Com. v. Buckley, D.

J-S35012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

DAVID M. BUCKLEY,

Appellant No. 1747 MDA 2017

Appeal from the Judgment of Sentence Entered May 3, 2017
In the Court of Common Pleas of Centre County
Criminal Division at No(s):
CP-14-CR-0000265-2016
CP-14-CR-0000535-2015

BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 20, 2018

Appellant, David M. Buckley, appeals from the judgment of sentence of

an aggregate term of 8-16 years’ incarceration, imposed following his

conviction at a non-jury trial for numerous counts of possession and

distribution of child pornography. After careful review, we vacate Appellant’s

judgment of sentence, in part, and remand for resentencing and further

proceedings.

Due to the unique procedural history of this case, infra, the trial court

failed to file a Pa.R.A.P. 1925(a) opinion addressing Appellant’s claims.1

Accordingly, we lack an official summary of the pertinent facts adduced at

____________________________________________

1 However, the trial court did produce two opinions addressing pre-trial issues.
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Appellant’s non-jury trial. The Commonwealth provided a factual summary,

which we provide purely for context, as follows:

During an undercover investigation into the distribution of
child pornography in June of 2013, a Pennsylvania State Police
computer received a video depicting a nude prepubescent female.
The video was sent from the Internet Protocol (IP) address of a
computer identified with Appellant[,] David Buckley. N.T. 2/2/17
at 14, 20-24. The State Police sent this information to the
Ferguson Township Police, who obtained search warrants for
[Appellant]’s home and person in early January of 2014. Id. at
85-86. Pursuant to those warrants, police seized various items
capable of storing digital data, including [Appellant]’s Apple
iPhone and his Hewlett Packard laptop computer. Id. at 89, 91-
92.

When [Appellant] became aware that police were taking
action to search his digital devices, he deleted approximately 15
items of child pornography from his laptop computer. [Id.] at 99.
An eventual forensic analysis of [Appellant]’s computer revealed
1,523 photos and 33 videos of what were described as “child
pornography” by Ferguson Township Police Detective Devon
Moran. Id. at 83, 114. One such video depicted “a young female
[who] ultimately goes from clothed to not clothed to playing with
her vagina using her fingers and ultimately a red candle stick in
which this individual, this female, inserts the candle into her
vagina.” Id. at 115. The forensic analysis additionally revealed
that the Internet browser on [Appellant]’s computer had been
used to conduct searches cast in terms ranging from “Russian
pedo pics,” “pedo 9, 10, 11-years-old,” “kinder,” “lolita,” “Russian
preteens,” and “very young little girl porn.” Id. 116-118. Such
searches were run from April through November of 2013. Id. at
119.

Detective Moran filed a criminal complaint on March 10,
2015, charging [Appellant] with two counts of Sexual Abuse of
Children, 18 Pa.C.S. § 6312(d) (possession of child pornography)
and a third count under subsection (c) of that same statute
(dissemination of child pornography). When, purportedly,
[Appellant] refused to plead guilty, the Centre County District
Attorney added 40 counts of possession of child pornography at
the preliminary hearing, [id.] at 137-138, followed by 1,508
counts in a second criminal complaint filed on January 24, 2016.

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Defense counsel stipulated at [Appellant]’s February 2,
2017, bench trial that the images and videos found on [his]
computer fell within the prohibitions of 18 Pa.C.S. § 6312. [Id.]
at 129-132. The defense consisted, instead, of argument that
another person was responsible for the images on [Appellant]’s
computer. [Id.] at 149-150. The trial court, per the Honorable
Jonathan Grine ("Judge Grine") rejected this defense and
convicted [Appellant] of all counts in the two informations.

Commonwealth’s Brief at 1-2.

On May 3, 2017, the trial court sentenced Appellant to an aggregate

term of 8-16 years’ incarceration. Appellant filed a timely post-sentence

motion on May 15, 2017, which was initially addressed at a hearing held on

August 10, 2017.2 On September 20, 2017, Appellant filed an amended post-

sentence motion to vacate his conviction and a request for a new trial, based

on emerging evidence of inappropriate contacts between Judge Grine and the

then District Attorney of Centre County, Stacy Parks Miller, Esq., that resulted

in disciplinary board actions against both of them. Specifically, in a Letter of

Counsel dated August 29, 2017, the Judicial Board concluded that Judge Grine

committed several judicial conduct violations in his handling of criminal

matters since the summer of 2014 due to his relationship with D.A. Miller.

See Commonwealth of Pennsylvania Judicial Conduct Board Letter of Counsel,

____________________________________________

2 Just prior to the hearing, Appellant filed a motion for enlargement of time
for the trial court to decide post-sentence motions, which the court granted
by order dated August 28, 2017, extending the deadline from September 11,
2017 to October 10, 2017. At the August 10, 2017 hearing, the parties agreed
to brief their post-sentence motion arguments. Appellant filed his post-
sentence motion brief on August 30, 2017, and the Commonwealth filed its
brief on September 22, 2017.

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8/10/17, at 2-4. The Board also indicated that Judge Grine admitted to his

misconduct. Id. at 4.

A hearing was scheduled for Appellant’s amended post-sentence motion

to be held on October 4, 2017. However, by order dated the same day as the

scheduled hearing, the Honorable Thomas King Kistler, then President Judge

of the Centre County Court of Common Pleas, ordered Appellant’s case to

proceed with a visiting judge due to Judge Grine’s recusal from all non-DUI

criminal matters. The Honorable Daniel Lee Howsware was appointed to

preside over Appellant’s case on October 18, 2017; however, Judge Howsware

did not hold a hearing regarding Appellant’s amended post-sentence motion.3

Ultimately, Appellant’s post-sentence motion and amended post-sentence

motion were denied by operation of law on October 13, 2017.

Appellant filed a timely notice of appeal on November 9, 2017. Appellant

then filed a Pa.R.A.P. 1925(b) statement on January 31, 2018, despite not

being ordered by the trial court to do so. Judge Howsware filed a statement

ostensibly pursuant to Rule 1925(a) on November 30, 2017; however, that

statement addressed only the bail-pending-appeal issue, noting that the order

denying bail set forth the reasons for that decision. No Rule 1925(a) opinion

was filed in this case. We note that the trial court did file two opinions

accompanying its orders denying Appellant’s pre-trial motions.

____________________________________________

3 On November 9, 2017, Judge Howsware did hold a hearing to consider
Appellant’s motion for bail pending appeal, which he denied the same day.

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Appellant now presents the following questions for our review:

I. Was the evidence produced by the Commonwealth at
[Appellant]’s trial sufficient to establish he intentionally
viewed or knowingly possessed child pornography?

II. Were the verdicts against the weight of the evidence that
[Appellant] intentionally viewed or knowingly possessed
child pornography?

III. Was the evidence produced by the Commonwealth at
[Appellant]’s trial sufficient to establish he knowingly
distributed or disseminated or unlawfully possessed for the
purpose of distribution or dissemination child pornography?

IV. Were the verdicts relating to the charges of distribution or
dissemination of child pornography against the weight of the
evidence?

V. Did the lower court err in convicting and sentencing
[Appellant] to consecutive sentences on two (2) counts of
distribution or dissemination of child pornography?

VI. Did the lower court err in denying [Appellant]’s pre-trial
motions to suppress evidence obtained from Comcast on
August 5, 2013 pursuant to a court order issued on July 31,
2013?

VII. Did the lower court err in denying [Appellant]’s pre-trial
motions to suppress evidence obtained as a result of the
execution of search warrants on January 2, and 3, 2014?

VIII. Did the trial court err in failing to disclose to [Appellant] his
personal support relationship with the district attorney prior
to presiding over [Appellant]’s non-jury trial, and failing to
recuse himself from presiding over [Appellant]’s non-jury
trial based upon that relationship?

IX. Did the lower court ([H]on. Daniel L. Howsware, specially
presiding) err in denying [Appellant] bail pending his
appeal?

X. Should [Appellant]’s convictions be vacated and the charges
dismissed, or, in the alternative, should [Appellant]’s cases
be remanded to the lower court for an evidentiary hearing
on unresolved issues including those issues raised in his

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amended post sentence motions based upon the trial court’s
personal support relationship with the district attorney?

Appellant’s Brief at 4-5. For ease of disposition, we will address these claims

out of the order in which they were presented.

Sufficiency of the Evidence

We begin by addressing Appellant’s sufficiency claims (I and III, supra).

Our standard of review of sufficiency claims is well settled:

A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

Appellant was convicted of 1,549 counts of possession of child

pornography, 18 Pa.C.S. § 6312(d) (“possession”), and two counts of

disseminating child pornography, 18 Pa.C.S. § 6312(c) (“dissemination”).

These crimes are defined as follows:

(c) Dissemination of photographs, videotapes, computer
depictions and films.--Any person who knowingly sells,
distributes, delivers, disseminates, transfers, displays or exhibits
to others, or who possesses for the purpose of sale, distribution,
delivery, dissemination, transfer, display or exhibition to others,
any book, magazine, pamphlet, slide, photograph, film,
videotape, computer depiction or other material depicting a child

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under the age of 18 years engaging in a prohibited sexual act or
in the simulation of such act commits an offense.

(d) Child pornography.--Any person who intentionally views or
knowingly possesses or controls any book, magazine, pamphlet,
slide, photograph, film, videotape, computer depiction or other
material depicting a child under the age of 18 years engaging in a
prohibited sexual act or in the simulation of such act commits an
offense.

18 Pa.C.S. § 6312(c)-(d).

Appellant’s sufficiency claims are related. Appellant does not dispute

that the discovered images and videos constitute child pornography. In fact,

Appellant stipulated to this fact during his trial. See N.T., 2/2/17, at 132.

Rather, the sole basis for Appellant’s sufficiency challenges concerns his

identity as the perpetrator of the possession and dissemination charges,

despite the fact that the images and videos in question were discovered by

Pennsylvania State Police (“PSP”) on his personal computer (accounting for

the 1,549 counts of possession), and based on their receipt of a video

depicting child pornography from Appellant’s IP address.

First, the Commonwealth concedes that it did not offer evidence at trial

to support both counts of disseminating child pornography. See

Commonwealth’s Brief at 10-11. After a careful review of the record, we

agree. The evidence adduced at trial established only one incident of the

transmission of child pornography in June of 2013. See N.T. at 14, 20-24.

Second, with regard to the remaining count of dissemination, and the

numerous counts of possession, there exists some conflicting evidence as to

Appellant’s identity as the perpetrator. The Commonwealth demonstrated

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that the BitTorrent software used to download the pornography in question

was installed on Appellant’s computer on June 28, 2013, at 9:25 p.m.

Appellant contends that this occurred at a time when he was at work, and

while his houseguest/roommate, Vlad Karabash, had access to the computer.

Moreover, Appellant contends that both his computer and personal cellphone

(on which several searches for child pornography were discovered) were not

secured with a password, thereby permitting anyone to access them.

Appellant argues that whether he or Mr. Karabash downloaded that software

constitutes “two equally reasonable and mutually inconsistent inferences” that

can be drawn from the circumstances. Appellant’s Brief at 24. Our Supreme

Court has recognized that “[w]hen two equally reasonable and mutually

inconsistent inferences can be drawn from the same set of circumstances, a

jury must not be permitted to guess which inference it will adopt, especially

when one of the two guesses may result in depriving a defendant of his life or

his liberty.” Commonwealth v. Montalvo, 986 A.2d 84, 99 (Pa. 2009)

(quoting Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa.

1946)).

We reject Appellant’s contention that the trial court was presented with

equally reasonable inferences in this case. Mr. Karabash testified that he only

lived with Appellant for a few months in late 2012, and that he left Appellant’s

apartment by January of 2013 (six months before the BitTorrent software was

added to Appellant’s computer), as he married his wife on January 21, 2013,

and began living with her at that time. See N.T. at 169. Mr. Karabash also

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specifically denied ever using Appellant’s cell phone or computer to search for

or view child pornography. Id. at 170. Appellant testified that he had never

“intentionally or knowingly” downloaded child pornography. Id. at 247.

Given the nature of the verdict, it is clear that that the trial court found Mr.

Karabash’s testimony credible, and Appellant’s testimony not credible.

Thus, the evidence did not produce equally reasonable inferences

regarding who possessed and, in one case, disseminated child pornography

from Appellant’s personal computer. It is undisputed that the images were

found on Appellant’s personal computer, and that police received a video from

Appellant’s IP address. While it is certainly possible that someone else used

Appellant’s computer to commit the crimes in question, that possibility is not

an inference of equal merit to the likelihood that Appellant used his own

computer for that purpose. This is true even if we cast aside the effect of the

trial court’s credibility determinations regarding Appellant’s and Mr.

Karabash’s denials. Appellant’s cell phone also contained evidence of searches

for child pornography, a circumstance that corroborated his intentional

possession of the contraband on his computer. Moreover, Appellant’s alleged

alibi for the downloading of the BitTorrent software is somewhat irrelevant, as

it does not appear to have been alleged that he downloaded any or all of the

at-issue images and videos at that time. In any event, the trial court’s

credibility determinations cannot be ignored in this context, as they

necessarily affect the quality of the inferences made regarding who

downloaded, viewed, and disseminated the child pornography at issue. Given

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the confluence of circumstances in this case, we conclude that the evidence

was sufficient to support Appellant’s possession convictions and one conviction

for dissemination.

Sentencing

Next, Appellant complains that the trial court erred by sentencing him

to consecutive terms of incarceration for his conviction for two counts of

dissemination. As noted above, the evidence produced at trial could only

sustain a single count of dissemination. Accordingly, we are compelled to

vacate the corresponding sentence. However, because we conclude that such

action will upset the sentencing scheme of the trial court, we hereby vacate

Appellant’s sentence in its entirety and remand for resentencing. See

Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (stating

that “if a trial court errs in its sentence for one count in a multi-count case,

then all sentences for all counts will be vacated so that the court can re-

structure its entire sentencing scheme”) (quoting Commonwealth v.

Lezinsky, 400 A.2d 184 (Pa. Super. 1979), rev’d on other grounds, In

Interest of Rodriquez, 537 A.2d 854 (Pa. Super. 1988)).

Suppression

Appellant’s next several claims concern the trial court’s denial of his

motion to suppress evidence. Appellant first argues that the PSP lacked a

sufficient legal basis to obtain a court order to search records from Comcast

that identified him as the subscriber to the IP address from which the PSP

received a video of child pornography. Second, Appellant contends that the

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PSP lacked probable cause to obtain the January 2, 2014, and January 3, 2014

warrants to search his person, personal belongings, and residence. Third,

Appellant argues that those warrants were premised upon stale information.

Finally, Appellant claims that the January 3, 2014 warrant was overbroad in

its scope.

Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012)).

The trial court summarized the events leading to the issuance of the July

31, 2013 court order as follows:

On June 30, 2013, Corporal G.M. Goodyear (“Corporal Goodyear”)
of the Pennsylvania State Police’s Southwest Computer Crime Unit
was conducting an undercover investigation of the sharing of child
pornography over the internet. Corporal Goodyear located a
computer with an Internet Protocol address of 98.235.165.250
(“IP address”), which he determined was sharing files known to

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contain child pornography through the BitTorrent peer-to-peer file
sharing network. Due to the computer’s BitTorrent client software
being set to “seed” files, or in other words share and upload files,
Corporal Goodyear was able to download a file from the IP
address. Corporal Goodyear found a video within the downloaded
file, and the video portrayed what appeared to be a pre-pubescent
female dancing and disrobing to a state of complete undress.
After viewing the contents of the video, Corporal Goodyear
believed, based on his training and experience, that the video
contained child pornography. Corporal Goodyear was able to
determine through publicly available records that the IP address
was assigned to the internet service provider Comcast …. Corporal
Goodyear prepared a [c]ourt [o]rder for the IP address subscriber
and billing information based upon the downloaded video from the
IP address and the information that the IP address was assigned
to Comcast. On July 31, 2013, the [c]ourt [o]rder was issued and
served on Comcast. On August 5, 2013, Comcast provided
[Appellant’s] name and address as the subscriber information
associated with the IP address.

Pretrial Opinion (“PTO1”), 2/24/16, at 1-2.

Appellant first argues that,

the application for the aforementioned [c]ourt [o]rder only alleged
information that the holder of that address/account was in
possession of constitutionally protection material. Furthermore,
[Appellant] submits Cpl. Goodyear did not comply with the
provisions of 18 Pa.C.S.[] Sections 5743(a)(1)(2),
(b)(1)(i)(ii)(A)(B), (2)(i) and (ii), (c)(1), (2)(i)(ii)(iii)(iv), (3)(d)
and (e). [Appellant] submits Cpl. Goodyear failed to show there
were specific and articulable facts showing there were reasonable
grounds to believe that the contents of a wire or electronic
communication, or the records or the other information sought
were relevant and material to an ongoing criminal investigation
and the court issuing the court order requiring Comcast to disclose
subscriber information to Cpl. Goodyear failed to make an
independent determination as to whether there was a sufficient
legal basis to issue the aforementioned court order.

Appellant’s Brief at 39-40.

Appellant’s initial suppression claim alleges that Corporal Goodyear

lacked a sufficient basis upon which to conclude that the video at issue was

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actual child pornography rather than constitutionally protected content, such

as virtual child pornography. Appellant’s claim derives from Ashcroft v. Free

Speech Coalition 535 U.S. 234 (2002). In that case, the United States

Supreme Court held that, while the First Amendment does not protect the

possession of child pornography, that caveat does not extend to virtual child

pornography because, inter alia, “[v]irtual child pornography is not

‘intrinsically related’ to the sexual abuse of children.” Id. at 250 (quoting

New York v. Ferber, 458 U.S. 747, 759 (1982) (holding that a state interest

in preventing the sexual exploitation and abuse of children constitutes a

“compelling” state interest that justifies the limited curtailment of First

Amendment rights because, inter alia, the “distribution of photographs and

films depicting sexual activity by juveniles is intrinsically related to the sexual

abuse of children”)).

Thus, Appellant contends that Corporal Goodyear lacked sufficient

knowledge to determine whether the video he viewed was depicting child

pornography or virtual child pornography so as to justify probable cause to

search records from Comcast to determine Appellant’s connection to the

suspect IP address. The trial court addressed this issue as follows:

[Appellant] attempts to fashion an additional burden on probable
cause in child pornography investigations, which amounts to a
requirement of a definitive finding that an alleged minor in alleged
child pornography is not only indeed an actual minor, but also a
flesh and blood human being as opposed to a computer generated
image. The [c]ourt refuses to accept [Appellant’s] logic because
said argument would create the absurd result of experienced child
pornography investigators being required to track down and
identify alleged child sexual abuse victims from anonymous

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images and videos downloaded from the internet, before even
being able to obtain the subscriber information related to a
suspected IP address. This result would virtually demolish the
Commonwealth’s ability to curtail the creation and spread of child
pornography, and thus would leave child sexual abuse victims
effectively defenseless. Further, the [c]ourt relies upon the
Superior Court’s holding in Commonwealth v. Robertson-
Dewar, which found the age element of the child pornography
statute can be sufficiently established by the trier of fact’s
consideration of the outward physical appearance of an alleged
minor. Commonwealth v. Robertson-Dewar, 829 A.2d 1207
(Pa. Super. 2003), appeal denied, 839 A.2d 352 (Pa. 2003). If
the age element can be established beyond a reasonable doubt by
the trier of fact’s observance of the alleged minor, then it logically
follows that a law enforcement officer with relevant training and
experience can reasonably find the subject of a sexually explicit
video to be a minor for merely probable cause purposes.

Therefore, the evidence obtained by [c]ourt [o]rder dated
July 31, 2013 will not be suppressed.

PTO1 at 7-8 (citation omitted).

We agree with the trial court’s analysis. Appellant’s reliance on the

Ashcroft decision is misplaced, as that case did not involve the Fourth

Amendment’s probable cause standard. Ashcroft concerned the question of

whether a conviction, based on the possession or dissemination of virtual child

pornography, could stand in light of the First Amendment. It did not involve

whether a warrant or other court order could issue on the basis of an officer’s

perception, grounded in his training and experience, that a particular image

or video depicts real child pornography. Accordingly, we conclude that

Appellant’s first suppression claim lacks merit.

Next, Appellant argues that in seeking a court order to obtain his identity

from Comcast, Corporal Goodyear did not comply with the mandates of the

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Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et.

seq. Appellant’s argument, in its entirety, is as follows:

[Appellant] submits Cpl. Goodyear did not comply with the
provisions of 18 Pa.[]C.S.[] Sections 5743(a)(1)(2),
(b)(1)(i)(ii)(A)(B), (2)(i) and (ii), (c)(1), (2)(i)(ii)(iii)(iv), (3)(d)
and (e). [Appellant] submits Cpl. Goodyear failed to show there
were specific and articulable facts showing there were reasonable
grounds to believe that the contents of a wire or electronic
communication, or the records or the other information sought
were relevant and material to an ongoing criminal investigation
and the court issuing the court order requiring Comcast to disclose
subscriber information to Cpl. Goodyear failed to make an
independent determination as to whether there was a sufficient
legal basis to issue the aforementioned court order.

Appellant’s Brief at 39-40.

Appellant does not provide this Court with any significant analysis of this

multipart claim beyond what is reproduced above, where he alleges no less

than eight separate violations of Section 5743. Indeed, some of these sub-

claims are clearly baseless on their face as, for instance, subsection (c)(1)

was deleted from the Criminal Code in 2008. Other portions of Appellant’s

argument are simply nonsensical in the circumstances of this case.

Subsection (c)(2) requires a “provider of electronic communication service or

remote computing service” to “disclose a record or other information

pertaining to a subscriber to or customer of the service” if the investigative or

law enforcement officer:

(i) uses an administrative subpoena authorized by a statute or a
grand jury subpoena;

(ii) obtains a warrant issued under the Pennsylvania Rules of
Criminal Procedure;

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(iii) obtains a court order for the disclosure under subsection (d);
or

(iv) has the consent of the subscriber or customer to the
disclosure.

18 Pa.C.S. § 5743(c)(2). Here, there is no dispute that Corporal Goodyear

obtained a court order pursuant to subsection (d). See Appellant’s Brief at

37 (stating as fact that “[o]n July 31, 2013, a court order was prepared and

served on Comcast by Cpl. Goodyear for subscriber information regarding the

aforementioned IP address”)

The only conceivable violation of Section 5743 that occurred here is

whether that order was properly issued pursuant to subsection (d), which

provides as follows:

(d) Requirements for court order.--A court order for disclosure
under subsection (b) or (c) shall be issued only if the investigative
or law enforcement officer shows that there are specific and
articulable facts showing that there are reasonable grounds to
believe that the contents of a wire or electronic communication,
or the records or other information sought, are relevant and
material to an ongoing criminal investigation. A court issuing an
order pursuant to this section, on a motion made promptly by the
service provider, may quash or modify the order if the information
or records requested are unusually voluminous in nature or
compliance with the order would otherwise cause an undue burden
on the provider.

18 Pa.C.S. § 5743(d) (emphasis added). Section 5743(d) expresses a

standard akin to probable cause.

Here, Corporal Goodyear was engaged into an ongoing investigation into

the possession and distribution of child pornography when he sought the court

order to reveal Appellant’s association with the IP address under investigation.

N.T. Suppression, 12/10/15, at 13. Using specialized software, Corporal

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Goodyear searched for child pornography among users of the file-sharing

platform, BitTorrent. Id. at 13-14. As Corporal Goodyear described it,

in this particular case, the client software which was being used
by [Appellant] actually connected to us, requesting files from us
which depict child pornography. And what ended up happening in
this particular software, we essentially sa[id], “Hey, you know
what? Yeah, we’ve got the files, and we’re going to share them,”
even though we don’t, “But you know what? What do you have?
You know, let me have what you have. You’ve got to give to get.”
So he then – his software connected with ours, provide the
downloads which we actually ended up getting, and an
investigation stemmed from there.

Id. at 16.

The video received from Appellant’s account was described by Corporal

Goodyear as portraying a “prepubescent girl” dancing and then undressing

until “she is completely nude.” Id. at 21. The girl continues to dance while

“her breast, genital, and buttocks area are clearly visible at various points.”

Id. Corporal Goodyear classified the video as child pornography based on his

training and experience. Id. Based on these observations, he sought a court

order pursuant to Section 5743(d) to obtain Appellant’s name based on his

assigned IP address.

We conclude that Corporal Goodyear articulated facts that were

sufficiently specific to establish that the contents of the video were relevant

to his criminal investigation into child pornography. Moreover, we ascertain

no other error pursuant to Section 5743 in the trial court’s order denying

suppression of the evidence of Appellant’s identity seized pursuant to the July

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31, 2013 court order. Accordingly, Appellant’s suppression claims regarding

that order lacks merit.

Next, Appellant contends that the trial court erred by failing to grant

suppression of the fruits of the January 2, 2014, and January 3, 2014,

warrants to search Appellant’s residence and person, respectively. Notably,

the first aspect of Appellant’s argument regarding those warrants hinges on

the validity of his Ashcroft argument, supra, that the video Corporal

Goodyear viewed “simply showed circumstances totally consistent with legal

activities….” Appellant’s Brief at 42. As we have already rejected that claim,

all contingent claims are likewise meritless.

Appellant also asserts, however, that these warrants were invalid due

to staleness, given that Corporal Goodyear discovered the child pornography

video sent from Appellant’s computer more than six months before Detective

Moran sought the at-issue search warrants.

In order for the issuance of a search warrant to be constitutionally
valid, the issuing officer must reach the conclusion that probable
cause exists at the time he issues the warrant. Such a decision
may not be made arbitrarily and must be based on facts which are
closely related in time to the date the warrant is issued.

Commonwealth v. Shaw, 281 A.2d 897, 899 (Pa. 1971) (emphasis added).

Appellant argues that the evidence of criminality discovered by Corporal

Goodyear became stale because “the items sought to be seized could easily

be disposed of and there was no indication in the warrants that the alleged

illegal activity had occurred on any date other than June 30, 2013.”

Appellant’s Brief at 44. He further asserts that Detective Moran “did not

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provide sufficient information … to establish the alleged criminal acidity was

likely to have continued up to the time of the issuance and execution of the

search warrants.” Id.

Appellant’s argument, while potentially relevant to many other types of

crime, is nevertheless oblivious to the nature of the evidence at issue in a

modern investigation into child pornography. Adopting the view of the Third

Circuit, this Court has stated: “Age alone … does not determine staleness. The

determination of probable cause is not merely an exercise in counting the days

or even months between the facts relied on and the issuance of the warrant.

Rather, we must also examine the nature of the crime and the type of

evidence.” Commonwealth v. Gomolekoff, 910 A.2d 710, 713 (Pa. Super.

2006) (quoting United States v. Harvey, 2 F.3d 1318, 1322 (3rd Cir. 1993))

(quotation marks omitted).

In Gomolekoff, police in Wichita, Kansas obtained a search warrant

based on the discovery of child pornography in multiple emails in November

of 2003, thereby discovering evidence that Gomolekoff, a resident of

Pennsylvania, was one of the recipients. That information was not forwarded

to police in Pennsylvania until June of 2004. In August of 2004, police

obtained a search warrant for Gomolekoff’s home based on that information,

where they discovered child pornography on four of his computers.

Gomolekoff challenged the August 2004 warrant on staleness grounds,

but the trial court denied his suppression motion. On appeal, this Court,

relying on Harvey and similar federal cases, rejected Gomolekoff’s argument

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that the 9-month gap rendered stale the evidence discovered in November of

2003, based on two factors unique to child pornography cases. We

recognized that “pedophiles tend to keep any child pornography for long

periods of time[,]” and that “even if the child pornography in question had

been deleted …[,] any trained forensic examiner could retrieve the image from

[the d]efendant’s computer.” Gomolekoff, 910 A.2d at 714 (citation

omitted).

Similarly, here, the 6-month gap between the initial discovery of the

evidence of Appellant’s possession of child pornography and the issuance of

warrants to search Appellant’s residence must be weighed against the nature

of the crimes at issue and the strong likelihood that even deleted evidence

could still be recovered from Appellant’s computer equipment. Indeed, the

delay in the instant matter was substantially shorter than that involved in

Gomolekoff. Furthermore, despite the fact that the trial court explicitly

denied his staleness claim based on Gomolekoff, see PTO1 at 9-10, Appellant

provides no relevant analysis in his brief of Gomolekoff’s implications in this

case. As such, we conclude that Appellant’s staleness claim is meritless.

Appellant next argues that the evidence discovered in his residence as

a result of the January 2, 2014 warrant did not provide a sufficient basis upon

which to secure the January 3, 2014 warrant to search his person. We

disagree. When searching Appellant’s residence, police discovered an empty

box for a Toshiba laptop. While serving the warrant, Detective Moran

contacted Appellant and discovered that he was out of town. Based on that

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evidence, Detective Moran sought the January 3rd warrant, opining in the

related affidavit of probable cause that “[d]ue to [Appellant’s] being out of

town and the probability and ease to transport a laptop computer it is believed

[Appellant] more likely than not[,] took that laptop with him for personal use

while out of town.” Affidavit of Probable Cause, 1/3/14, at 2. Appellant

provides no legal analysis as to why this was unreasonable, assuming the

validity of the January 2, 2014 warrant, other than to suggest that police had

already discovered enough evidence to proceed with a prosecution. See

Appellant’s Brief at 46. Appellant’s claim is also unsupported by any relevant

legal analysis. Accordingly, we deem it meritless.

In Appellant’s final suppression-related claim, he argues that the

January 3, 2014 warrant was overbroad and lacked specificity.

“It is a fundamental rule of law that a warrant must name or
describe with particularity the property to be seized and the
person or place to be searched.... In addition, the search may not
go beyond the scope of the warrant.” Commonwealth v.
Eichelberger, 352 Pa. Super. 507, 513, 508 A.2d 589, 592
(1986), citing Pennsylvania Constitution, Article I, Section 8;
Pa.R.Crim.P. 2005(b) and (c); and Commonwealth v. Searles,
450 Pa. 384, 302 A.2d 335 (1973). See also: Commonwealth
v. Reese, 520 Pa. 29, 32, 549 A.2d 909, 910 (1988), cert. denied,
497 U.S. 1003, 110 S.Ct. 3237, 111 L.Ed.2d 748 (1990);
Commonwealth v. Bleigh, 402 Pa. Super. 169, 174–176, 586
A.2d 450, 453 (1991).

The particularity requirement prohibits a warrant that is not
particular enough and a warrant that is overbroad. These
are two separate, though related, issues. A warrant
unconstitutional for its lack of particularity authorizes a
search in terms so ambiguous as to allow the executing
officers to pick and choose among an individual’s
possessions to find which items to seize. This will result in

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the general “rummaging” banned by the fourth amendment.
See Marron v. United States, 275 U.S. 192, 195, 48 S.Ct.
74, 75, 72 L.Ed. 231 (1927). A warrant unconstitutional for
its overbreadth authorizes in clear or specific terms the
seizure of an entire set of items, or documents, many of
which will prove unrelated to the crime under investigation.
The officers executing such a warrant will not rummage, but
will “cart away all documents.” Application of Lafayette
Academy, 610 F.2d 1, 3 (1st Cir. 1979). An overbroad
warrant is unconstitutional because it authorizes a general
search and seizure.

Commonwealth v. Santner, 308 Pa. Super. 67, 69–70 n. 2, 454
A.2d 24, 25 n. 2 (1982), cert. denied, 468 U.S. 1217, 104 S.Ct.
3585, 82 L.Ed.2d 883 (1984).

Commonwealth v. Bagley, 596 A.2d 811, 814 (Pa. Super. 1991).

In the warrant at issue, Detective Moran sought to seize:

All computer hardware, including, but not limited to, any
equipment which can collect, analyze, create, display, convert,
store, conceal, or transmit electronic, magnetic, optical or similar
computer impulses or data. Any computer processing units,
internal and peripheral storage devices, (such as fixed disks,
external hard disks, floppy disk drives, and diskettes, tape drives,
tapes, and optical storage devices), peripheral input/output
devices such as keyboards, printers, scanners, plotters, video
display monitors, … and optical readers), and related
communication devices such as modems, cables, and connections,
recording equipment, as well as any devices, mechanisms, or
parts that can be used to restrict access to computer hardware.

All computer software, including, but not limited to, any digital
information interpreted by a computer and any of its related
components to direct the way they work. Any software that is
stored in electronic, magnetic, optical, or other digital form.
Programs and/or applications that run operating systems, word
porcessing, graphics or spread sheet programs and utilities,
compilers and communications programs.

All computer related documentations consisting of written,
recorded, printed, or electronically stored material which explains
or illustrates how to configure or use computer hardware,
software, or other related items.

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All computer passwords and other data security devices designed
to restrict access or hide computer software, documentation or
data. Any data security devices that may consist of hardware,
software, or other programming code.

All documentation of any nature, printed (images/depictions of
child pornography), or hand written which may relate to
passwords, accomplices or co-conspirators. Any documents that
show ownership and/or cohabitation of who resides at the place
to be searched and showing ownership of computer hardware,
software.

Internet Service accounts, phone accounts/records, web sites and
screen names.

All child pornographic images, pictures, videos, or depictions,
including those digitally stored.

Any and all videotapes, digital cameras, video cameras, recording
tapes, hand held devices (including cell phones), and game
consules that store data.

Application for Search Warrant, 1/3/14, at 1-2.

Appellant notes, correctly, that this is the same language used in the

January 2, 2014 warrant. Appellant’s Brief at 51. Appellant argues that this

was overbroad given that Detective Moran was specifically seeking the missing

Toshiba laptop and Appellant’s iPhone. Yet again, Appellant’s argument,

although verbose, provides no analysis of existing case law to assist this Court

in our examination of this issue, beyond citing some of the relevant, yet

boilerplate recitations of the relevant standards. Nor does Appellant directly

address the reasoning of the trial court, which stated:
[Appellant]’s assertion that Detective Moran should only have
been searching for a Toshiba laptop fails to account for the very
real possibility that a person may own more than one laptop or
computing device, and may not still have the original packaging
that could alert police to its existence. Moreover, Detective
Moran’s training and experience has taught him that child

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pornography can be stored on many types of devices, all of which
are fairly easily transportable.

It was not unreasonable for Detective Moran to conclude, based
on the evidence already obtained, as well as the facts of the
investigation, that [Appellant] could possess on his person various
electronic devices as described in the warrant. Detective Moran
could not be perfectly certain what items [Appellant] possessed
on his person, and therefore, the [c]ourt finds the general
descriptions of the items to be searched for was sufficiently
particular and need not be limited to a Toshiba laptop.

Pretrial Opinion (“PTO2”), 6/27/16, at 1-2.

We agree with the trial court. The purpose of the investigation was to

uncover evidence of child pornography, for which probable cause was already

established; it was not a theft investigation seeking a specific stolen item

believed to be in Appellant’s possession. Therefore, it was reasonable for

Detective Moran to identify in the warrant various types of electronic devices

that might be used to produce, store, or copy child pornography, as well as

devices that could contain an electronic ‘paper trail’ of such activity. The

comprehensiveness of the list of items is a reflection of the proliferation of

technology in our society rather than the over breadth of the warrant, as each

of the devices listed had the potential to reveal evidence of Appellant’s

possession or distribution of child pornography. As such, we ascertain no

abuse of discretion in the trial court’s denial of Appellant’s suppression claim

related to the January 3, 2014 warrant.

Next, Appellant argues that the trial court erred by failing to disclose the

trial judge’s personal relationship with the prosecutor prior to Appellant’s non-

jury trial, and for failing to recuse himself based on that relationship. In his

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brief, Appellant details extensive averments concerning the relationship

between D.A. Miller and Judge Grine. Appellant’s Brief at Appendix C, 22-38.

As noted above, although the trial court initially scheduled a hearing to

address this matter, that hearing was never held. As such, there is no official

record in this case sufficient to permit this Court to address Appellant’s

disclosure and recusal claims, and there is no explanation offered by the trial

court in a Rule 1925(a) statement or other opinion as to why such claims were

allowed to go unaddressed until they were denied by operation of law.

Tellingly, in its brief, the Commonwealth does not present any argument

in opposition to Appellant’s disclosure and recusal claims. Indeed, in response

to these claims, the Commonwealth cryptically states that an “impartial

tribunal is fundamental to our judicial system,” and then proceeds to cite

several cases in support of that statement. Commonwealth’s Brief at 14.

Thus, we ascertain from the Commonwealth’s brief that, at a minimum, it

believes this issue warrants further investigation.

We have already determined that resentencing is required as we are

reversing Appellant’s conviction on one count of dissemination. We conclude

that the most prudent course of action is, therefore, to allow Appellant to

develop his disclosure/recusal claim before the trial court in the first instance,

in a post-sentence motion following resentencing. Assuming Appellant

pursues that course of action, we direct the trial court to hold a hearing at

which evidence may be presented regarding the appearance of bias and/or

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partiality stemming from Judge Grine’s relationship with D.A. Miller, and to

determine if the evidence produced warrants an order granting a new trial.

Weight of the Evidence

In issues II and IV, supra, Appellant challenges the weight of the

evidence supporting his identity as the perpetrator. We apply the following

standard of review to a challenge that a verdict is against the weight of the

evidence:

An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:

Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.

This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:

The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the

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judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

Instantly, the trial court’s failure to file an opinion addressing Appellant’s

weight-of-the-evidence claim impedes our review of that claim, especially in

light of the unique circumstances of this case, where the judge who denied

Appellant’s weight-of-the-evidence claim was not the judge who tried the case

and sat as factfinder. Of particular concern under this standard is whether

the credibility determinations that did occur at trial were the result of partiality

or bias, in which case the decision to grant or deny Appellant’s weight-of-the-

evidence claim could be likewise affected. Accordingly, we decline to address

Appellant’s weight claims until further proceedings are held in the lower court

and, in the event that a new trial is not ordered pursuant to Appellant’s

disclosure/recusal claim, until a trial court opinion addressing Appellant’s

weight-of-the-evidence claims is filed. If a new trial is granted, Appellant’s

weight-of-the-evidence will be rendered moot by that remedy.

Bail Pending Appeal

Appellant claims that the trial court abused its discretion by denying his

motion for bail pending his appeal. He argues, essentially, that he should

have been granted bail pending his appeal given, ostensibly, a high likelihood

of success with respect to his claim for a new trial based on Judge Grine’s

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failure to disclose his relationship with D.A. Miller and, thereafter, his failure

to recuse given that relationship. Appellant’s Brief at 71.

Yet again, Appellant provides no relevant analysis of existing case law,

or even the pertinent statute, to support his claim. Pa.R.Crim.P. 521(B)(1)

states that a defendant is entitled to “the same right to bail as before verdict”

if the sentence imposed is less than 2 years. Appellant does not fall into this

category, as the trial court sentenced him to 8-16 years’ incarceration.

Appellant’s bail pending appeal is instead governed by Rule 521(B)(2), which

directs that, for sentences of 2 years or more, “the defendant shall not have

the same right to bail as before verdict, but bail may be allowed in the

discretion of the judge.” However, to this Court’s knowledge, there are no

statutory or rule-based factors that govern such discretion, including

consideration of Appellant’s likelihood of success, which is the basis of

Appellant’s claim.4 Accordingly, we ascertain no abuse of discretion in this

instance.

Finally, Appellant’s tenth claim is rendered moot given the relief

afforded above.

____________________________________________

4 In any event, we are not at all convinced that Appellant’s likelihood of
success in the most general sense would itself justify bail pending appeal in
the context of Rule 521(B)(2), such as the likelihood of resentencing or the
granting of a new trial, in the absence of some countervailing consideration of
his likelihood of a not-guilty verdict at such a trial. In any event, should
Appellant be granted a new trial below, he will be permitted to seek bail like
any other pretrial criminal defendant.

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Conviction reversed in part, affirmed in part. Judgment of sentence

vacated. Case remanded for resentencing and further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/20/2018

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