J-S53014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

WILLIAM KUDER,

                         Appellant                   No. 379 EDA 2017


          Appeal from the PCRA Order Entered December 27, 2016
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0006864-2010


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 30, 2017

      Appellant, William Kuder, appeals from the post-conviction court’s

December 27, 2016 order denying his timely-filed petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we affirm.

      The PCRA court set forth a detailed summary of the facts and procedural

history of Appellant’s case, which we need not reproduce herein. See PCRA

Court Opinion (PCO), 3/24/17, at 1-4. We only note that in June of 2002,

Appellant sexually assaulted K.P., a 12-year-old male. K.P. did not tell anyone

about the abuse until eight years later.    During the investigation of K.P.’s

allegations, an order was obtained from a Court of Common Pleas judge that

permitted K.P. to wear a recording device inside Appellant’s home. During the
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intercepted conversation between Appellant and K.P., Appellant made

incriminating statements regarding the assaults.

      Prior to Appellant’s trial, he filed a motion to suppress the recording of

his conversation with K.P. Following a suppression hearing, the trial court

denied that motion and Appellant’s case proceeded to a jury trial in June of

2011. At the close thereof, Appellant was convicted by a jury of attempted

involuntary deviate sexual intercourse (complainant less than 16 years of

age), 18 Pa.C.S. § 3123(a)(7); two counts of indecent assault (complainant

less than 16 years of age), 18 Pa.C.S. § 3126(a)(8); and two counts of

indecent exposure, 18 Pa.C.S. § 3127(a). On September 16, 2011, Appellant

was sentenced to an aggregate term of 3 to 10 years’ incarceration. He filed

a timely notice of appeal, and after this Court affirmed his judgment of

sentence in a published opinion, our Supreme Court denied his subsequent

petition for allowance of appeal. Commonwealth v. Kuder (“Kuder I”), 62

A.3d 1038 (Pa. Super. 2013), appeal denied, 114 A.3d 416 (Pa. 2015).

      On December 18, 2015, Appellant filed a pro se PCRA petition. Counsel

subsequently entered her appearance on Appellant’s behalf and filed an

amended petition. Appellant’s claims all involved assertions of trial/appellate

counsel ineffectiveness. Following an evidentiary hearing, the PCRA issued an

order on December 27, 2016, denying Appellant’s petition. Appellant filed a

timely appeal, and he also timely complied with the PCRA court’s order to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The

PCRA court filed a responsive opinion on March 24, 2017.

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      Herein, Appellant presents five issues for our review:

      I. Did the PCRA court err in finding that trial counsel did not violate
      Appellant’s Sixth Amendment right under the U.S. Constitution
      and Article 1 § 9 of the Pennsylvania Constitution to effective
      assistance of counsel when he failed to present available
      statements at the pretrial suppression hearing rebutting the
      [Commonwealth’s] claim that there was probable cause for the
      Wiretap intercept because a ‘close and ongoing relationship’
      between Appellant and the victim still existed?

      II. Did the PCRA court err in finding that Appellant’s constitutional
      rights under the Sixth and Fourteenth Amendments of the U.S.
      Constitution and Article 1 § 9 of the Pennsylvania Constitution
      were not violated when appeals counsel ineffectively abandoned
      the claim that Judge Bateman lacked lawful written authority from
      the President Judge to issue the one-party consent wiretap
      intercept Order?

      III. Did the PCRA court err in finding trial counsel was not
      ineffective under the Sixth Amendment of the U.S. Constitution
      and Article 1 § 9 of the Pennsylvania Constitution for failing to
      argue that there were additional procedural errors which violated
      the Wiretap Act and should have resulted in … suppression?

      IV. Did the PCRA court err in finding that trial counsel was not
      ineffective under the Sixth Amendment of the U.S. Constitution
      and Article 1 § 9 of the Pennsylvania Constitution for opening the
      door to prejudicial cross-examination by the prosecutor of
      character witnesses Black and Lockard?

      V. Did the PCRA court err in finding that Appellant’s constitutional
      rights were not violated by the cumulative prejudicial effect that
      counsel’s ineffective assistance … caused?

Appellant’s Brief at 3.

      “This Court’s standard of review from the grant or denial of post-

conviction   relief   is   limited   to   examining   whether   the   lower   court’s

determination is supported by the evidence of record and whether it is free of

legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)



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(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has directed that the following standards apply:

      [A] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the “[i]neffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth-
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii).
      “Counsel is presumed effective, and to rebut that presumption,
      the PCRA petitioner must demonstrate that counsel’s performance
      was deficient and that such deficiency prejudiced him.”
      [Commonwealth v.] Colavita, 606 Pa. [1,] 21, 993 A.2d [874,]
      886 [(Pa. 2010)] (citing Strickland[ v. Washington, 104 S.Ct.
      2053 (1984)]). In Pennsylvania, we have refined the Strickland
      performance and prejudice test into a three-part inquiry. See
      [Commonwealth v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa.
      1987)]. Thus, to prove counsel ineffective, the petitioner must
      show that: (1) his underlying claim is of arguable merit; (2)
      counsel had no reasonable basis for his action or inaction; and (3)
      the petitioner suffered actual prejudice as a result.
      Commonwealth v. Ali, 608 Pa. 71, 86, 10 A.3d 282, 291 (2010).
      “If a petitioner fails to prove any of these prongs, his claim fails.”
      Commonwealth v. Simpson, [620] Pa. [60, 73], 66 A.3d 253,
      260 (2013) (citation omitted). Generally, counsel’s assistance is
      deemed constitutionally effective if he chose a particular course of
      conduct that had some reasonable basis designed to effectuate his
      client’s interests. See Ali, supra. Where matters of strategy and
      tactics are concerned, “[a] finding that a chosen strategy lacked
      a reasonable basis is not warranted unless it can be concluded
      that an alternative not chosen offered a potential for success
      substantially greater than the course actually pursued.” Colavita,
      606 Pa. at 21, 993 A.2d at 887 (quotation and quotation marks
      omitted). To demonstrate prejudice, the petitioner must show that
      “there is a reasonable probability that, but for counsel's
      unprofessional errors, the result of the proceedings would have
      been different.” Commonwealth v. King, 618 Pa. 405, 57 A.3d
      607, 613 (2012) (quotation, quotation marks, and citation
      omitted). “‘[A] reasonable probability is a probability that is
      sufficient to undermine confidence in the outcome of the


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      proceeding.’” Ali, 608 Pa. at 86–87, 10 A.3d at 291 (quoting
      Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244
      (2008) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052)).

Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).

      In Appellant’s first issue, he argues that his trial counsel acted

ineffectively by not presenting, at the suppression hearing, evidence to

demonstrate that he and K.P. did not have a ‘close and ongoing relationship’

at the time that K.P. wore a recording device into Appellant’s home and

intercepted their conversation. Specifically, Appellant claims that his attorney

should have called Appellant’s “wife, K.P., K.P.’s mother, father, and/or

brother to testify at the suppression hearing….”      Appellant’s Brief at 21.

According to Appellant, the testimony of these witnesses would have

established “that the last contact between Appellant and K.P. and his family

was in 2002 and that it ended on a bad note.” Id. Appellant maintains that

such evidence would have demonstrated that the order permitting the wiretap

intercept inside Appellant’s home was not supported by probable cause.

      We assessed in Kuder I “whether sufficient probable cause was offered

to support the interception” inside Appellant’s home.      The Kuder I panel

began by summarizing the pertinent law regarding the Wiretap Act, 18 Pa.C.S.

§§ 5701-5782, as follows:

      Generally, the Wiretap Act prohibits the interception, disclosure,
      or use of any wire, electronic, or oral communication. 18 Pa.C.S.
      § 5703. The Act places great emphasis on the protection of
      privacy interests inherent in one’s communications. See
      generally Commonwealth v. De Marco, 396 Pa. Super. 357,
      578 A.2d 942, 949 (1990). Relevant to the instant case, the Act
      provides as follows:


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       § 5704. Exceptions to prohibition of interception and
       disclosure of communications.

       It shall not be unlawful and no prior court approval shall be
       required under this chapter for:

       ***

       (2) Any investigative or law enforcement officer or any
       person acting at the direction or request of an investigative
       or law enforcement officer to intercept a wire, electronic or
       oral communication involving suspected criminal activities,
       including, but not limited to, the crimes enumerated in
       section 5708 (relating to order authorizing interception of
       wire, electronic or oral communications), where:

       ***

          (ii) one of the parties to the communication has given
          prior consent to such interception. However, no
          interception under this paragraph shall be made
          unless the Attorney General or deputy attorney
          general designated in writing by the Attorney General,
          or the district attorney, or an assistant district
          attorney designated in writing by the district attorney,
          of the county wherein the interception is to be made,
          has reviewed the facts and is satisfied that the
          consent is voluntary and has given prior approval for
          the interception; however, such interception shall be
          subject to the recording and record keeping
          requirements of section 5714(a) (relating to recording
          of intercepted communications) and that the Attorney
          General, deputy attorney general, district attorney, or
          assistant district attorney authorizing the interception
          shall be the custodian of recorded evidence obtained
          therefrom;

          ***

          (iv) the requirements of this subparagraph are met. If
          an oral interception otherwise authorized under this
          paragraph will take place in the home of a
          nonconsenting party, then, in addition to the
          requirements of subparagraph (ii), the interception
          shall not be conducted until an order is first obtained
          from the president judge, or his designee who also

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           shall be a judge, of a court of common pleas,
           authorizing such in-home interception, based upon an
           affidavit by an investigative or law enforcement officer
           that establishes probable cause for the issuance of
           such an order. No such order or affidavit shall be
           required where probable cause and exigent
           circumstances exist. For the purposes of this
           paragraph, an oral interception shall be deemed to
           take place in the home of a nonconsenting party only
           if both the consenting and nonconsenting parties are
           physically present in the home at the time of the
           interception.

     18 Pa.C.S. § 5704.

Kuder I, 62 A.3d at 1044-45.

     Specifically regarding the probable cause requirement for a wiretap

order, the Kuder I panel stated the following:

     Section 5710 of the Act authorizes a judge, upon application, to
     enter an order permitting the interception of a communication
     when there is probable cause to believe that six conditions exist.
     18 Pa.C.S. § 5710(a)(1–6). One such condition is that probable
     cause exists to believe that “particular communications
     concerning [an offense described in section 5708] may be
     obtained through such interception.” 18 Pa.C.S. § 5710(a)(2).
     Although Appellant does not specifically cite this section, his
     argument centers on the alleged lack of probable cause to believe
     that Appellant would discuss any past criminal activity, if
     approached by K.P., especially because the conversation would
     occur eight years after the crimes were alleged to have occurred.
     Brief for Appellant at 15–16 (“There were simply no facts or
     circumstances, set out in the Affidavit of Probable Cause herein ...
     from which it could reasonably be concluded that there was
     probable cause to believe that sending [K.P], unannounced and 8
     years later, to [Appellant’s] house would result in a conversation
     about ‘suspected criminal activity.’”).

     Both Appellant and the Commonwealth cite Commonwealth v.
     McMillan, 13 A.3d 521 (Pa. Super. 2011). Appellant attempts to
     distinguish the case, while the Commonwealth argues that it
     controls the instant matter.


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     In McMillan, the appellant challenged the trial court’s refusal to
     suppress evidence obtained pursuant to the Wiretap Act. The
     evidence was used to convict the appellant of various sex-related
     crimes. The appellant was a high school choir director who
     engaged in an inappropriate sexual relationship with the victim, a
     fourteen-year-old girl. Id. at 522. The abuse commenced in
     2004, and ended in 2006 when rumors began to spread about the
     illicit relationship. Id. at 523. After being repeatedly pressured
     by her aunt, the victim eventually admitted to the relationship. In
     May 2008, after facially complying with all of the Act’s application
     requirements, law enforcement officers obtained approval to
     intercept a phone conversation between the appellant and the
     victim, who consented to the interception. We described the
     phone conversation as follows:

        After [the victim] indicated she was upset about the rumors
        circulating about their sexual encounters, she asked [the
        appellant] if he had told anyone about them.           [The
        appellant] repeatedly denied telling anyone, but empathized
        with [the victim’s] feelings, especially since people were
        discussing the situation four years later. When asked if he
        had sex with any other students, [the appellant] answered
        in the negative. [The appellant] asked [the victim] to keep
        him updated on the situation. Id.

     We rejected the appellant’s argument that law enforcement lacked
     reasonable grounds4 to establish that he would discuss “suspected
     criminal activities.” The appellant argued that, because the
     relationship had ended in 2006, it was unreasonable to believe
     that he would discuss such remote criminal conduct nearly two
     years later in a telephone conversation.       We rejected that
     argument based upon detectives’ belief that the appellant would
     talk about the incident because of his mentor-type relationship
     with the victim. We found it especially important that there was
     no evidence suggesting that any negative feelings existed
     between the appellant and the victim that would prevent the
     appellant from talking to her. Id. at 525–26.
        4  In McMillan, we repeatedly referred to “reasonable
        grounds”, instead of probable cause. The previous version
        of 18 Pa.C.S. § 5721.1, which authorizes an aggrieved party
        to seek suppression of improperly intercepted evidence, did
        not contain the term “probable cause.” This section was
        amended in 1998, and incorporated the term “probable
        cause” to serve as the governing standard for challenging

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          an interception under the Act. Our cases arising prior to the
          amendment held that the standard was “reasonable
          grounds.”    See Commonwealth v. Phillips, 373 Pa.
          Super. 193, 540 A.2d 933, 937 (2008). For all practical
          purposes, the terms are interchangeable, as is evidenced by
          our decision in McMillan, which was published
          approximately 13 years after the amendments.[1]

       Contrary to Appellant’s assertions in the instant case, we assigned
       no particular significance in McMillan to the time that had elapsed
       between the end of the sexual relationship and the time when the
       interception actually occurred. Rather, the controlling factor in
       McMillan was the nature of the connection between the appellant
       and the victim, which was akin to a mentor-mentee and teacher-
       pupil relationship.      For this reason, we agree with the
       Commonwealth that McMillan controls the outcome of the instant
       case.

       There is no doubt that Appellant and K.P. had a mentor-mentee
       relationship, much like the relationship we found controlling in
       McMillan.         Additionally, the affidavit attached to the
       Commonwealth’s application for a court order authorizing the
       interception in this case stated that Appellant was a long-time
       friend of K.P.’s parents.        The affidavit further included a
       description of how the relationship between Appellant and K.P.
       stemmed from a mutual interest in computers, which eventually
       turned the relationship into a teacher-pupil type connection.
       Unfortunately, it was during the computer sessions that the sexual
       incidents occurred. Finally, as in McMillan, no evidence existed
       to suggest that Appellant harbored any negative feelings
       toward K.P. that would have caused Appellant to wish not
       to discuss any particular matters with K.P. While it is true
       that Appellant became extremely angry with K.P. between the
       incidents, it is clear that the anger was related to K.P.’s refusal to
       return to Appellant's home after the first sexual assault. Despite
       his trepidations, K.P. returned to the home a second time and was
       sexually assaulted a second time. There is no evidence of
____________________________________________


1 Herein, Appellant argues “that the [Kuder I panel] erred and violated
Appellant’s Fourth Amendment rights by finding pursuant to McMillan that
the term ‘reasonable grounds’ is interchangeable with ‘probable cause[.’]”
Appellant’s Brief at 20 n.4. We decline to address Appellant’s argument in
support of this claim, as this panel cannot overturn the Kuder I panel’s
decision in this regard.

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      record that Appellant’s anger persisted once K.P. relented
      to Appellant's desire for him to return, or that any other
      negative feelings persisted after the second assault that
      would lead the issuing authority to believe that Appellant
      would refuse to speak with K.P.

      Viewing this information in a “common-sense, non-technical
      manner,” see Commonwealth v. Hoppert, 39 A.3d 358, 362
      (Pa. Super. 2012) (quotation and citation omitted), and drawing
      upon our decision in McMillan, we find that probable cause
      existed to believe that communications relevant to Appellant’s
      sexual crimes would have been obtained through the interception.
      See 18 Pa.C.S. § 5710(a)(2). We are not convinced that the time
      period between the crimes and the interception, even though that
      gap was much longer here than in McMillan, compels a different
      conclusion.     Absent the close and ongoing relationship
      between Appellant and K.P. and K.P.'s family, the temporal
      aspect of Appellant's argument might be more persuasive.
      Nonetheless, that relationship did exist in this case and
      compels our probable cause determination. Accordingly, the
      trial court did not err in denying Appellant's suppression motion.

Kuder I, 62 A.3d at 1046–48 (emphasis added).

      Based on the above-emphasized language in Kuder I, Appellant now

argues that, had his trial counsel presented evidence that his and K.P.’s

relationship had soured prior to the intercept in 2010, probable cause would

not have been found to support the wiretap order. For instance, Appellant

claims that counsel should have presented evidence that K.P.’s mother and

father told police that after K.P. went to Appellant’s home several times, K.P.

suddenly did not want to go back and their friendly relationship with

Appellant’s family “broke off….” Appellant’s Brief at 22 (citation to the record

omitted). Appellant also claims that counsel should have presented evidence

that K.P.’s brother told police that “his mother stopped him from going over

to [Appellant’s house] after [Appellant] ‘freaked’ out on him when he was


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power washing his dirt bike one day.” Id. (citation to the record omitted).

Additionally, Appellant maintains that his trial counsel should have presented

evidence that Appellant’s wife, Karen Kuder, told police that Appellant’s and

K.P.’s relationship had grown “distant … and continued to drift apart as their

respective families grew.”   Id.   Appellant maintains that these witnesses’

statements to police, and/or similar testimony at the suppression hearing,

would have demonstrated that there was no ‘close and ongoing’ relationship

between Appellant and K.P. at the time of the wiretap interception in 2010

and, consequently, that there was no probable cause to justify that intercept.

      Appellant’s argument fails for several reasons.      Initially, Appellant

incorrectly asserts that the Wiretap Act requires a ‘close and ongoing’

relationship. Specifically, Appellant argues that “the wording of the statute …

requires evidence of both a ‘close’ and an ‘ongoing’ relationship. Not one or

the other. Both.” Appellant’s Brief at 24 (emphasis in original). Curiously,

Appellant fails to cite to any provision of the Wiretap Act that purportedly

contains the probable cause requirement of a ‘close and ongoing’ relationship.

Our review of the statute confirms that no such mandate exists. Rather, the

‘close and ongoing’ relationship language was first utilized in McMillan, and

later reiterated in Kuder I, as a factor supporting probable cause, not an

element required to establish it. Thus, we are unconvinced by Appellant’s

argument that, had trial counsel refuted that factor alone, the suppression

court would have necessarily found there was no probable cause to support

the intercept order.

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      Moreover, we are also unpersuaded by Appellant’s argument that the

above-discussed evidence would have convinced the Kuder I panel that no

‘close and ongoing’ relationship existed between Appellant and K.P. at the

time of the intercept. As the PCRA court points out, Appellant himself testified

at trial that he

      “had told [K.P.] many years ago that if [K.P.] ever needed to talk
      to somebody that [K.P.] was always welcome at [Appellant’s]
      house and [Appellant] would always be a sympathetic ear.”
      N.T. 6/2/2011 pp. 142-43. [Appellant] continued, “I would not let
      [K.P.] down if he had come to me for help.” Id. at 144.

PCO at 8 (emphasis added). Appellant offered this testimony to “explain away

that he ‘confessed’ to the sexual assault in an attempt to help K.P. work

through ‘problems’ K.P. so personally and privately confided in [Appellant]

years prior.” Id. The PCRA court concluded that Appellant’s trial testimony

was “in direct contrast” to his argument that no “close and ongoing”

relationship existed between himself and K.P. when the interception occurred

in 2010.

      Appellant now argues that “[t]he PCRA [c]ourt’s reliance on what

Appellant testified to [at trial] is in error.”   Appellant’s Brief at 26 n.7.

According to Appellant, it was “inappropriate for the PCRA [c]ourt to use [his]

trial testimony to justify a ruling made before that testimony had even been

given.” Id. However, Appellant ignores that, at the time of our decision in

Kuder I, we were permitted to “consider the evidence presented both at the

suppression hearing and at trial” when reviewing a trial court’s ruling on a



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suppression motion.2         Kuder I, 62 A.3d at 1045-46 (emphasis added)

(citations omitted). Appellant’s trial testimony demonstrated that, at least in

his mind, he and K.P. had a ‘close and ongoing’ relationship, which included

an open invitation to K.P. to come to Appellant’s house to talk with him about

personal issues.     This testimony contradicts the statements by Appellant’s

wife, and K.P.’s mother, father, and brother, and was sufficient to establish

that Appellant believed there was a ‘close and ongoing’ relationship between

him and K.P. in 2010. Thus, Appellant has failed to demonstrate that, had

counsel presented evidence to refute his ‘close and ongoing’ relationship with

K.P., that our holding in Kuder I would have changed.              Accordingly,

Appellant’s first ineffectiveness claim is meritless.

       In regard to Appellant’s second through fifth issues, we have reviewed

the certified record, the briefs of the parties, and the applicable law. We have

also reviewed the thorough opinion of the Honorable Brian T. McGuffin of the

Court of Common Pleas of Bucks County. We conclude that Judge McGuffin’s

well-reasoned decision properly disposes of Appellant’s remaining issues, and



____________________________________________


2 We recognize that this scope of review changed eight months after Kuder I
was decided, when our Supreme Court issued In re L.J., 79 A.3d 1073 (Pa.
2013), on October 30, 2013. In that case, the Court held that an appellate
court’s scope of review from a suppression ruling is limited to the evidentiary
record of the suppression hearing. Id. at 1087. The In re L.J. Court explicitly
declared that its holding was prospective only, meaning that the decision
applied to the parties in In re L.J. “and all litigation commenced thereafter.”
Id. at 1089 n. 19.



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we adopt that portion of his opinion as our own. See PCO at 9-18.3 Therefore,

we affirm the order denying Appellant’s petition on that basis, as well as for

the reasons set forth herein.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2017




____________________________________________


3 We recognize, however, that in rejecting Appellant’s second ineffectiveness
claim, Judge McGuffin improperly relies, in part, on an unpublished
memorandum decision by this Court. See PCO at 10-11. We do not adopt
that aspect of Judge McGuffin’s decision, as our Internal Operating Procedures
prohibit any court from citing to, or relying on, an unpublished memorandum
decision of this Court.     See 210 Pa. Code § 65.37 (“An unpublished
memorandum decision shall not be relied upon or cited by a Court or a party
in any other action or proceeding….”).

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