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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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


                                  -2-
J. S14004/16


           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.


                                    -3-
J. S14004/16


                 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


                                   -4-
J. S14004/16


          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


                                  -5-
J. S14004/16


            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).


                                       -6-
J. S14004/16


          [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


                                  -7-
J. S14004/16


            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).


                                     -8-
J. S14004/16


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.


                                     -9-
J. S14004/16


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 -
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                                                                         ZDl5 JUL -7 PH 2; 23


      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) <cuing Co111111111111·.::u/1h                               ,. Basemore. 744    A.2d

     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. <he most damning e\ idence, JJ. at 72. On cross-examination.                           Lawyer Monfredo

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<H testimony                Id .. at l 9-20 and 83-84. With these facts in mind, we tum to our

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 <lunng bvokm£, he was unable to understand how an im esugaror

    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

                                                                  13




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

                                                                        20




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,




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DA     rro     ful~ }_   r.   j _;           /0ti:rcH<\EL       E. BORTNER, .)LOGE
