Commonwealth v. Kuhlman

300 A.3d 460

COMMONWEALTH of Pennsylvania v. Clinton Reed KUHLMAN, Appellant

No. 1063 WDA 2022

Superior Court of Pennsylvania.

Submitted May 1, 2023

Filed: July 27, 2023

Clinton R. Kuhlman, appellant, pro se.

David J. Lozier, District Attorney, Beaver, for Commonwealth, appellee.

Angela R. Strathman, Assistant District Attorney, Beaver, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J. ^*

OPINION BY BENDER, P.J.E.:

Appellant, Clinton Reed Kuhlman, appeals pro se from the aggregate, mandatory judgment of sentence of 25 to 50 years’ incarceration, imposed after he was convicted, following a non-jury trial, of 58 counts of possession of child pornography, 18 Pa.C.S. § 6312(d), and one count of criminal use of a communication facility, 18 Pa.C.S. § 7512(a). After careful review, we affirm.

The facts and procedural history of this case stem from another case in which Appellant was convicted, in 2015, of five counts of sexual abuse of children (dissemination of photographs, videotapes, computer depictions and films), 18 Pa.C.S. § 6312(c), ten counts of sexual abuse of children (child pornography), 18 Pa.C.S. § 6312(d), and one count of criminal use of a communication facility. For these convictions, Appellant was sentenced to an aggregate term of incarceration of one year less one day to two years less one day, followed by ten years’ probation.

In 2016, Appellant was released and began serving his term of probation. Shortly after his release, Probation Officer Chris Sturgeon ("P.O. Sturgeon") met with Appellant to review the written rules of his supervision, which included the following:

1. You must successfully enroll in and complete a [c]ourt[-]approved sexual offender treatment/counseling program. During the course of your therapy, you must complete any and all assessments or evaluations required by your treatment provider which may include a polygraph examination. You will comply with all conditions and recommendations of your treatment provider. You will pay all fees associated with the treatment program.

6. You will not own, possess, or view any photographs, magazines, movies, websites, e-mails, D.V.D.[ ]s or videotapes depicting nude or partially nude men, women, or children. You will not access any sexually explicit telephone services. I understand that Beaver County Adult Probation Department has the authority to search and seize any materials that exist on my person, place, residence and/or vehicle without warrant if there is reasonable suspicion that these types of materials exist.

8. Access to the Internet is limited to legitimate and business purposes only. You will submit to a search of your computer or any computer that you have access to for any violations throughout your supervision. Your computer may be seized for the purpose of this search and if any information on your computer violates the Laws of the Commonwealth of Pennsylvania, the search may cease, and the proper law enforcement agencies will be notified.

9. You may be subjected to and agree to Remote Internet Monitoring. You will pay all fees associated with this program.

Commonwealth's Brief at 8-9.

In 2020, a sexual-offender evaluation of Appellant was completed by Julia Lindemuth, who is an approved therapist for sexual offenders by the Sexual Offender Assessment Board. ¹

On February 13, 2020, ... Lindemuth emailed P.O. Sturgeon expressing concern that [Appellant] had unmonitored access to the internet and could potentially be viewing child pornography. In her email, Lindemuth advised P.O. Sturgeon that [Appellant] was cooperative, but minimized his responsibility and continued to claim that he did not know viewing child pornography was illegal. She further advised the probation officer that unmonitored internet access was potentially problematic for an online offender. [ ] Lindemuth told P.O. Sturgeon that Lindemuth is also employed as an evaluator by the Sexual Offender Board, a position that requires her to use her expertise to determine whether a defendant meets the criteria of a violent sexual offender.

[Appellant] had told her he could not access the internet due to his illness. He also reported that he did not use the internet but would assist his mother on the computer. Furthermore, the therapist recommended [that] the probation officer ... do a home visit and take a look at the computer history of [Appellant].

After receiving this information, P.O. Sturgeon obtained permission from the head of Beaver County Adult Probation, Don Neill, to do a field visit of [Appellant's] residence in order to follow up on the concerns of the therapist. On February 18, 2020, P.O. Sturgeon went to [Appellant's] residence at 813 Coleman Drive at 10:30 a.m. where he lived with his elderly mother. Present was fellow probation officer Ian Thomas and the Chief of Police of Rochester Township. After several minutes[,] [Appellant] answered the door. P.O. Sturgeon explained that she was there to look at [Appellant's] computers to see if he was currently viewing any form of pornography.

[Appellant] was cooperative, consented to the field visit, and provided P.O. Sturgeon access to his Android phone and the locations of the two computers inside his residence.

[Appellant's] residence had a main floor, containing a kitchen, living room, and a couple of sitting areas, as well as a partially finished basement. The first computer was located on the main floor of the residence and, after review, [P.O.] Sturgeon testified that there was nothing inappropriate on that computer.

When [P.O.] Sturgeon asked [Appellant] where his bedroom was, [Appellant] led her downstairs to a partially finished basement. The basement was partitioned, with the left-hand[ ]side containing [Appellant's] bedroom and the right-hand[ ]side containing a utilities area. The second computer was located in an area of [Appellant's] bedroom. When the probation officers examined the computer, they immediately began to see "pornography and child sex abuse images" on the computer. Upon viewing the images, P.O. Sturgeon testified that the probation officers immediately stopped the search and contacted their supervisor to advise them of the potential violation of [Appellant's] rules of supervision. [Appellant] was detained for violation of his supervision rules.

Subsequently, the Pennsylvania State Police obtained a search warrant to search [Appellant's] computer. The forensic examination of that computer revealed 58 photographs of child pornography on [Appellant's] computer.

Id. at 10-12 (citations to the reproduced record omitted).

Appellant was subsequently charged with 58 counts of possession of child pornography and one count of criminal use of a communication facility. On August 12, 2021, he filed a pretrial motion to suppress, arguing that the evidence supporting his charges was the product of an illegal search and seizure because P.O. Sturgeon lacked reasonable suspicion that his computer contained contraband. On April 5, 2022, the trial court conducted a suppression hearing. On April 26, 2022, the court issued an order and opinion denying Appellant's suppression motion. The case proceeded to a non-jury trial, at the close of which Appellant was convicted of all charges. He was sentenced on August 22, 2022, to the aggregate term set forth supra .

On September 14, 2022, Appellant, who at the time was represented by counsel, filed the instant, pro se appeal challenging his judgment of sentence. On September 21, 2022, counsel for Appellant filed a second appeal, docketed at 1109 WDA 2022, challenging the same judgment of sentence at the same trial court docket. ² As the appeals appeared duplicative, this Court, on November 1, 2022, entered a Rule to Show Cause Order at the instant appeal directing pro se Appellant to show cause why this appeal should not be dismissed as duplicative to the appeal at 1109 WDA 2022.

On November 10, 2022, Appellant filed an application requesting that the appeal at 1109 WDA 2022 be dismissed. Appellant explained he had requested counsel withdraw immediately after sentencing, but that counsel had failed to do so and instead filed the appeal at 1109 WDA 2022. Because of this, Appellant requested the unwanted appeal at 1109 WDA 2022 be dismissed as duplicative. Therefore, on November 18, 2022, this Court entered an order dismissing the appeal at 1109 WDA 2022 as duplicative to the instant appeal.

After Appellant filed his notice of appeal, the trial court directed him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal and he timely complied. The trial court filed a Rule 1925(a) opinion, indicating that it was relying on its April 26, 2022 suppression opinion to address Appellant's claims.

Herein, Appellant states three issues for our review:

1. Whether the trial court err[ed in denying the suppression motion (evidence seized from [Appellant's] computer) as [P.O.] ... Sturgeon did not have a reasonable suspicion that the computer contained contraband or that [Appellant] violated the conditions of his supervision in violation of 42 Pa.C.S.[ ] §[ ]9912(d)(2), Pennsylvania Const. Art. 1[ ]§[ ]8 and/or U.S. Const. Amend. 4 ?

2. Whether the Commonwealth committed [p]rosecutorial [m]isconduct during the suppressi[on] hearing and violate[d Appellant's] 14th [A]mendment rights to due process[ w]hen [it] presented, used or should have known the testimony from [P.O.] ... Sturgeon, pursuant to Julia Lindemuth, was false[?]

3. Whether the trial court err[ed] by relying on [P.O.] ... Sturgeon[’s] perjuried [ sic ] and false testimony to deny the suppression motion[,n]amely, the testimony surrounding Julia Lindemuth[?]

Appellant's Brief at 2.

In Appellant's first issue, he contends that the trial court erred by denying his motion to suppress.

An appellate court's standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the

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