Com. v. Kuder, W.
379 EDA 2017
| Pa. Super. Ct. | Oct 30, 2017Background
- In 2002 William Kuder sexually assaulted a 12-year-old male, K.P.; K.P. disclosed the abuse in 2010. A court-ordered in-home recording of a conversation between Kuder and K.P. captured inculpatory statements.
- Kuder moved to suppress the recording; the trial court denied the motion and a jury convicted Kuder in June 2011 of multiple sex offenses.
- This Court affirmed Kuder’s conviction in Commonwealth v. Kuder, 62 A.3d 1038 (Pa. Super. 2013) (Kuder I); the Pennsylvania Supreme Court denied allowance of appeal.
- Kuder filed a timely PCRA petition alleging multiple ineffective-assistance-of-counsel (IAC) claims (trial and appellate counsel), including failure to rebut probable cause for the wiretap, abandonment of a challenge to the judge’s authority to issue the one-party consent order, failure to raise Wiretap Act procedural errors, improper opening of the door to damaging cross-examination, and cumulative prejudice.
- The PCRA court denied relief; the Superior Court affirmed, finding Kuder failed to prove deficient performance and prejudice under the Strickland/Pierce framework and adopting the PCRA court’s reasoning for several issues.
Issues
| Issue | Kuder’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| 1. Trial counsel ineffective for not calling witnesses at suppression hearing to refute a ‘close and ongoing’ relationship between Kuder and K.P. | Counsel should have presented testimony (wife, K.P., K.P.’s family) showing the relationship had soured long before 2010, undermining probable cause for an in-home interception. | The affidavit and other evidence (including Kuder’s own trial testimony acknowledging an ongoing mentor-like role) supported probable cause; the ‘close and ongoing’ relationship is a probative factor, not a statutory requirement. | Denied — no arguable merit/prejudice; outcome would not have changed. |
| 2. Appeals counsel abandoned challenge that Judge Bateman lacked written authority to issue the in-home order. | Appellate counsel ineffectively failed to pursue a jurisdictional/authority challenge to the one-party consent/order issuance. | The PCRA court’s reasoning (adopted by Superior Court) shows no meritorious claim or resulting prejudice; counsel’s choices were reasonable. | Denied — claim lacks merit and prejudice. |
| 3. Trial counsel ineffective for failing to assert additional Wiretap Act procedural defects. | Counsel failed to identify procedural violations in the Wiretap Act that would have required suppression. | The recorded interception and affidavit satisfied statutory requirements and precedent; additional procedural challenges lacked arguable merit. | Denied — no arguable merit or prejudice. |
| 4. Trial counsel opened door to prejudicial cross-examination of defense character witnesses. | Counsel’s conduct permitted prosecutor to elicit damaging testimony from character witnesses, undermining defense. | Tactical choices during cross-examination had a reasonable basis; the record does not show resulting prejudice sufficient to overturn verdict. | Denied — reasonable strategy, no prejudice shown. |
| 5. Cumulative error of counsel’s alleged failures violated due process. | Even if individual errors were harmless, their cumulative effect deprived Kuder of a fair trial. | Individual claims fail; cumulative-error claim cannot succeed absent multiple meritorious errors. | Denied — no cumulative prejudice where individual claims fail. |
Key Cases Cited
- Commonwealth v. Kuder, 62 A.3d 1038 (Pa. Super. 2013) (affirming denial of suppression; probable cause for in-home interception supported by mentor/mentee relationship)
- Commonwealth v. McMillan, 13 A.3d 521 (Pa. Super. 2011) (mentor-type relationship supported reasonable grounds/probable cause for interception)
- Commonwealth v. Spotz, 84 A.3d 294 (Pa. 2014) (PCRA standard and ineffective-assistance framework discussion)
- Commonwealth v. Colavita, 993 A.2d 874 (Pa. 2010) (presumption counsel effective; Strickland analysis applied)
- Commonwealth v. Ali, 10 A.3d 282 (Pa. 2010) (Pierce three-prong refinement of Strickland in Pennsylvania)
- Pierce v. Pennsylvania, 527 A.2d 973 (Pa. 1987) (refining performance/prejudice test for IAC claims)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (constitutional standard for ineffective assistance of counsel)