Com. v. Kane, V.

J-S30007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT KANE :
:
Appellant : No. 2159 EDA 2021
Appeal from the PCRA Order Entered September 23, 2021
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0000702-2017
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 14, 2022
Appellant, Vincent Kane, appeals from the September 23, 2021
dismissal of his petition for collateral relief pursuant to the Post Conviction
Relief Act (“PCRA) filed in the Court of Common Pleas of Delaware County.1
Appellant contends that the PCRA court erred in dismissing his petition
because trial counsel did not have a reasonable basis for his actions/inactions,
because trial counsel’s actions were so prejudicial as to deny Appellant due
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* Retired Senior Judge assigned to the Superior Court.
142 Pa.C.S.A. §§ 9541-9546. The PCRA court issued an opinion on September
23, 2021, which concluded with the declaration, “Petitioner’s PCRA petition is
hereby DISMISSED.” PCRA Court Opinion, 9/23/21, at 17. No separate order
was entered on the docket.
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process and a fair trial, and because Appellant proved a Brady2 violation.
Upon review, we affirm.
In its factual and procedural history, the PCRA court explained that on
September 22, 2016, a female student at Villanova University discovered a
cell phone that was recording people as they used a bathroom in a unisex
dormitory. The student took the phone to campus security personnel who, in
turn, took it to the Criminal Investigative Division (“CID”) of the Delaware
County District Attorney’s Office.
CID detectives confirmed with a deputy district attorney that no warrant
was required to search the phone because it was abandoned. A search of the
phone disclosed that it was owned by Appellant and that it contained video
from the bathroom, along with child pornography and “upskirt videos” of
women.
CID detectives conducted a voluntary interview of Appellant at
Villanova, during which he admitted to recording the bathroom and upskirt
videos and to possessing child pornography. He also consented to a search
of his laptop and hard-drive computer in his home, noting that more images
would be found on those devices.
CID detectives obtained a search warrant for the devices and discovered
additional images of child pornography, upskirt and bathroom videos, and
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2 Brady v. Maryland, 373 U.S. 83 (1963).
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images of young girls in gym shorts at a local high school. They learned that
Appellant had a username to the website “4chan,” an anonymous social media
site where pornographic images are posted. After discovering the images and
videos, the detectives secured an arrest warrant and arrested Appellant on
October 26, 2016.
Appellant was initially charged with 70 counts, including multiple counts
of invasion of privacy and possession of child pornography. Prior to a
stipulated bench trial conducted on November 28, 2017, the Commonwealth
withdrew all but ten counts. The ten remaining charges included one count
each of filming/depicting a sexual act on the computer (F1), possession of
child pornography (F2), intercepting communication facilities (F3), criminal
use of a communication facility (F3), and designing/copying obscene material
(M1), as well as five counts of invasions of privacy (M2).3 See PCRA Court
Opinion, 9/23/21, at 1-2.
The PCRA court explained that Appellant was represented by a
succession of attorneys. Pertinent to our discussion, his first attorney post-
preliminary hearing filed a motion to suppress cell phone records obtained as
a result of a warrantless search. The motion was denied but the issue was
preserved for direct appeal. His next attorney, Scott Godshall, Esq., sought
out a local expert witness to provide a supportive report for trial. Following
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3 18 Pa.C.S.A. §§ 901(a), 6312(d), 5703(1), 7512(a), 5903(a)(3)(i), and
7507.1(a)(1), respectively.
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review, the expert suggested not preparing a report because the evidence was
damning. Id. at 3 (citing Notes of Testimony (“N.T.”), Evidentiary Hearing,
5/11/21, at 82-84).
Appellant’s father then hired analysts from Loehrs & Associates in
Arizona to review the evidence and prepare a report. An agent from that
company traveled to Delaware County to view the evidence but was “unthrilled
with the manner and circumstances in which [the agent was] allowed to
inspect the evidence.” Id. (citing N.T., Evidentiary Hearing, at 104-05).
Attorney Godshall filed a motion to withdraw his appearance on October
17, 2017, “based on irreconcilable differences where [Appellant’s] father
constantly attempted to hire new attorneys to undertake legal representation
for his son.” Id. at 3-4 (citing N.T., Evidentiary Hearing, 5/11/22, at 86-87).
While awaiting a ruling on the motion to withdraw, Attorney Godshall filed a
motion to compel, contending Loehrs & Associates was not afforded “adequate
time, access, and equipment to perform their forensic review of the evidence.”
Id. at 4. On October 31, 2017, the date set for trial, the trial court granted
Attorney Godshall’s motion to withdraw and set a new trial date of November
27, 2017. Id.
Michael Fienman, Esq., entered his appearance for Appellant on October
30, 2017, and subsequently supplemented the motion to compel with a
memorandum of law in support, contending the Commonwealth “has yet to
disclose to [Appellant] or their computer forensic experts, the specific
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electronic discovery in their possession deemed to be ‘chargeable files.’” Id.
at 4 (quoting Memorandum of Law at 6). The PCRA court observed, “This was
included in the Memorandum despite the fact that Loehrs had viewed the
evidence at least twice at CID offices and a previous defense expert reviewed
the evidence before [Appellant’s] father hired Loehrs.” Id. At the conclusion
of a November 20, 2017 hearing on the motion to compel, the trial court
denied the motion. Id.
A jury was selected on November 27, 2017. However, the following
day, the parties proceeded to a stipulated bench trial.
As the PCRA court explained:
[Appellant] agreed to waive his right to a jury trial in exchange for
the Commonwealth only proceeding on five counts of invasion of
privacy, three counts of possession of child pornography, and two
counts of criminal communication facilities related to the use of
[Appellant’s] cellphone. A non-jury trial occurred on November
28, 2017, where the evidence was mostly admitted by stipulation.
Mr. Fienman objected to one piece of evidence, audio evidence
that he claimed he was just given that day, and that objection was
sustained by the court. Following the stipulated non-jury trial, the
court found [Appellant] guilty on all counts. On February 12,
2018, the court sentenced [Appellant] to serve [an aggregate
term of 20 to 60 months of incarceration followed by eight years
of consecutive probation]. See Certificate of Imposition of
Judgment of Sentence. [Appellant] did not file a post-sentence
motion.
Id. at 4-5.
On direct appeal, Appellant’s first appellate counsel filed a timely notice
of appeal and a Rule 1925(b) statement of errors. His next counsel filed an
amended Rule 1925(b) statement. In his direct appeal, Appellant challenged
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the denial of his motion to suppress the warrantless search of his cell phone.
On May 9, 2019, this Court affirmed Appellant’s judgment of sentence.
Commonwealth v. Kane, 210 A.3d 324 (Pa. Super. 2019). Our Supreme
Court denied his petition for allowance of appeal on October 21, 2019, and
the United States Supreme Court denied his petition for writ of certiorari on
April 6, 2020.
On March 12, 2020, Appellant filed a counseled PCRA petition. The
petition was deemed premature due to the petition for writ of certiorari still
pending before the United States Supreme Court. After that petition was
denied, Appellant was given leave to file an amended petition and did so on
May 12, 2020. The PCRA court held a bifurcated evidentiary hearing in May
and July 2021, after Appellant filed a number of amended petitions and
corrective pleadings. At the conclusion of the July 2021 proceedings, the
parties submitted additional briefs. On September 23, 2021, the PCRA court
issued its opinion in which it dismissed Appellant’s petition. See n.1. This
timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.4
Appellant asks us to consider three issues in this appeal:
1. Overall, did the PCRA court err in finding that Appellant failed
to establish that trial counsel did not have a reasonable basis
for his actions(s)/inaction(s)?
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4 We remind Appellant that Pa.R.A.P. 2111(a)(11) and (d) direct that an
appellant is to append a copy of the Rule 1925(b) statement to the appellate
brief.
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2. Relatedly, did the Appellant demonstrate that trial counsel’s
actions were so prejudicial as to have denied him due process
and a fair trial?
3. Did the PCRA court err in finding that [Appellant] failed to prove
a Brady violation?
Appellant’s Amended Brief at 3.
On appeal from the denial of a PCRA petition, we “examin[e] whether
the PCRA court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012) (citation omitted). “Our scope of review is limited
to the findings of the PCRA court and the evidence of record, viewed in the
light most favorable to the party who prevailed in the PCRA court
proceeding.” Id.With respect to claims of ineffective counsel, our Supreme Court has
stated:
It is well-settled that counsel is presumed to have been effective
and that the petitioner bears the burden of proving counsel’s
alleged ineffectiveness. Commonwealth v. Cooper, 596 Pa.
119, 941 A.2d 655, 664 (2007). To overcome this presumption,
a petitioner must establish that: (1) the underlying substantive
claim has arguable merit; (2) counsel did not have a reasonable
basis for his or her act or omission; and (3) the petitioner suffered
prejudice as a result of counsel’s deficient performance, “that is,
a reasonable probability that but for counsel’s act or omission, the
outcome of the proceeding would have been different.” Id. A
PCRA petitioner must address each of these prongs on
appeal. See Commonwealth v. Natividad, 595 Pa. 188, 938
A.2d 310, 322 (2007) (explaining that “appellants continue to
bear the burden of pleading and proving each of
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the Pierce[5] elements on appeal to this Court”). A petitioner’s
failure to satisfy any prong of this test is fatal to the
claim. Cooper, 941 A.2d at 664.
Commonwealth v. Wholaver, 177 A.3d 136, 144 (Pa. 2018).
Appellant first argues that the PCRA court erred in finding that Appellant
failed to establish trial counsel’s lack of a reasonable basis for “his
action(s)/inaction(s).” Appellant’s Amended Brief at 3. He next argues,
“relatedly,” that Appellant demonstrated that trial counsel’s actions so
prejudiced him so as to deny him due process and a fair trial. Id. The PCRA
court addressed these broadly-phrased issues together, in terms of a claim of
ineffectiveness “throughout this trial in various ways including but not limited
to agreeing to numerous factual stipulations during [Appellant’s] stipulated
non-jury trial . . . and [trial counsel’s] failure to file a post-sentence motion.”
Trial Court Opinion, 9/23/21, at 6. We likewise consider the issues together.
We first recognize that while the trial court obtained a written waiver of
jury trial and conducted a colloquy on the record regarding Appellant’s
decision to proceed to a bench trial, there was no separate colloquy with
respect to stipulations. Citing Commonwealth v. Davis, 322 A.2d 103 (Pa.
1974), Appellant argues that trial counsel’s failure to object to the lack of a
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5 Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001) (reiterating the
well-settled elements of the ineffectiveness test, as rephrased in Cooper and
quoted in this excerpt from Wholaver).
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colloquy constituted ineffectiveness because the factual stipulations “made the
finding of guilt a ‘foregone conclusion.’” Appellant’s Brief at 18 (quoting
Davis, 322 A.2d at 105). However, as the PCRA court recognized,
“[s]tipulations are part of strategy in the overall case,” and “[t]he test is not
whether other alternatives were more reasonable, employing a hindsight
evaluation of the record, but whether counsel’s decision had any reasonable
basis to effectuate or advance the interests of [Appellant].” Id. at 11.
Here, a jury was empaneled and the case was ready to proceed to trial.
The record reflects that Appellant did not want to go to trial before a jury, nor
did prior counsel, Attorney Godshall, encourage a guilty plea in light of what
was thought to be a strong suppression issue preserved for appeal. See N.T.,
Evidentiary Hearing, 5/11/21, at 40, 54. A stipulated bench trial provided an
alternative that would enable Appellant to pursue that issue on appeal. As
the PCRA court observed:
[Appellant] was fully aware of trial counsel’s strategy regarding
having a stipulated non-jury trial. [Appellant] had discussed this
strategy at length with prior counsel, Scott Godshall, Esquire, and
reviewed it with trial counsel, Michael Fienman, Esquire, as well.[6]
Trial counsel had no reason to complain as the strategy of
proceeding with a stipulated non-jury trial in this matter had been
fully discussed with [Appellant].
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6Attorney Fienman testified that “[a]ll the stipulations were reviewed with Mr.
Kane prior to sitting down with the Judge.” N.T., Evidentiary Hearing,
5/11/21, at 39.
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Id. at 12.7 As the Commonwealth recognizes:
There was no failure to consult with [Appellant] resulting in any
prejudice. Whether or not the trial judge erred by not undertaking
an on-the-record colloquy is not at issue at the PCRA state. Trial
counsel cannot be faulted for failing to complain to the court when
he and his client had fully discussed the strategy of proceeding with
a stipulated non-jury trial. [Appellant’s] assertion of ineffective
assistance fails where, as here, it is meritless.
Commonwealth Brief at 17.
As noted above, a PCRA petitioner’s failure to establish any prong of the
ineffectiveness test is fatal to his claim. Here, we find the PCRA court’s factual
findings are supported by the record and its legal conclusion—that counsel
had a reasonable basis for his actions, i.e., the second prong of the
ineffectiveness test—is free of error.
With respect to the failure to file post-trial motions, the PCRA court
rejected Appellant’s assertion that trial counsel was ineffective because
Appellant was prevented from challenging the weight and sufficiency of the
evidence. Clearly, sufficiency of evidence could have been asserted on direct
appeal. See, e.g., Commonwealth v. Orellana, 86 A.3d 877, 879 (Pa.
Super. 2014) (counsel not required to file post-sentence motion to preserve a
challenge to sufficiency of evidence); Pa.R.Crim.P. 606(A)(7). Trial counsel
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7 Appellant also relies on Commonwealth v. Williams, 443 A.2d 338 (Pa.
Super. 1982), in which this Court concluded that there was no indication
counsel’s strategy was sound when counsel did not object to the lack of a
colloquy prior to a stipulation. See Appellant’s Brief at 19. By contrast, here,
counsel’s strategy enabled Appellant to avoid going before a jury and avoid
pleading guilty, thus preserving his suppression issue for appeal.
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cannot be found ineffective in that regard. As for the weight of the evidence,
the PCRA court rejected the assertion of ineffectiveness because
there was not a legitimate basis to challenge the . . . weight of the
evidence in this case. The evidence in this matter was compelling
and uncontradicted by any defense evidence. Trial counsel cannot
be faulted for failing to preserve a meritless issue for an appeal
and as such this claim is without merit.
...
This ineffectiveness claim also fails because [Appellant] failed to
show prejudice by a preponderance of the evidence. Specific to
the weight of the evidence toward Possession of Child
Pornography, the CID forensic reports indicated that at least four
(4) of the images were likely viewed knowingly. Additionally,
[Appellant] did not present any evidence at trial to call the CID
reports into question. Therefore, even if [trial counsel] had been
ineffective, which this court finds he was not, the omission in
question did not prejudice [Appellant’s] case. None of the issues
or claims pursued by [Appellant] at the PCRA hearing would have
garnered relief for [Appellant] even if they had been preserved for
appeal. Trial counsel cannot be faulted for failing to preserve a
meritless issue for an appeal or filing a frivolous motion. This
ineffectiveness of counsel claim lacks merit[.]
PCRA Court Opinion, 9/23/21, at 10-11. We find the PCRA court’s factual
findings are supported by the record and its legal conclusions—that the claim
lacks arguable merit and that Appellant was not prejudiced, i.e., the first and
third prongs of the ineffectiveness test—are free of error. Appellant is not
entitled to relief on either of his first two issues.
In his third issue, Appellant argues PCRA court error for concluding that
Appellant did not prove a Brady violation. Appellant argues that the
Commonwealth withheld a second forensic report, which trial counsel
contends was not turned over until the day of the stipulated trial.
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As Appellant recognizes:
In order for a defendant to establish the existence of a Brady
violation, a Petitioner must demonstrate that: (1) the evidence
was suppressed by the Commonwealth, either willfully or
inadvertently; (2) the evidence was favorable to the Plaintiff; and
(3) the evidence was material, in that its omission resulted in
prejudice to the Petitioner. Commonwealth v. Haskins, 60 A.3d
538, 545 (Pa. Super. 2012).
Appellant’s Brief at 23 n.2.
The PCRA court rejected Appellant’s claim, explaining:
The standard of materiality adopted by the [United States]
Supreme Court applies to all Brady claims raised in Pennsylvania.
Evidence is material only if there is a reasonable probability that
had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.
[Commonwealth v. Lambert, 884 A.2d 848 (Pa. 2005)];
Commonwealth v. Ferguson, 866 A.2d 403 (Pa. Super. 2004).
In this case, [Appellant] has failed to make the required showing.
Based on the testimony at the evidentiary hearing, the court finds
that all non-contraband evidence was prepared in a packet and
handed to Attorney Scott Godshall well ahead of trial in the
matter. The only evidence he could not leave CID with was the
forensic contraband evidence, i.e., the images of child
pornography and “upskirt videos.” However, that evidence was
viewed by Mr. Godshall and both sets of defense forensic experts
in the CID office well before trial. Additionally, Scott Godshall,
Esquire, testified at the evidentiary hearing that the
Commonwealth provided everything he asked for in discovery
“pretty promptly.” This included both of the CID forensic reports.
Michael Fienman, Esquire, testified that he received [Appellant’s]
defense file from Attorney Godshall.
...
The court finds the testimony of Mr. Fienman incredible as it
relates to the second forensic report allegedly being sprung on
him at the “11th hour.” Counsel went from not remembering if or
when a second CID forensic report was produced to having a vivid
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recollection of this alleged incident including his conversation with
his client about it. However, when [Appellant] testified[,] he had
no recollection of this happening or a conversation with counsel.
Additionally, Assistant District Attorney Boggs testified that he had
no recollection of turning over his report in the courtroom on the
day of trial.
PCRA Court Opinion, 8/23/21, at 14-15 (citations to evidentiary hearing
transcript omitted). As the Commonwealth observes, the lack of credence in
Attorney Fienman’s account of having the second report sprung on him on the
morning of trial is bolstered by the fact Attorney Fienman did assert an
objection—which the trial court sustained—to admission of the audio portion
of Appellant’s statement because counsel had not received the audiotape prior
to trial. “As to the second, now contested forensic report, trial counsel had
no objection to its admission and voiced no complaint about only receiving it
on the day of the trial.” Commonwealth Brief at 19.
Because Appellant failed to establish that evidence was suppressed by
the Commonwealth, he has failed to establish the underlying merit of a Brady
claim. Therefore, he is not entitled to relief. We find no error in the PCRA
court’s rejection of the claim.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2022
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