Com. v. Arndt, S.

• Court: Superior Court of Pennsylvania
• Decided: April 21, 2016
• Docket: 369 MDA 2015
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

- 10 - Circulated 03/30/2016 03:20 PM

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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)

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.

udrnittcd ~hat the computer evidence was used by the Commonwealth ro holster other.

evidence agams: the '\ppell.tni 1,L .:11 78 However, to Auorney Monfredos knowledge, It

v:u~· only 1h: Appcllan: ·.\ ho suspected the computers had bt'cn tampered \\ 11h. Id .. iit S2. !11

Iuct, this Coun beard trorn b1Al1 the App,dl.t!li and trial counsel that Appellant iesu lied to the

jury that there had p, uenually been some comp: uer tamper mg and vrdeo evidence was shown

in support of th

three-pronged rest for evaluating whether counsel was ineffective.

First, we exanune whether the claim underl yin g the i ne Ifect I veness claim has

arguable rncrit The overwhehmng amount «fevidence pro:Se11led dgam-;t the Appellant hc1d

to do with physical contact between the: Appcllan: and the vrctim and not the results of

aualyzurg Appell .. 11t ~ computers, '-1' we de, not viev the t..nd1.:r I~ mg claim as having ... rguable

merit Our analy sis would 11:::tur:111:i cud here as the Appellun: has 1w1 even cleared the first , hurdle. f Io vvever. that said, if om Superior ( ourt were to agree wuh the tone and tenor of the

cross examination that the computer evidence bolstered the non-computer-based ev idence to

a sufficient degree to propel the case o, er a reasonable doubt lhtn there \\ ould be arguable

merit to the claim and we would proceed Lo the second prong u I nut t,.:5l

For the second prong. we ask whe ther tn al counsel · s ucuons lacked t111y reasonable

basis \\ hiJst bearing in mind that a chosen strategy does not lack a reasonable basis unless the

PCR.A petitioner proves that an alternative not chosen offered a substantially greater chance

at success. Fl ere, trial counsel 's actions turned upon his belief that the computer evidence was

irrelevant to the, rctims testimony or the Appellants confession, v.bicl1 Auorney Monfrcdo

viewed as the central piltars of Commonwealth's case against the Appellant Ergo.

invesugarions of the computers b~ counsel or an expert \\ere' not done.

The aliemauve . . 1ra1eg~. Appellant proposes Jnd wishes had been pu15ued was ~(, do a

computer investigation. which Appellant believes would have diminished the value of the

computer-based evidence lo bolster the overall case agamst him. Where this utterly fails is in

an appraixal of whether there was a substomtattv greater chance nf success for rhe defense if

such a strategy had been effectuated. It cannot be denied that, cho111,!h the burden in a

criminal tnal is never , 11 1h0 defenclan: 1 re, prove his tn110ce111.:c. evidence v, hich undercuts

evidence offered by the Cornmonwealrf is helptul t0 the defense However. would the

Appellaru's alternative !:itrn1e-g) have 1..dkrcu a s1;/1,;tunr1,ilil' ~r1::He1 poteutial ICJr undercutting

the Courmonwealths strutegv? As the Appellant and his counsel alluded to at tht PCR.!\

l (j Hearing, the computer-derived evidence was ntlcred tu bolstc: the Commouwealth 's case

and not ro prove II We do nor bchevc that undi:ri:uttlli~ bolsieung ev 1dcm.1: would have

offered a potenu al lor success s ubstant iul(,, greater th all Attorney Mon frt'do 'S" course of

avoiding the evidence from the computers.

We cannot say that trial C\.H111set·~ chosen strategy to, in effect, ignore the computer

evidence he viewed as irrelevant lucked a reasonable basis because the Appellant's

alternative strategy did not offer a potential for success that was substantiall; ;re.Her. We

nonetheless proceed to analyze the third prong of our rest.

If. arl!,ttl!>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

was able ro obui n 111k1n nm tun 1·1 om 11 \\ 1tl rout :i scau.h wan a11 l. Id .. al 1 ·1-15 The 1\ ppel lam

f urther testified tha: ,., h ric I he rccerpt 111\ eruory durumcru left .11 f\ ppellant 's home by

investigators only mcnuoned one Garevay computer tower b1,.·in~ seized, the investigator's

paperwork, supposedly discovered by the.: Appellant posi-triul, indicates three other

computers und a blackberry cellphone were obtained by police Id.. at 15-16. Appellant

testified that hr.! formed his belief that the chain of custody \\tas violated tor these items after

I dt,ing research in the pnson libr.it)'. Id .. JI 17.

Angela Arndt, the Appellauts ex. had taken a computer 10 one Brian Buchanan ,Jf

J>.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

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