J. S23040/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID HARRIS, : No. 2881 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence Entered October 26, 2017,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0007165-2016
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2020
David Harris appeals from the October 26, 2017 aggregate judgment of
sentence of one to five years’ imprisonment, followed by seven years’
probation, imposed after the trial court found him guilty of 20 counts of sexual
abuse of children — child pornography and one count of criminal use of
communication facility.1 After careful review, we affirm the judgment of
sentence.
The trial court set forth the relevant facts of this case, as gleaned from
the affidavit of probable cause and its May 31, 2017 findings of fact, as follows:
On May 16, 2016, [appellant] applied for a United
States Passport for [T.B.B., a then-sixteen year-old
male]. The Travel Plans section of the application
completed by [appellant] stated [T.B.B.] would be
spending a month in France[.]
1 18 Pa.C.S.A. §§ 6312(d) and 7512(a), respectively.
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. . . [Appellant] provided a document “Appointment of
Custodian and Legal Guaradian [sic]” (ACLG
document) dated August 25, 2012, to show he had
legal custody of [T.B.B.] The ACLG document had
several misspellings including [T.B.B.’s] first name.
The document allegedly contains signatures of
[T.B.B.’s] parents.
[Appellant] has 9 criminal arrests including an arrest
in Abington Township on January 22, 2000 for []
corruption of minors, [] unlawful contact with minors,
[and] criminal solicitation[, 18 Pa.C.S.A. §§ 6301,
6318, and 902, respectively]. [Appellant] later [pled]
guilty to the corruption of minors and criminal
solicitation [charges].
The Abington Township Police report regarding the
January 22, 2000 arrest states “[appellant] was
arrested after an investigation revealed he had
solicited (attempted) a 12 year old boy for sex. The
solicitation occurred via the Internet. The victim
provided a detailed statement implicating [appellant].
Both the victim’s and [appellant’s] statement said
they met over the Internet[.”]
. . . [T.B.B.] advised he resides alone with [appellant]
and has done so since August of 2012. [T.B.B.] stated
that he is living with [appellant] so he can get a better
education. [T.B.B.] stated that he was doing an
exchange student program and was visiting France
and then going to come back to the United States with
a student from France. [T.B.B.] was asked how
[appellant] had found the exchange program.
[T.B.B.] said it was not through the school, or church
it was something [appellant] had found online.
[T.B.B.] described [appellant’s] computer as a
desktop computer located in a room off of the kitchen
in their home located at 544 Lawn Avenue[,]
Sellersville, PA 18960. [T.B.B.] advised he is planning
on bring [sic] back a 15 year old boy who [T.B.B.] has
been in communication with over Skype.
....
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On June 5[,] 2016, Special Agent Rosemarie Vesci of
the Federal Bureau of Investigation [(“FBI”)]
expressed her concerns about possible child sexual
abuse and human trafficking in adolescent boys that
may be occurring in Sellersville, Bucks County, to
Detective [David] Kemmerer of the Bucks County
District Attorney’s Office.
On June 6[,] 2016, a search warrant was issued by
Magisterial District Judge Charles Baum to search a
desktop computer and other items, the computer
being located in a room off of the kitchen in the
residence of [appellant].
The execution of that search warrant yielded the
seizure of four items: Number one or letter A, a
Network Systems desktop computer; B, a USB flash
drive; C, a Lexar 16 GB flash drive; and, D, a Dell
Latitude laptop computer.
Bucks County Detectives -- Bucks County Detective
[Jack] Slattery interviewed [appellant] on June 6,
2016, during an -- during the time of the execution of
the search warrant, at which time [appellant] made
certain statements which the Commonwealth wishes
to introduce into evidence at trial in this matter.
Forensic analysis of items seized pursuant to the
search warrant was conducted resulting in the
issuance of an arrest warrant for [appellant].
Trial court opinion, 9/30/19 at 1-2, 3 (numeration, extraneous capitalization,
citation to record, and date of birth omitted; ellipses and some bracketed
information in original).
A search of appellant’s computers and flash drives yielded 197 images
and five videos depicting child pornography involving minor male children, as
well as evidence of appellant’s participation in the aforementioned exchange
program on behalf of [T.B.B.] (Notes of testimony, 5/31/17 at 8-9.) Appellant
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was subsequently arrested and charged with 20 counts of sexual abuse of
children — child pornography and one count of criminal use of communication
facility on September 23, 2016. On December 12, 2016, appellant filed an
omnibus pretrial motion to suppress. On February 13 and 15, 2017,
appellant filed amended suppression motions, arguing that the search of his
computers and accompanying electronic devices was unlawful because the
search warrant lacked probable cause; challenging the forensic search
methodology utilized by the FBI; and alleging that a second warrant was
necessary to search the specific files on his computers and flash drives. (See
“Amended Omnibus Pre-Trial Motion,” 2/13/17 at ¶ 3; “Second Amended
Omnibus Pre-Trial Motion,” 2/15/17 at ¶ 1.) On May 30, 2017, the
suppression court held a hearing on appellant’s suppression motions.
Following the hearing, the suppression court denied appellant’s motions on
May 31, 2017. That same day, appellant waived his right to a jury trial and
proceeded to a stipulated bench trial. As noted, the trial court found appellant
guilty on all counts and sentenced him to an aggregate term of one to
five years’ imprisonment, followed by seven years’ probation, on October 26,
2017. Appellant filed a timely post-sentence motion that was ultimately
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denied by operation of law, pursuant to Pa.R.Crim.P. 720(B)(3), on
September 20, 2018. This appeal followed on October 1, 2018.2
On October 2, 2018, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) statement on
October 9, 2018, and the trial court filed its Rule 1925(a) opinion on
September 30, 2019.
Although appellant sets forth seven interrelated issues in his “Statement
of Questions Involved” (see appellant’s brief at 3-4), he has compressed his
argument section into four primary claims for our review:
I. The affidavit of probable cause was devoid of
sufficient information to support the issuance of
a search warrant.
II. The aforementioned search warrant was
deficient because it relied on stale information.
III. Even if there was probable cause to believe that
a search warrant should issue for evidence of
child trafficking, there was nothing in the
warrant that alluded to the possession of child
pornography and consequently the Government
exceeded the scope of the search warrant when
it sent the computer to the FBI for forensic
analysis.
2Due to an administrative breakdown in trial court operations, we decline to
quash appellant’s appeal as untimely and will review the appeal on its merits.
This court has held that an administrative breakdown of the trial court occurs
when, as here, the clerk of courts for the trial court fails to enter an order
deeming post-sentence motions denied by operation of law pursuant to
Pa.R.Crim.P. 720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d
493, 498-499 (Pa.Super. 2007) (citation omitted), appeal denied, 960 A.2d
838 (Pa. 2008).
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IV. The learned trial court erred when it concluded
that the search warrant was valid despite the
fact that material exculpatory information was
withheld from the Magistrate by the affiant.
Id. at 8, 16, 18, 29 (full capitalization omitted).
[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, [the appellate court is] bound by [those]
findings and may reverse only if the court’s legal
conclusions are erroneous.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).
Prior to any discussion of the merits of appellant’s claims, we must first
determine whether the record is sufficiently complete to enable our review.
We note that to the extent appellant’s issues require consideration of the
testimony presented during the May 30, 2017 suppression hearing, we find
that these claims are waived because appellant failed to ensure that the notes
of testimony from this hearing were made part of the certified record. This
court has long recognized that “[w]hen the appellant . . . fails to conform to
the requirements of [Pa.R.A.P.] 1911 [relating to transcript requests], any
claims that cannot be resolved in the absence of the necessary transcript or
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transcripts must be deemed waived for the purpose of appellate review.”
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (citation
omitted), appeal denied, 916 A.2d 632 (Pa. 2007). It is the appellant’s
responsibility to make certain that the certified record contains all items
necessary to ensure that this court is able to review his claims. See
Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.Super. 2008) (en banc).
This court has stated:
It is black letter law in this jurisdiction that an
appellate court cannot consider anything which is not
part of the record in the case. It is also well-settled
in this jurisdiction that it is Appellant’s responsibility
to supply this Court with a complete record for
purposes of review. A failure by appellant to insure
that the original record certified for appeal contains
sufficient information to conduct a proper review
constitutes waiver of the issue sought to be examined.
Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa.Super. 2007)
(citations and internal quotation marks omitted), appeal denied, 940 A.2d
363 (Pa. 2008).
Here, the record contains a transcript of the May 31, 2017 bench trial,
during which the parties agreed to incorporate the testimony from the May 30,
2017 suppression hearing into the record, but said testimony was never
transcribed. (See notes of testimony, 5/31/17 at 6-7.) Moreover, although
a May 31, 2017 transcript of the trial court’s “findings of fact and conclusions
of law” is included in the certified record, this transcript does not support
appellant’s claims that go beyond his challenges to the four corners of the
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affidavit of probable cause and the search warrant. Based on the foregoing,
we find that appellant has waived his claims that rely on information beyond
the four corners of the affidavit of probable cause and the search warrant
itself, including: (a) his challenge to the forensic methodology utilized by the
FBI to extract child pornography from his computer; (b) his averment that a
second search warrant was necessary to view the child pornography on his
computers and flash drives; and (c) his contention that the Commonwealth
omitted material facts from the affidavit of probable cause to mislead the
Magistrate. (See generally appellant’s brief at 21-31; Issues III and IV.)
We now turn to appellant’s remaining claims, which relate to the
sufficiency of the affidavit of probable cause, whether the search warrant
relied upon stale information, and whether it was overbroad. (See id. at 8-20;
Issues I-III.) Following a thorough review of the record, including the briefs
of the parties, the applicable law, and the well-reasoned opinion of the trial
court, it is our determination that appellant’s remaining claims warrant no
relief. The trial court comprehensively discussed appellant’s challenges to the
four corners of the affidavit of probable cause and the search warrant and
concluded that they were without merit. We find that the trial court’s
conclusions are supported by competent evidence and are clearly free of legal
error. Specifically, we agree with the trial court that the search warrant
described and identified the items to be seized with specificity and that “[t]he
affidavit clearly states probable cause to support the search for [evidence of
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appellant’s ‘unlawful contact with minors, including electronic communications
with minors’].” (Trial court opinion, 9/30/19 at 8-9.) Likewise, we agree with
the trial court that there is no arguable merit to appellant’s claim that the
information contained in the affidavit of probable cause was stale, as the lapse
of time of appellant’s past criminal history was but one factor that the trial
court relied on in conducting its totality of the circumstances analysis, and did
not make the other current information the court relied on stale. (Id. at 9-10.)
Lastly, we agree with the trial court that appellant’s claim that the search of
his computers was overbroad and exceeded the scope of the warrant fails.
(Id. at 10.) As the trial court properly concluded in its opinion,
if in searching for the evidence originally sought,
evidence of other criminal acts is identified, then that
evidence is permitted to be seized. The search was
designed to find evidence of illegal contact with a
minor. The evidence seized demonstrates illegal
contact with a minor. The validity of the search is not
compromised merely because there was evidence of
child pornography instead of different evidence of
illegal contact with a minor. Once a determination is
made that there is probable cause to search
[a]ppellant’s computer for evidence of unlawful
contact with minors, the subsequent identification of
child pornography during the search will be valid and
proper, and any evidence acquired therefrom may be
admissible at trial.
Id. at 10-11 (citations omitted).
Accordingly, we adopt the trial court’s comprehensive September 30,
2019 opinion as our own for purposes of appellate review of appellant’s
remaining claims.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/20
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