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[U] Commonwealth v. Krueger

Superior Court of Pennsylvania

October 4, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
PAUL S. KRUEGER Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
PAUL S. KRUEGER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered March 7, 2012 In the Court of Common Pleas of Montgomery County Criminal Division at No.: CP-46-CR-0004515-2008

BEFORE: STEVENS, P.J., [*] WECHT, J., and COLVILLE, J.[**]

MEMORANDUM

WECHT, J.

Paul Krueger ("Appellant") appeals from two separate orders entered on March 7, 2012. One order denied Appellant's petition for return of property. The other denied Appellant's post-conviction petition for habeas corpus.[1] We affirm.

On May 20, 2008, Appellant was arrested in Atlantic City, New Jersey. After being extradited to Pennsylvania, Appellant was charged with thirteen counts of theft by unlawful taking, thirteen counts of theft by deception, thirteen counts of deceptive or fraudulent business practices, and thirteen counts of theft by failure to make required disposition of funds received.[2] The charges arose from Appellant's deceptive behavior on the Internet website www.millionairematch.com. The trial court summarized Appellant's basic scheme as follows:

[B]etween October 2007 and April 2008, [Appellant] engaged in conduct with various individuals over the Internet, through millionairematch.com and those individuals, in some cases, referenced [Appellant] to other individuals, who forwarded money to [Appellant] to be used for investment purposes, which [Appellant] kept for his own personal benefit. Trial Court Opinion ("T.C.O."), 6/1/2012, at 1 (some grammatical modifications made for clarity). The amount of money that Appellant obtained through this scheme exceeded $100, 000. Id.

On October 24, 2008, Appellant pleaded guilty to one count of theft by failure to make required disposition of funds received. As per a plea agreement with the Commonwealth, Appellant was sentenced to three to seven years' imprisonment, and ordered to pay restitution to the thirteen individuals known to have sent money to Appellant as a result of his fraudulent scheme.[3] Appellant did not file a direct appeal.

On December 14, 2011, Appellant filed a pro se petition for return of property. Therein, Appellant sought return of the computer that was seized from him, which the Commonwealth had alleged was used to aid in perpetrating Appellant's scheme. In a subsequent amendment, Appellant requested that the software and music files that were stored on the computer be returned to him as well. On January 11, 2012, while the petition for return of property was pending, Appellant filed a pro se petition for habeas corpus, in which Appellant raised multiple claims related to the validity of his guilty plea and sentence.

On March 7, 2012, the trial court held a hearing on the petitions. The trial court notified Appellant that the claims raised within the petition for habeas corpus were not cognizable at that time either because they were subject to the time limit set forth in the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9545(b), or because the court lacked jurisdiction to grant the requested relief. The trial court then proceeded with the hearing on the petition for return of property. On that date, the trial court issued two orders denying Appellant's petitions.

On April 3, 2012, Appellant filed two separate notices of appeal from the March 7, 2012 orders. The trial court did not direct Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Nonetheless, on June 1, 2012, the trial court issued a memorandum opinion.

In his brief, Appellant raises the following issues for our review:

1. Was the arrest of the Appellant in the State of New Jersey by Pennsylvania police officers unlawful?
A. Did the Pennsylvania police officers have jurisdiction to make an arrest in the state of New Jersey without any involvement by New Jersey law enforcement whatsoever?
2. Did Pennsylvania have any contact with the criminal charges against the Appellant and thus did Pennsylvania have jurisdiction to hear the criminal charges against the Appellant?
3. Was the Appellant the focus of a warrantless arrest?
4. Was the Appellant's counsel ineffective?
A. Did Appellant's counsel fail to recognize the jurisdiction[al] issues?
B. Did the Appellant's counsel give proper advice regarding Preliminary Hearing/Prima Facie case?
C. Did the Appellant's counsel give wrong advice regarding potential sentence if Appellant didn't take [the] plea?
D. Did the Appellant's counsel fail to move for change of venue on Pre-Trial publicity?

5. Were there errors by the Trial Court in the Appellant's criminal case?

A. Did the Court fail to appoint counsel when Appellant requested it at the time of arrest?
B. Did the Court fail to appoint counsel for Appellant's Extradition Hearing?
C. Did the Court fail to recognize jurisdictional issue?
6. Were there errors by the Court for the Appellant's Habeas corpus and Return of Property hearings?
A. Did the Court fail to appoint counsel even though requested (both hearings)?
B. Did the Court fail to hold full hearing for Habeas corpus?
C. Did the Court fail to reinstate the Appellant's PCRA rights when the judge said PCRA was proper forum?
D.Did the Court fail to recognize that Appellant had to file Habeas corpus because he was time barred for PCRA?
E. Did the Court fail to hold a full hearing to hear the jurisdictional issues?
F. Did the Court fail to grant Habeas corpus relief?
G. Did the Court fail to grant Return of Property even though NO Forfeiture Petition filed?
H. Did the Court fail to make Commonwealth present said property at time of hearing to demonstrate its case that property was a derivative of the crimes involved?

Brief for Appellant at 3.

We first must determine which, if any, of Appellant's issues are cognizable in this appeal. Upon close inspection, we conclude, as did the trial court, that many of Appellant's issues are time-barred by the PCRA. "We have repeatedly held that the PCRA provides the sole means for obtaining collateral review and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition." Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa.Super. 2002); see Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002); 42 Pa.C.S. § 9542. Issues that are cognizable under the PCRA must be raised in a timely PCRA petition, and cannot be raised in a habeas corpus petition. "Phrased differently, a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus." Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013). Unless the PCRA cannot provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus. Commonwealth v. Fahy, 737 A.2d 214, 223-24 (Pa. 1999). Thus, "the question then becomes whether petitioner had an available remedy under the PCRA." Commonwealth v. Lusch, 759 A.2d 6, 8 (Pa.Super. 2000).

The claims for which the PCRA will provide a remedy are set forth in 42 Pa.C.S. § 9543(a)(2). To be entitled to relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence was the result of one of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2).

Appellant's first four issues, including the sub-issues, plainly are cognizable under the PCRA. These include Appellant's challenges to the jurisdiction and constitutionality of Appellant's arrest, to the jurisdiction of the sentencing court, and regarding the effectiveness of trial counsel. See

42 Pa.C.S. §§ 9543(a)(2)(i), (ii), (viii). Accordingly, those issues must be considered PCRA issues, which are subject to the PCRA's strict time limits.

It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied strictly by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000). "[N]o court may properly disregard or alter [these filing requirements] in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Section 9545(b) sets forth the time limitations for filing of a PCRA petition as follows:

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph
(1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b)(1)(i)-(iii), (2). When a petition is filed outside the one-year time limit, the petitioner must plead and prove the applicability of one of the three exceptions to the PCRA time restriction. See Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008); 42 Pa.C.S. § 9545(b)(1).[4]

Here, Appellant's judgment of sentence became final on or about November 24, 2008, when his time to file a direct appeal from his guilty plea and sentence expired. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3). Hence, in order to comply with the time limits of the PCRA, Appellant had to file a petition within one year of that date. Appellant did not file his habeas corpus petition until January 11, 2012, well beyond the one-year time limit. Appellant did not plead or prove one of the statutory exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1). Consequently, although Appellant's issues 1 through 4 are cognizable under the PCRA, they are time-barred. Consequently, we lack jurisdiction to dispose of those issues. See Murray, supra.

As well, in issue 5C, Appellant asserts that the trial court erred in failing to recognize the alleged defect in that court's jurisdiction. In substance, the basis for Appellant's argument is that the trial court lacked jurisdiction to convict him of a crime. See Brief for Appellant at 29 ("The Appellant avers that Pennsylvania had no jurisdiction to hear the case brought against him and that all charges should be dismissed."). As we set forth above, this claim is cognizable under the PCRA and, in this case, untimely. Thus, we lack jurisdiction to address this claim as well. See Murray, supra.

Because Appellant's habeas corpus petition was time-barred, Appellant's derivative issues related to the denial of his habeas corpus petition cannot succeed. Thus, issues 6B (alleging that the trial court erred by not holding a full hearing on Appellant's habeas corpus petition), 6C (alleging that the trial court erred for failing to reinstate Appellant's PCRA rights, even though Appellant did not ask the court to do so), 6D (alleging that the trial court failed to "recognize that Appellant had to file [a] Habeas corpus because he was time barred for PCRA, " see Brief for Appellant at 31-32), 6E (alleging that the trial court failed to hold a full hearing on Appellant's habeas corpus petition), and 6F (alleging generally that the trial court erred in not granting Appellant's habeas corpus petition) must fail.

We turn next to Appellant's issues 5A and 5B. Appellant alleges that the trial court failed to appoint counsel for him at the time of his arrest and for his extradition hearing. Questions of cognizability aside, we note that Appellant did not raise either of these two issues in his January 11, 2011 petition for habeas corpus or in his March 2, 2012 amendment to his petition for habeas corpus. Thus, these issues are waived, and we may not consider them any further. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); Commonwealth v. Lewis, 63 A.3d 1274, 1278 (Pa.Super. 2013).

In issue 6A, Appellant alleges that the trial court erred by failing to appoint counsel, which he requested, to litigate both of his petitions. In presenting this argument, Appellant fails to support his claim with a citation to legal authority. The entirety of Appellant's argument consists of two paragraphs, and lacks any substantial development sufficient to justify our review of his claim. See Brief for Appellant at 29. Most notably, Appellant does not set forth a legal principle to demonstrate that he is entitled to counsel, the violation of which constitutes legal error, in his pursuit of relief in his two petitions. Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure provides that "[t]he argument shall . . . have . . . the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a). Failure by the appellant to discuss pertinent facts or cite legal authority results in waiver. Commonwealth v. Rhodes, 54 A.3d 908, 915 (Pa.Super. 2012). Consequently, Appellant's underdeveloped argument is waived.

In issue 6G, Appellant assails the trial court's denial of his petition for return of property. Appellant contends that the Commonwealth did not establish a nexus between the laptop computer that was seized from his residence and the crime to which Appellant pleaded guilty. "Logging onto a website is not a crime. The Commonwealth found nothing in the laptop that specifically links the laptop in question to any of the alleged victims or crimes . . . ." Brief for Appellant at 36. Appellant further notes that, of the over one thousand pieces of discovery material that he received from the Commonwealth related to his crime, not one of them was printed from the laptop in question. Id. For these reasons, Appellant maintains that the trial court erred in denying his motion for return of the laptop. We disagree.

In cases involving motions for the return of property, we employ an abuse of discretion standard of review. Beaston v. Ebersole, 986 A.2d 876, 880 (Pa.Super. 2009). In doing so, we are mindful that "it is the province of the trial court to judge the credibility of the witnesses and weigh the testimony offered." Commonwealth v. Durham, 9 A.3d 641, 645 (Pa.Super. 2010) (quoting Commonwealth v. Younge, 667 A.2d 739, 741 (Pa.Super. 1995)). "It is not the duty of an appellate court to act as fact-finder, but to determine whether there is sufficient evidence in the record to support the facts as found by the trial court." Id.

In Durham, we set forth a comprehensive statement of the law governing motions for return of property as follows:

Pennsylvania Rule of Criminal Procedure ("Pa.R.Crim.P.") 588 addresses motions for the return of property and reads as follows:
Motion for Return of Property

(A) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.

(B) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

Pa.R.Crim.P. 588(A) and (B). We have explained the application of Rule 588 as follows:

Under this rule, on any motion for return of property, the moving party must establish by a preponderance of the evidence entitlement to lawful possession. Once that is established, unless there is countervailing evidence to defeat the claim, the moving party is entitled to the return of the identified property. A claim for return of property can be defeated in two ways: an opposing party can establish that it, not the moving party, is entitled to lawful possession to the property or the Commonwealth can seek forfeiture claiming that property for which return is sought is derivative contraband. Commonwealth v. Crespo, 884 A.2d 960 (Pa. Cmwlth. 2005). To meet its burden to defeat the motion for return of property, the Commonwealth must make out more than simply demonstrating that the property was in the possession of someone who has engaged in criminal conduct. It must establish a specific nexus between the property and the criminal activity. Commonwealth v. Howard, 713 A.2d 89 (Pa. 1998); Commonwealth v. 2001 Toyota Camry, 894 A.2d 207 (Pa. Cmwlth. 2006).
Ebersole, 986 A.2d at 881 (adopting verbatim the reasoning of Singleton v. Johnson, 929 A.2d 1224, 1227 (Pa. Cmwlth. 2007) (en banc)).3
3 We noted in Ebersole that decisions rendered by the Commonwealth Court are not binding on this Court. Ebersole, 986 A.2d at 881 (citing Commonwealth v. Thomas, 814 A.2d 754, 759 n.2 (Pa.Super. 2002)). However, where this Court is persuaded by the reasoning set forth by the Commonwealth Court, we may follow it. Id.; see also Commonwealth v. Thomas, 814 A.2d 754, 759 n. 2 (Pa.Super. 2002) (stating that, while decisions of the Commonwealth Court are not binding upon this Court, we may elect to follow the Commonwealth Court decisions if we find the rationale persuasive). Hence, the Ebersole Court chose to follow the persuasive reasoning of Singleton.

The law is well[-]settled that:

[o]n a motion for return of property, the moving party has the burden of proving ownership or lawful possession of the items. The burden then shifts to the Commonwealth to prove, by a preponderance of the evidence, that the property is contraband.
[D]erivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. Property is not derivative contraband, however, merely because it is owned or used by someone who has been engaged in criminal conduct. Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity.
Petition of Koenig, 663 A.2d 725, 726 (Pa.Super. 1995) (citations omitted). Durham, 9 A.3d at 645-46 (some citations modified).

The Commonwealth concedes that Appellant has proven that he lawfully owned the laptop in question. See Brief for Commonwealth at 10. We accept that concession, and turn our attention to whether the trial court abused its discretion in finding that the Commonwealth proved by a preponderance of the evidence that the laptop constituted derivative contraband. The trial judge, who observed the witnesses first-hand, credited the testimony of Detective Joseph Kelly. Detective Kelly testified at the hearing on Appellant's motion for return of property that he observed a forensic analysis of Appellant's laptop, which yielded proof that Appellant had used that laptop to log onto www.milliionairematch.com, the website that Appellant used to perpetrate his $100, 000 scheme. Bound as we are by the trial court's credibility determinations, we conclude that the record supports the trial court's finding that the laptop was derivative contraband.

As such, the trial court did not abuse its discretion in denying Appellant's motion for return of property.

In his final issue, 6H, Appellant argues that the trial court erred by not requiring the Commonwealth to present the actual computer at the hearing. Appellant again cites no legal authority to support his claim that the property must be presented in open court in order to establish the requisite nexus between his criminality and the property. Appellant cites a lone case, Commonwealth v. Pomerantz, 573 A.2d 1149 (Pa.Super. 1989), in which this Court distinguished motions for return of property from forfeiture petitions. Id. at 1149-50. We never discussed the issue of whether property must be produced in court before a motion for return of property may be ruled upon. Thus, Pomerantz provides no support for Appellant's argument. Moreover, Appellant also fails to demonstrate how the presence of the actual laptop would have had any impact on the proceeding. In any event, because Appellant has failed to offer legal authority in support of his claim, the claim is waived. See Rhodes, supra.

Orders affirmed.


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