’s first issue, he contends that the trial court erred by
denying his motion to suppress.
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous. Where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
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appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (cleaned
up).
Instantly, Appellant contends that the evidence of child pornography
recovered from his computer should have been suppressed because P.O.
Sturgeon lacked reasonable suspicion to search the computer. According to
Appellant, the sole basis for the search was Lindemuth’s email, which he
claims used only vague and uncertain language that showed a “mere
suspicion, not reasonable suspicion.” Appellant’s Brief at 14. He argues that,
unlike other cases where we found reasonable suspicion to search a
parolee/probationer, here, there was no “specific and articulable facts based
off of … personal knowledge and observations of criminal activity and
probation violations” to show that P.O. Sturgeon had reasonable suspicion to
search his computer. See id. at 15-16 (citing Commonwealth v. Banks,
249 A.3d 1146 (Pa. Super. 2021) (unpublished memorandum) (concluding
that reasonable suspicion existed to search Banks, who had committed parole
violations on other occasions, based on a call from his cousin informing Banks’
parole officer that Banks was selling narcotics out of his home, that he had
firearms, and there were known gang members going in and out of his
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residence);3 Commonwealth v. Moore, 805 A.2d 616 (Pa. Super. 2002)
(finding that a probation officer had reasonable suspicion to stop and search
Moore after receiving a tip from a known, reliable informant that Moore had
crack cocaine on his person and was located in an area of high drug activity,
and the officer observed Moore in that location)). Appellant insists that, unlike
in Banks or Moore, here, “Lindemuth[’]s email did not specify or articulate
facts of criminal activity or probation violations to establish reasonable
suspicion.” Appellant’s Brief at 16. Therefore, he contends that the court
should have granted his motion to suppress the evidence found on his
computer.
In rejecting Appellant’s suppression argument, the trial court reasoned
as follows:
The aim of probation and parole is to rehabilitate and reintegrate
a lawbreaker into society as a law-abiding citizen.
Commonwealth v. Chambers, 55 A.3d 1208, 1212 (Pa. Super.
2012). The institution of probation and parole assumes a
probationer or parolee is more likely than the ordinary citizen to
violate the law. Commonwealth v. Moore, 805 A.2d 616, 619
(Pa. Super. 2002). Consequently, probationers and parolees have
limited Fourth Amendment rights because of a diminished
expectation of privacy. Id. See also Chambers, supra (stating
probationers’ and parolees’ Fourth Amendment constitutional
rights are virtually indistinguishable). The Superior Court
explained that probation officers, like parole officers[,]
[a]re in a supervisory relationship with their offenders. The
purpose of this supervision is to assist the offenders in their
____________________________________________
3Pursuant to Pennsylvania Rule of Appellate Procedure 126, unpublished, non-
precedential memorandum decisions of the Superior Court filed after May 1,
2019, may be cited for their persuasive value. Pa.R.A.P. 126(b).
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rehabilitation and reassimilation into the community and to
protect the public. Supervision practices shall reflect the
balance of enforcement of the conditions of parole and case
management techniques to maximize successful parole
completion through effective reentry to society. As such,
probationers and parolees are subject to general and
individual rules of conduct and supervision described at
sentencing and/or in the parole agreement.
Commonwealth v. Smith, 85 A.3d 530, 536 (Pa. Super. 2014).
See also Commonwealth v. Cruz-Rivera, 249 A.3d 1125 (Pa.
Super. 2021).
The statute governing the supervisory relationship between
probation officers and probationers and the rights of the
probationers, in effect at the time of the search in this case,
provided in relevant part:
42 Pa.C.S.[]§[]9912, the statute governing probationers, states
in pertinent part:
(a) General rule.-- Officers are in a supervisory relationship
with their offenders. The purpose of this supervision is to
assist the offenders in their rehabilitation and reassimilation
into the community and to protect the public.
(b) Searches and seizures authorized. --
(1) Officers and, where they are responsible for
the supervision of county offenders, State
parole agents may search the person and
property of offenders in accordance with the
provisions of this section.[]
***
(2)(iii) Nothing in this section shall be construed
to permit searches and seizures in violation of
the Constitution of the United States or section
8 of Article I of the Constitution of
Pennsylvania.[]
***
(d)(2) A property search may be conducted by an officer if
there is reasonable suspicion to believe that the real or other
property in the possession of or under the control of the
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offender contains contraband or other evidence of violations
of the conditions of supervision.[]
***
(d)(6) The existence of reasonable suspicion to search shall
be determined in accordance with constitutional search and
seizure provisions as applied by judicial decision. In
accordance with such case law, the following factors, where
applicable, may be taken into account:
(i) The observations of officers.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of the officers with the offender.
(vi) The experience of officers in similar
circumstances.
(vii) The prior criminal and supervisory history of the
offender.
(viii) The need to verify compliance with the
conditions of supervision.
In Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013), the
Supreme Court explained:
Section 9912(d)(2) is a specific provision addressing a
narrow circumstance: the conditions under which a county
probation officer may conduct a warrantless search,
including a requirement that the probation officer must
possess reasonable suspicion that the property contains
contraband or other evidence of violations of the
probationer’s terms of probation. The provision is clear and
unambiguous and lists no exception. The reason for the
restrictions … are obvious: searches implicate constitutional
rights (even though the Fourth Amendment rights of
probationers are diminished).
[Id. at 744.]
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***
“The policy behind [Section 9912] is to assist the offenders in their
rehabilitation and reassimilation into the community and to
protect the public.” Moore, supra at 620 (emphasis [omitted]).
“Essentially, Section 9912 authorizes county probation officers to
search a probationer’s person or property, if there is reasonable
suspicion to believe the probationer possesses contraband or
other evidence of violations of the conditions of supervision.”
Chambers, supra at 1214[] (citing 42 Pa.C.S.[ §] 9912(d)(1)(i),
(d)(2)). “Reasonable suspicion to search must be determined
consistent with constitutional search and seizure provisions as
applied by judicial decisions; and in accordance with such case
law, enumerated factors, where applicable, may be taken into
account.” [Id.] (citing 42 Pa.C.S.[ §] 9912(d)(6)).
In establishing reasonable suspicion, the fundamental inquiry is
an objective one, namely, whether the facts available to the officer
at the moment of the intrusion warrant a [person] of reasonable
caution in the belief that the action taken was appropriate. This
assessment, like that applicable to the determination of probable
cause, requires an evaluation of the totality of the circumstances,
with a lesser showing needed to demonstrate reasonable suspicion
in terms of both quantity or content and reliability. Moore, supra
at 619-20[] (internal citations and quotation marks omitted).
“[T]he threshold question in cases such as this is whether the
probation officer had a reasonable suspicion of criminal activity or
a violation of probation prior to the … search.” In re J.E., 907
A.2d 1114, 1119 (Pa. Super. 2006). Accordingly, the fact that a
probationer signs a consent form permitting warrantless searches
as a term of his probation is insufficient to permit a search absent
reasonable suspicion of wrongdoing. Id. at 1120. Rather, the
probationer’s signature acts as acknowledgment that the
probation officer “has a right to conduct reasonable searches of
[the probationer’s] residence listed on the [probation] agreement
without a warrant.” Commonwealth v. [] Williams, [692 A.2d
1031, 1036] … ([Pa.] 1997).
The [c]ourt finds in light of the totality of the circumstances that
P.O. Sturgeon had reasonable suspicion regarding whether
[Appellant] was using the internet for non-legitimate business
purposes and whether he was in possession of child pornography
as prohibited under the Rules for Sexual Offenders. In this case,
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P.O. Sturgeon was supervising [Appellant] with knowledge that he
had been convicted of [five] counts of distribution of child
pornography, [ten] counts of possession of child pornography, and
[one] count of criminal communications facility.
The [c]ourt also finds critical that … Lindenmuth--the board-
certified therapist for [Appellant’s] sexual offender treatment--
evaluated [Appellant] for sexual offender treatment in light of her
clinical judgement and experience. Based upon this expert
evaluation, … Lindemuth was concerned that [Appellant] had
unmonitored access to a computer. … Lindemuth was further
concerned that [Appellant] continued to minimize his
responsibility for distribution and possession of child pornography
by continuing to state that he did not know that it was illegal to
view child pornography. [Appellant’s] evasive explanations,
viewed in the light of … Lindenmuth’s professional experience,
reasonably put the therapist on notice that [Appellant] could be
the violating the rules of supervision. These red flags resulted in
… Lindemuth[’s] emailing P.O. Sturgeon, expressing her
concerns[,] and recommending that inspection of [Appellant’s]
computers be conducted to determine whether he was in
compliance with the sex offender rules of Beaver County
Probation. The same day [P.O.] Sturgeon received the email, she
received authorization from [the Head of Adult Probation,] Don
Neill[,] to do the home inspection.
The [c]ourt further notes, in assessing the totality of the
circumstances, that when P.O. Sturgeon went to [Appellant’s]
residence, [Appellant] answered the door and was informed by
the probation officer why she was there. She explained
specifically why she wanted to inspect his home, and [Appellant]
gave full permission to allow her to enter his residence. The
[c]ourt further notes that it was [Appellant], rather than anyone
else, who informed the probation officer that there was one
computer upstairs and a second computer in his basement
bedroom.
The [c]ourt also notes the limited basis of the search. When the
probation officers went downstairs to [Appellant’s] bedroom, and
they initially saw the pornographic images which were apparent
from their face, they immediately stopped the search and
contacted their supervisor, who then contacted the Pennsylvania
state police.
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Finally, the [c]ourt finds persuasive that the search warrant is
otherwise uncontested by both the Commonwealth and the
[d]efense. Considering this evidence in light of the totality of the
circumstances, the [c]ourt concludes that there was reasonable
suspicion to conduct the warrantless search.
Trial Court Opinion, 4/26/22, at 7-11.
We agree with the trial court that P.O. Sturgeon had reasonable
suspicion to search Appellant’s computer based on the totality of the
circumstances known to her. Namely, Appellant was serving probation for
committing crimes of possessing and disseminating child pornography using
the internet. Lindemuth notified P.O. Sturgeon that she felt Appellant was
minimizing his responsibility for those crimes and being evasive, which raised
‘red flags’ for her when she discovered that Appellant had unmonitored
internet access. Appellant’s probation conditions expressly permitted P.O.
Sturgeon to conduct a warrantless search of Appellant’s person and residence,
and Appellant consented to P.O. Sturgeon’s entry into his home. Further,
Appellant informed P.O. Sturgeon where his two computers were located after
she explained to him why she was there. The totality of these circumstances
show that P.O. Sturgeon possessed reasonable suspicion that contraband or
evidence of a probation violation would be found on Appellant’s computer, and
that her search thereof was within the bounds of her authority as Appellant’s
probation officer. See Commonwealth v. Sperber, 177 A.3d 212 (Pa.
Super. 2017) (finding a parole officer had reasonable suspicion to search
Sperber’s person, car, and phone where police had an anonymous tip and
reports from other parolees that Sperber had a smart phone and was
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accessing social media; Sperber had been previously convicted of child-
pornography offenses; Sperber’s conditions of parole provided for warrantless
searches of his person and property; and Sperber voluntarily consented to the
search). Thus, Appellant’s first issue is meritless.
In Appellant’s next issue, he claims that the Commonwealth committed
prosecutorial misconduct and “violated his due process rights by presenting
P.O. Sturgeon[’s] perjured testimony at the [s]uppression hearing and trial….”
Appellant’s Brief at 21-22. According to Appellant, in February of 2021, he
was found to be in violation of his probationary term by “refusing and fail[ing]
to complete the sexual offender program ordered by the” trial court, yet at
the suppression hearing in this case, P.O. Sturgeon “testified that [Appellant]
was compliant with the program.” Id. at 25-26. Appellant claims that P.O.
Sturgeon’s suppression-hearing testimony was patently false, given the
evidence that she knew he had previously been found to be in violation of his
probationary term. Because the Commonwealth introduced this ostensibly
perjured testimony, Appellant claims that it committed prosecutorial
misconduct.
Relatedly, Appellant contends in his third issue on appeal, that this
alleged fabrication by P.O. Sturgeon should have caused the trial court to
reject her suppression-hearing testimony as incredible. Because P.O.
Sturgeon’s testimony was the only evidence to support the legality of the
search of his computer, Appellant claims that the court erred by denying his
motion to suppress.
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Appellant’s arguments are waived. He does not cite to where he
objected to P.O. Sturgeon’s at-issue, suppression-hearing testimony, and/or
raised his prosecutorial-misconduct claim before the trial court. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”). Moreover, Appellant cannot now argue that
the trial court erred in relying on P.O. Sturgeon’s testimony in denying his
motion to suppress where no objection to that evidence was lodged.
Accordingly, Appellant’s second and third issues are waived and/or meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2023
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