Com. v. Lang, H., 275 A.3d 1072

Background

Alleged sexual abuse occurred in 2001; victim reported it in August 2018 after a statewide clergy-abuse report released July 28, 2018.
Appellee (former priest Hugh J. Lang) performed internet searches for top Pittsburgh criminal attorneys on July 29, 2018; those searches were recovered from an iPad seized later.
Non-jury trial in November 2019 resulted in convictions on multiple sexual-offense counts; the trial judge said the attorney-search evidence was “dispositive.”
Post-trial, a different judge (on March 9, 2020) vacated some conviction/sentences and granted a new trial, concluding admission of the pre-arrest attorney-searches violated due process and was unfairly prejudicial under Pa.R.E. 403.
Commonwealth appealed; the Superior Court affirmed, holding the searches were constitutionally and evidentiaryly problematic and the error was not harmless.

Issues

Issue	Commonwealth (Appellant) Argument	Lang (Appellee) Argument	Held
1. Whether the post-trial court erred by granting relief based on a constitutional theory not preserved at trial	Waiver: trial counsel did not object on constitutional grounds; post-trial court exceeded its authority by deciding unpreserved claims	Underlying trial objection challenged relevance and consciousness-of-guilt; post-trial ruling grounded in that preserved claim and justice permits relief	No error — post-trial court acted within authority; relief was based on preserved consciousness-of-guilt objection and, in any event, Powell/Holmes permit relief in extraordinary cases
2. Whether admitting pre-arrest internet searches for attorneys as consciousness-of-guilt evidence violated due process	Searches were probative of consciousness of guilt; searching is not the same as consulting/hiring counsel and is admissible	Pre-arrest efforts to obtain counsel can be improperly used to imply guilt and penalize exercise of right to counsel; here Appellee was not implicated when he searched	Held unconstitutional under Fourteenth Amendment principles (persuasive federal/state authority); admission violated due process and warranted new trial
3. Whether the searches were admissible under Pennsylvania evidentiary rules (relevance/Pa.R.E. 403)	Searches were relevant to state of mind and consciousness of guilt	Probative value was slight (no accusation or investigation linked to Appellee when he searched) and substantially outweighed by prejudice	Held evidence’s probative value was slight, unfairly prejudicial, and its admission was erroneous
4. Whether the post-trial court failed to perform harmless-error analysis or violated coordinate-jurisdiction rule	No error occurred, so harmless-error review unnecessary; post-trial judge improperly overruled coordinate judge	Trial judge’s own statement that searches were “dispositive” shows error was not harmless and post-trial correction was proper	Held error was not harmless given trial judge’s dispositive reliance; post-trial court permissibly corrected the trial-court error and did not violate coordinate-jurisdiction rule

Key Cases Cited

Macon v. Yeager, 476 F.2d 613 (3d Cir.) (prosecutorial suggestion that pre-arrest call to counsel implies guilt can be constitutional error)
Sizemore v. Fletcher, 921 F.2d 667 (6th Cir.) (prosecutor may not imply meeting or hiring counsel shortly after incident implies guilt)
State v. Angel T., 973 A.2d 1207 (Conn. 2009) (eliciting/contacting counsel pre-arrest and arguing it implies guilt violates due process)
Commonwealth v. Powell, 590 A.2d 1240 (Pa. 1991) (trial court has inherent authority to grant new trial in interests of justice)
Commonwealth v. Holmes, 79 A.3d 562 (Pa.) (trial court may correct apparent, meritorious ineffectiveness claims in extraordinary cases)
Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2015) (standard of review for admission of evidence; relevance and Pa.R.E. 403 guidance)
Commonwealth v. Colavita, 993 A.2d 874 (Pa. 2010) (discussed preservation; issue previously found waived at Supreme Court level)