Commonwealth v. Krause

4 Pa. D. & C.5th 449
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedJuly 7, 2008
Docketnos. 0965-03, 5239-03
StatusPublished

This text of 4 Pa. D. & C.5th 449 (Commonwealth v. Krause) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Krause, 4 Pa. D. & C.5th 449 (Pa. Super. Ct. 2008).

Opinion

FURBER, J,

— On December 10, 2004, we found David M. Krause guilty of unlawful contact or communication with a minor, corruption of minors, attempt to commit unlawful contact or communication with a minor, attempt to commit indecent assault, attempt to commit involuntary deviate sexual intercourse, attempt to commit statutory sexual assault and attempt to commit corruption of minors. This verdict followed a non-jury trial held on October 7,2004. The evidence consisted of stipulated exhibits and the transcript of the suppression hearing held before the Honorable Kent H. Albright on November 14, 2003. Counsel presented oral argument at the time of trial, and provided copies of cases thereafter. The defendant, through his counsel, argued that the elements of the offenses had not been made out, and that the Commonwealth failed to negate the defense of renunciation beyond a reasonable doubt.

Defendant was 25 years old at the time of the offenses. The charges at 0965-03 arose from an internet investigation, in which detectives posed as a 13-year-old girl, using the screen name “Prettieyes07.” Case no. 5239-03 involved a real 15-year-old female high school student we will call “Amber” in this opinion. In the Amber case defendant and Amber engaged in two episodes of “cybersex”: Mr. Krause described explicitly the sexual activity in which the two were pretending to be engaged.

The cybersex with Amber was discovered on defendant’s computer, which was obtained through a consen[451]*451sual seizure after Mr. Krause was arrested in the Prettieyes case on January 17,2003. That investigation began in April 2002 with an internet chat between an Abington Township detective and defendant, who was using the screen name DM99K. The following January, County Detective Katherine J. Hart took over the investigation and contacted DM99K as Prettieyes07. Over seven days Prettieyes and the defendant held lengthy chats in which Prettieyes stated her interest in meeting DM99K, dating, and, after he suggested it, learning sex from him.

These chats are recorded on exhibit “C-2”. The defendant asks about Prettieyes’ age, learns she is 13, and states he could get into trouble. (Exhibit “C-2”, pp. 1-2.) Later she repeats her age, and defendant says she has to be at least 16. He continues to acknowledge her age of 13 and that she could get him in trouble. (Exhibit “C-2”, pp. 4, 5, 6, 8, 10.)

Defendant was the first to suggest they meet. (Exhibit “C-2”, p. 9.) The defendant then tries to get Prettieyes to describe what she wants him to teach her, but she only states she wants to learn what he wants to teach. In time, defendant describes the oral sex in which they will engage. (Exhibit “C-2”, pp. 17-18.) Eventually they agree to get together on January 17,2003 at the Plymouth Meeting Mall.1 They planned for defendant to pick up Prettieyes at the movie theater in the mall, and then go to her house in Plymouth Meeting, when her mother would not be at home. She agrees to wear what he asks [452]*452her to wear, a short skirt, top and “cute” bra and panties. (Exhibit “C-2”, p. 26.) The day before the planned meeting they have this chat:

“Prettieyes07: im still a little scared

“DM99K: of?

“Prettieyes07: the firsttime

“DM99K: oh.

“DM99K: I will be gentle

“Prettieyes07:1 know u will its just scary

“DM99K: well we don’t have to do tht if you don’t feel like it.

“Prettieyes07: as long as your gentle

“Prettieyes07:1 knoqw u will be

“DM99K: I wil sweetheart.

“Prettieyes07: do i have 2 worry about gettin pregnant

“DM99K: ha. Nah.

“Prettieyes07: y not

“DM99K: because I’ll use a condom silly.

“DM99K: And I do not plan on cumming inside of you.

“DM99K: Even with the condom on.” (Exhibit “C-2”, p. 28.)

On January 17, 2003 defendant arrived at the movie theater at the Plymouth Meeting Mall in the green BMW he described to Prettieyes. He stopped in the fire lane, [453]*453and looked into the theater. The police surrounded his car. When he was arrested he had two condoms in the inside breast pocket of his jacket. When questioned, he admitted chatting on-line with Prettieyes, and that the picture she sent to him would be on his laptop computer.

On March 29,2005 we sentenced the defendant to not less than three and one-half and not more than seven years imprisonment on the charge of attempt to commit involuntary deviate sexual intercourse, and probation on the other charges. Defendant was directed to register under 42 Pa.C.S. §9793. On April 25, 2005 we modified the imprisonment to a term of not less than three nor more than six years.

The appeal filed by trial counsel was quashed by the Superior Court on August 19,2005 as untimely filed. On June 29,2006, on consideration of the stipulation of new defense counsel and the attorney for the Commonwealth, we granted defendant leave to file a post-trial motion within 10 days, and to file a direct appeal subsequently. The motion filed by new counsel on July 10,2006 raised several issues that could be decided on the record, and ineffective assistance of counsel. We heard testimony and argument on the ineffective assistance claims on April 11, 2007, September 17, 2007 and February 1, 2008.

Defendant and trial counsel testified at those hearings. Defendant asserts in his statement of errors complained of on appeal, trial counsel was ineffective by: (1) advising defendant to waive his speedy trial rights and not moving for discharge, (2) surrendering computer pass[454]*454words without permission or getting anything in return, (3) advising defendant to waive his preliminary hearing for no good reason, (4) advising and agreeing to a stipulated trial, especially where it meant stipulating to things like the condoms, (5) failure to pursue and argue entrapment, (6) failure to introduce character testimony or get a stipulation from the Commonwealth on defendant’s behalf, and (7) advising defendant not to testify.2

The evidence established that trial counsel sought continuances, which, when subtracted from the time between arrest and commencement of trial, caused the case to be tried within 365 days of defendant’s arrest. He requested those continuances while Judge Albright’s decision on the suppression motion was under advisement, because he considered suppression to be the significant issue in the case: if the motion to suppress had been granted there would be no support for the charges in case no. 5239-03, and there would be considerably less evidence in case no. 0965-03.

Trial counsel recommended that Mr. Krause agree to a trial on stipulated evidence because the defense of renunciation could be predicated on one of the stipulated police reports, and he was concerned if the witness testified this factual basis could be changed by testimony. He was also afraid defendant’s case would be harmed if he had to submit to cross-examination. For these reasons, and because he considered suppression to [455]*455be the principal basis on which the case could be won by the defendant, counsel advised Mr. Krause to agree to the stipulated trial, not to testify on his own behalf and not to present character evidence. He informed Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
4 Pa. D. & C.5th 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-krause-pactcomplmontgo-2008.