Commonwealth v. Kuder

Decision Date25 February 2013
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. William KUDER, Appellant.
CourtPennsylvania Superior Court

OPINION TEXT STARTS HERE

Frank M. Spina, II, Wilton Manors, FL, for appellant.

David W. Heckler, District Attorney, Doylestown, for Commonwealth, appellee.

BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY WECHT, J.

William Kuder (Appellant) appeals from the September 16, 2011 judgment of sentence entered by the Court of Common Pleas of Bucks County. We affirm.

The trial court provides a succinct introduction of the case:

Appellant was a 49[-]year[-]old male who both resided in Chalfont Borough, Bucks County, and served as a Councilman on the Chalfont Borough Council. He also served as a little league baseball coach and was deeply involved in all manner of community activities of a civic, religious and business nature. He was the owner and president of a computer security company and was a close personal family friend of the parents of [K.P.]. Appellant and [K.P.'s] family went on vacations together and frequently visited each other's home[s], where Appellant became so closely affiliated with [K.P.] that Appellant was referred to as [K.P.'s] “uncle.” Appellant had no prior criminal history of any nature and had never heretofore been arrested for any offense. In short, Appellant had earned the trust and unquestioned friendship and respect of the entire family and thereby gained unfettered access to the then 12[-]year[-]old [K.P.].

Trial Court Opinion (“T.C.O.”), 1/17/2012, at 2–3.

Our detailed review of the record herein reveals the following history. Prior to June 2002, Appellant had developed a close relationship with K.P., a twelve-year-old boy at the time, and K.P.'s family, who lived on the same street as Appellant in Chalfont, Pennsylvania. On a Monday afternoon in June 2002, K.P. went to Appellant's house to help Appellant work on a computer, an activity in which K.P. had demonstrated an interest. When K.P. arrived at the house, Appellant's wife and toddler were present in the home. K.P. and Appellant proceeded down into the basement, where Appellant ran his computer security business. The pair immediately commenced replacing the motherboard of a computer.

After a few minutes, and without warning, Appellant lifted K.P. onto his lap and fondled K.P.'s penis. Appellant then removed K.P.'s pants and started to masturbate K.P. As this was occurring, Appellant assured K.P. that the physical contact was proper, as it was preparing him for future relationships with women. K.P. attempted to get free from Appellant's grasp, initially to no avail. However, after a few minutes, Appellant released K.P. and took down his own pants. With his pants removed and his penis exposed, Appellant then asked K.P. to masturbate him. K.P. briefly touched Appellant's penis, but then retreated to a corner of the basement and began playing a computer game. Undeterred, Appellant approached K.P. while he was playing the game, put K.P. on his lap and removed K.P.'s pants, and once again started masturbating K.P. While this was occurring, K.P.'s mother called and informed Appellant's wife that K.P. had to leave to go to a meeting. The fondling ended when Appellant's wife came to the top of the stairs and yelled to K.P. that his mother called and that he had to leave to get ready for the meeting.

K.P. did not tell anyone about the incidents that occurred in Appellant's basement. K.P. declined Appellant's next invitation to return to the basement. K.P.'s refusal of Appellant's invitation angered Appellant to such an extent that Appellant told K.P. that [i]f you were an adult, I would have beat you for standing up to me like that.” Notes of Testimony (“N.T.”), 6/1/2011, at 50. To avert Appellant's anger, K.P. reluctantly returned to Appellant's house, again on the pretext of helping Appellant work on a computer. Once K.P. was in the basement, Appellant mentioned the amount of pubic hair that K.P. had on his body. Even though this made K.P. uncomfortable, K.P. nonetheless remained in the basement and began working on one of the damaged computers. Appellant then pulled down K.P.'s pants and asked if he could perform oral sex on K.P. Appellant lowered himself to his knees and tried to place his mouth on K.P.'s penis. K.P. estimated that Appellant got within one eighth of an inch of K.P.'s penis before K.P. pulled away from Appellant. In response, Appellant removed his own pants and asked K.P. to perform oral sex on him. K.P. refused the request, and walked away from Appellant.

K.P. walked to another portion of the basement and began playing a computer game. Appellant followed K.P., picked K.P. up, sat K.P. on his lap, and again removed K.P.'s pants. As in the previous incident, Appellant started to masturbate K.P. Again, the sexual assault terminated only because K.P.'s mother called Appellant's house and requested that K.P. return home. Appellant's wife received the call and yelled for K.P. from the top of the steps. From that day forward, K.P. never went back to Appellant's house alone.

K.P. did not tell anyone that this abuse occurred until 2010, when K.P. learned that his girlfriend also was the victim of sexual abuse as a child. K.P. informed his girlfriend first, and then his sister and his father. Soon thereafter, the police were contacted. K.P. met with two detectives, who requested that he wear a recording device and attempt to obtain a confession from Appellant. After K.P. agreed to wear the recording device, K.P. and one of the detectives met with an assistant district attorney. The prosecutor thereafter sought and obtained a court order authorizing the wire interception. See Order Authorizing the Consensual Interception of Oral Communication in Home, 6/11/2010.

On June 11, 2010, after being equipped with a recording device, K.P. drove to Appellant's home and initiated a conversation with Appellant. The conversation was social and casual at first. Eventually, however, K.P. confronted Appellant about the sexual assaults that occurred in 2002. Appellant never denied that the incidents occurred. To the contrary, Appellant admitted that he had clear memories of the events. Rather than repudiate K.P.'s allegations, Appellant expressed sorrow and mortification for his illicit behaviors. Appellant apologized for causing K.P. pain and begged for K.P.'s forgiveness. The audiotape of this conversation was played for the jury at trial.

Appellant thereafter was arrested and charged with one count of attempted involuntary deviate sexual intercourse (“IDSI”) of a person under the age of 16,1 two counts of indecent assault of a person under the age of 16,2 and two counts of indecent exposure.3 On September 23, 2010, Appellant filed a suppression motion challenging, inter alia, the existence of probable cause to support the authorization of the interception, the voluntariness of K.P.'s consent to wear the wire, and the accuracy of the facts contained in the affidavit offered in support of the wire authorization. On March 28, 2011, the trial court conducted a hearing. On May 6, 2011, that court denied Appellant's suppression motion.

At trial, the Commonwealth presented, inter alia, the facts substantially as presented above. Appellant testified in his own defense and denied the allegations in toto. Appellant conceded that he was the person on the recording speaking with K.P., but Appellant claimed that he uttered the statements of apology and remorse only because he believed that K.P. was armed. Appellant stated that he believedthat K.P. fabricated the allegations because, when K.P. was twelve-years-old, K.P. admitted that he became aroused around Appellant, and Appellant abandoned K.P. instead of helping him work through that particular problem.

On June 3, 2011, having apparently rejected Appellant's testimony, the jury found him guilty of all charges. On September 16, 2011, Appellant was sentenced to three to ten years' imprisonment on the attempted IDSI count. No further penalty was imposed on any of the other counts. On October 6, 2011, Appellant filed a notice of appeal. The following day, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On December 1, 2011, following one extension and the production of trial transcripts, Appellant filed a timely statement.

Appellant raises the following six issues for our review:

1. Did the trial court err in denying [Appellant's] pre-trial motion to suppress/preclude the admission of electronic interceptions of oral communication, pursuant to the Wiretapping and Electronic Surveillance Act, where the interception occurred in the home of the non-consenting party, and, the affidavit of probable cause failed to establish probable cause that conversations concerning the criminal conduct being investigated were likely to be discussed and intercepted?

2. Did the trial court err in permitting [Appellant] to be cross-examined regarding his post[-]arrest silence to police, in contravention of his Pennsylvania and United States Constitutional right against self-incrimination?

3. Did the trial court err in permitting the Commonwealth to call witness Kim Disciullo, in rebuttal, to recount statements made to her by [Appellant] relative to a “conspiracy,” where it was the trial court which erred in permitting the Commonwealth to cross-examine [Appellant] about this “conspiracy,” and it was irrelevant, immaterial, and collateral, and therefore not proper rebuttal evidence?

4. Did the trial court err in admitting double hearsay when it permitted [V.P.] to testify before the jury as to the content of an out of court statement[, i.e.,] a telephone conversation she had with Karen Kuder ( [Appellant's] wife) during which Mrs. Kuder related what [Appellant] had told her about being angry with [K.P.]?

5. Did the trial court err in admitting hearsay when it permitted...

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13 cases
  • In re K.A.T.
    • United States
    • Pennsylvania Superior Court
    • June 11, 2013
    ...is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Pa.R.E. 801(c); Commonwealth v. Kuder, 62 A.3d 1038, 1055 (Pa.Super.2013). As a general rule, hearsay is inadmissible, because such evidence lacks guarantees of trustworthiness fundamental to ou......
  • Commonwealth v. Shull
    • United States
    • Pennsylvania Superior Court
    • September 13, 2016
    ...Grego in a robbery attempt, is so overwhelming, so that by comparison,” the errors at issue are insignificant. SeeCommonwealth v. Kuder , 62 A.3d 1038, 1052 (Pa.Super.2013). Accordingly, Shull's evidentiary ruling challenge is without merit. In Shull's final issue, he challenges the trial c......
  • Commonwealth v. Smith
    • United States
    • Pennsylvania Superior Court
    • February 19, 2016
    ...the Wiretap Act prohibits the interception, disclosure, or use of any wire, electronic, or oral communication.” Commonwealth v. Kuder, 62 A.3d 1038, 1044 (Pa.Super.2013), citing 18 Pa.C.S. § 5703, appeal denied, ––– Pa. ––––, 114 A.3d 416 (2015). To that end, Smith does not contend that, if......
  • Commonwealth v. Traver
    • United States
    • Pennsylvania Superior Court
    • May 20, 2020
    ...may make reference to the defendant's pre-arrest silence for purposes of impeachment. See id. at 613-614 (citing to Commonwealth v. Kuder, 62 A.3d 1038 (Pa. Super. 2013), Commonwealth v. Fischere, 70 A.3d 1270 (Pa. Super. 2013), Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005), and Commonw......
  • Request a trial to view additional results
1 books & journal articles
  • Interrogations, confessions and other statements
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ...Miranda silence may be used to impeach. [ See Fletcher v. Weir , 455 U.S. 603 (1982); but see Commonwealth v. Kuder, 2013 PA Super 35, 62 A.3d 1038, 1049-53 (2013) (under Pennsylvania Constitution, post-arrest silence cannot be used for any purpose; reviews different standards applying to p......

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